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Medical Negligence

FAQ*

Welcome to our FAQ page where you will find some frequently asked questions about medical negligence claims.

We hope that you find the questions and answers provided of assistance to you. If you require further information or you have a particular query, please do not hesitate to Contact Us.

 

What is medical negligence*?

Medical negligence is concerned with the negligent treatment of a patient by a healthcare professional. It arises in circumstances where a healthcare professional either acts or fails to act and in so doing deviates from an accepted standard of practice within the medical community causing injury, loss and damage to the patient.

Medical professionals such as doctors, clinicians, consultants, surgeons, radiologists, dentists, plastic surgeons, psychiatrists, therapists, midwives, nurses, anaesthetists, pharmacists, and other healthcare practitioners are required to have in place liability insurance to offset the risk and costs of legal proceedings arising from a medical negligence claim.

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How is medical negligence established?

It is important to note that dissatisfaction with a medical procedure, treatment or advice is not sufficient to give rise to a claim in medical negligence. To prove negligence it must be shown that:

  • the medical professional concerned owed you a duty of care;
  • that the standard of care provided fell below the medically accepted standards of the profession and in light of the prevailing circumstances; and
  • in negligently treating you, an act or failure to act by the medical professional caused you injury, loss and damage.

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How do I know if I have a case?

The first step in the process is to contact us for a consultation. We will discuss your case with you in detail offering an immediate and practical assessment and advise you on the best course of action relevant to your individual circumstances. At the initial consultation we shall give you an indication as to whether you have a potential claim based on the circumstances and information furnished.

It may however be necessary to take up a copy of your medical records and instruct an independent medical expert to review and assess the medical treatment given before advising you fully on the merits of your potential claim.

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How do I access my medical records?

Under the Freedom of Information Act you are entitled to request and receive a copy of your medical records from the hospital, clinic or medical professional that treated you. Alternatively, we can arrange to take up a copy of your records on your behalf. It will be necessary for you to sign an authority permitting us to take up the records.

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Why is an independent medical expert report required?

An independent medical opinion is going to be necessary to identify if the treatment or procedure complained of fell below the standard expected and could be considered as negligently performed. In addition, the courts have made it clear that claims for medical negligence must be founded on expert medical opinion and accordingly it is going to be necessary to procure a medical-legal report before drafting legal proceedings.

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Is there a time limit on making a claim?

Subject to certain exceptions, you have 2 years from the date of the knowledge of the injury to commence legal proceedings. The ‘date of knowledge’ is the date upon which the plaintiff knew or ought to have known that an injury has been sustained. An important exception is in the case of persons under the age of 18, who are described in law as minors or infants. For minors, the Statute of Limitations ‘clock’ does not begin to run until a child reaches their eighteenth birthday. For more information see: Child Injury Claims.

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Who is sued?

The party responsible for the harm caused may not always be immediately apparent. Your medical records will provide information on the treating physician or other healthcare professionals that may have a potential liability. However, there may be more than one party with a responsibility and it may for instance be necessary to sue the clinic or private hospital concerned. In the case of a public hospital, the Health Service Executive (HSE) or nominee of the hospital will need to be named as a defendant.

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Do I need to make an Injuries Board application?

No. Medical negligence cases do not require the involvement of the Injuries Board. Claims arising from the provision of a health service, medical advice or treatment or the carrying out of a medical procedure are outside the remit of the Injuries Board.

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How much is my case worth?

The value of your case depends on a number of factors. Firstly, each claim is unique and assessed in light of the particular circumstances. Factors considered include the nature and severity of the injuries sustained and expected recovery, the extent of any consequential losses such as revision medical treatment and rehabilitation costs, any loss of earnings and other out of pocket expenses, and factors such as the age, sex and occupation of the claimant.

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Do I have to accept any offer made?

No. It is always open to you to reject any offer of compensation made in your case. Whenever an offer is made we will inform you immediately and advise you as to whether in our opinion the offer made is adequate. We will advise you on the merits of your case, the value of your case and the pros and cons of any offer made so that you can make an informed decision as to whether or not to accept any offer of compensation.

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What are general damages?

In the context of personal injuries litigation general damages refer to the value placed on the pain and suffering experienced by the victim and include psychological trauma, loss of consortium and other negative effects. In essence, general damages relate to non-monetary losses suffered by the claimant and which are not capable of exact quantification.

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What are special damages?

Special damages refer to monetary losses which are quantifiable such as vouched medical treatment expenses for example or certified loss of earnings. These are consequential financial losses suffered by you which are directly to the negligent treatment and harm caused. In other words, these are ‘out-of-pocket’ expenses incurred which might also include the cost of corrective surgery or treatment, medication, rehabilitation costs, travel expenses, and so on.

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Who will deal with my claim?

At all times your case will be managed by a senior solicitor with particular expertise in medical negligence law. In addition, we operate a partner led approach to litigation which means that your case is reviewed regularly by a partner of the firm who will assist and advise where necessary on the best course of action in a given matter. This helps maintain the highest standards and ensures that your case is progressed efficiently and effectively with no stone left unturned. As part of our commitment to delivering the best client care possible we have a policy of ensuring that our partners, solicitors and support staff are available at your convenience, and at short notice if required, to discuss any aspect of your case.

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How long will it all take?

Medical negligence cases are often complex and can take time to fully resolve. Much depends on the type of harm suffered and the expected recovery as well as the type of alleged negligent treatment. Before proceedings can be issued it will be necessary to take up copies of your medical records and instruct an expert in the particular field at issue to prepare a medical opinion. This may take some time as the expert will need to scrutinise the records and perhaps examine you before furnishing a report. If the report indicates negligence then matters can proceed with a view to settling the claim or, if necessary, putting the case before a judge for a ruling.

At your initial consultation we will discuss your potential claim with you, the process involved, and the estimated time frame. You will be regularly kept up to date on progress in your case and informed of developments including any offers made or attempts to settle your claim. Our sole aim is to ensure you receive appropriate compensation for your injuries, quickly and effectively with the minimum of stress.

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Will I have to go to court?

The majority of medical negligence cases settle and do not go to court. Even where proceedings are issued and a date is fixed to hear the case it is common practice to try and settle the claim in advance of the hearing. However, we prepare and progress every medical negligence claim on the basis that it may end up in court. If, for whatever reason, your case does goes to court we will ensure that you have the best legal counsel available to present your case and that your case is court ready.

 


HAVE A QUESTION OR NEED MORE INFORMATION?

tel: 061 599 033 email: info@bmsolicitors.ie visit us: 64 O'Connell Street, Limerick Opening Hours: Monday - Friday 9.00am to 5.30pm. Saturdays by Appointment

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

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