An Introduction to Clinical Malpractice Compensation Claims

Many thousands of clinical malpractice compensation claims are now made each year in Ireland against hospitals, clinics, doctors and other medical professionals for treatments that have failed, operations which have gone wrong and for illnesses contracted in a hospital such as MRSA. Many claims for clinical malpractice are made due to a failure by doctors to diagnose a disease or condition or for administrative errors which have resulted in serious injuries or the avoidable death of a patient whilst under the care of a medical professional.

If you have been injured by a doctor, or believe that malpractice by a medical professional has resulted in an avoidable loss or the deterioration of an existing condition, you could be eligible to claim clinical malpractice compensation for your injuries and should speak to an experienced clinical malpractice solicitor about your case.

Clinical Malpractice Defined

Clinical malpractice, medical malpractice, medical negligence and clinical negligence are all legal terms used to describe the same legal issues. Clinical malpractice can be defined as any action or lack of action by a medical professional, hospital or clinic which has directly led to an avoidable injury, contraction of a disease, serious deterioration of an existing condition or the death of a patient.

Not every injury or death of a patient is due to clinical malpractice and unfortunately many treatments fail for which no one can be blamed. Patients may not be able to be treated in time and operations may develop complications which could not have been foreseen or avoided. In order for any injury or death to be attributable to clinical malpractice, a medical professional or establishment must have failed in their duty of care to a patient and not have done all that could reasonably be expected to ensure a successful treatment. Cases of diseases contracted in hospital, such as the much publicised MRSA bacteria, can be considered as clinical malpractice as the establishment has not provided a safe and clean environment for its patients.

Eligibility to Claim Compensation for Clinical Malpractice

As with any personal injury sustained as a result of third party negligence, a claim for compensation due to clinical malpractice must be justified by an injury being sustained or the life of an individual being seriously affected by an incorrect medical diagnosis or treatment. Even if clinical malpractice can be proved, without any major health repercussions from that error, there can be no clinical malpractice compensation claim and an apology and explanation is all that is likely to be provided.

In addition to showing that an “unfavourable outcome” has resulted from a medical error, a claim for clinical malpractice compensation must also demonstrate that negligence has occurred – either by the hospital or clinic, or a doctor, nurse, surgeon, anaesthetist, dentist etc. Negligence is deemed to be a failure in the duty of care to a patient or, in the case of private health care, a clinical malpractice claim for compensation could potentially be pursued as a breach of contract for paid services.

Clinical malpractice compensation claims might not involve just one medical professional, and any number of practitioners can also be deemed to have been negligent in their duty of care. The administrative process in a hospital rarely results in sole responsibility lying with just one medical practitioner and, in such cases, a number of negligent parties may have contributed to the injuries which have been suffered to some degree. In such cases, the contributory negligence of each party would be factored into any claim for clinical malpractice compensation, and each of the negligent practitioners´ insurance companies would be liable to pay a proportion of any compensation settlement awarded.

Have Your Injuries Been Caused by Clinical Malpractice?

Due to the complexity of many clinical malpractice compensation claims, before deciding to fight for compensation for a medical mistake, it is vital that you seek the advice of a specialist clinical malpractice solicitor. Any claim needs to be thoroughly assessed and investigated, with an expert in the medical field of the injury confirming that the actions or inactions of a medical professional have been negligent. A clinical malpractice solicitor will access medical records and contact those suspected of malpractice – giving them a chance to explain their actions. It is not unusual for clinical malpractice claims to be taken to court; although settlements can sometimes be made by insurers without litigation.

Should your clinical malpractice claim be taken to court, a judge will decide whether the injury, loss of deterioration of an existing condition is due to clinical malpractice based on the evidence presented to him. Judges will be sympathetic to a patient´s predicament; however in order to win a clinical malpractice compensation claim, your solicitor must be able to prove that “on the balance of probabilities”, clinical malpractice has been the cause of your avoidable injuries, or the injuries of a child you are representing as a “next friend”.

Clinical Malpractice Damages Explained

When compensation for clinical malpractice is awarded, a settlement is comprised of general damages and special damages.

General damages are awarded to account for the pain and suffering caused by the clinical malpractice in addition to any loss of amenity or psychological injury which has resulted from the injury. General damages will also provide compensation for any future pain due to revision surgery or remedial treatment and the subsequent affect this may also have on a patient´s quality of life.

Special damages compensate for financial loss which is directly attributable to a clinical malpractice injury, and are intended to ensure that a patient does not incur expenses due to injuries resulting from the clinical malpractice. Any expenses already incurred, together with future costs of treatment, are compensated under special damages for clinical malpractice. Medical treatment costs, transportation costs, home help charges, changes to accommodation as a result of any injury, any legal fees which are paid when you claim compensation for clinical malpractice and any loss of earnings can all be recovered if they can be supported with the appropriate receipts and invoices.

The Statute of Limitations for Clinical Malpractice Claims

The statute of limitations in Ireland for making a personal injury claim is 2 years from the date that the injury was sustained: although with clinical malpractice, knowledge of the injury is not always immediately apparent. It may be some time before injuries due to clinical malpractice or the deterioration of an existing condition manifest, and they may often be discovered by accident. In such cases the 2 year time limit is applied differently, and the time you have available in which to claim compensation for clinical malpractice starts from the “date of knowledge” of the injuries. There are numerous exceptions to the 2-year timescale, so it is important to have the statute of limitations for clinical malpractice explained by an experienced clinical malpractice solicitor. You can then be sure how the statute of limitations applies to your own individual case, and can be certain that clinical malpractice compensation claims are initiated within the appropriate legal timescale.

Third Party Capture and Clinical Malpractice

Third party capture is a tactic used by medical insurance companies to avoid paying legal costs, court costs and the expense of a potentially long trial. When an insurer assesses a compensation claim for clinical malpractice against their client, they may deem it worthwhile to attempt to make an out of court settlement with the claimant. It is not unusual that an insurance company contacts the claimant directly with an offer of settlement: however once an offer is accepted, it is considered full and final compensation for a clinical malpractice claim and, if it is insufficient for the victim´s medical needs and future care, it is impossible to go back to the insurers and ask for more. In many cases, clinical malpractice compensation claims can be under-settled when offers are accepted without the advice of a clinical malpractice solicitor being sought.

If you have suffered any injury as a result of clinical malpractice or medical negligence, it is important to seek legal advice even if you are unsure whether or not you are eligible to pursue a claim for clinical malpractice compensation.