Medical Negligence Claims in Ireland

By Eoin P. Campbell, LL.B., Solicitor

What are Medical Negligence Claims?

Medical negligence claims in Ireland may arise if you have sustained an injury as the direct result of medical mistreatment or suffered the deterioration of an existing condition due to a lack of care. Errors in medical treatment may also be referred to variously as a ‘medical accident’, ‘adverse incident’, or ‘patient safety incident’ but what it is important to remember – and is often misunderstood by people in general – is that this does not necessarily mean that the treatment was ‘negligent’.

While a better quality of care could have prevented your injury, it may be that the incident itself was in fact completely unavoidable. Medical negligence claims are perhaps more complex than any other genre of personal injury law – a fact that is recognised by the Irish legal system – and unlike almost every other type of personal injury compensation case, the Injuries Board Ireland will refuse jurisdiction in respect of medical negligence claims.

Medical Negligence Claims Liability

With respect to any personal injury claim, the injury sustained must result from the negligence of a medical practitioner who had a duty of care towards you at the time of and in the circumstances of the error in medical treatment. It is quite apparent that a Doctor does indeed owe a duty of care to his patient; however it is important to note that, in contrast to other personal injury cases e.g. tripping or slipping cases on public footpaths, it is often difficult to prove negligence on the part of the doctor, medical practitioner or a hospital when an injury has occurred, an illness has been contracted or a misdiagnosis has been made.

Proving Medical Negligence Claims

Proving that a medical practitioner has acted negligently in his or her treatment of a patient is a rather complex task and it should be noted that the law only provides the opportunity for you to make a medical negligence claim if it can be shown ‘on the balance of probability’ that the treatment that you received (or lack of treatment) was carried out in a negligent fashion by the healthcare professionals involved, and that this directly caused or contributed to your injury.

While it is often difficult to explain exactly what constitutes medical negligence and therefore qualifies you to make claims for medical negligence compensation in Ireland, there are a number of circumstances in which it can clearly be argued that medical professionals have breached their duty of care. These include:

• Error or delay in diagnosis of illness or injury
• Failure to act on test results
• Error in performance of a procedure or operation
• Error in administering treatment or administering drugs
• Inadequate follow up care
• Failure to fully communicate the risks associated with procedures to patient prior to the administration of same

It is important to remember that a court will consider if a competent physician would have acted in the same manner as the defendant medical practitioner. Therefore, even where the medical practitioner´s actions have caused or contributed to the claimant’s personal injury, his or her actions may not be deemed negligent if it can be shown that they were the ‘reasonable’ actions of a medical professional given the information the doctor had at the time and in the specific circumstances.

Injury or Damage

The first issue to be considered when pursuing any personal injury claim, be it due to medical negligence or otherwise, is that it is in fact just that: a personal injury claim. The claimant must have sustained some form of injury that is either physical or psychological as a consequence of the medical negligence that occurred.

Even where it can be proven that the doctor or hospital staff have acted negligently – even criminally so – you should note that with regard to the civil law, a potential claimant can only claim medical negligence compensation for a personal injury, loss or deterioration of an existing condition that he or she has in fact sustained. A near miss – other than where it can be proven to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.

The Date of Knowledge

More often than not, the date of knowledge of an injury will be the date on which the injury was sustained. It is therefore important that an injured party contacts a solicitor at their earliest opportunity following an accident. The harsh reality is that, save for several specific exceptions, the opportunity to make a medical negligence compensation claim will be lost precisely two years after the date of knowledge.

It should be remembered, however, that exceptions do exist and particularly cases of medical negligence such as an illness that went unchecked due to misdiagnosis. In medical negligence claims, the date of knowledge may at times be difficult to clarify. In such circumstances, you should always contact a solicitor even if it initially seems that it is too late, because an exception may well apply.

Injuries to Children

In the case of a minor, it is important to note that the date of knowledge of the injury is in the eyes of the law the minor victim’s eighteenth birthday i.e. time does not begin to run against the injured infant until the infant reaches his or her majority (eighteen years of age). Thereafter, the injured party (who has now reached the age of majority) has two years within which to issue proceedings in court.

The minor can, however, pursue a compensation claim for medical negligence before his or her eighteenth birthday provided a parent or guardian acts as his or her ‘next friend’. It is therefore still preferable that you contact a solicitor at the first practical moment should your child have been injured in circumstances where a medical professional was at fault.

What if Several Parties are at Fault for my Injury?

