Pursuing a medical negligence claim can be a daunting and oftentimes traumatic experience.

It involves a lot of preparation, groundwork and reliving what was undoubtedly a painful experience on every level. However, it may be a necessary step for many in seeking justice following a life-altering event, which can eventually lead to personal closure and financial compensation.

But when does a claim transform from a civil action to one that involves a criminal investigation? In this blog, we examine the difference between the two and explain what steps you need to take in each case.

The difference between civil and criminal medical negligence claims

While there are instances when both civil and criminal elements are involved in a medical negligence case, they are essentially mutually exclusive processes. The key difference between what is simply a civil case and one that warrants a criminal enquiry lies in the intent behind the event or incident that took place.

What this means is that if the claim in question revolves around an unintentional, unfortunate mistake made by the culpable party, it wouldn’t be considered a matter that would justify professional censure or criminal investigation. However, if the claim involves gross medical negligence, this indicates that the wrongdoing may have involved willful or reckless behaviour, with either a blatant disregard for the duty of care to the patient, or a deliberate attack on the victim with the intention to do them harm.

In the context of the latter, if that level of inappropriate behaviour had taken place, the accused would then potentially be investigated by the Gardaí, which would be an entirely separate matter to the medical negligence claim you would pursue with your solicitor with a view to securing compensation for your injuries.

How gross medical negligence is measured in Ireland

Given the nature of medical treatment, which frequently involves inherent, unavoidable risks and the need for instant decisions to be made in emergency situations, medical negligence claims tend to be a complicated and multi-faceted subject to navigate. Despite this, when it comes to gross medical negligence as a criminal offence, there are more severe penalties for what could be described as “lesser injuries” in the form of exemplary or aggravated damages.

While criminal proceedings that stem from gross negligence claims involving fatality fall under the umbrella term of “gross negligence manslaughter” in both the UK and Ireland, the end result of such negligence does not necessarily have to mean the death of the claimant or their personal representative – at least not in the eyes of the Irish courts. The risk of substantial personal injury as a result of the negligent act in question is also taken into account when prosecuting the offence in this country.

In all cases, the extent of criminal action taken will be dependent on the severity of the injury or trauma experienced as a result of the wrongful act.

What steps should you take if you feel your medical negligence claim warrants a criminal investigation?

John McCarthy, Partner at McCarthy + Co. Solicitors, recommends that your first course of action should be to seek the advice of legal professionals experienced in the area of medical negligence.

“If a client came to us and said, ‘I think I have a medical negligence claim and I think it’s so bad that it warrants a criminal investigation’, then we would happily investigate the civil side of it and see if they are entitled to damages,” he explained. “Usually, if the claim was so bad that it was deemed to be of criminal extent, you could certainly be confident that you’d secure compensation arising out of those circumstances.”

However, while a claimant would be right to approach a solicitor in order to investigate the civil remedy, it would be important to simultaneously notify the Gardaí of the circumstances if they believe a criminal element is involved. The Gardaí would then determine whether or not it warranted their investigation, and they would investigate and prosecute if they felt that there was sufficient evidence.

So, while a claimant’s solicitor would confine themselves exclusively to the civil remedy of seeking damages for personal injuries arising out of negligent treatment, it would be up to the Gardaí to investigate and prosecute any criminal element involved in a claim.

McCarthy + Co. Solicitors provide a nationwide service in personal injury and medical negligence claims through offices in Dublin, Cork and Clonakilty. If you would like advice on how to pursue a medical negligence claim that may also be classified as a criminal offence, contact our expert team today.