I have been told that my son cannot make a claim for osteosarcoma misdiagnosis compensation until he is eighteen years old, but if we received the compensation now it would enable us to provide him with better treatment. Is this possible?
Eoin P. Campbell, LL.B., Solicitor
Editor in Chief
Answer:
Provided it can be established that the medical practitioner who made the misdiagnosis of your son´s condition failed in his or her duty of care to provide an adequate professional service, it should be possible for you to make a claim for osteosarcoma misdiagnosis compensation now on your son´s behalf rather than delay providing him with the treatment he needs until he reaches the age of eighteen.
In Ireland, a parent or guardian can represent their son or daughter if they are still under eighteen as a “next friend” in a compensation claim for the misdiagnosis of an osteosarcoma tumour provided that the parent or guardian has “no interest in the matters in question in these proceedings adverse to that of the minor”.
To be legally recognised as a “next friend”, you need to submit Form: 7.1 “Authorisation by next friend / guardian ad litem of a minor” to your local District Court and confirm to the court that you are prepared to accept the financial consequences if the claim for osteosarcoma misdiagnosis compensation is unsuccessful.
For osteosarcoma misdiagnosis compensation claims to succeed, it has to be established that “at the time and in the circumstances” when your son´s misdiagnosis was made, a competent doctor would not have made the same mistake and that any treatment your son would have received in the period during which treatment was delayed, would have improved the chances of eliminating or containing the tumour.
As osteosarcoma is a comparatively rare form of cancer in Ireland, your claim would therefore have to be supported by the testimony of a medical expert, who would need to confirm that the medical practitioner who misdiagnosed your son´s condition either showed a lack of skill when making the error or a lack of ability to display that skill.
Once negligence has been established, your solicitor would send a Letter of Claim to the negligent medical practitioner, advising him or her that a compensation claim for the misdiagnosis of osteosarcoma was being made against them and supporting the letter with the evidence of negligence that your solicitor and the medical expert have amassed.
It may be the case that the negligent medical practitioner acknowledges their liability for the misdiagnosis straight away, in which case your solicitor will work out how much compensation for the misdiagnosis of an osteosarcoma you son should be entitled to receive and send the negligent medical practitioner an invitation to make an offer of settlement.
You may also be directly approached by the negligent medical practitioner´s insurers with an offer of osteosarcoma misdiagnosis compensation. Although this offer may be tempting, as you would prefer to provide a better level of care for your son immediately, unless the insurance company has carried out a comprehensive assessment of your son´s requirements, it is unlikely to be an appropriate settlement of your son´s osteosarcoma misdiagnosis claim.
If you inadvertently agree to an inadequate settlement of compensation for the misdiagnosis of an osteosarcoma, you cannot go back to the insurance company for more; so it is in your best interests to inform your solicitor of any approach, who will then apply for interim payments of osteosarcoma misdiagnosis compensation until such time as your son´s claim is satisfactorily concluded.
As you indicate that you would like to provide your son with a better level of treatment as soon as possible, it is recommended that you speak with a medical negligence solicitor at the earliest practical opportunity.