View
2
Download
0
Category
Preview:
Citation preview
JOHN McCartHy
T h e I n s I d e r ’ s G u I d ev o l u m e v I
w w w . m c c a r t h y . i e
A Patient’s Guide to Bringing a medical Negligence Claim
A Patient’s Guide to Bringing Amedical Negligence Claim
First Edition published in 2013
Copyright © 2013 John McCarthy
The moral right of the author has been asserted.
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced,
stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying,
recording, or otherwise) without the prior written permission of the author.
This book has been written to give you accurate and authoritative information about the subjects it covers. You accept it with the
understanding that neither the publisher nor the author is engaged in giving you legal or any other professional services.
A PATIENT’S GUIDE
TO BRINGING A MEDICAL NEGLIGENCE CLAIM
BY
JOHN MCCARTHY, SOLICITOR
About the Author
John McCarthy is the head litigation lawyer at
McCarthy & Co. Solicitors (www.mccarthy.ie)
where he 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,
having acted for claimants for over ten years. John has acted in a
wide variety of personal injury, wrongful death, medical negligence
and defective medical product cases at Circuit Court, High Court
and Supreme Court level.
He is currently acting for dozens of victims of the DePuy ASR hip
replacement recall and has advised over one hundred women
affected by the PIP breast implant scandal.
As well as having a master’s degree in physics and being a qualified
solicitor since 2003, John holds a diploma in civil litigation, the
specialist qualification in the area of personal injury and medical
negligence litigation in Ireland awarded by the Law Society of
Ireland (www.lawsociety.ie).
He is a member of the UK-based Association of Personal Injury
Lawyers (APIL) (www.apil.org.uk), a professional organisation for
specialist personal injury lawyers, as well as being a member of the
UK-based Action Against Medical Accidents (AvMA)
(www.avma.org.uk), a leading patient advocacy group for victims of
medical negligence, and the Medical Injuries Alliance (MIA)
(www.medicalinjuriesalliance.ie), which is an Irish representative
group with a particular interest and experience in representing
individuals who have been injured through medical negligence,
misconduct and preventable error, the principal aim of which is to
ensure access to justice for injured patients.
Table of Contents
1. Introduction……………………………………………………………….
1.
2. What is the purpose of bringing a medical negligence
claim?.................................................................................
4.
3. When is medical treatment negligent?..............................
8.
4. How will I know if I have a case?.......................................
15.
5. How much time do I have to bring my claim………….........
20.
6. What compensation am I entitled to?................................
27.
7. What happens if a victim of medical negligence dies?.......
35.
8. How much will bringing a claim cost me?..........................
41.
9. How long will my claim take?............................................
50.
10. Who will pay my compensation and what consequences
will the medical practitioner face?......................................
53.
1
1. Introduction
I’ve prepared this guide to answer the more
frequently asked questions which the clients for whom I
have acted in medical negligence claims over the years
have raised in the course of progressing their claims.
The guide is laid out in separate distinct sections so
that you can dip in and out of it to get answers to specific
questions which you may have. That said, however, it has
been prepared with the intention that it will be read in its
entirety if you want to benefit from a truly meaningful
consideration of what is involved in bringing a medical
negligence claim.
It’s intended to provide you with no more than an
overview of what is involved in litigation relating to
medical malpractice and isn’t intended to be treated as
legal advice. Professional advice can only be provided to
you on a one-to-one basis by a solicitor with expertise in
medical negligence litigation who has been provided with
all of the relevant facts applicable to your individual case.
I hope that you’ll find it useful in determining
whether or not bringing a medical negligence claim is the
right course of action for you to adopt in all of your
2
personal circumstances. On this point, I would refer to
you in particular to the section entitled ‘What is the
purpose of bringing a medical negligence claim?’ as,
often times, what people who have been injured in
medical accidents want, and what they end up actually
getting, are regrettably very different things, due mainly
to the fact that they don’t enter into the process with their
eyes open.
As the guide has been compiled to respond to
questions that I’ve regularly received from victims of
medical negligence, I’d greatly appreciate your feedback
by telephoning me on 023 888 0088 or emailing me at
john@mccarthy.ie if any query which you want answered
isn’t included or if you think that the answer which I’ve
given to any particular question is unclear or not
sufficiently comprehensive.
