Do I have a claim for medical negligence?

To answer this one should apply the following questions to the facts :

• Was there a diagnosis or treatment on the part of a medical practitioner where there is a failure to a degree that no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care?
• Did the medical provider deviate from a general and approved practice?
• Did the medical provider follow a course that no medical practitioner of like specialisation and skill would have followed?
• Did the diagnosis or treatment the medical carer followed have inherent defects which should have been obvious?
• Did the diagnosis or treatment provided comply with the careful conduct of a medical professional of like specialisation ?.

A medical carer will have a duty of care to their patient, therefore the above questions need to be applied to the individual facts to answer this question. Once its clear negligence arises, it is necessary to prove that it was the negligent act/omission that led to the person being injured.

How hard is it to prove medical negligence?

To succeed in a medical negligence claim, you need to provide evidence that proves the medical carer failed in their duty and this failure causing you harm/injury.

The particulars of negligence relevant to each case will be different, but it must be proved that the defendant did not exercise reasonable care, diligence, judgement and caution regarding the treatment given, or advice given, or management of the situation etc.

In a typical situation, a competent and professional medical person is expected to follow the recommended clinical procedures when faced with a dental problem, for example.

A patient can prove his/her treatment or care provided was below the acceptable standard if, for example, the wrong treatment was conducted and it amounts to a situation that couldn’t have occurred with another professional practitioner.

Another requirement is that of causation. This links the actions taken by the medical provider to the injuries sustained. The patient must show that if it were not for the negligence of the medical carer, she/he wouldn’t have suffered an injury.

How long do clinical negligence claims take?

This is difficult to answer with any precision as there are many variables here, and there isn’t a one size fits all in terms of having a defined answer.

The first point to consider is what is the attitude in terms of the defendant? ie is liability admitted or not ?.

Evidently, if liability is defended this increases the duration of the case and the court must ultimately give judgement.  

Another point to consider is what are the injuries of the person taking the case? ie are they ongoing or not.

For example, let’s say you have a fracture. This is a clearly defined injury with normally a clearly defined duration of recovery.

A court wants to know the diagnosis, prognosis, duration of recovery, nature of treatment etc. ie in order to have the full picture.

If a person requires further medical care, the persons doctor has not concluded the treatment required, and will therefore not be clear on all eventualities to describe to a court.

Another point to consider is how complex is the matter or not.

Some cases are complex, but a lot of cases are not complex and it is likely your solicitor has seen a case of similar features before.

We humans love complexity over simplicity.

Once proceedings are issued and if injuries are not ongoing, you can move your case on with relative speed to have it concluded at the earliest opportunity.

In our opinion claims of this nature do take longer in duration than personal injury* claims.

Can I make a claim for Dental Negligence ?

The principals of tort law & medical negligence are the same for hospital, surgical and dental negligence etc. claims.

The law needs to be applied to the facts on a case by case basis to assess if a person has a case or not.

If you have been injured due to medical negligence you will have many questions you want to be answered.

We will answer any questions we can that you have, advise of the options available, advise of a course of action and represent you if required. People have many questions such as ‘do I have a case, ‘how easy or difficult is this case going to be’, ‘what is it worth’, ‘how long is this case going to be’, for example. 

If you feel you have been injured due to medical negligence and have questions concerning this, we can be of assistance to you. 

Duty of Care

The law in Ireland is medical care providers owe patients a duty of care to a level that would reasonably be expected of such doctor / medical care provider in the circumstances.

How do I prove medical negligence in a case ?

This is your solicitors task to assist the person prove negligence arose. The medical evidence is examined, an appropriate medical experts view with respect to the care or lack thereof is undertaken and provided to the court. Both the injured party and the defendant will seek to having the medical facts examined by their own engaged doctors and the medical evidence presented to the court.

The injured party on receipt of the medical experts view can obtain legal opinions from their solicitor and barrister on the strengths or weakness of the evidence to hand to understand how to proceed.

Can I make a medical negligence claim against a private health care provider and public health care provider in Ireland ?

