A medical negligence claim may arise in Ireland if you have suffered an injury as a direct result of medical mistreatment or lack of care that you have received. This may also be referred to variously as a ‘medical accident’, ‘adverse incident’, or ‘patient safety incident’. What is important to remember and is often misunderstood by people in general is that this does not necessarily mean that the treatment was ‘negligent’. while better quality of care or safety measures could have prevented your injury, it may be that the incident itself was in fact completely unavoidable. Medical negligence claims are perhaps more complex that any other genre of personal injury law, a fact that is recognised by the Irish legal system. Unlike almost every other type of personal injury compensation case, the Injuries Board will refuse jurisdiction in respect of medical negligence claims.
With respect to any personal injury claim, the injury sustained must result from the negligence of someone who had a duty of care towards you at the time of and in the circumstances of the accident. It is quite apparent that a Doctor does indeed owe a duty of care to his patient. It is important to note, however, that it in contrast to other personal injury cases e.g. tripping or slipping cases on public footpaths, it is often difficult to prove negligence on the part of the doctor or hospital when an injury has occurred, an illness has been contracted or a misdiagnosis has been made.
Proving that a doctor has acted negligently in his or her treatment of a patient is a rather complex task and it should be noted that the law only provides the opportunity for you to make a medical negligence claim if it can be shown ‘on the balance of probability’ that the treatment that you received was carried out in a negligent fashion by the healthcare professionals involved and that this directly caused or contributed to your injury.
While it is rather difficult to explain what exactly constitutes medical negligence, and therefore makes it possible to pursue a medical negligence claim, there are a number of circumstances in which it can clearly be argued that medical professionals have breached their duty of care. These include:
It is important to remember that a court will consider if a competent physician would have acted in the same manner as the defendant doctor. Therefore, even where the doctor’s actions have caused or contributed to the plaintiff’s personal injury, his actions may not be deemed negligent if it can be shown that they were the ‘reasonable’ actions of a medical professional given the information the doctor had and the specific circumstances.
The first issue to be considered when pursuing any personal injury claim, be it due to medical negligence or otherwise, is that it is in fact just that: a personal injury claim. The plaintiff must have sustained some form of injury that is either physical or psychological as a consequence of the medical negligence that occurred. Even where the doctor or hospital staff have indeed acted negligently, even criminally so, you should note that with regard to the civil law, a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained. A near miss – other than where it can be proven to have caused, for example, a severe psychological trauma – is not sufficient to justify compensation being awarded.
More often than not, the date of knowledge will be the date on which the injury was sustained. It is therefore important that an injured party contacts a solicitor at their earliest convenience following an accident. The harsh reality is that, save for several specific exceptions, the opportunity to make a compensation claim will be lost precisely two years after the date of knowledge. It should be remembered, however, that exceptions do exist and particularly cases of medical negligence such as an illness that went unchecked due to misdiagnosis. In medical negligence claims, the date of knowledge may at times be difficult to clarify. In such circumstances, you should always contact a solicitor at the first opportunity even if it initially seems that it is too late because an exception may well apply.
In the case of a minor, it is important to note that the date of knowledge of the injury is in fact the minor victim’s eighteenth birthday i.e. time does not begin to run against the injured infant until the infant reaches his or her majority (eighteen years of age). Thereafter, under current law, the injured party (who has now reached their majority) has two years within which to issue proceedings in court. The minor can, however, pursue a compensation claim before his or her eighteenth birthday provided a parent or guardian acts as his or her ‘next friend’. It is therefore still preferable that you contact a solicitor at the first opportunity should your child have been injured in circumstances where a medical professional was at fault.
It is very possible that negligent treatment could be administered after the injured party has been in fact hurt in an accident caused by the negligent actions of another party (for example, a road traffic accident or an accident at work). This could result in circumstances where the medical negligence has not caused the injury itself but has led to its exacerbation. It should be noted that in such circumstances a principle of attributing a ‘percentage’ of the blame to the two or more parties who may be at fault for the plaintiff’s injuries and therefore the liability may be shared between the multiple defendants on a percentage basis.
