Claiming Compensation for Medical Negligence in Ireland
Despite the best efforts of an under-resourced Irish Health Service, patients do sometimes suffer avoidable injuries due to medical negligence in Ireland. In certain circumstances, it is possible to make medical negligence claims to recover compensation for injuries you – or somebody close to you – have sustained; however claiming compensation for medical negligence in Ireland can often be extremely complex – especially when you may be still suffering from the negligent treatment you received.
The purpose of this article is to explain what constitutes medical negligence in Ireland, under what circumstances compensation for medical negligence can be claimed and the process for doing so. It is important to note that no two medical negligence claims are the same – even when the injuries that you have sustained are identical to somebody else´s – and, for professional legal advice which is relevant to your personal situation, it is recommended that you speak with a solicitor as soon as possible.
What Constitutes Medical Negligence in Ireland?
Medical negligence is a term used to describe any “adverse incident” which is attributable to an error made by a medical practitioner or an agent of a medical facility. The list of possible negligent parties is extensive and includes doctors, nurses, consultants, dentists, chiropractors, plastic surgeons, opticians, psychologists, hospital administrators, laboratory technicians and so on. These medical practitioners may be public employees or work in a private medical facility, be covered by medical insurance or indemnified by the State.
However, for the adverse incident to be considered due to negligence, it has to be demonstrated that “at the time and in the circumstances” a competent medical practitioner (or agent) would have chosen an alternative course of action which would have prevented the adverse incident from occurring. Therefore, if you have suffered a loss, an injury or the deterioration of an existing condition due to the action – or inaction – of a medical practitioner, which is considered to have been acceptable practise in the circumstances, it will not be possible to make medical negligence claims.
What Injury Have You Sustained?
In order for medical negligence claims to be successful, not only does it have to be proven that an adverse incident occurred, but also that “on the balance of probability” you suffered a loss, an injury or the deterioration of an existing condition due to it. Sometimes patients can be in no doubt that an act of negligence has occurred, but if there has been no professionally diagnosed “adverse effect”, it will not be possible to claim compensation for medical negligence in Ireland.
One important point to introduce here is that a time limit exists to make medical negligence claims from the date a loss, an injury or the avoidable deterioration of an existing condition due to an adverse incident is identified. The two-year Statute of Limitations starts from the date on which an adverse effect is known about (also called the “Date of Knowledge”), rather than the date on which it was caused – which could be many years previously in some cases.
Do I Qualify for Medical Negligence Compensation?
If you believe that you have suffered a loss, an injury or the deterioration of an existing condition which could have been avoided had greater care been taken, you should speak with a solicitor to discuss the nature of the injury you have suffered – and the circumstances of the adverse incident that caused it – to seek confirmation of whether you have a claim for medical negligence compensation which is worth your while to pursue.
The list of adverse incidents which can result in medical negligence settlements being made is potentially endless, but here are a few examples of the more frequently made claims for medical negligence in Ireland:-
- A delay in diagnosing, a failure to diagnose or a misdiagnosis
- Incorrect test results or the failure to act on test results
- An error in performance during a surgical procedure
- An error in the prescription or administration of medicines
- Inadequate follow-up care of a patient after discharge
- The failure to communicate the risks associated with a surgical procedure
- Contracting a hospital infection such as MRSA due to poor hygiene
- The extraction of the wrong tooth or the oversight of a gum disease
- Experiencing anaesthetic awareness during a surgical procedure
- The lack of nursing care during recovery – often resulting in bedsores
Please remember that, in order to claim compensation for medical negligence, it has to be shown that you suffered a loss, an injury or the deterioration of an existing condition which “on the balance of probability” was due to a poor professional performance by somebody who owed you a duty of care. If for example you were administered the wrong medicine, but no harm came from it, you would not be eligible for medical negligence compensation.
How to Claim for Medical Negligence in Ireland
The procedures for claiming medical negligence in Ireland will vary according to the nature of your injuries and whether you suffered them as a private or public patient. Because of the complexity of medical negligence claims, the Injuries Board will decline any application for assessment of medical negligence compensation they receive, and issue you with an Authorisation to pursue your claim for medical negligence compensation through the courts.
However, before court action can be initiated, there are certain procedures which should be completed to ensure you have a medical negligence compensation claim which is worth your while to pursue, and the evidence to support it:-
Make a Complaint
The Office of the Ombudsman suggests on its website that your first course of action should be to make an official complaint to the medical facility or practitioner responsible for the treatment from which you subsequently sustained an injury. We would respectfully suggest that your complaint should be drafted by a solicitor; not only because it adds weight to the complaint, but to avoid any potential contradictions when a claim for medical negligence compensation is made at a later date.
Initiate an Investigation
Once you have instructed a solicitor, he or she will request your medical records and have them reviewed by independent experts in the field of the treatment you underwent. A parallel investigation should also be underway at the medical facility at which you received the negligent treatment, and if you do not get a satisfactory response to your complaint within a reasonable amount of time, you can request a Health Service Executive review (private patients will have to go straight to the Office of the Ombudsman).
The Letter of Claim
Once your solicitor has consulted the independent experts – and it is considered that you have a viable claim for medical negligence compensation – a Letter of Claim is sent to the alleged negligent practitioner(s), outlining the nature of your claim and inviting them to make an offer of settlement in respect of your injury. It is unlikely that an admission of liability and an offer to discuss medical negligence settlements will be forthcoming immediately – particularly if your claim is made against the HSE – but you should be wary of unsolicited approaches from medical insurance companies and refer them directly to your solicitor.