Yes.

Do patient advocacy groups or resources exist which can support individuals dealing with medical negligence issues in Ireland?

Yes.

Here are two.

www.patientadvocacyservice.ie

www.irishpatients.ie

Standard of Care

The expert must examine whether the medical care provider followed the accepted standard of care for the medical issue in question. A review of relevant guidelines, procedures, medical records are assessed to examine if the standard of care fell below par.

Causation Analysis

The medical expert must assess the causal relationship between the acts or omission regarding the medical care and the patients injury.

Testifying in Court

The medical expert presents their opinion to the court and explains the medical issues if required.

The medical expert provides an unbiased and objective opinion in the matter.

Are there any alternatives to going to court for medical negligence cases in Ireland ?

Yes.

Mediation can be quite an effective dispute resolution mechanism.

Pediatric medical negligence

Pediatric medical negligence occurs when a healthcare provider fails to meet the accepted standard of care in pediatric medicine, which resulted in a harm / injury or adverse outcomes for the child patient. Pediatric medical negligence cases can be complex.

Kieran Cleary and Roger Cleary can help with any questions you have regarding negligence, liability and what can be done in offices in Clonmel, Co. Tipperary or Dublin 7. 

Contact Details:

1. Call us on 01 546 1121  or  052 61 21999 between the hours of  9 am to 5 pm – Monday to Friday.

2. Email us – info@clearysolicitors.com – with a contact number and we will call you back.

3. Fill out our online Enquiry Form to the right.

• An Explanation – People injured have a right to a full explanation of what happened. This may be forthcoming or it may not. Early resolution regarding this is best for all concerned but doesn’t always happen.
• An Apology – An injured person may demand a full and sufficient apology from the appropriate person in relation to the events.
• Justice to be done to alleviate the loss or pain.
• Financial Compensation – If a person has been injured to the negligence of another they have a right to compensation for the loss, suffering, pain and financial consequences that have arisen.

The question asked in such tort cases is often: Could the results and outcomes for the patient be any different were they to be performed by another equally competent medical practitioner? If the answer is yes, then that professional may indeed have deviated from the accepted medical standards of care and therefore potentially neglect.

Relevant information for this can include information with respect to the medical condition, details of the procedure or treatment, benefits / risks discussion. A discussion with respect to the uncertainties should be had. Once the information is to hand patients can make an informed decision then how to proceed.

It is an ethical guide with respect to health care providers.

Hippocrates was a physician himself. It is summarised as first, do no harm. It is similar to a moral code with respect to patient safety.

• If the person is engaging a medical negligence solicitor, have a meeting with their solicitor to have an initial discussion about the matter.
• Collection of Medical Records.
• Chronology of events assessment : One has to get clear on the specific chronology of factual events in order of time.
• Medical Records Assessment.
• Expert Medical Review Obtained. The expert will assess whether the care provided met the accepted standards of medical practice. They will also help determine if any deviations from these standards could have contributed to the patient’s injury.
• Legal Assessment : One has to assess if a breach has been identified and is causation identified. The breach in standard of care must be directly linked to the persons injury. Causation is the most difficult legal hurdle aspect of medical negligence cases for a number of reasons.
• Legal Opinion : The person can receive a legal opinion from the solicitor and barrister dealing with the matter. The client decides what they wish to do, and proceedings may or may not commence at this juncture.

The Balance of Probabilities.

In essence the injured person must prove on the balance of probabilities in a civil claim that facts alleged are true. He/she must prove the alleged facts are more likely thank not to be true than the countervailing facts proffered.

This is a heading of loss in a medical negligence case which deals with the pain and suffering of the injured party.

A comparison will be made as to how the person was before the incident to then after the incident.

Vicarious liability refers to a scenario where someone else, in this case, the administrators of a hospital, are held liable for the omission(s) or act(s) of their employees. To avoid being held responsible for the actions, or rather inactions, of their employees, the employer is supposed to devise and effect necessary measures.

