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Medical Negligence / Medical Malpractice
/ Clinical Negligence:
Frequently Asked Questions
Is there
a time limit in which a must make my claim for medical negligence/medical
malpractice/clinical negligence?
Why do I have to get
an expert medical report?
Why are medical
negligence claims treated differently from other compensation cases
(for example road traffic accidents)?
What compensation
or damages am I entitled to if my claim is successful?
Why are the costs so high in a medical negligence case?
Is
there a time limit in which a must make my claim for medical negligence/medical
malpractice/clinical negligence?
Time-limit for issuing proceedings in a medical negligence case
is two years from the date on which the injury was sustained or
the cause of the claim was known.
Do I have to submit my claim to the injuries board?
No, unlike other claims for compensation arising out of accidents
or negligence, a claim for medical negligence/ medical malpractice/clinical
negligence is not submitted to the injuries board. Most claims for
medical negligence are processed either through the Circuit Court
or the High Court depending on the level of damages anticipated
in each case.
If I think I have a medical negligence claim what should I do?
It is important that you obtain a copy of your own medical records
relating to the treatment which you now complain of as soon as possible.
Your solicitor will need these medical records in order to brief
the appropriate independent medical expert to review your case and
give you an opinion as to whether the treatment you received was
below the normal standard of care.
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Why
do I have to get an expert medical report?
The High Court has made it very clear that an independent expert
report should be obtained before issuing proceedings for medical
negligence / medical malpractice / clinical negligence. While this
is an expense at the very beginning of the case, it does have the
advantage of confirming whether you have a good case or not. It
is better to sustain the cost of an independent expert report and
find out that you have no case at an early stage than to find out
that you have no case when you're on the steps of court having incurred
substantial legal costs.
Why
are medical negligence claims treated differently from other compensation
cases (for example road traffic accidents)?
1. Medical negligence cases are usually more complex :
In a road traffic accident case where the driver of one motor vehicle
is claiming compensation for personal injury from the driver of
another motor vehicle, the first question at the court has to determine
is which party is liable. In such a case liability would be determined
by reference to witnesses to the accident, Garda reports, photographs
of the damage to the vehicles involved, and sketches of the scene
of the accident.
However in a medical negligence claim it is often very difficult
to determine whether a healthcare provider has been negligent in
the treatment of his/her patient. It can often be the case that
when a patient is receiving treatment a complication can arise such
as an unknown or unforeseen allergy to medication thus causing the
injury complained of.
Often when a patient attends his doctor or health care provider
his/her health has already deteriorated and therefore the injury
sustained two further treatment may be due to the patient's already
poor state of health as opposed to any negligent act on behalf of
the doctor or health care provider.
It can often occur that the complaint that the patient is suffering
from, maybe a result of the underlying injury that brought the patient
to the Doctor/hospital in the first place and not the treatment
which he/she received.
2. Expert medical reports must be obtained
before commencing any court proceedings:
Because of the complexity of a medical negligence claim, it is strongly
advised that before you issue any court proceedings, you engage
the services of an experienced expert medical witness, ideally one
who specialises in the same field of medicine as that of the doctor
or health care provider against whom a claim of negligence is now
being made. Because the Irish medical field is quite small, more
often than not, an expert independent medical opinion would have
to be sought outside of Ireland and accordingly such an opinion
can be quite expensive to obtain. It is often the case that an independent
expert opinion is sought from a UK-based medical consultant and
the fee for such an opinion can vary from £500 to as much
as £5000.
While this is a big expense at the beginning of the
case, it is useful to have at least an independent opinion from
the very beginning of the case which will indicate whether you have
a good chance of success or not in taking such a case. Naturally
it is useful and saves an enormous amount of time and money in terms
of legal bills if you're able to get an independent opinion before
you go to court telling you whether you have a good case and not.
3. The Plaintiff has a number of legal hurdles to overcome
in order to succeed in his or her case.
A plaintiff must establish all four elements of the tort of negligence
for a successful medical negligence claim.
(i). A duty was owed: a legal duty exists whenever a hospital or
health care provider undertakes care or treatment of a patient.
(ii). A duty was breached: the health care provider failed to conform
to the relevant standard care.
(iii). The breach caused an injury: The breach of duty was a proximate
cause of the injury.
(iv). Damages: Without damages (losses which may be pecuniary or
emotional), there is no basis for a claim, regardless of whether
the medical provider was negligent.
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What
compensation or damages am I entitled to if my claim is successful?
The plaintiff's damages or compensation may include compensatory
and punitive damages. Compensatory damages are both general and
special damages. Special damages include financial losses such as
loss of earnings, medical expenses and care expenses. These damages
may be assessed for past and future losses. General damages are
assessed for the injury itself: physical and psychological harm,
such as loss of vision, loss of a limb or organ, the reduced enjoyment
of life due to a disability or loss of a loved one, severe pain
and emotional distress. Punitive damages (also known as exemplary
damages) are only awarded in the event of wanton and reckless conduct.
Indeed the settlement or award of damages in medical negligence
cases are regularly reported by the national press because the settlement
or award is usually very large. The reason why the settlement or
award of damages in a medical negligence case is usually very large
is because the injury sustained in a medical negligence situation
is often permanent, debilitating and has long-term implications
for the patient and his/her family (for example 24 hour care).
Why
are the costs so high in a medical negligence case?
It is our experience that for every successful medical
negligence case, there are at least five more which have been unsuccessful.
There has been a lot of comment and criticism in respect of the
legal fees charged in medical negligence cases. The high legal costs
of these cases results firstly, from the fact that the cases are
complex to start with, secondly, they tend to take a long time to
get to court because of the very aggressive defence strategies of
the medical insurance companies and thirdly, because a considerable
period of time has to be allowed to lapse to see whether the patients
injuries resolve or become permanent.
Our firm are experienced medical lawyers with over twenty years
experience in the area of medical negligence.
HOW TO SUE: IF YOU THINK YOU MAY HAVE A CLAIM FOR MEDICAL NEGLIGENCE
/ MEDICAL MALPRACTICE / CLINICAL NEGLIGENCE, PLEASE CONTACT JAMES
SEYMOUR OR MATTHEW MOLLOY FOR A NO OBLIGATION CONSULTATION FREE
OF CHARGE
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