How Much Compensation for Medical Negligence Should I Receive?
How much compensation for medical negligence you are entitled to is going to depend on the nature and severity of your injury. There are four primary components to medical negligent settlements:-
- General damages for the pain and suffering you experience are calculated according to the Book of Quantum, a publication which lists specific injuries and assigns them a financial value. If the injury you have sustained is not listed in the Book, your solicitor will refer to previous medical negligence settlements and adjust them to your personal situation.
- Medical negligence compensation for any diagnosed emotional trauma you may have suffered can also be included in medical negligence claims. Even if no physical injury has been sustained, compensation for psychological injuries – for example following an adverse incident such as anaesthetic awareness – can be included in medical negligence settlements.
- How much compensation for medical negligence you are entitled to will also be influenced by the effect your injury has had on your quality of life, your age, sex and occupation. For example, a young, active female model who has a front tooth extracted by mistake is likely to suffer a greater “loss of amenity” than an older, unemployed male.
- Finally, you will be able to recover any expenses you have incurred, or loss of income, which is directly related to the loss, injury or deterioration of an existing condition you have experienced – provided that these financial losses can be substantiated by receipts and payslips. Your financial position should not be allowed to suffer due to the negligence of somebody who owed you a duty of care.
Not each of the above components will apply in all medical negligence claims, and there may be some instances (such as a reduction in life expectancy) where additional factors will be included in medical negligence settlements. One factor which may negatively affect how much compensation for medical negligence you are entitled to is if you have contributed to the cause of your injury or its severity.
It may seem nonsense to suggest that you take part of the blame for a medical practitioner´s mistake; but if you have failed to communicate your symptoms effectively, failed to attend pre-surgery appointments or take medicine which has been prescribed for you, it may be claimed that you made your injury worse by your own lack of care. If this is the case, a percentage liability will be assigned to you and a deduction made from future medical negligence settlements to account for your “contributory negligence”.
Will Court Action be Necessary?
If the negligent party fails to acknowledge their liability for your injury, or if medical negligence settlements cannot be negotiated out of court, it is likely that court action will be necessary. Depending on the value of your medical negligence claim, a High Court appearance may not be necessary as, under the Courts Acts 2013, claims for medical negligence with settlements likely to be under €15,000 are heard in the District Court and those with an expected value of less than €60,000 will be heard in the Circuit Civil Court.
Because of the potential trauma involved in giving evidence in the High Court (and cross-examination if your claim for medical negligence compensation is being contested), your solicitor will avoid High Court action wherever necessary and discuss any other options that may be available to you. It can often happen that, once a court date has been set, the medical practitioner´s insurers are more eager to discuss out of court medical negligence settlements – even up until the morning that a case is schedule to be heard.
Medical Negligence Claims for Children
There is one scenario in which court action cannot be avoided – and that is when you are making medical negligence claims on behalf of your child or somebody who is unable to represent themselves. Before any legal action can be taken – or Letter of Claim sent – you will have to apply to the District Court to act on behalf of your child as a “next friend”. The court will decide whether a claim for medical negligence is appropriate and ensure that there is no conflict of interest – for example if you were a dentist who extracted the wrong tooth from your son or daughter.
The claim for medical negligence compensation then follows the procedures mentioned above, until a settlement of compensation for medical negligence has been negotiated or awarded by the courts. At this point a further court hearing is necessary to approve the compensation settlement (which court it will be is determined by the financial value of medical negligence settlements).
Once approved, the funds from the compensation settlement will be paid into court, where they will remain in an interest-yielding account until your son or daughter reaches eighteen years of age. It is possible to access the funds for medical or educational expenses on application to the court.
One other difference with claims for medical negligence in Ireland concerning children is that the Statute of Limitations – the two-year limit on making medical negligence claims – does start until the child reaches the age of eighteen. This means that there is no rush to initiate a claim for medical negligence in Ireland (say for injuries sustained at birth) until the full consequences of the adverse incident are known.
Please Speak with a Solicitor
Because medical negligence claims are such a complex part of Irish law, it is in your best interests to discuss the nature of your loss, injury or avoidable deterioration of an existing condition with a solicitor at the first practical opportunity. A medical negligence solicitor will not charge you for an initial telephone conversation, but will answer questions you may have about your entitlement to compensation and how to proceed with a claim for medical negligence in Ireland.
- In order to be eligible for compensation for medical negligence, you must have suffered a loss, an injury or the avoidable deterioration of an existing condition due to a poor professional performance by a medical practitioner or the agent of a medical facility.
- Medical negligence claims have to demonstrate that “on the balance of probabilities” the injury could have been avoided “at the time and in the circumstances” if an acceptable alternative course of action had been taken.
- The procedures to recover compensation for medical negligence in Ireland will differ depending on whether you were a public or private patient, but your initial letter of complaint should always be drafted with the assistance of a solicitor.
- The value of medical negligence settlements depends on the nature and extent of your injuries, the impact they have made on your quality of life and the financial cost you have experienced. They may also be affected by your own contributory negligence.
- It may be necessary to pursue your claim for medical negligence compensation through the courts if a negotiated settlement cannot be previously agreed. Your solicitor will advise you of the anticipated value of your claim and which court your case will be heard at.
- When claiming compensation for medical negligence on behalf of a child, court appearances are unavoidable. Again, your solicitor will guide you through the processes required to make successful medical negligence claims on behalf of your children.
Copyright © 2009-2018 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.