Medical Negligence 2018-10-25T10:38:26+00:00

Medical negligence is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the profession.

We understand that going through the process of bringing a medical negligence claim can be daunting. We know that this is a distressing and difficult time for you. You need someone to advise you and to support you through the process.

The current legal standard of care imposed upon doctors, hospitals nurses and other medical professionals is one where the medical practitioner must not fall below the ordinary skill of an ordinary practitioner exercising and professing to have the particular skill in issue. The relevant standard and the level of skill is that which is practiced and accepted by a responsible body of medical persons skilled in the particular area of medicine in question.

It is essential to note that a case must be taken within two years from the date of the accident or from the injury complained of. In the case of persons under the age of 18 years or persons with intellectual impairment the time limits are extended by this legislation. There is also an additional allowance given for those who did not have knowledge of the wrongdoing (or alternatively that the person did not have knowledge that the wrongdoing caused the injury) and in these circumstances, the time may be extended. We would strongly advise you to contact us as soon as possible in order to discuss such matters further.

We advise on areas such as:

Cerebral Palsy is a disorder of ones motor function caused by an acquired defect or injury to the developing brain. Cerebral palsy can lead to weakness and lack of co-ordination of the muscles. Cerebral Palsy can oftern result from hypoxia, which is the starvation of oxygen/oxygenated blood, causing damage to the brain and consequently physical and sometimes intellectual disabilities. Whilst Cerebral Palsy may occur without negligence, it is also the case that a mother’s pregnancy, labour and delivery or the baby’s post natal care can be handled negligently by Obstetricians, Midwifery staff or Paediatricians. In those circumstances, the injury to the baby’s brain could often have been avoided completely, or at least very significantly reduced, had competent medical treatment been given.

During the birth process a baby may suffer a physical injury. This is called birth trauma or birth injury. A baby’s size and position during labour and delivery can lead to a difficult birth and cause an injury to the baby. There are several types of birth injuries that can commonly occur as a result of complications during pregnancy, labour, or child birth. The types of birth injuries that can occur can be temporary or can result in extensive and long term damage.

If you believe that your antenatal care, delivery of your child or postnatal care was not properly handled then you may have a claim for compensation for your child’s injuries and any care they may require into the future.

Acquired Brain Injury can be defined as any brain injury that occurs during a person’s life. It can be :

  • Damage to brain tissue following traumatic injuries – resulting from road traffic accidents, falls, assaults or sports injuries.
  • Damage to brain following stroke, brain surgery or a brain tumor.
  • Damage to brain tissue as a result of viral infection (e.g. following encephalitis, meningitis, syphilis)
  • Damage to brain resulting from lack of oxygen (e.g. as a result of heart attacks, hypoxia or anoxia)

In the context of medical negligence litigation, acquired brain injuries refer to brain injuries which occur, but which could have been prevented or at least significantly reduced if competent medical care had been provided. A failure to provide adequate medical

These claims can arise from improper or sub-standard care being provided in an accident and emergency department. These claims can arise when doctors or other accident and emergency staff fail to make a correct diagnosis or referral. Sub-standard care in an accident and emergency department can cause catastrophic injuries and mistakes made can have a devastating effect on the patient and their family. Errors may often include:

  • failure to check a patient’s medical history properly
  • failure to carry out basic investigations and x-ray/MRI scans
  • failure to recognise and refer to a more senior or specialist doctor
  • failure to treat a patient properly or at all

If you believe that you were not provided with appropriate or competent medical care then you may have a claim for compensation for your injuries.

A General Practitioner has a trusted relationship with the patient and usually a General Practitioner will be the doctor to whom a patient first attends to have a health problem assessed. General Practitioners assess a wide variety of problems and we rely upon them to decide whether it is necessary to refer a patient for specialist help. As with all areas of clinical negligence, delay or failure to refer can have devastating consequences for a patient and can unfortunately sometimes be catastrophic.

The most common types of claims against General Practitioners are:

  • Misdiagnosis – some serious illnesses can have similar symptoms to less serious ones and can therefore be incorrectly diagnosed.
  • Failure to diagnose
  • Delayed treatment or failure to treat
  • Incorrect treatment
  • Failure to refer to a specialist
  • Prescription errors – mistakes are sometimes made when prescribing drugs and people can be given inappropriate medicines. Another common problem is when serious side effects of drugs are not made clear to patients.