There are a number of factors which will normally influence the value of your claim, the first of which relates to an dispute over liability for the accident that may arise between the parties.
The cause of an accident is not always obvious. In many situations one party e.g. the medical team that provided treatment, may be completely to blame. However, it is also true that more than one, or several, factors contributed to the injury that has been sustained. Moreover, one of the causal factors may have in fact been the negligence of the injured party himself. How then can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, albeit slightly, to their own injuries?
Contributory negligence is the legal principle that an injured party, the plaintiff medical negligence claim, may possibly have contributed to his or her own injury by acting in a negligent manner when faced with the obvious and known conditions.
In a case involving medical negligence claim, this may include circumstances, for example, where the plaintiff has in fact exacerbated the illness contracted or injury sustained due to the negligent care provided by their doctor by failing to co-operate fully with follow-up treatment provided (e.g. refusing to take prescribed medication or missing scheduled appointments, etc.) when said care may have helped to cure or alleviate in part the damage sustained.
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 amount of compensation awarded.
It is important to remember that compensation is paid for the injuries that you have actually sustained. Unless a psychological injury or trauma can be proven to have occurred, the nature of the incident is of very much secondary importance. Often, however, your solicitor or barrister will make reference to the dramatic or traumatic nature of the incident in negotiations or at trial as it will present your claim in a more sympathetic light and may contribute favourably to the case.
Generally speaking, the costs of any specialist medical treatment that you have required or will require due to the injuries that you have sustained in the incident can be compensated for in full or in part.
Notwithstanding which injury may cause the individual more pain, it is very often the case that injuries are valued according to their level of seriousness and whether or not they require objective proof (i.e. expert diagnosis) to be believed (e.g. a broken bone or a visible scar versus soft tissue strain). The permanency and persistence of the injury are, of course, also important factor.
Is the injury sustained likely to be permanent or have long-term consequences? Obviously the longer that symptoms are expected to be present the larger the compensation. What is also very significant is the age of the victim. If an injury is expected to have permanent effects, very often a similar injury may be ‘worth’ more to a younger plaintiff than an older person. This is due to the simple logic that a younger person can be expected to have to cope with the consequences for more time. On a basic level, for example, if a 20 year old person loses a limb the principle is that he or she may have to live with that injury for potentially 60 years or more. It will be assumed that a person of 70 years old who suffers the same type of injury will not have to cope with that disability for the same length of time. Your claim value may also increase further if the doctors specify that you will require future specialist medical care.
Your medical history and records are an important factor in assessing your claim. If you have a prior history of similar or identical injuries and of treatment of the same area of the body this may affect your claim significantly. Perhaps the key question is whether the medical negligence involved was the primary cause of the injury or only an aggravating factor?
Our work or careers are not the only important things in life and as such any medical negligence claim will take an impairment or loss of quality of life into account when value is being assessed. This is a very individual assessment for each plaintiff as every person’s passions and interests will be different. A significant injury to the index finger for, example, may be viewed more seriously if it can be proven that the plaintiff was a keen amateur pianist prior to the accident.
The very principal behind any personal injury compensation, be it for medical negligence or otherwise, is indeed to compensate you for your injury and related suffering, therefore the greater the pain suffered and persistence of same, the higher the compensation awarded is likely to be.
Strictly speaking this is a separate aspect to the medical negligence claim but it often causes confusion for clients and frustration for both solicitors and barristers. Clients may often compare their settlement or award to that of a friend or acquaintance who received “€50,000 more than me!” for a similar injury. This may well be due to a significant loss of earnings which a plaintiff has been awarded due to a lengthy absence (or predicted absence) from work. The figure awarded of course corresponds to that persons earning power or potential earning power. With respect to the loss of earnings (be it past or future) aspect of the claim, the gravity of the injury or illness contracted itself is only relevant insofar as it restricts that person from working. Personal circumstances will, of course, be a factor. A different type of injury may have entirely different consequences for the plaintiff depending on their respective profession, for example, a knee injury to a professional footballer or a facial scar to a model.
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