Medical negligence claims in Ireland are the most complex category of personal injury cases. Because of their complexity, the Injuries Board will decline to process applications for the assessment of a claim for medical negligence, and you will need to engage a solicitor if you wish to pursue a claim against a medical facility or individual who has failed in their duty of care.
This article explains what constitutes medical negligence in Ireland, and the procedures to follow if you or a loved one has suffered an injury due to medical negligence. Please note that no two medical negligence claims in Ireland are identical. You should always seek professional legal advice that is relevant to your individual circumstances and the consequences of your injury.
Please also note, although we refer to “medical negligence* claims” and “medical accident claims” throughout this article, the same general advice and procedures would apply if you had suffered an avoidable injury in an avoidable “adverse incident” or “patient safety event”. If you are unsure of any terminology used in this article, please seek advice from a solicitor.
Have You Suffered an Injury due to Medical Negligence?
By law, you can only make medical negligence claims in Ireland if it can be demonstrated “on the balance of probability” that the treatment you received was below an acceptable standard or performed negligently by a medical professional; resulting in or contributing to a loss, injury or the deterioration of an existing condition.
It is sometimes the case that a medical mistake has undoubtedly occurred; but if it has not resulted in an injury, it will be impossible to make a claim for medical negligence. Similarly, if an injury has been sustained – but the medical practitioner´s actions were “reasonable” given the information available at the time – it will also not be possible to claim medical negligence compensation.
Defining what constitutes medical negligence in Ireland is difficult because there are numerous different situations in which it can be argued that a medical practitioner or the agent of a medical facility has acted negligently. Some of these scenarios are listed below, with others illustrated in greater detail in the next section.
- When there has been an avoidable delay in the diagnosis of an illness
- When the results of tests have not been acted upon
- When errors have been made in the performance of a procedure
- When errors have been made in the prescription or administration of drugs
- When follow up care has been inadequate or ill-planned
Typical Medical Negligence Scenarios
Although there is no such thing as a “typical” medical negligence compensation claim, there are scenarios in which medical negligence frequently occurs. The list below provides examples of different circumstances in which it may be possible to claim for medical negligence* in Ireland, although for legal advice relating to your specific circumstances it is recommended that you speak with a solicitor.
Failure to Advise of Risks involved in a Medical Procedure
The failure to advise a patient of the risks involved in a medical procedure is a major act of negligence on behalf of a medical professional. Patients required to give their consent before a non-emergency medical procedure should be able to give their “informed consent”. If a medical professional – including doctors, dentists, opticians and psychiatrists – failed to obtain your “informed consent” prior to a medical procedure, you will be entitled to claim medical negligence compensation if you suffered an injury you were not previously advised might occur.
Claiming Compensation for Anaesthetic Awareness
Claiming medical negligence compensation for anaesthetic awareness involves a complex procedure, as nobody other than yourself will be able to explain exactly what you experienced while you were not completely anaesthetised. Although horrific to those who experience full awareness, in most cases patients have been partially numbed by the anaesthetic and have not experienced a great deal of physical pain. The psychological trauma of being partially aware during a procedure can last a lifetime, and this alone may make you eligible to make a claim for anaesthetic awareness.
Compensation for the Failure to Act on Test Results
A medical professional´s failure to act on test results can have devastating consequences for a patient, and potentially leave the patient suffering a life-long condition which could have been avoided with greater care. If you or somebody close to you has suffered an avoidable deterioration of an existing condition due to a medical professional´s failure in their duty of care, you will be eligible to claim compensation for medical negligence. This also applies to scenarios in which a medical professional has requested the wrong test, has delayed in obtaining the results, or has failed to refer you to a consultant for an expert opinion.
Claiming Compensation following a Misdiagnosis
In order to claim for medical negligence compensation following a misdiagnosis, it has to be established that the misdiagnosis was responsible for the deterioration of an existing condition that would not have otherwise occurred if the condition had been correctly diagnosed at the time. It also has to be shown that a competent medical professional would have made a correct diagnosis with the information that was available to them “at the time and in the circumstances”.
