Tragic maternal death raises vital questions about the politicisation of healthcare system
Every hospital could be shut down if the patient safety logic in the Malak Thawley case was applied, writes Dearbhail McDonald
The death of Malak Thawley, who died at the National Maternity Hospital during an emergency laprascopic operation to treat an ectopic pregnancy, was and remains a profound tragedy for her husband Alan Thawley.
It was also, I imagine, a traumatic experience for the dedicated NMH staff who treated the young woman who died in their care.
Mrs Thawley (34) died on May 8, 2016, when a blood vessel was accidentally pierced during the emergency procedure. The next day the NMH, a major tertiary hospital relied on by women, infants and clinicians from all over the country, ordered an internal report which applied a scalpel to its own failings. The almost minute-by-minute report, which complied with HSE incident investigation guidelines, was reviewed by two independent external experts.
The report made recommendations that consideration be given, at a national level, to the availability of an on-site consultant obstetrician and anaesthetist at all times. It also urged co-location of maternity hospitals with general ones to help better manage rare, maternal tragedies.
A lawsuit was commenced by Alan Thawley on January 24, 2017 and the very next day the NMH admitted negligence and apologised for breach of duty.
The civil claim was settled in January 2018, where the only issue was damages. Significantly, only compensatory damages were paid as a claim for aggravated and exemplary damages - the latter are applied in rare cases where the conduct of a party is deemed egregious - was dropped.
In June 2017, over two days, medical staff gave sworn testimony at a coroner's inquest on the circumstances leading up to Malak Thawley's death. Mr Thawley was, naturally, legally represented at the inquest where, after cross-examination of various personnel - including the doctor who carried out the procedure and the on-call consultant who was in theatre within 10 minutes of receiving the call - the tragic death was recorded as a medical misadventure.
The matter did not rest there.
The HSE then convened an expert panel led by Peter McKenna, former Master of the Rotunda Maternity Hospital and Clinical Director of the new National Women and Infants' Health Programme.
The McKenna review, which considered the coroner's findings, summations and depositions, said the NMH's report complied with HSE guidelines. The McKenna review also said the Thawley case was examined appropriately from a clinical perspective by the NMH and said the NMH's recommendations, if implemented, would reduce the risk of a tragic event occurring in the future.
It is what happened next that gives rise to concerns about the needless politicisation of our under-strain healthcare system.
These are concerns that were confirmed for me when I read a damning ruling last week in which the High Court quashed a direction by Health Minister Simon Harris to hold an inquiry under Section 9 of the Health Act into the death of Mrs Thawley. Section 9 can only be directed where the health minister has a reasonable belief that there is a "serious risk" to the health and welfare of patients.
Section 9 is the healthcare equivalent of sounding a nuclear alarm. The consequences of directing such an inquiry, even its contemplation, are far-reaching. It sends a message to patients that they are not or may not be safe. Would you attend such a hospital? Would a doctor be negligent if they sent you for care to a hospital with such a red flag?
So how did the Health Minister, armed with so many findings and recommendations, come to the view that the NMH - delivering up to 30 babies every single day - was a threat to women's lives?
Why are hospitals all over Ireland, buckling under the strain of patients lying on trolleys and grappling with insufficient staff, including on-call consultant cover and out-of-hours surgery, not also deemed a risk to public health? How can the State indemnify doctors working under such high-risk conditions?
Sure, half the hospitals in the country would be shut down if this patient safety logic was applied.
In the summer of 2017, political momentum grew for yet another review. This was amid media reports that instrumentation wasn't available, that ice "had to be sourced" from a nearby pub on the night of Mrs Thawley's death, even though the coroner heard that ice was not required and that ice is not permitted to be stored in hospitals owing to infection risk.
There were also claims that there was a lack of blood and that blood had not been cross-matched.
However, in the High Court hearing in which the NMH successfully quashed the Section 9 inquiry, the Chief Medical Officer, Dr Tony Holohan, accepted that there was no issue of blood not being available for Mrs Thawley and accepted that vital instrumentation was available, in line with arrangements between many maternity hospitals and surgical ones.
The CMO also accepted, as evidenced at the coroner's inquest, that hospitals are prevented from having ice for infection reasons. Somehow, over the summer of 2017, Mr Harris formed a view that another inquiry was needed.
He did so after questions were raised in the Dail and after meeting Mr Thawley and his solicitor Caoimhe Haughey, who has been a passionate and committed advocate for her client. In a statement following the meeting, Mr Harris stated that if, following a review of the McKenna report, Mr Thawley was still of the view an external review was required, "the minister will accede to this request".
This was a laudable, compassionate commitment by a senior Cabinet minister to a grieving widower. But was this sufficient enough to direct a nuclear inquiry into the NMH, one of the most critical resources for women and children in the State?
In November 2017, Minister Harris directed a Section 9 inquiry, much to the alarm of the NMH which had accepted the need for an external review, suggesting that it be carried out by the UK's Royal College of Obstetricians. Despite Minister Harris's serious concerns (Mr Justice Meenan's ruling records how the NMH was not informed of them), the Minister did not file an opposition to a legal bid by the NMH to halt the inquiry until May 4, 2018. This was six months after sounding the nuclear alarm.
Last week, High Court Judge Mr Justice Charles Meenan delivered a withering rebuke to the State.
The judge spoke of the "self-evident" implications for patients, medical staff and others, of a Section 9 inquiry and ruled that Minister Harris's assertions on the issue of patient safety "stand up to no analysis". The judge also said it was "irrational and unreasonable" for the Minister, who did not carry his own investigation before directing a Section 9, directed such an investigation into the NMH where the wider practices being inquired into exist - without any ministerial interference - in other hospitals. In the meantime - and this is truly egregious - talks to progress the much needed new NMH at St Vincent's Hospital in Dublin, have fallen away.
The death of Malak Thawley was a tragic accident from which many lessons have been learned. We honour her memory by building the best co-located and adequately staffed hospitals and by supporting our terrified health staff for whom risk is a daily reality.
Sound the nuclear alarm, by all means, when it is required.
But don't overplay politics when, for many battling our health system, it really is a matter of life and death.