Medical Negligence

Medical Negligence Claims


 

What are Medical Negligence Compensation Claims?

Medical negligence compensation claims in Ireland may come about if you have suffered an injury due medical malpractice or experienced the exacerbation of an existing condition due to a lack of care and attention. Mistakes in medical treatment may alternatively be referred to as a ‘medical accident’, ‘adverse incident’, or ‘patient safety incident’ but what it is important to consider — and is often not understood by the majority of people — is that this does not always mean that the medical treatment received was ‘negligent’.

Even though a better standard of attention could have prevented your injury, it may be that the injury itself was unavoidable. Medical negligence compensation claims are perhaps more intricate than any other type of personal injury claim — a fact that is acknowledged by Irish legislation — and as opposed to almost every other type of personal injury compensation case, the Injuries Board Ireland will not accept applications for assessment in respect of medical negligence compensation claims.

Establishing Liability in Medical Negligence Claims

With respect to medical negligence compensation claims, the injury suffered must have been caused by the negligence of a trained medical professional who had a duty of care towards you during, and in the circumstances of, the error in medical treatment occurring. It is obvious to most people that a medical practitioner does owe a duty of care to his patient(s); however it is crucial to note that, as opposed to other personal injury cases e.g. tripping or falling cases on public paths, it often proves difficult to establish negligence on the part of the doctor, medical practitioner or a hospital when an injury has been sustained, an illness has been contracted or a misdiagnosis has occurred.

Verifying Medical Negligence Claims

Proving that a medical profession has behaved negligently in his or her treatment of a patient is a rather complicated task, and it should be recognised that the law only allows the opportunity for you to make a medical negligence claim if it can be established ‘on the balance of probability’ that the treatment that you were given (or lack of treatment) was carried out in an improper fashion by the healthcare professionals involved, and that this directly lead to or contributed to your injury.

While it is not easy to explain exactly what medical negligence is comprised of and therefore what qualifies you to make claims for medical negligence compensation in Ireland, there are a number of situations in which it can clearly be stated that medical professionals have breached their duty of care in some manner. These include:

  • Mistake or delay in diagnosis of illness or injury
  • Failure to react to test results
  • Error in carrying out a procedure or operation
  • Error in administering treatment or prescribing drugs
  • Inadequate aftercare
  • Failure to fully make the patient aware of the risks associated with procedures to patient prior to the administration of same

It is important to acknowledge that a court will ask whether a competent physician would have acted in the same manner in the same situation as the defendant medical professional. Therefore, even where the steps taken by medical practitioner have caused or contributed to the plaintiff’s personal injury, his or her steps may not be deemed negligent if it can be proven that they were the ‘reasonable’ steps of a medical professional given the details the doctor had available had at the time and in the specific situation.

Suffering Injury or Damage

The first consideration to be reviewed when making any personal injury claim, be it due to medical negligence or otherwise, is that the plaintiff must have suffered some form of injury that is either physical or psychological due to the medical malpractice that occurred.

You should remember that due to the civil law, a possible plaintiff can only claim medical negligence compensation for a personal injury, loss or exacerbation of an existing condition that he or she has in fact experienced. Even where it can be shown that the doctor or medical staff have acted in a negligent manner, even criminally so, a near miss — other than where it can be proven to have caused, for example, a severe psychological injury — is insufficient to justify medical negligence compensation being awarded.

What does the Date of Knowledge Refer to?

Normally, the date of knowledge of an injury will be the calendar date on which the injury occurred. It is important due to this that an injured individual get in contact with an experienced solicitor at the earliest opportunity after an accident as a time limit from the date of knowledge exists in which to make medical negligence compensation claims in Ireland. The harsh truth is that, save for a number of several specific exceptions, the chance to begin a medical negligence compensation action will be lost precisely two years after the date of knowledge.

It should be taken in account, however, that some exceptions to this rule do exist and particularly cases of medical negligence such as an illness which avoidably deteriorated due to a previous misdiagnosis. In medical negligence compensation claims, the date of knowledge may at times be difficult to establish. On such occasions, you should always get in touch with an experienced solicitor even if it at first seems that it is too late, because an exception to the rule may well apply.

