Claims arising from *medical negligence are one of the very few areas of *personal injuries which are not dealt with by the Injuries Board (PIAB).
To succeed with a medical negligence claim you must show that the doctor in question acted failed to act in accordance with normal practice accepted in Ireland and in the medical profession. If you suspect that you have suffered an injury as a result of medical negligence then there are certain immediate steps you should take and we will set them out below.
Most medical negligence claims come under the following headings:
- Hospital negligence
- Dental negligence
- Negligent medical advice
- Negligent nursing
- Injuries at birth
- Negligent diagnosis
- Assault – if for instance you are operated on without giving prior consent
What steps should I take if feel I have been the victim of medical negligence?
- The commonsense approach is to contact the doctor in question and ask him to explain what happened and what went wrong. If this approach is in writing, the letter will be of critical importance and it would be advisable to seek legal advice before sending any such letter.
- You should consider any response received from the doctor in question and if you are unhappy with the response then you should seek legal advice.
- Your medical records are essential to any claim that might be made. The doctor or the hospital in question is required to keep detailed medical records and they will be made available to you or your solicitor in due course. Every medical step taken, all advice given, all details concerning x-rays and anything else related to your medical condition must be recorded and retained by the doctor or hospital in question. Always remember, these records are your records and you are entitled to see them and obtain copies of them. If you require copies of your medical records you should sign an authority and ask your solicitor to write seeking copies.
- Your medical records then need to be examined in detail. Quite often an experienced solicitor will be able to assess whether or not there has been negligence and if this negligence is actionable. In more complicated cases it will be necessary to seek assistance from a medical third party with specialist experience in the area. In every case involving *medical negligence it will be necessary to obtain an opinion from a doctor of equal standing commenting on the actions taken by the doctor in question.
- The medical records therefore should be assessed and collected together and sent to an independent medical expert, who will prepare his/her own report assessing whether or not negligence has taken place.
- If the report confirms that in the opinion of the expert, medical negligence has taken place then the solicitor would normally write to the doctor/hospital in question and inform them that it is intended to institute legal proceedings and an experienced barrister in the area will then be instructed to prepare the necessary legal documents.
- Once legal proceedings issue then the procedure is similar to that in other types of similar personal injury claims.
If it can be shown that negligence has taken place and that the medical person involved failed to act in accordance with normal practice accepted in Ireland and in the medical profession as appropriate then you should seek legal advice to see if you can bring a claim. The fact that you have suffered an injury following a visit to a medical professional does not automatically mean that you are entitled to compensation. Your claim has to be carefully assessed because medical negligence claims are invariably very strongly contested. You will succeed with your case if a judge decides that “on the balance of probabilities” your treatment was carried out negligently and that this negligent treatment caused the injury from which you are now suffering.
How do I know if my doctor has been negligent?
*Medical negligence claims are invariably extremely technical and difficult but there are certain circumstances where it would appear that there has been negligence.
- If the medical professional has delayed unreasonably in arriving at an accurate diagnosis of an illness or an injury.
- If the medical professional has failed to correctly diagnose the illness or injury.
- If the medical professional has failed to fully inform his patient as to the risks associated with a particular procedure prior to that procedure taking place.
- If there has been a failure to act on reasonably clear test results.
- If there has been negligence during the course of surgery or in administering certain treatments or drugs.
As we have indicated above, the simple fact that an injury has been suffered is not necessarily an indication that a *medical negligence claim will succeed. You have to show that you have suffered an injury but you must also show that another medical professional would not have acted in this way if they had the information and knowledge of the circumstances of this particular case. One of the considerable difficulties in medical negligence cases is that in order to succeed you will almost certainly need to obtain a medical report from another competent physician in the same area as the negligent physical, who was prepared to say that no competent physician in that area would have acted in the manner in which the negligent doctor acted.
Issuing proceedings – what is the time limit?
You have two years from the date the injury took place or two years from the date when you first had knowledge that the injury had been sustained. This can be a particularly difficult area because due to the nature of *medical negligence, it could often be several years before a person even knows they have been injured. For this reason the limitation period in medical negligence cases can often be extended so that the time begins to run from the date when the person knew or ought to have known that an injury had been sustained. It is for this reason that we will always advise clients that if you have any suspicion whatsoever, you should immediately seek legal advice.
Where children are involved, the time limit does not begin to run until the child reaches the age of 18. If however a child has suffered an injury due to *medical negligence, it would be very foolish to allow any extended period of time to pass. Action should be taken as soon as possible so as to avoid problems arising such as records going missing, relevant medical personal dying or leaving the country etc.
How much am I entitled to?
It is impossible to set out precisely how much victim of *medical negligence is entitled to. We can however set out a number of factors which will enable a judge or a legal expert to have a rough idea how much a claim is likely to be worth:
- The nature of the injury suffered – this will often be a physical injury but it can also be a psychological injury.
- The prognosis for the injury – whether it is likely to be permanent or whether it is likely to cause ongoing or daily problems for you.
- Consequences of the injury – if the injury means that a person cannot work or cannot work to their true potential, then this will add significantly to the claim.
- Quality of life – again this can differ very much from claim to claim. If a professional photographer or even a keen amateur photographer receives an eye injury, which reduces his/her ability to enjoy their particular activity then compensation will be adjusted to reflect this fact. This is in addition to any potential loss of income if the photographer is a professional. The same would apply to any other profession such as a chef, who might receive substantial damages if s/he received an injury to an index finger, which reduced their ability to work. The same injury to a person who does not use their index finger to this extent differs very substantially.
- Post traumatic stress – victims of *medical negligence often suffer substantially from post traumatic stress and in these circumstances it is essential to obtain a psychiatric report. In our experience people often tend to dismiss the fact that they might suffer from depression following a negligently performed medical procedure but this is just as much part of the claim as a physical injury.
Q. How can I find out if I have a claim?
A. The first thing you, or you solicitor on your behalf, has to do is to collect all relevant medical records together with full detailed instructions from you. In addition to medical records, any response from the medical professional concerned has to be carefully considered. A detailed review of your medical records should enable an expert advisor to give you a reliable opinion but it may also be necessary to obtain a formal legal opinion from a medical expert in the area before any final advice can be given. *Medical negligence claims are invariably difficult and vigorously contested and it is vital that you receive expert reliable legal advice before embarking on such a claim.
Q. There are not that many consultant doctors in Ireland – how can I be sure that a medical second opinion I receive is absolutely reliable?
A. This is a very legitimate concern and for this reason we will often obtain second opinions from the UK or further afield if the circumstances require. Over the past 25 years, we have developed a network of medical professionals both in Ireland and the UK and further afield, who can assist in providing reliable opinions.
Q. How much will a claim cost and how long will it take?
A. This is very difficult.* Medical negligence cases can be difficult and can take many years to bring to a conclusion. We are very conscious of the fact that most clients could not afford to fully finance such a claim and we therefore have a number of funding options available for clients. We will generally not refuse to take on a medical negligence case just because the client is not in a position to pay substantial legal fees. We will generally come to some acceptable arrangement concerning the payment of fees. We must emphasise however that the fee payable by the client as the case progresses would only be a fraction of the fee we would be entitled to charge. We are generally happy to wait until a claim comes to a successful conclusion before looking for the bulk of our fees to be paid. You should also note that if your claim is successful then the bulk, if not all of your fees, will be repaid.
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* In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any settlement.