Claims for Cosmetic Surgery Negligence
Cosmetic surgeons have to adhere to the same medical standards as medical professionals and, if you sustain an injury due to a cosmetic surgeon´s lack of care – or his/her failure to communicate the risks involved with the surgery – you will be entitled to claim compensation for cosmetic surgery negligence. Please note that if you have sustained an injury due to a faulty product, the procedure for claiming compensation may be different if the injury is attributable to the negligence of the product manufacturer or distributor, rather than the surgeon who conducted the cosmetic surgery.
Nursing Medical Negligence
Claims for a lack of adequate nursing can result from many different scenarios. Claims for nursing medical negligence can be made due to a lack of hygiene if you subsequently develop an avoidable infection or due to a lack of care if you were to suffer avoidable bed sores. Potentially the most frequent victims of nursing medical negligence are the elderly – who may be unable to communicate their concerns – and often compensation claims for a lack of adequate nursing care are made by adults on behalf of their parents who have suffered an injury due to negligence in a hospital or nursing home.
Compensation Claims for Injuries at Birth
Large settlements of compensation claims for injuries at birth often make the headlines and, for the young victims of medical negligence at birth who will need a lifetime of care, the settlements are completely justified. However, more minor injuries can often be sustained during a delivery – to both mother and child – and if you or your child has been injured due to the negligence of a medical professional, you have the right to claim compensation for injuries at birth provided it can be shown that the injury could have been prevented with greater care or by using an alternative course of action..
Preventable Adverse Reactions to Medication
If you have been prescribed, dispensed or administered a medicine, and you suffered a side effect that caused an injury or the avoidable deterioration of an existing condition, you may be able to claim compensation for preventable adverse reactions. In order for a claim for an adverse reaction to medication to be successful, it has to be shown that the medical professional prescribing, dispensing or administering the medication was at fault and should have known the medication was inappropriate for your condition or would conflict with existing medication.
Making a Compensation Claim for Surgical Errors
Surgical errors can range from wrong site surgery to medical equipment being left inside a patient after a procedure has been completed. When claiming compensation for wrong site surgery it is obvious that an injury has occurred due to negligence, but the fault for the error is not always with the doctor who performed the operation. Many “agents” of the healthcare system, from nurses to administrators to technicians are involved in preparing for a surgical procedure, and an investigation will have to be conducted to establish exactly where the mistake in your healthcare originated.
Claiming Medical Negligence Compensation against a Dentist
It is a common misconception that it is only possible to claim medical negligence compensation against a dentist for something as drastic as extracting the wrong tooth. Any procedure conducted by a dentist without reasonable cause can be classified as medical negligence*, and should your dentist overlook an oral disease – which later deteriorates into a serious infection – you would be entitled to claim medical negligence compensation against a dentist for his or her lack of care.
Who is Liable in Medical Negligence Claims?
To pursue a claim for medical negligence in Ireland, you must have suffered a loss, an injury or the avoidable deterioration of an existing condition due to the negligence of somebody who owed you a “duty of care”. Most medical accident claims are not as straightforward as they may at first appear. As mentioned above, errors such as wrong site surgery can be attributable to the negligence of a nurse, an administrator or technician rather than the medical practitioner who conducted the procedure.
To establish who is liable in medical negligence claims, an investigation would have to be conducted to establish where the errors were made in your treatment and whether they could have been avoided “at the time and in the circumstances” with reasonable care. The investigation can be initiated by the medical facility or your solicitor depending on the circumstances of the claim. There may also be subsequent investigations by care standard authorities.
If a claim for medical negligence is justifiable, legal action will be initiated against the negligent party or parties. The list of possible negligent parties is extensive, and includes consultants, surgeons, GPs, chiropractors, plastic surgeons, dentists, opticians, psychologists, hospital administrators, laboratory technicians and agents operating on behalf of the health service or other medical facility.
