Medical Negligence Claims - Frequently Asked Questions
If you suffered injuries or loss including loss of earnings due to the actions or inactions of the medical profession you may be entitled to compensation. You will be able to discuss in detail the facts of your situation with a member of our legal team. This is usually done by telephone and e-mail but we can also offer a home visitation service if necessary. As medical litigation specialists we are able to assess the merits of your claim and will assist you in reaching a decision in relation to proceeding with the claim or at the very least investigating it further.
To enable us to discuss your potential claim you will be asked for some of the following details:
1. Your personal details.
2. Treating hospital/doctor or equivalent i.e. dentist or chiropractor
3. The dates of treatment.
4. Why you think your care was negligent.
5. We will require a letter of authority to enable us to take up your medical records.
Under the Freedom of Information Act you are entitled to your medical records from the hospital/doctor that treated you. Alternatively we can take up a copy of your records with your consent.
Whom you may sue will depend on who was involved in your treatment. Your claim may be against one or more Defendants and we will be able to advise you as to the appropriate Defendants. This can often be more apparent when we take up your medical records. If it is a public hospital the appropriate Defendant will be the Health Service Executive or a nominee of the hospital. If it is a private hospital the consultant in the hospital will be named in the title to the proceedings.
Once we have obtained your medical records we will send them together with details of your injuries to an independent consultant we have retained on your behalf because of their particular expertise. The independent consultant will provide a detailed medical opinion as to whether there has been negligence in your case and establish if the cause of your injury was as a direct result of the negligence. If the expert evidence obtained established the cause of action against the hospital/doctor then we will initiate proceedings in the Court on your behalf.
What is negligence?
Medical Negligence is negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient. There are four steps in proving negligence:
1. A duty was owed - a legal duty exists whenever a hospital or health care provider takes on a patient
2. A duty was breached-the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious error.
3. The breach caused an injury: The breach of duty was a proximate cause of the injury
4. Damages: Without damages (losses which may be monetary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent
Each case is different so there is no pre-determined length of time until a case is finished. Whilst it is hard to predict how long your case will take we will endeavor to process your claim as quickly as possible. Once we have had an opportunity to look at the circumstances of your case we can give you a better estimate.
We will begin by obtaining information and you will have to provide us with a statement of what happened. We will gather more information through your medical records as well as briefing expert doctors who will help assess the merits of your case.
Each case has its own features so will be assessed on a case by case basis. Compensation you can receive from your claim is referred to as damages.
- General damages-These include pain and suffering, loss of amenities, loss or curtailment of life expectancy, disfigurement or scarring, economic damages
- Loss of salary
- Rehabilitation expenses
- Housing modification and equipment aids
- Pharmaceutical expenses
- Medical expenses- This can include the past and future medical expenses. If your medical bills are being paid by either VHI or BUPA or any private health care facility these benefits must be repaid out of any settlement monies received
- Similarly any income benefits made by the Department of Social Welfare while you are incapacitated must be repaid to the Social Welfare if you receive compensation for your lost earnings or your inability to earn an income
As you can see there isn’t generally a set figure for the amount of compensation you can claim it all depends on your individual case and your particular needs as a result of the negligence.
The advantage of seeking advice from a specialist medical negligence solicitor is that they have dealt with many cases and have a general idea as to the range of money that an insurance company will offer, or a Court will award if the case is litigated.
The general rule is that the loser of the court case pays the costs of the winner. These costs are separate to the damages or compensation awarded by the Court. This means that at the outset you have to consider the risks of the case and how important it is to establish negligence on the part of the hospital/doctor.
Time limits for bringing a claim are governed by legislation. If you have had an accident then you will have 2 years from the date of the accident to make a claim.
A medical negligence action will become statute barred (claim can no longer be the subject of a legal action because the time limit imposed by the limitations act has been exceeded),however there are some exceptions to this rule.
- In medical claims the two year period begins to run from the date when the injury was first discovered
- The time limit does not apply to people who are mentally incapacitated
- In claims relating to minors the two year period does not commence until their eighteenth birthday
It must be remembered that litigation is a process for resolving disputes. It is well known that the majority of cases settle before the trial/hearing. It is important to actively seek opportunities to settle at any stage. This does not mean that settlement is to be reached at any cost. The Judges now have power under the Civil Liability and Courts Act 2004 to encourage mediation where possible.
The 2004 Act, for the first time provides for alternative dispute resolution in cases involving personal injury. Any of the parties to the proceedings can request that the parties attend a mediation conference with a view to attempting to settle the proceedings. The court can not direct mediation to take place, but should mediation be instigated by either of the parties to the proceedings, it would appear that the court can direct the parties into mediation,not withstanding that the other party does not want to engage in mediation.
Your claim will be handed by one of our experienced medical negligence team.
Our policy is that you receive 100% of the compensation awarded to you. We recover our fees from the other party’s insurers.
Your case will be reviewed by a medical negligence to determine whether medical negligence has occured, in advance of submitting a claim. However, as with all litigation, there are no guarantees. If our team believe that there are difficulties with your case we will advise you. We will take whatever steps are appropriate to ensure you get the best advice. In the unlikely event of your case coming to a full hearing and you lose, you will be responsible for the other parties legal costs.
Medical or clinical negligence is a term used to describe cases involving medical incompetence, mistake, carelessness or neglect.
In order to succeed in a medial negligence action a patient must prove that the treatment provided was inadequate and that no other reasonable health care provider would have treated them that way.
Medical professionals owe their patients what is known as a “duty of care”. This means that they are responsible for providing an acceptable level of care and proper treatment to their patient.
The current legal standard of care imposed upon the medical profession is one where the medical practitioner must not fall below the skill of an ordinary skilled professional exercising and professing to have that specialist skill.
A medical professional does not have to possess the highest expert skill…. It is sufficient that they exercise the ordinary skill of an ordinary competent medical professional.
As well as owing a duty of care, doctors are also re
sponsible for making sure a patient understands all the risks involved in their treatment, including any surgery they are to undergo. This allows a patient give informed consent to the treatment.
A patient must show that:
• The healthcare provider acted negligently
• An injury occurred
• The negligent act played a substantial role in the injury
If you believe you may have a medical negligence claim why not let us assess your case?
We understand that taking the step to contact a solicitor can be a difficult one. We promise to listen to you carefully and let you tell us your story.
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