If you believe that you were not provided with appropriate or competent medical care then you may have a claim for compensation for your injuries.

An inquest in Ireland is an official, public enquiry, presided over by the Coroner (and in some cases involves a jury) into the cause of a sudden, unexplained or violent death. If a death cannot be explained, an inquest may be held to establish the facts of the death, such as where and how death occurred. An inquest would not normally be held if a post-mortem examination of the body could explain the cause of death.

The inquest will not take place until at least six weeks after the death. Witnesses may be required to attend the inquest to give testimony on oath regarding the circumstances and cause of the death. When a jury is present at an inquest, it is the jury rather than the Coroner who delivers the verdict. Jury service at an inquest is obligatory and a majority verdict is used to reach a verdict. Nobody is found guilty or innocent at an inquest and no criminal or civil liability is determined. There are no “parties” and all depositions, post-mortem reports and verdict records are preserved by the Coroner and are made available to the public.

The family of the deceased are entitled to attend the inquest, but they are not bound by law or legally obliged to be there. If legal action is being taken as a result of the death, a family may engage a solicitor to attend the inquest.
When the proceedings have been completed, a verdict is returned in relation to the identity of the deceased, and how, when and where the death occurred. The range of verdicts open to the Coroner or jury (in jury cases, it is the jury that returns the verdict) include accidental death, misadventure, suicide, open verdict, natural causes and unlawful killing.

Whilst questions of civil or criminal liability are not considered, the findings of the coroner’s court can nevertheless have great bearing on subsequent civil or criminal matters including medical negligence compensation claims.

Unfortunately as many as one in three people will develop some form of cancer at some stage in their lifetime People are often referred to hospitals for x-rays or blood tests. Most people having undergone these x-rays or blood tests are diagnosed correctly and in a timely fashion and will therefore benefit from early medical intervention. Unfortunatley for a small number of people, this is not the case and they end up being misdiagnosed, discharged, or treated incorrectly for something other than that for which they ought to have been treated. As a result of the initial misdiagnosis treatment is often received too late, leaving the aggrieved family of the injured party feeling as if they have no alternative but to litigate.

The most common reasons for misdiagnosis or delayed diagnosis in cancer are as follows:

  • Failure to properly examine a patient who presents at hospital.
  • Failure to appropriately monitor a patient who has a family history of cancer.
  • Failure to explore or adequately explore the symptoms of cancer at an early stage.
  • Failure to refer a patient to a cancer specialist at the earliest opportunity.
  • Failure to recognise the symptoms and signs of cancer.
  • Failure to perform scans or x-rays.
  • Failure to properly interpret x-rays and laboratory results.

If you believe that you were not provided with appropriate or competent medical care then you may have a claim for compensation for your injuries.

A brachial plexus injury is an injury to the brachial plexus — the network of nerves that sends signals from your spine to your shoulder, arm and hand. A brachial plexus injury occurs when these nerves are stretched or, in the most serious cases, torn. This happens as result of your shoulder being pressed down forcefully while your head is pushed up and away from that shoulder. Babies can sometimes sustain brachial plexus injuries during birth. This injury can be caused during the delivery of a baby when one of the baby’s shoulders becomes impacted as it passes down the birth canal, typically on the mother’s symphysis pubis, and the baby becomes stuck (shoulder dystocia). There are a range of standard and approved procedures which should be followed including suprapubic pressure and the McRobert’s position in order to assist delivery of the impacted shoulder. Failure to adopt these procedures may be deemed to be sub-standard practice in circumstances where a child has been left with erbs palsy as a result of excessive use of traction in delivery.

If you believe that delivery of your child was not properly handled then you may have a claim for compensation for your child’s injuries and any care they may require into the future.

The general surgeon is involved in all aspects of surgery, and is typically responsible for the treatment of patients with emergency conditions. Over recent years general surgery has been divided into a large number of subspecialties, thus general surgeons may be responsible for carrying out procedures in any of the following areas:

  • Cardiac
  • Cosmetic
  • Gastroenterology
  • Gynaecology
  • Neurosurgery
  • Vascular
  • Keyhole/ Laparoscopic surgery
  • Compensation claims resulting from negligent surgery often relate to:
  • Damage to internal organs
  • Poor results from surgery
  • Damage to nerves during the surgery
  • Retention of instruments
  • Unnecessary surgical procedure
  • Anaesthetic awareness
  • Failure to gain necessary consen

Before performing any surgery, all surgeons must have the patient’s consent to have the surgery done except in emergency situations. In order for consent to be valid, a patient must be advised of and understand all the known associated risks and possible adverse outcomes before agreeing to undergo the procedure. A medical negligence claim may arise in circumstances where a patient has undergone a surgical procedure without being fully informed of the risks associated with the surgery.

