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Healthcare Update in the US: Healthcare and Medical Law Developments in 2018 – What Next?

By Kevin Power | Mason Hayes & Curran

2018 has seen many developments in the healthcare sector including open disclosure on a statutory basis. None of us could have foreseen how open disclosure would become the focus of national debate and indeed controversy. As the CervicalCheck story unfolded, it was news to many that there was no provision for mandatory disclosure. This was followed by the Scally report and Judge Meenan’s report on an alternative system for dealing with claims arising from CervicalCheck.

We also finally saw the implementation of Periodic Payment Orders on a statutory footing. In addition, who could forget 25 May 2018 which heralded the commencement of the new GDPR regime. The manner in which sensitive personal data is processed in the healthcare sector came under scrutiny by the Data Protection Commissioner. This resulted in a report highlighting areas of concern and set out many recommendations. The Mediation Act 2017 also took effect this year providing for an alternative confidential means of resolving disputes, including sensitive clinical negligence claims.

Negligence – when does clinical become criminal ?
The case of paediatric registrar, Dr Bawa-Garba has rocked the medical and nursing professions, both in the UK and in Ireland. We look at Dr Bawa-Garba’s 2015 conviction and suspended sentence for gross negligence manslaughter and how a case like this would be handled in Ireland. The criminal sanction element of Dr. Bawa-Garba’s case was closely observed by clinicians in Ireland.

In August 2018, there was a further development when Dr. Bawa-Garba won her appeal to allow her practice medicine again in the future. The UK Court of Appeal set aside the decision of the Divisional Court which had directed that Dr. Bawa-Garba be erased from the Medical Register of the General Medical Council. The Court of Appeal restored the sanction of suspension for 12 months, as had been made initially by the Medical Practitioners Tribunal, subject to review.

Read more here

Identifying suicidal risk: what the courts say
In July 2018, the High Court judgment of Mr. Justice Hanna explored what the appropriate standard of care is when a psychiatric doctor examines a patient and assesses the risk of suicide. The case of AC v Health Service Executive and Dr. B [2018] IEHC 454 provides some interesting insight into the factors that were considered.

The background to this case concerned a woman who was admitted to the emergency department at University College Hospital, Galway following a drug overdose. She was discharged the following afternoon. She subsequently tragically took her own life. Her husband later brought proceedings alleging negligence against the HSE and the attending doctor for failing to identify the imminent risk of her committing suicide and wrongly discharging her.

The judgment handed down in this case should serve as a caution to psychiatric doctors treating patients who attend the emergency department with possible suicidal intent.

Read more about this case and the judgment here

Detention of vulnerable patients in hospital – How relevant are the patients’ best interests?
The recent judgment of the Court of Appeal in the case of A.C. v HSE [2018] IECA 217 may have a significant impact on the way that hospitals manage vulnerable patients in their care. The judgment has resulted in some welcome dialogue as to the current status of the law, although it may be appealed.

The judgment of the Court of Appeal in this case is recent, controversial and may or may not be looked at again by the Supreme Court on appeal. However, at present, implementing any change in how vulnerable patients are treated would be ill-advised given that the Medical Council’s Guidelines relating to the doctrine of necessity remain authoritative from the perspective of medical practitioners.

Read more about it here

Open disclosure will undoubtedly be a topic of ongoing discussion in healthcare in 2019. We may see the enactment of the Patient Safety Bill 2018. which will provide for mandatory open disclosure of serious reportable patient safety incidents. The Regulation of Termination of Pregnancy Bill raised strong feelings, especially among healthcare professionals, which was reflected in the extensive debate of proposed amendments before the Bill was recently passed by the Dail. The Bill is now before the Seanad as the Government battles to have this landmark legislation enacted as planned by January 2019.

2018 also brought the publication of the long-awaited Coroners (Amendment) Bill 2018 which aims to modernise the law relating to the reporting, investigation and inquest into deaths. The Bill includes a schedule of reportable deaths which includes maternal deaths, stillbirths, death of a baby during labour and infant deaths. As the government has identified this Bill as a priority, hopefully we will finally see reform of this area of law in 2019.

We will have to wait and see whether 2019 will bring any progress in the introduction of Pre-Action Protocols for medical negligence litigation provided for by the Legal Services Regulation Act 2015. This 2015 Act also provides for the extension of the Statute of Limitations period from two to three years for clinical negligence actions. Most interested parties are of the view that the limitation period should be changed to three years before Pre-Action Protocols are introduced. An Expert Group chaired by Judge Meenan is considering alternative mechanisms to the court process for resolving clinical negligence claims and we look forward with interest to the Group’s findings and recommendations.

For more information and expert legal advice, contact a member of our Healthcare & Medical Law team. 

Compliments of Mason Hayes & Curran, a member of the EACCNY