INJURED and bereaved people need to be treated with dignity and compassion and get the answers they deserve when taking legitimate medical negligence cases.
That’s according to Cork barrister Doireann O’Mahony, who says some people will die waiting for their cases to be heard, when an apology, and not a pay-out, is often all they’re looking for.
Doirean felt compelled to level out what she saw as an uneven playing field in medical negligence litigation, and that’s what motivated her to write her ground-breaking textbook Medical Negligence and Childbirth in 2015.
And when lots of us were making banana bread during the first lockdown, she wrote a second edition, almost twice the length, with contributions from world-leading experts in obstetrics, gynaecology, neonatology and other related specialties.
The second edition includes a new chapter on Autism Spectrum Disorder which previously people didn’t think could ever be the result of negligence. It also deals with termination of pregnancy, while other common birth injuries are explained, both those to the mother such as perineal tear injuries, and to the child such as cerebral palsy.
Originally, Doireann felt her book would be for lawyers dealing with complex birth injury cases, but she sees now it’s for everyone who “will benefit from it”;
“I am conscious of the immense responsibility I hold in my role acting for plaintiffs, and the duty to provide a service for those who are vulnerable in society.
“These people are usually up against the State — the Health Service Executive is indemnified by the State Claims Agency — which has unlimited resources.
“It takes an enormous amount of courage for somebody to share their story with their solicitor and barrister, and in court to endure cross-examination by the lawyers for the other side, knowing that their most personal and intimate details will be aired.
“But these are brave people and when they take the stand they are doing so for the benefit of the people who will come after them, so that there will be accountability, and a culture of learning which will improve patient safety for generations to come.”
Doireann’s father is the well known Senior Counsel Dr John O’Mahony, who inspired her to take on her groundbreaking work. “Growing up, any time anyone around had a problem, the first thing they would do was ask him for advice because invariably he would know what to do, and he would just so easily make sense of everything.
“I wanted to be able to do that. I wanted to be the one people called on. I wanted to be the one who could offer help,” Doireann said.
Doireann feels that more needs to be done to ensure medical mistakes are analysed and learned from.
“Detailed feedback should be given to doctors involved in legal claims as to how practice could improve. If they remain unaware of their mistakes, the same mistakes will be repeated over and over.”
She also feels they should be included in the investigations or the subsequent compensations.
“Given that the doctors are not involved in the investigation of the incident, there is no opportunity for an apology. The persistent denial of error by their legal teams in turn deprives doctors of that opportunity.”
More emphasis being placed on mediation is something else she feels strongly about.
“It is clear that not enough is being done to try to settle actions early. Many with cases waiting to be heard remain worried for years about what will ultimately happen. Many become anxious, frustrated, disillusioned or even get cold feet. Some die waiting for their cases to be heard.”
Sadly, an apology is often the only thing motivating people to sue and yet it has to be dragged out of the defendant after a long, tortuous and distressing journey which only adds to the hardship already suffered. All too frequently an apology is only given on the eve of a trial, if at all.
“Even in cases where no large monetary compensation is involved, such as in a case where a baby has died, there is a reluctance to apologise because it conveys the impression of guilt, therefore the implication of fault.
“Leaving aside the major catastrophic injury claims where large sums of money are required to provide around the clock care for the remainder of a person’s life, and considering only cases of relatively low value, a timely apology would almost certainly obviate litigation.
“In my experience, money is not the chief motivator and in fact litigation is in reality a last resort for many.”
The pandemic didn’t impact Doireann’s work, and she was busier than ever in 2020.
“I considered the social isolation of quarantine the perfect opportunity to put any spare time I had to good use and get cracking on the second edition. I had lots of historic role models to look to for inspiration — Shakespeare produced some of his finest works during the bubonic plague, including King Lear and Macbeth, and Isaac Newton’s theory of gravity germinated during a lockdown too!”
She is missing the camaraderie of the Law Library and the excitement of being on her feet in court.
“We will get back to that one day, and in the meantime the show must go on.”
Personally, she’s also really missed her Reformer Pilates sessions.
“I’ve got a yoga mat rolled out on the floor in my home office though, gazing up at me constantly, meaning that I do at least some exercise every day. It’s so important right now, not least for our mental health.
“Between work and completing the book, there hasn’t been much time for me to master banana bread making or anything else during this pandemic, but I wouldn’t have it any other way!
“After all, it’s only work if there’s something else you’d rather be doing.”
Medical Negligence And Childbirth, second edition, is available to purchase from bloomsburyprofessional.com