Ultimate step by step guide to taking medical malpractice and clinical negligence claims in Ireland
- 1 1. What to expect
- 2 2. Taking Instructions
- 3 3. Collection of Evidence
- 4 4. Compiling documentary evidence
- 5 5. Obtaining a medical report to prove your case
- 6 6. Briefing a specialist medical negligence Barrister
- 7 7. Final Legal Opinion
- 8 8. Proceedings before the High Court
- 9 9. Time limits for medical negligence cases
1. What to expect
A medical negligence claim can be a long a tedious process. There is no quick fix when it comes to medical negligence litigation.
Sometimes the negligence is very blatant, easy to prove and the case is straight forward. In those cases it may result in an early hearing date.
Your attendance at a settlement meeting will have no effect on your case if the case does not settle at a meeting. Most of our cases settle prior to the hearing of the action but it is often necessary to proceed to the hearing before the High Court.
2. Taking Instructions
We must firstly take detailed instructions in as much detail as we can possibly obtain. At the initial consultation it is necessary to obtain each and every piece of vital information to include dates, symptoms and discussions with practitioner.
We must compile lists of appointment dates and compile a chronological sequence of events from start to finish.
3. Collection of Evidence
It will be necessary to collect all of the evidence which proves that medical negligence occurred and that the practitioner fell below the standard of care required.
In order to do that we will send a request pursuant to the Freedom of Information Act to the hospital and any data access requests that are necessary to the medical practitioners that you attended before, during and after the relevant procedures.
Pursuant to the Freedom of Information Act and the Data Protection Act a person is entitled to make a formal request for all records and information in relation to them to include medical records, consultation notes and any other documentation in which the person is mentioned.
It is necessary for the Solicitor to make that application for you pursuant to the relevant acts and if the information is not received within the timeframes permitted then it is possible to make a complaint to the Data Commissioner against the hospital or body for failure to provide the relevant records within the proper timeframe.
4. Compiling documentary evidence
Once we receive all of the documentary evidence, medical records, medical documents to include medical bills, doctors’ appointments, prescriptions and details of payments made to doctors we will then prepare your file to forward to a specialised medical negligence Counsel to provide us with a preliminary opinion in relation to your case.
5. Obtaining a medical report to prove your case
Sometimes this can be difficult and we generally recommend that a medical report be sought from a specialist practitioner in the area from outside of the jurisdiction of Ireland.
We brief a number of specialist practitioners in the UK and we have a bank of practitioners whom we use to obtain medical reports from.
The reason why we look for a practitioner outside of the jurisdiction of Ireland is because we must ensure that the practitioner/doctor who compiles the report is completely and utterly independent of the HSE and of the Irish based practitioner that is allegedly negligent in your case.
We have details of hundreds of specialist consultants throughout the UK who can provide us with independent reports in medical negligence cases.
The advantage of obtaining these reports in the UK is that we can be certain that such reports are independent and that the records are thoroughly researched before the reports are completed.
6. Briefing a specialist medical negligence Barrister
At this point, we furnish our barrister with your instructions, the medical records and all documentary evidence.
We will request our barrister to read through all of the documentation and instructions and to arrange to have a consultation with you if necessary.
Our Barrister will then prepare a preliminary opinion which will generally confirm whether there is a genuine case to be answered and he/she will set out the requirements and further documentary necessary in order to come to a final opinion as to whether proceedings can be taken.
7. Final Legal Opinion
Once we are in receipt of the medical report and once we are satisfied that that practitioner that wrote the report is of the opinion that negligence occurred in your case, then we forward that report to our Barrister in order to provide us with a full opinion in relation to your case.
Quite often in medical negligence cases it is necessary to obtain a number of reports in order to prove the negligence. If you are happy to proceed once the procedure is explained to you and once we are satisfied that there is a case to answer, then we move to the proceedings stage.
8. Proceedings before the High Court
At this point we ask our Barrister and/or Senior Counsel to draft the proceedings in your case in order that we can lodge your case in the High Court.
Once your proceedings are lodged we then serve those proceedings on the negligent practitioner and/or the HSE and any other relevant parties whom we think that the proceedings should be served upon.
The parties will be given an opportunity to enter an Appearance and to defend the proceedings and we will deal with the matter in the normal legal course.
One very common feature of medical negligence cases is the fact that the negligent medical practitioner and/or the HSE may be very slow in dealing with the matter.
If that happens it becomes necessary for us to bring Motions before the Court to compel the negligent practitioner and/or the HSE to deal with the matter and to file certain documents before the Court.
It is our job to exert continuous pressure on the other side in order to set your case down for hearing before the High Court.
Once your case is set down for hearing, the Defendants may well decide to request us to come to a settlement meeting at which point the settlement of your case may be discussed.
Settlement meetings take place on a without prejudice basis and therefore the attendance at a settlement meeting will have no bearing or will not affect you.
9. Time limits for medical negligence cases
There is an extremely strict time limit in medical negligence cases of two years from the date that the negligence occurred or from the date upon which the Plaintiff knew or ought to have known that negligence occurred in his or her case.
This is a very strict time limit and it cannot be overcome.
It is very difficult to bring medical negligence cases within the timeframe permitted because of the volume of evidence that is required in order to take the proceedings but the sooner you contact your Solicitor with a view to taking a claim the more likely you are to be in a position to take proceedings before the statute of limitations runs out in your case.
We have come across many genuine queries wherein negligence is most definitely a factor but unfortunately due to the time limits we were unable to take proceedings. Therefore it is extremely important to act as soon as you are aware that negligence has or may have occurred in your case.