How will I know if I have a medical negligence case?

If you suspect that you have been the victim of medical negligence the first thing you need to do (after, of course, receiving all appropriate remedial medical treatment) is to make contact with a solicitor specialising in medical negligence claims who will go about commencing the investigations necessary to establish whether or not you’ve got an actionable case.

As a safeguard against cranks making vexatious claims, the law in Ireland provides that you can’t commence a legal action alleging medical negligence against someone until you’ve received a report from a suitably qualified expert confirming that, in their opinion, the treatment which you have received fell below the standard to be expected. For this reason, your solicitor’s first task will be to take the steps necessary to procure such a report, which will determine whether the issuing of proceedings is justifiable.

Your solicitor will take a detailed account of what happened to you and will obtain your written consent to take up all of your medical records from the various hospitals, GPs, consultants and other healthcare professionals who have been involved in treating you during the period in question.

Once they’ve assembled and examined your medical records and taken detailed instructions from you to get all of the relevant facts, a medical negligence solicitor will then be in a position to choose the most appropriate individuals from their panel of specialist medico-legal experts and barristers to assist them in determining whether both liability and causation can be established against the hospital or medical practitioner suspected of malpractice.

Because of the fact that Ireland is such a small place, meaning that most members of the medical community are known to one another, it’s nearly always impossible to find an appropriate expert based in Ireland who will be willing to provide a report which might be used to support a claim in medical negligence. For this reason in the majority of cases it’s necessary to retain the expertise of medical experts based in the UK, and sometimes further afield.

While it’s obviously understandable that professionals working in a small field of expertise do not want to be seen to be pointing the finger at a colleague, it is nevertheless extremely regrettable that people who suspect that they may have been the victims of medical negligence are put to the additional inconvenience and expense of having to retain a foreign expert.

As both the issues of liability and causation must be considered and as a patient may have been under the care of several individuals in the course of receiving medical treatment, it may be necessary to obtain several reports before a clear picture emerges.

For example, it may be necessary to consider whether any one or more of a GP, members of the accident-and-emergency department of a hospital, a surgeon or the hospital’s nursing staff were the sole cause or played a contributory role in an injury that a patient has suffered from after having been referred to the A & E department of a hospital by their GP and then having undergone surgery.

While each individual claim is different, in many cases it is at least possible to obtain reports which a give a preliminary view on both liability and causation without the need for the claimant to travel to be physically examined by the medico-legal experts in question. But even where it is possible to get an initial opinion confirming that a claim lies in medical negligence, that’s not to say that a physical examination will not be necessitated before the matter comes to trial if it’s defended by the medical practitioner against whom the allegation of negligence has been made.

Once it has become clear what practitioners (if any) have been guilty of negligence, and the issue of causation in each case has been satisfactorily dealt with, all of the expert reports and medical records will be used by your solicitor to brief counsel to draft the appropriate proceedings. The proceedings, which will nearly always be issued in the High Court in cases concerning medical negligence, will then be issued and served on the lawyers for the healthcare professionals against whom negligence is alleged.

What happens next is then peculiar to each individual case. The defence may well concede (usually on an ‘off-the-record’ basis) that they are liable to you for what has happened and they may seek to enter into negotiations in an effort to agree the appropriate amount of compensation to settle the claim. If, on the other hand, the defence seeks to put up a ‘full fight’, a lengthy legal process commences which will culminate in a judge hearing factual evidence from the claimant and from the relevant medical practitioners, and then hearing expert evidence from the medico-legal witnesses retained by the legal teams of both the claimant and the defence, after which the court will decide on liability and will determine how much to award the claimant in compensation if the case is found in their favour.

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

John specialises in personal injury and medical negligence claims. His practice focuses on high value compensation cases. He has extensive experience in this area of litigation for over 10 years. Read more