Finally, it’s important for me to reiterate that this
document is intended only as an informative guide to the
layperson and represents matters as they stand at the
time of writing in June of 2013. It doesn’t constitute legal
advice and should not be relied upon for this purpose.
For this reason, if you suspect that you or a loved one
has been the victim of medical negligence I would urge
3
you to go about obtaining legal advice from an expert
medical negligence solicitor without delay. If you don’t
you could find out that any claim that you may have had
has been lost, as you’ll learn from reading the section
entitled ‘How much time do I have to bring my claim?’
4
2. What is the purpose of bringing a medical
negligence claim?
While you may think that the answer to this question
is so obvious that it doesn’t warrant asking, you’d be
surprised at the number of people who expect outcomes
from a medical negligence action which are impossible to
secure. This is why I believe that it’s worth considering
what can and cannot reasonably be expected if you intend
to take a case.
The sole purpose of bringing a medical negligence
claim is to secure monetary compensation for the pain,
suffering and financial loss which you have endured as a
result of receiving substandard medical care. While the
process of bringing such a claim may have the
psychologically desirable effect of drawing a line under
what will probably have been a very traumatic and
unpleasant experience, if this does occur it will be a happy
coincidence rather than being a guaranteed outcome.
Many (if not most) people who have been injured by
medical negligence bring a claim in the hope that it will
lead to the hospital or healthcare professional involved
being compelled to give a comprehensive, truthful ‘blow-
by-blow’ account of what actually happened to them,
5
bearing in mind that in many cases a patient will have no
clue what was done to them, whether by reason of their
being under anaesthetic or otherwise.
But the sad reality, which may come as a shock to
you, is that healthcare professionals bear absolutely no
legally enforceable duty of candour to their patients, even
where malpractice has been alleged. Indeed it’s often the
case that the hospital or doctor’s lawyers will adopt the
position of only divulging those pieces of information that
they know or suspect that the injured party is in a position
to prove in an effort to secure a tactical advantage in the
proceedings.
Likewise, it would be naïve to expect that the
outcome of your claim will be the public chastisement of
the hospital or medical practitioner who has been guilty of
negligence. Often cases are fully defended to the very last
minute before the trial is due to begin, and only then is a
settlement agreed where the defendant doesn’t even
admit liability.
That’s not to say that there’s no forum for seeking to
have disciplinary measures imposed on members of the
medical profession who have misbehaved. If there has
been unconscionable behaviour on the part of a doctor
6
they may be subjected to investigation by the Medical
Council’s Fitness to Practice Committee and, if any of the
allegations of impropriety are proven, sanctions ranging
from the imposition of a fine up to cancelling a doctor’s
registration can be imposed. See the section entitled
‘Who will pay my compensation and what consequences
will the medical practitioner face?’ for more details in
this regard.
However, while the defence tactics that are used by
the lawyers for healthcare practitioners are frequently
objectionable, resulting in the injured person being
subjected to more completely avoidable suffering at the
hands of someone who’s supposed to have their best
interests at heart, it’s also extremely important to
remember that just because a healthcare professional has
been found negligent in civil proceedings this doesn’t
mean that they have been guilty of misconduct.
In the vast majority of medical negligence cases the
practitioners concerned have done nothing more than
make an error in professional judgment which has caused
a patient harm. While the implications of this mistake
may be profound for the patient, where the medical
practitioner has attempted to deliver care to an acceptable
standard but has failed due to human error in the absence
7
of any malice or wanton carelessness, a medical
negligence claim will be confined to seeking monetary
redress for the damage which has been caused, without
seeking to vilify the negligent party. Bearing this in mind,
it’s hard to comprehend why, in so many cases, the
defence lawyers adopt such a completely unhelpful
position which can often lead to insult quite literally being
added to injury, with the victim of medical negligence
feeling as if they are being mistreated yet again by the
health system or practitioner in which they had placed
their trust.
8
3. When is medical treatment negligent?
In order to be entitled to compensation a claimant
must show that the medical practitioner has liability to
them in negligence and that there is what is referred to as
‘causation’ between that negligent behaviour and the
injuries actually suffered. We therefore need to consider
the concepts of liability and causation in turn.
Liability
To successfully prosecute a medical negligence claim
you must first satisfy a court that one or more of the
medical practitioners who has been treating you has failed
to exercise due skill and care in carrying out their
professional duties. The test in Ireland for determining
whether the appropriate standard of care has been
delivered by a medical practitioner was handed down by
the Supreme Court in 1991 in the case of Dunne v. the
National Maternity Hospital.