Medical Negligence Compensation for Children and Minors

If a minor is in the subject of the compensation claim, it is important to realise that the date of knowledge of the injury will, legally, be set as the child eighteenth birthday i.e. time does not start to be counted against the injured party until they reach their age of majority (eighteen years of age). Thereafter, the injured child (who has by now reached the age of majority) has two years within which to initiate a medical negligence compensation claim.

The minor is permitted, however, to file a medical negligence compensation action before his or her eighteenth birthday if a parent or guardian takes their place as his or her ‘next friend’. In this scenario it is still preferable that you talk with a solicitor at the first opportune moment should your child have been injured in circumstances where a medical professional was negligent.

Contributory Negligence in Relation to Medical Negligence Claims

The causing factor behind an accident is not always evident. In many scenarios one party e.g. the medical team that provided treatment, may be completely at fault. However, it is also possible that more than one, or several, things contributed to the injury that has been experienced. Moreover, one of the causal factors may have been the negligence of the injured individual.

In medical negligence compensation claims, this may include times, for example, where the plaintiff has in fact made the illness or injury worse due to the negligent care provided by their attending doctor by failing to comply fully with follow-up treatment given (e.g. refusing to use prescribed medication or missing scheduled appointments for check-ups, etc.) when this care may have helped to cure or alleviate in part the damage suffered.

When this is compared with the negligence of the defendant (or defendants), the extent of contributory negligence may defeat the plaintiff’s case (i.e. the claim will be unsuccessful) or reduce the value of medical negligence compensation awarded.

Medical Negligence Compensation: How is the Value of this Assessed?

There are a number of considerations which will normally have an effect on the value of your claim.

Trauma Inflicted

You should remember that compensation is awarded for the injuries that you have actually suffered. Unless a psychological injury or trauma can be shown to have happened, the exact nature of the incident is not of primary importance. Often, however, your legal team will refer to the dramatic or traumatic nature of the incident in negotiations or at trial as it will show your claim in a more sympathetic light and may add favourably to your medical negligence case.

Special Damages and Medical Negligence Compensation

In general, the expenses associated with any specialist medical treatment that you have needed, or will need, due to the injuries that you have suffered in the incident can be completely compensated for as well as any other financial expenses and loss of income which can be attributed to the loss, injury or deterioration of an existing condition you have sustained due to medical negligence.

Your Previous Medical History

Your previous medical history and records are an important factor in assessing your medical negligence compensation claim. If you have a previous history of similar or identical injuries, and of treatment to the same part of the body, this may influence your claim significantly. Perhaps the primary question is whether the medical negligence involved was the main causing factor of the injury or only an aggravating factor?

Changes to Quality-of-Life

Everyday work or jobs are not the only important things in life and as such any negligence compensation claim will take an impairment or loss of quality of life into account when the value of medical negligence claims is being calculated. This is a very specific assessment, and is often spoken of as a “loss of amenity”.

Severity and Continuing Nature of Pain Suffered

The principal at the back of any personal injury compensation settlement, be it for medical negligence or otherwise, is to financially account your injury and all the related suffering. Therefore the worse the pain suffered and persistence of same, the higher the value of medical negligence compensation awarded.

Summary

  • Establishing medical negligence is a complicated task and the injuries you have sustained must have resulted from the negligence of somebody medical practitioner who had a duty of care to you
  • Liability for medical negligence claims may not be immediately obvious, as many people can be involved in patient care
  • Medical negligence compensation claims take into account the pain suffered due to the medical mistakes, any psychological trauma, damage to the quality of life and other financial implications on the injured party
  • A court will decide medical negligence claims based on the opinion of an expert physician who will testify whether they would have acted in the same manner given identical circumstances
  • The monetary value of claims for medical negligence compensation can be affected by your own contributory negligence and past medical history

Possible plaintiffs should note that each medical negligence claim is unique. If you have suffered medical negligence and feel that you have a potential medical negligence compensation claim, you strongly are advised to discuss all of the points raised in the above article with a solicitor at the earliest opportunity.