Medical Negligence

When a healthcare professional makes a mistake, and does not adhere to the required standard of care, the results can be devastating for the patient and their loved ones. It can include but is not limited to GP’s, Medical Consultants, Surgeons, Accident and Emergency Staff, Anaesthesiologists, Oncologists, Radiologists, Pharmacists, Dentists, Opticians, Nurses, Midwives, Hospital Staff, Nursing Homes Staff. We know also how difficult it can be to get answers from the medical profession when something goes wrong and will help you to find out what really happened.

Anthony Fay has been a vocal advocate for injured parties and has further proposed reforms in personal injuries law including the attached article published in the Irish Law Times.

We understand that choosing to start a clinical negligence claim is not an easy decision and Anthony Fay & Company will provide strong legal representation and will support you. If you or one of the members of your family, have suffered an injury as a result of medical treatment and you are concerned that errors have been made, you may wish to consider claiming compensation. We are very aware of the tactics that the authorities and insurance companies may use to contest medical negligence claims and on occasion avoid open disclosure.

“Time is the only thief we can’t get justice against.”

An individual who has been injured as a result of a medical negligence* has generally 2 years to issue legal proceedings. The clock normally starts ticking from the date of injury or the date of knowledge of the person concerned with respect to that injury whichever occurs later. There is a time extension to the above limitations for persons with a disability or a minor (those under 18 years old). Notwithstanding these time limits, it’s generally advisable to act sooner rather than later if you intend to pursue the matter.

EXAMPLES:

Below is a list of some of the areas which come under the umbrella of medical negligence/malpractice:

• Misdiagnosis or Delayed Diagnosis including for breast & cervical cancer
• Surgical Errors
• Negligent Medical Treatment
• Medical Product Liability including the Depuy ASR Hip recall.
• Birth Injury
• Cerebral Palsy
• Acquired Brain Injury
• Gynaecological & Obstetrics Injury Claims including Symphysiotomy & Lourdes Hospital Redress Scheme
• Miscarriage
• Failure to warn/Seek informed consent
• Emergency Department Claims
• General Practice/Family Doctor Claims
• Failure to refer a patient to a specialist/consultant when necessary.
• Fatal Injury Claims
• Blood Product Transfusion & Hepatitis Infection
• Hospital/Nursing Home Acquired Infection including MRSA
• Cosmetic Surgery/Plastic Surgery
• Day Procedure Claims
• Post-Operative Management
• Cardiology
• Dentistry
• Pharmaceutical Claims

The list is not exhaustive.

MEDICAL NEGLIGENCE PRINCIPLES:

The well-publicised case of Dunne v National Maternity Hospital [1989] heard before by the Supreme Court has laid down some important medical negligence principles which can be briefly summarised as follows:

1. Diagnosis and treatment test: A doctor will be negligent if no practitioner of equal status (specialist or GP) and skill, acting with ordinary care, would have done the same.
2. Deviations from general and approved practice will not be negligent unless no doctor of equal status and skill, acting with ordinary care, would have done the same.
3. Inherent defects: it is not a defence for a doctor to allege that he followed an established practice of conduct, if the practice has inherent defects that should be obvious to any person giving due consideration to the matter.

As you can appreciate, this can be quite a complicated test or series of tests which is why you need a dedicated firm that specialises in clinical negligence claims. It is also necessary to prove on the balance of probabilitiesthat the injuries sustained werecaused as a result of the alleged medical negligence(as opposed to underlying medical issues).

IMMEDIATE STEPS:

Anthony Fay solicitor will personally meet with you and/or a family member at a convenient time and location in order to take a detailed statement describing the circumstances.

We will request your medical records from GPs, consultants, hospital and other clinicians under theFreedom of information Act(s)and/or the Data Protection Act(s).

There is an obligation under Irish law not to commence legal proceedings alleging medical negligence without an expert opinion/report to substantiate your claim. This is a prudent rule as is it helps to clarify whether you have reasonable grounds to bring a case at an early stage? It is invariably the case that an independent medical report is obtained from the United Kingdom or another country having regard to the small medical community in Ireland. We have a panel of medico legal expert witnesses in various medical fields/specialities to assist us in that regard.

DO I HAVE TO GO TO COURT?

The first step is to serve a letter(s) of claim upon the healthcare practitioner(s) calling on them to admit liability before legal proceedings are issued usually in the High Court. This does not preclude parties from engaging in settlement talks at any time up to the hearing of the action. There have also been calls for greater use of mediation and arbitration to reduce the adversarial nature of these types of proceedings.

It is unfortunately however the case that medical practitioners/insurance companies will sometimes prolong litigation until the last moment which further aggravates the distress experienced by the claimant. Other actions will proceed to hearing on the basis that the other side is defending the claim or an assessment only of the damages sustained by the plaintiff. Anthony Fay & Company will stand firmly by you during all stages of the pleadings from start to finish.

CATEGORIES OF COMPENSATION:

Special damages cover economic losses or out-of-pocket expenses including:

• cost of past and future medical treatment,
• cost of aids, equipment and extensions/alterations to homes & transport.
• cost of past and future loss of earnings;

General damages

• For pain and suffering (past, present, future) and quality of life in general
• Disfigurement and disability
• Psychological trauma & nervous shock

A member of the judiciary recently commented that settlements of hospital negligence compensation can be a lottery when they are awarded on the basis of the anticipated life expectancy of a catastrophically injured plaintiff. Since October 2018 legislation has commenced allowing the courts to make awards of damages in cases of catastrophic injury by way of periodic payment orders.

The Legal Services Regulation Act 2015 also has important implications for clinical negligence actions. There regulations deal with pre-action protocol (i.e. the steps that the court would normally expect parties to take before commencing proceedings). The legislation further provides a statutory footing for an apology to be made in a clinical negligence action.

• Anthony’s analysis of the illicit drugs debate as published in the Examiner Newspaper (September 2020):

https://www.irishexaminer.com/opinion/commentanalysis/arid-40042595.html

*”In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.

Disclaimer: – The information provided on this website is for educational purposes only and is not intended to be legal advice. Please note that legal advice should be sought in relation to individual circumstances.