Everyone interacts with doctors and medical professionals during their lifetime. International Studies show between 10%-12% of patients will experience avoidable adverse outcomes arising from their health treatment. Yet the same studies show that only 1% of those people who have adverse outcomes consult a lawyer to take a medical negligence case. Roger Murray SC, Head of Medical Negligence at Callan Tansey LLP spoke to Catherine Sanz and James McDermott on the Business Post podcast, Law on Trial, about Making a Medical Negligence Claim in Ireland. You can listen back here and read more about the issues discussed below.
What do we mean by Medical Negligence?
Medical negligence is when a patient suffers avoidable harm because they received care from a doctor or a hospital which was below a reasonable standard.
Examples include :
- Missed/late diagnosis
- Birth injuries
- Perineal tears
- Surgical errors
- Wrong Medication being given
- Late/Non-diagnosis of Cancer
Why do people make a Medical Negligence Claim?
Ask any person walking into a lawyer’s office as to why they felt they had to go to law and they will generally give the following answers in the following order:
- To get information and accountability
- To prevent the event happening again
- To get financial support to cope with the impact of the negligence.
In other words, compensation, whilst necessary and deserved, is generally down the list. In most cases people go to law because they do not know what has happened to them or why and they want to get answers;
What information is needed to make a Medical Negligence Claim in Ireland?
- A patient needs to get access to their medical records through Data Protection legislation or Freedom of Information. This can be done through a solicitor’s office. It is very important to do it through a solicitor’s office to ensure that all of the relevant material is provided including scan images, reports. etc.,
- Once those records have been studied and examined, an independent expert in the relevant field needs to be briefed by lawyers to give an opinion for the Court as to whether or not the care provided fell below a reasonable standard.
- It is very important that the exact comparator of the doctor whose conduct is being challenged is consulted: a Neurosurgeon will comment on a neurosurgical operation not the work of a GP, for example.
How to make a Medical Negligence Claim in Ireland?
- You cannot pursue a claim in medical negligence unless your solicitor is in receipt of a medical opinion from an independent expert confirming that harm has been caused as a consequence of medical care which fell below a reasonable standard.
- You must then instruct your solicitor to begin the process of issuing legal proceedings against the medical team and/or the hospital/HSE.
- It is important to note that the legal time limit to make a medical negligence claim is 2 years from the date of injury or knowledge of the injury.
- In the case of children, the time limit expires two years after they reach the age of 18.
- The Rules of the Court stipulate that an Affidavit of Verification must be sworn in relation to Court documents, so everything needs to stack up from the start.
What do we mean by a Medical Negligence Expert Witnesses?
A medical negligence expert witness prepares the report for the Court, not the party taking the case or firm of solicitors instructing them. They have to be fully independent and they can have no connection to anybody involved in the case. Because Ireland is such a comparatively small country with a small number of medical practitioners in some fields, it is necessary to go outside the jurisdiction to get a fully independent opinion e.g. the UK. That opinion will then be produced in the format of a report and if the case goes to Court the expert will have to give evidence.
What is meant by Open Disclosure?
Open Disclosure is the process through which Health Care Givers, without prompting, tell patients and/or the families as soon as possible after an adverse event what has happened and why. It is a process, not an event. International experts such as Dr. Timothy McDonald from the US say that “Disclosure is over when the patients says it is over” Full disclosure might require several meetings or conversations over time. Very often, access to a lawyer is required and legal advice is necessary so that the appropriate questions can be asked.
What is meant by Duty of Candour?
Duty of Candour is the legal concept whereby medical professionals are under a mandatory legal duty to disclose to patients and their families information about an adverse event. At the moment, there is no mandatory legal requirement for doctors to do so. There is an ethical obligation, however. It is hoped that the new Patient Safety Bill will make it obligatory for doctors and hospitals to front up about mistakes when they happen. Such a duty exists in other countries for example the jurisdiction of England and Wales and helps reduce both the incidence of claims and improves patient safety.
Are all Medical Negligence cases heard in the High Court?
Medical negligence cases are deemed to be Personal Injuries cases according to the current Rules of Court. All Personal Injuries cases worth more than €60,000 in terms of damages must be heard in the High Court. Increasingly, Mediation is used to settle or deal with cases before they go to Court. The vast majority of cases do not end up being fought in front of a Judge.
How long does it take to settle a Medical Negligence claim in Ireland?
It can take several weeks or months to get all the information necessary including the records and scans. then it can then take several weeks or months to source, identify and brief an appropriate expert and to get that expert’s report. Barristers then need to be consulted and legal papers drafted and lodged. The Defendant and their legal team need to be given time to investigate things at their end and lodge their Defence. On average the process of investigation can take between 6-9 months and it can take up to one and a half years from that point for cases to reach a situation where they either settle or go to Court.
Roger Murray SC is head of Medical Negligence at Callan Tansey Solicitors LLP. He is co-author of the book Medical Inquests and regularly represents bereaved families at Inquests across Ireland. If you have any questions about the issues raised in this article or on the issue of Medical Negligence you can contact Roger Murray here.