If you believe that you were not provided with appropriate or competent medical care then you may have a claim for compensation for your injuries.

A bereaved person’s primary concern is dealing with the loss and grief following the death of a loved one. However, dependants of a deceased person who has died as a result of the wrongful act of another person may institute a fatal injury claim against that wrongdoer. Part IV of the Civil Liability Act 1961 (“the Act”) is the principal relevant legislation for fatal injury claims. This legislation allows for an action to be brought and a claim to be made for financial loss, funeral expenses and mental distress on behalf of all the dependants as a result of the deceased’s death.

Who is entitled to bring a claim?

Within the first six months after the death of the deceased, the dependants cannot bring a fatal injury claim. It is the personal representative who must bring the claim on behalf of the dependants by virtue of S48 (3) of the Act. If the personal representative does not do so or there is no personal representative, then after the expiration of six months, any or all of the dependants are entitled to bring the action.

However, S48 (2) of the Act provides that “only one action for damages may be brought against the same person in respect of the death”. The consequence of this provision is that each dependant cannot institute a separate claim against the wrongdoer. There must be a single claim taken by one dependant or collectively by the dependants and therefore it is of paramount importance that each dependant be identified.

What is the definition of a dependant?

S47 of the Act (as substituted by S1 of the Civil Liability (Amendment) Act 1996) sets out the definition of a dependant. To qualify as a dependant a person must firstly, have suffered financial loss or mental distress as a result of the deceased’s death and secondly, be related to the deceased as spouse, parent, grandparent, step-parent, child, grandchild, brother, sister, half-brother, half-sister, an adopted child, or be a person in loco parentis to another.
In certain circumstances, a divorced spouse or person who cohabited with the deceased as husband or wife can be categorised as a dependant also. A divorced spouse can recover for financial loss but not compensation for mental distress. The former spouse remains a dependant even if they have remarried or are currently cohabiting with another at the time of the deceased’s death. A cohabitee/ non-marital partner can be classified as a dependant where that person had been living with the deceased as husband and wife (although not married) for a continuous period of not less than three years.

Time Limits on fatal injury claims

There is a limitation of the length of time the dependants have to bring a fatal injury action. It cannot be brought after the expiration of two years either from the date of the death of the deceased or the date of the knowledge of the person for whose benefit the action is brought, whichever is the latest. This is by virtue of S6 of the Statute of Limitations (Amendment) Act 1991 as amended by the Civil Liability and Courts Act 2004. Any claim taken outside of this time period will be statute barred and as a result, the dependants will not be able to recover damages. However, there is an exception to this rule, that being where a person was under a disability when that right accrued to them. In these circumstances, the time limit of two years will not begin until they cease to be under a disability or die, whichever occurs first.

What type of compensation is recoverable?

S49 of the Act specifies the types of damages which are recoverable in fatal injury claims. The dependant can recover pecuniary loss, damages for mental distress and compensation for funeral and other expenses incurred as a result of the death of the deceased for example the cost of burial or cremation.
S49(1)(a) of the Act provides for recovery for pecuniary loss, which are the benefits that each dependant expected to receive had the deceased not died as a result of the defendant’s wrongful act. Such losses include for example loss of services provided by the deceased in home repairs, decoration, benefits in kind received from third parties, rearing and caring for children and loss of goods provided for by the deceased. An actuary plays a large role in determining the pecuniary loss suffered and there will have to be actuarial evidence of the loss suffered by each dependant. It can prove more difficult to calculate the dependants claim for future losses and again, an actuary will carry out this task.

There is a collective monetary limit on the compensation that dependants can recover for mental distress, which dependants suffer as a result of the death of the deceased. At present, this figure is €25,394.76 and applies regardless of the number of dependants who make a claim.

Funeral and other expenses are recoverable under S42 (2) of the Act; however if the dependants receive a death grant then this sum must be deducted when calculating the expenses incurred.

In contentious business a Solicitor may not calculate fees or other charges as a percentage of any award or settlement