The statute of limitations exists for the sake of protecting both the defendants and the plaintiffs in medical negligence* actions. There is only a window of up to 24 months during which injured patients have to report and initiate legal action, excluding the date of knowledge exception.

The sooner the investigation commences, the better the chances of actually collecting evidence to assist the case. 

For an injured person to succeed in medical negligence* legal action, causation needs to be satisfactorily proven. There is a need to show a direct correlation between the injuries of a patient and the failure by the medical practitioner to perform their due diligence. The integrity of the entire lawsuit hinges on establishing causation. Medical negligence* legal action would effectively collapse if one was unable to connect the two above mentioned aspects.

For an injured person to succeed in medical negligence* legal Medical negligence occurs when healthcare professionals provide care that falls below the accepted standard, resulting in harm or injury to the patient.

Common types include misdiagnosis, delayed diagnosis, surgical errors, medication errors, birth injuries, and failure to obtain consent.

Yes, claims can be made for both physical and psychological injuries.

Examples are :

Misdiagnosis, delayed diagnosis, failure to treat surgical errors, and medication errors.

Birth Injuries: Injuries sustained by infants during childbirth due to medical negligence, such as mishandling during delivery, failure to detect fetal distress, or improper use of medical instruments.

Anesthesia Errors: Errors related to administering anesthesia, such as dosage errors, failure to monitor the patient during anesthesia, or complications from anesthesia administration.

Failure to Obtain Informed Consent: Proceeding with medical treatment without obtaining the patient’s informed consent or failing to adequately inform the patient about the risks and alternatives of the proposed treatment.

Laboratory Errors: Errors in conducting or interpreting laboratory tests, leading to misdiagnosis or incorrect treatment decisions.

Radiology Errors: Errors in interpreting diagnostic imaging studies, such as X-rays, CT scans, or MRI scans, resulting in misdiagnosis or delayed diagnosis.

Expert witnesses play an important role in medical negligence cases, as in many other jurisdictions. These experts assess whether the standard of care was breached and whether that breach directly caused harm to the patient. Here’s a closer look at the specific roles of expert witnesses in these cases:

1. Establishing the Standard of Care

Expert witnesses are typically healthcare professionals with expertise in the specific area relevant to the case. They provide an independent assessment of the standard of care that should have been provided under similar circumstances.

2. Assessing Breach of Standard

Once the standard of care is established, an expert witness evaluates the actual care provided to the patient. They offer opinions on whether the actions (or inactions) of the healthcare provider fell below the standard of care.

3. Linking a Breach to Harm

A very important proof aspect is causation, that is, linking the breach in the standard of care to the injury or harm suffered by the patient. The expert provides an opinion on this.

4. Explaining Medical Concepts

Medical negligence cases often involve complex medical terminology and procedures. Expert witnesses explain the medical detail to assist a court make informed decisions based on a correct understanding of medical practices.

A child has no legal capacity to take a case.

Such a legal claim must be brought within two years of the date of the incident or the date on which the injury was discovered. However, for children, this period does not begin until they reach the age of majority (18 years old).

The parent of the child will like commence legal proceedings to seek legal recourse through the courts.

Both present and possible future loss of earnings may need to be reviewed in case. This is dependent on the persons individual circumstances as a result of what arose.

In essence the law needs to be applied to the facts of each individual case.

Evidently as the nature of this legal action type concerns medical care, then the experts required to give evidence to court, having reviewed the medical care and prepared reports are doctors.

The injured parties evidence in addition to the medical records assist to put the facts together to then endeavour to prove medical negligence. Supportive medical evidence must be obtained and the assessed by the persons solicitor and barrister and the case presented to the court for assessment.

For an injured person to prove that a medical person is negligent, the following factors must be considered:-

• Was there a doctor-patient relationship in place?
• Was the medical professional negligent?
• Did the medical professional’s neglect cause harm and injury?
• Was the medical professional at fault for the misdiagnosis?
• Did the medical professional perform the improper treatment?
• Did the medical professional inform the patient of the expected risks?