Much litigation is driven by the search for answers, writes chairman of the Bar Council SC Turlough O'Donnell.
THINGS GO wrong in the field of healthcare here like everywhere else and litigation might follow, but the first mistake is to assume that litigation is inevitable.
No one may be at fault - things can go wrong without that being anyone's fault, or there may be fault but the injured party may not want to sue; not everyone wants to sue. Sometimes people just want answers. So when something goes wrong, deal with it in the appropriate way - focus on the problem itself, not on the potential for litigation.
Litigation, or the fear of litigation, should never be the primary concern, and it is frankly offensive to suggest it ever would be. The primary concern is for the health and wellbeing of the patient.
The law of negligence has had a most pervasive effect on the provision of healthcare and it is sometimes thought to impose an intolerable burden. But we should understand, by dialogue between lawyers and all sections of society, that the law on negligence is not meant to impose impossible burdens. The obligation is to take reasonable care not to guarantee safety.
This law, which has transformed relationships and placed obligations of carefulness on us all, arose from a well-intentioned concern for others - we would not want to live in a society where there was no obligation to care for others.
Undoubtedly, it has led to a raising of standards, but the results are not all good. When teachers stop children playing in the schoolyard, farmers no longer let people walk their fields or fish their lakes or rivers for fear of being sued, and doctors start to practise defensive medicine, we know something is wrong.
Our legal system is adversarial. Lawyers are engaged by both sides to a dispute and they fight the matter out in court. We use the language of war: the court battle, the legal skirmish, attacks on credit etc. The theory is that if both sides are fairly equally matched and resourced the truth will emerge.
The system works well. I would not like to see any other system here, but it is not without its faults. The allegation that someone has failed in their duty of care to their "neighbour" is an allegation that someone is at fault. When the fault-finding exercise is combined with the adversarial process you can get a deeply negative experience.
The truth emerges and justice is done but it is a bruising, negative and sometimes quite destructive process. We must consider that there might sometimes be a better way - an alternative method of dispute resolution such as mediation.
Mediation involves the parties meeting in a situation where confidence is guaranteed. Plain speaking is encouraged. The process will not prejudice a trial if one has to happen.
People get to say what concerns them. Sometimes an explanation or an apology is very important - more important than compensation. Sometimes there has to be a release of repressed emotion for closure. Sometimes wide misunderstandings have occurred and need to be dispelled.
Believe it or not, much litigation is driven by the search for answers - for truth and justice. Many people do not actually wish to sue the doctor or nurse or hospital - and are uneasy with the destructiveness, sometimes the brutality - of litigation, but feel it is the only way to get the truth.
There are other ways of finding the truth - like mediation - and health workers, lawyers, insurers, and administrators need to know this. But here is an even more radical idea: what about telling the truth straight away - the first time we are asked and well before any litigation is considered?
If something goes wrong, people want answers. We are told that answers cannot be given, that they might be admissions of liability, that they might collapse the insurance cover. This might be true, but what happens when we gag people in this way?
The first thing that happens is that the relationship of trust becomes one of defensiveness and suspicion. Either nothing is said or a half-baked explanation is offered, the truth no doubt but which satisfies no one.
In fact this enrages people and drives them to litigation. People start to think they are being lied to. We must, again through a dialogue with lawyers, doctors, insurers develop systems for giving clear and full answers to questions at the earliest possible stage.
Above all, we need to encourage a genuine dialogue: doctors and all involved in healthcare, with lawyers, insurers, and everyone in society who cares. Let us celebrate all that is positive and the magnificent contribution of those involved in the care to the sick. Let us try to improve the system and escape from all the negativity. Now!
• Turlough O'Donnell is chairman of the Bar Council