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How to lodge a medical negligence claim

Ireland has some of the best healthcare facilities, doctors and nurses in the world, but sometimes things can go wrong. If you suspect you’ve suffered harm as a result of a surgical error, an incorrect medication, an infection, a misdiagnosis or similar, then you should immediately contact a solicitor who specialises in medical negligence claims.

To bring about legal proceedings, Irish law insists that you first obtain a report from a suitably qualified medical expert which confirms that you received below acceptable standards of healthcare.

Medical negligence claims can be tricky – you need to understand how the procedure works and try to make the wisest decisions as your case progresses in the courts. This article will help you understand exactly what’s involved.

Who do I sue?

With a medical negligence claim, it’s sometimes difficult to know who to sue. You can make a claim against anyone who owes you a medical duty of care whether they’re privately funded or part of the Health Service Executive of Ireland. Some examples include doctors, cosmetic surgeons, hospital trusts, dentists, and physiotherapists.

You need a good Solicitor

It’s important to find a solicitor who has a thorough knowledge of medical negligence law, and if they’ve also had some positive results, even better. Make sure you’re personally comfortable with the firm of solicitors you choose – you need to know that they’re fully invested in your case and will do everything in their power to win. Also, don’t confuse a personal injury solicitor, or lawyer, with a medical negligence solicitor. It is a very complex field of law, so it’s vital to select a solicitor with experience in this field.

Is my claim valid?

As there’s a strict legal definition of clinical or medical negligence, two conditions have to be met before a claim is deemed valid:

Breach of Duty – You must produce evidence to show that the clinician who treated you did something, or failed to do something, which no other health professional would have done or failed to do.

Causation – To demonstrate causation, you need to establish that the harm you suffered was caused by the clinician. In other words, but for the clinician’s actions, would you have suffered harm?

As causation is balanced on probability, there has to be a 50% chance that the clinician was responsible for the harm caused.

Is there a time limit?

With some exceptions, there is a time limit of three years from what is now recognised as the ‘date of knowledge’. This is the date on which the negligent incident occurred, or when the harm becomes apparent, if it develops later.

Exceptions to the time limit rule

Children: Children who were under the age of 18 when the negligence occurred have three years, commencing from the date of their 18th birthday, to lodge a claim.

Mental illness: People suffering from a diagnosed mental illness when the negligence occurred have a period of three years from the date they are deemed fully recovered.

Brain Damage: If the harm caused by medical negligence resulted in brain damage and the claimant is unable to manage their own affairs, there is no time limit. (This also applies to children who will be unable to manage their own affairs when they are older.)

Death: In the case of a claimant who dies as a result of medical negligence, the the time limit for the victim’s family to lodge a claim is three years from the date of death. Alternatively, if the claimant dies whilst pursuing a claim, the family have three years from the date of death to continue with the negligence claim.

Legal costs

We’ve all heard the term ‘no win, no fee’, well, it’s on this basis that most medical negligence claimants agree to work with their solicitors. At its most basic, Conditional Fee Agreements (CFA) mean that if you lose your case, you don’t have to pay any of your own solicitor’s costs.

In return, the solicitor will charge you a ‘success fee’ which is deducted from your damages if your claim is successful. All success fees, which are negotiable, must be agreed between yourself and the solicitor, and the maximum fee is capped at 25% of the total damages you’re awarded. CFAs are now the most popular way to pay a solicitor.

In very few cases, people opt to pay their own costs. These include all of the solicitor’s fees, the cost of the trial and associated administration fees.

Author: Mike James, an independent content writer working together with Ireland based law firm McCarthy & Co

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to McCarthy & Co directly.

Published on 14th September 2016
(Last updated 23rd March 2018)

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