It is very possible that negligent treatment could be administered after the injured party has been in fact hurt in an accident caused by the negligent actions of another party (for example, a road traffic accident or an accident at work). This could result in circumstances where the medical negligence has not caused the injury itself but has led to its exacerbation.

It should be noted that in such circumstances a principle of attributing a ‘percentage’ of the blame to the two or more parties who may be at fault for the claimant’s injuries – and therefore the liability – may be shared between the multiple defendants on a percentage basis.

Contributory Negligence and Medical Negligence Claims

The cause of an accident is not always obvious. In many situations one party e.g. the medical team that provided treatment, may be completely to blame. However, it is also true that more than one, or several, factors contributed to the injury that has been sustained. Moreover, one of the causal factors may have in fact been the negligence of the injured party himself.

In medical negligence claims, this may include circumstances, for example, where the claimant has in fact exacerbated the illness or injury due to the negligent care provided by their doctor by failing to co-operate fully with follow-up treatment provided (e.g. refusing to take prescribed medication or missing scheduled appointments, etc.) when said care may have helped to cure or alleviate in part the damage sustained.

When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the claimant’s case (i.e. the claim will be unsuccessful) or reduce the amount of compensation awarded.

How is the Value of the Medical Negligence Claims Assessed?

There are a number of factors which will normally influence the value of your claim.

Trauma Suffered

It is important to remember that compensation is paid for the injuries that you have actually sustained. Unless a psychological injury or trauma can be proven to have occurred, the nature of the incident is of very much secondary importance. Often, however, your solicitor or barrister will make reference to the dramatic or traumatic nature of the incident in negotiations or at trial as it will present your claim in a more sympathetic light and may contribute favourably to the case.

Medical Special Damages

Generally speaking, the costs of any specialist medical treatment that you have required or will require due to the injuries that you have sustained in the incident can be compensated for in full as well as any other financial costs and loss of earnings which can be attributed to the loss, injury or deterioration of an existing condition you have suffered due to medical negligence.

Medical History

Your medical history and records are an important factor in assessing your claim. If you have a prior history of similar or identical injuries, and of treatment of the same area of the body, this may affect your claim significantly. Perhaps the key question is whether the medical negligence involved was the primary cause of the injury or only an aggravating factor?

Impairment of Quality-of-Life

Our work or careers are not the only important things in life and as such any medical negligence claim will take an impairment or loss of quality of life into account when the value of medical negligence claims is being assessed. This is a very individual assessment, and is often referred to as a “loss of amenity”

Severity and Persistence of Pain Suffered

The very principal behind any personal injury compensation settlement, be it for medical negligence or otherwise, is to compensate you for your injury and related suffering. Therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is likely to be.

Summary

• Proving medical negligence claims is a complex task and the injuries must result from the negligence of somebody who had a duty of care towards you.
• Liability for medical negligence claims may not be immediately apparent, as many people can be involved in patient care.
• Medical negligence claims take into account the pain suffered due to the medical error, any psychological trauma, damage to the quality of life and other financial implications.
• A court will determine medical negligence claims on the opinion of an expert physician who will testify whether they would have acted in the same way given identical circumstances.
• The value of medical negligence claims can be affected by your own contributory negligence and previous medical history.
• Factors such as the Statute of Limitations can also affect medical negligence claims: it is in your best interests to speak with our solicitors on our free advice service at your earliest possible opportunity.

It is important to note that each medical negligence claim is unique. If you have suffered medical negligence and feel that you have a potential medical negligence claim, you strongly are advised to discuss all of the points raised in the above article with a solicitor at the earliest opportunity.

Copyright © 2009-2013 Eoin Campbell

Summary

• Proving medical negligence claims in Ireland is a complex task and the injuries must result from the negligence of somebody who had a duty of care towards you.
• Liability for errors in medical treatment may not be immediately apparent, as many people can be involved in patient care.
• Medical negligence compensation settlements take into account the pain suffered due to the medical error, any psychological trauma, damage to the quality of life and other financial implications.
• A court will determine medical negligence claims on the opinion of an expert physician, who will testify whether they would have acted in the same way given identical circumstances.
• The value of medical negligence claims can be affected by your own contributory negligence and previous medical history.
• Factors such as the Statute of Limitations can also affect claims for medical negligence compensation in Ireland and it is in your best interests to speak with our solicitors on our free advice service at your earliest practical opportunity.

It is important to note that each medical negligence claim is unique. If you have suffered medical negligence and feel that you have a potential medical negligence claim, you strongly are advised to discuss all of the points raised in the above article with a solicitor at the earliest opportunity.

Copyright © 2009-2013 Eoin Campbell

About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose primary professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.