Non-medically qualified negligent parties are referred to as agents of the facility that contracts them. Medical practitioners and non-medical agents may be public employees, self-employed or work in a private medical facility. They could be indemnified by medical insurance or covered against medical negligence* claims by the State.
Medical Accident Claims and the Date of Knowledge
The Statute of Limitations in Ireland allows you two years from the “date of knowledge” that you have suffered a loss, an injury or the deterioration of an existing condition in which to make a claim for personal injury compensation. In most personal injury cases, the two year limitation period commences on the same date as an accident occurs and on which an injury is sustained.
With medical accident claims, the situation can be quite different. In scenarios such as when an injury is discovered long after a procedure has taken place, or an existing condition has avoidably deteriorated due to a misdiagnosis or the misinterpretation of test results, it may be several years until the “date of knowledge” is established.
Although the length of time that has elapsed may be considerable, you may still be eligible to make medical accident claims. You are best advised to speak with a solicitor as soon as you have been diagnosed with an injury due to a historic adverse event to confirm you are still able to make a claim within the Statute of Limitations
Children and Medical Negligence in Ireland
If your child has suffered an injury due to medical negligence, the procedures governing medical negligence claims in Ireland are somewhat different. You should still speak with a solicitor at the first practical opportunity to initiate an investigation, but you should be aware that the two-year Statute of Limitations does not apply to children until they reach the age of eighteen.
It is possible (and, in most personal injury cases, advisable) for a parent or guardian to commence proceedings before your child reaches the age of majority, acting on the child´s behalf as a “next friend”. The process for the appointment of a “next friend” is straightforward, and simply has to demonstrate the parent is acting in the child´s best interest and there is no conflict of interest (for example if you were a dentist who had overlooked your child´s gum disease).
Settlements of medical accident claims for children have to be approved by a court when each claim is resolved to ensure they are appropriate and in the child´s best interests. The settlements are then paid into court, where they are held until the child reaches the age of eighteen. Interim payments of medical negligence compensation can be applied for if funds are required to provide medical treatment for your child.
Contributory Negligence and Medical Negligence in Ireland
The term contributory negligence relates to any contribution towards the cause of an injury or the extent of an injury that you yourself may be responsible for. In medical negligence claims, contributory negligence can manifest in many different ways. If you are found to have shown a lack of care for your own well-being, the settlement of your claim may be reduced to reflect your own contributory negligence.
Scenarios in which contributory negligence may apply to medical negligence claims include:-
- Failing to communicate the symptoms of an illness
- Ignoring advice given to you by a medical profession
- Declining to take medication prescribed for you
- Missing scheduled follow-up appointments
How to Claim for Medical Negligence in Ireland: A Summary
At a time when you may still be coming to terms with the loss, injury or avoidable deterioration of an existing condition, it can be very difficult to comprehend the full magnitude of what is involved when you make medical negligence claims in Ireland. Consequently it is recommended you address any concerns you have about claiming medical negligence compensation to a solicitor at the first possible opportunity.
- Medical negligence claims are a particularly complex area of law and you will need a solicitor to assist you with your claim.
- The party liable for your loss, injury or avoidable deterioration of an existing condition may not be immediately apparent and an investigation will likely be required.
- Your physical injury, psychological trauma, decline in quality of life and other financial consequences are taken into account when assessing the settlement of your claim.
- Whether an expert medical professional would have followed the same course of action in the same circumstances will be a key factor in determining the outcome of the claim.
- Your own contributory negligence – should you happen to be partly responsible for the cause or extent of your injury – and your medical history, can affect the value of medical accident claims.
- The date of knowledge that an injury has been sustained is also a key element in medical negligence claims, unless the injury has been sustained by a child, in which case different procedures apply.