Why do people take a case?
The medical profession is held in high esteem. Significant trust is placed in a health professional when you submit yourself for an operation or even when you hold out your arm to get an injection. When things go wrong the reaction of an injured patient or their family is an emotional one: there is a strong sense of the breach of this trust. We find that injured patients hire Solicitors, not because of the desire to get compensation, but instead they are driven by a lack of knowledge about what happened to them, the inability to get answers and the desire to get an apology. In many cases we achieve compensation for Clients with an apology. There is a perception amongst injured patients and their families that when something goes wrong, the medical profession closes ranks and they cannot get straight answers to the straightforward questions.
Are these types of cases very difficult?
Unlike with other types of personal injuries, medical negligence cases tend to be complex. In a lot of cases, the person is sick before they ever get to hospital, or they are suffering from a serious underlying condition, such as cancer and one of the tasks which the Solicitor faces is to distinguish what the outcome would have been but for the negligent act or omission which took place.
Inevitably, the other side will argue that the illness or disease that the person had when they submitted themselves for treatment was the determining factor in the final outcome. In the case of a surgical treatment, it can be argued that the injury complained of is within the realm of acceptable error or a recognised complication.
A further difficulty is the lack of knowledge. When somebody gets injured in a factory, or is in an accident on the road, what caused the accident is rarely in dispute. However, in a medical context, the background of the facts can be so vast and complex, that very often it is difficult to understand what happened.
Another problem is that medical negligence cases are still David v Goliath type challenges. They involve you (an individual) taking on the State which has deeper pockets and no emotional stake in the outcome.
How would someone know if there has been an act of Medical Negligence?
It is very difficult to establish at an early stage. It is not common for hospitals to inform patients when an error has occurred so typically a patient or relative becomes suspicious of an error, an uninformed opinion is formed we are then instructed to investigate.
What initial steps do you take to see if you might have a case?
Medical negligence claims, in a similar way to personal injury claims, are made up of a series of hurdles. If you do not clear the first hurdle you cannot move on to the next.
Take up copies of all medical records and check them. In some cases we may even send them to a medical records expert for analysis.
Write to the doctor, health care professional or institution we believe is responsible for the injuries caused.
Medical experts specialising in the particular area of medicine involved will then be asked to consider whether or not the treatment received was negligent or substandard and if so the extent of the damage it caused.
If we consider that we have enough evidence to prove a case of medical negligence, then we advise starting court proceedings immediately.
Clinical negligence cases can be settled by negotiation without the need to proceed to a full trial but they are rarely resolved without starting court action.
It is a fact that things do go wrong with surgery and there may not necessarily be negligence – how do the Courts decide what is and what is not negligence?
Medical Negligence is essentially an act or omission by a health care professional which is below the accepted standard of care and which results in injury or death to a patient.
Interestingly, before the 1950s there was no reported case of medical negligence in Ireland. In fact, until 1989 the number of cases was minimal.
In 1989 the case of Dunne v The National Maternity Hospital [1989] Irish Reports 91 came before the Supreme Court and remains to be the influential case in medical negligence to the present day. The facts of this case was that only one heartbeat was monitored during pregnancy, despite the fact that the mother was pregnant with twins; this led to one twin being delivered with severe brain damage, and the other being delivered dead.
These principles are very lengthy and too lengthy to set out here but in summary you have to prove that the care you received fell below medically acceptable standards. 'Acceptable general and approved practice’ need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications.
Medical Negligence can happen because of:
Diagnosis – i.e. misdiagnosis or delayed diagnosis.
Treatment – i.e. errors in the medical treatment such as incorrect medication, surgical errors, exposure to infection (MRSA etc.) or;
Is there a time period for bringing these cases?
The Statute of Limitations (Amendment) Act 1991 introduced the ‘date of knowledge’ for personal injury cases. The date of knowledge is applied when the date the wrong/injury takes place differs from the date the wrong/injury is discovered. This means that in situations where the injury may not be obvious at first the time limit for actions does not begin until the injured party is aware of the injury.
While, generally speaking, a person has two years to make a claim for medical negligence, the date of knowledge has been applied in medical negligence cases. A person who receives a negligent medical procedure may not have knowledge of the injury at first until the injuries cause problems or they become aware that such problems arose as a consequence of such procedures. The ‘date of knowledge’ ensures that the time limit does not run out before a person realises they have an injury/action.
During the last 30 years the office has probably dealt with most types of medical negligence. We have dealt with a broad range of medical negligence cases over the years. We have represented clients in the areas of cancer misdiagnosis, orthopaedic and surgical negligence, failure to diagnose, cerebral palsy and neonatal claims, amongst others.
We are currently representing a significant number of people who have been affected by the DePuy hip implant recall and narcolepsy arising out of the swine flu vaccine.
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