Do I Have a Legal Right to be Notified of a Medical Error?

Medical errors can have devastating consequences for the patient and their family. When a medical error occurs it is natural for the patient and their family to want to know why the injury occurred, how it occurred and to seek reassurances from their medical practitioner(s) that lessons have been learned and that the same error will not happen again. 

Due to a fear of litigation, the medical profession has historically forged a culture of secrecy in respect of medical errors. However, this closed off approach has had the opposite effect with many patients turning to medical negligence litigation for answers. 

With the passage of time there has been a move away from the “doctor knows best” mentality towards a patient-centered approach and an acceptance that patients are entitled to open disclosure when errors are made. 

Voluntary Open Disclosure

In 2018, a legal framework supporting open disclosure was enacted (Part 4 of the Civil Liability Amendment Act 2017). Unfortunately, the framework provided for voluntary open disclosure, meaning that the decision to make an open disclosure was entirely at the discretion of the healthcare practitioner. Further, if an open disclosure was made, the admission could not be used in medical negligence proceedings or constitute an admission of liability/fault. Unsurprisingly this legal framework was met with a lot of criticism as it did not have any practical effect and certainly would not benefit the injured patient who still ultimately did not have any legal right to open disclosure. 

Mandatory Open Disclosure

In May 2023, the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023 was enacted. The purpose of the Act is to promote transparency within the healthcare sphere and improve patient outcomes. 

The Act provides for mandatory open disclosure in respect of “notifiable incidents”. 

The Act defines notifiable incidents as being those associated with unanticipated death and incidents where a baby is considered for, requires or is referred for therapeutic hypothermia.

What Information Has to Be Provided?

Where a notifiable incident occurs there is an obligation to provide the patient and/or their family with all relevant information about the incident, its consequences and treatment or care provided to address consequences. An apology may also be forthcoming if the healthcare provider deems it appropriate to do so. 

Further, the healthcare practitioner must also report the notifiable incident to the relevant regulatory body. The purpose of this obligation is to ensure that the medical profession as a whole learns from the notifiable incident, thereby preventing similar medical errors occuring in the future.  

How Soon After the Medical Error is Made Does the Healthcare Provider Have to Make the Open Disclosure?  

The Act is quite vague in respect of a mandated timeframe and simply states “the health services provider shall make the open disclosure of that notifiable incident at a time when it considers to be appropriate…Having considered the appropriate time for making the open disclosure of the notifiable incident, the health services provider shall take all steps reasonably open to it to make the open disclosure as soon as practicable following that consideration”. 

Are There Any Repercussions if a Healthcare Provider Does Not Comply? 

There is a criminal sanction for non-compliance with a fine of up to €5,000. 

If an Admission of an Error Is Made, Can I Rely on This Admission in Court? 

Any information and/or apology provided by the healthcare provider does not constitute an admission of liability and cannot be relied upon in legal proceedings. 

Opinion on the New Legal Framework

The 2023 Act is of course to be applauded as a step in the right direction. However, there are significant shortcomings: 

  1. Only notifiable incidents are subject to mandatory disclosure. As can be seen above, the list of notifiable incidents is extremely limited. The Minister for Health is to conduct a review of the Act no later than 2 years from the date of its enactment (i.e. by May 2025). It is hoped that upon review the Minister shall extend the list of notifiable incidents necessitating mandatory disclosure. 
  2. The vague timeframe for the making of the admission is not patient centered and could be abused. 
  3. The fact that any admission made during the open disclosure process is protected from liability has to be criticised. Although the aim of the protection is clear-healthcare providers may be more open and transparent knowing that there are no repercussions from any admission. However, it is felt that the protection goes too far. A better balance could be struck by allowing the documentation and information in respect of the open disclosure be taken into account in any subsequent legal proceedings. 

Summary

Injured patients and their family members are only entitled to information in respect of medical errors made in very limited circumstances (death and a baby injured at birth who required therapeutic hypothermia). In cases outside of these, it is at the discretion of the healthcare provider whether they will disclose relevant information or not. 

If you or a family member have suffered a serious injury which you believe was as a result of negligent medical treatment, you may be entitled to bring a medical negligence claim. 

To speak with an experienced medical negligence solicitor who will listen with the utmost empathy, please contact Laura today.