Am I too late to make a claim against a consultant doctor if my son´s paediatrician misdiagnosed him with epilepsy four years ago?
Eoin P. Campbell, LL.B., Solicitor
Editor in Chief
Answer:
In Ireland, you have two years to make a claim against a consultant doctor for a misdiagnosis from the “date of knowledge” – the date on which a misdiagnosis is discovered rather than the date the original misdiagnosis was made. However, in the event that a claim against a consultant doctor is being made for an injury to a child, the child has two years from the date he or she reaches eighteen to claim compensation for a consultants misdiagnosis if a claim is not made by a parent or guardian acting as a “next friend” beforehand.
In order to be eligible to make a claim against a consultant doctor, it has to be demonstrated that your son´s paediatrician misdiagnosed your son with epilepsy due to a lack of skill or a lack of an ability to demonstrate that skill. Therefore, a claim for compensation against a consultant doctor has to be supported by the testimony of a “competent” doctor who will review your son´s medical history and determine whether “at the time and in the circumstances” the paediatrician was negligent by diagnosing your son with epilepsy.
If this is the case, and assuming that your son has not yet reached the age of eighteen, you can represent him in a legal action against the consultant doctor provided that you have “no interest in the matters in question in proceedings adverse to that of the minor”. You should ask a solicitor to obtain a Form 7.1 (“Authorisation by next friend / guardian ad litem of a minor”) from the District Court and, once you have agreed to accept any financial liabilities that might arise in the claim against the consultant doctor, ask the solicitor to prepare a Letter of Claim for you.
The Letter of Claim will be sent directly to the paediatrician who misdiagnosed your son with epilepsy, supported with the testimony of the “competent” doctor. In it, your solicitor will outline the reasons why a claim against the consultant doctor is being made and invite him or her to make an offer of compensation for a consultants misdiagnosis. At the same time, your solicitor will calculate how much compensation for a misdiagnosis by a consultant doctor your son will be entitled to with the assistance of the “competent” doctor and, should liability be accepted by the consultant doctor, your solicitor will enter into negotiations with the consultant doctor´s medical insurers to obtain the maximum possible settlement.
Litigation in court is rarely required when making a claim for compensation for a misdiagnosis by a consultant doctor; however a court appearance when pursuing legal action against a consultant doctor on behalf of your son will be necessary as all compensation settlements for a minor have to be approved by a judge before they can be completed. The judge will normally order that a settlement of compensation for a consultants misdiagnosis is paid into court and held until your son reaches eighteen, however you will be able to gain access to the funds for pay for any medical, care or educational requirements your son has.
As the success of your claim revolves around a further examination of your son by a medical expert, you are best advised to speak with a medical negligence solicitor at the first practical opportunity.