While many chunky legal texts have been written
about what have become known as ‘the Dunne principles’,
they can be summarised for the purpose of this
layperson’s overview of the area as stating that a medical
professional will only be deemed to have been negligent if
it can be shown that they were guilty of a failure which
9
was so unacceptable that no other practitioner with the
same level of skill and expertise would have behaved in
the same manner if acting with ordinary care.
The courts are understandably very anxious to avoid
creating a culture of ‘defensive medicine’ where a
practitioner’s principal consideration of looking after
their patient’s health becomes hijacked by the practice of
administering treatment in a manner which is least likely
to result in legal liability being established. Judges are
also anxious to ensure that they don’t engage in being
wise after the event, being cognisant of the fact that
doctors often have to make very complicated decisions in
emergency situations.
For these reasons significant deference is given to
medical practitioners. Opinions between experts as to
what constitutes acceptable practice can often vary, and
as long as a doctor can show that there is a respectable
body of practitioners who would not deem the behaviour
complained of to have fallen below an acceptable
standard, they will be found by a court not to have been
negligent, even if there is another (possibly much larger)
school of practitioners who believes that the behaviour
did not constitute proper practice.
10
Causation
Even where it can be established with relative ease
that a medical practitioner’s behaviour has fallen below
the acceptable standard to the point where they were
negligent, proving this, of itself, will not entitle a claimant
to be compensated.
The claimant must go on to prove that, on the
balance of probabilities, the negligent actions of the
doctor or other healthcare professional actually caused
the injuries which they have suffered from. In other
words, they must satisfy a court that it’s more likely than
not (i.e. that there was a percentage chance of greater
than 50%) that the substandard treatment was the direct
cause of the harm occasioned to them.
This might sound like an almost philosophical
exercise but in fact it’s the reason why many patients will
fail in their claims, notwithstanding the fact that they
have received shoddy medical treatment.
Perhaps the best way of highlighting how causation
can result in the difference between a successful and an
unsuccessful claim is to consider the facts in the case of
Barnett v. Chelsea and Kensington Hospital
11
Management Committee which is one of the most
important decisions in this area.
In that case a patient attended at the A & E
department of the hospital in question complaining of
vomiting but the doctor on call refused to see him and he
was sent home, where he later died. Post mortem
examinations revealed that he was suffering from arsenic
poisoning. The poor man's widow was successful in
proving that the A & E doctor had been guilty of
negligence, as no responsible medical practitioner would
have refused to see the patient.
But the court then had to decide whether or not that
negligence had affected the patient's outcome and on this
point it decided that the claim must fail because there was
uncontested evidence adduced that even if the patient had
been attended to promptly at the A & E department on
that fateful night, he was beyond treatment at that stage
and would still have died as there was too great a gap in
time between his ingestion of the arsenic and his
attending at the hospital.
So, even if you can show that you have been
subjected to what might be completely unacceptable
substandard treatment, that fact alone will not entitle you
12
to compensation. You’ve also got to go on to prove that
the negligent treatment gave rise to your injury.
What if the treatment of more than one person is
the cause of my injuries?
There are often instances in medical negligence cases
where more than one medical professional contributes to
the injury sustained. Consider, for example, a situation
where a patient presents themselves at A & E and is
negligently prescribed inappropriate medication causing
them to fall ill. If they then attend at their GP’s clinic and
their GP fails to diagnose their illness properly, with this
delay in making a correct diagnosis exacerbating their
condition, a detailed consideration of each medical
practitioner’s involvement will need to be undertaken so
that the complicated process of apportioning liability can
be undertaken.
For this reason it’s absolutely vital that your legal
team ensures that all appropriate parties are named in
your proceedings. If one or more parties are pursued but
another who contributed to the injury is not, you may
only be entitled to recover a fraction of the full worth of
your claim and you could also find yourself liable to pay
some of the defence costs of the proceedings.
13
Could I be found to be partly to blame for what
has happened to me?
Where a finding of medical negligence which gives
rise to injury is made by a court, this will entitle the
patient to be compensated for their loss and suffering.
However, if the defence can show that the patient has in
any way exacerbated the injury which has been
occasioned to them by their own acts or omissions (such
as, for example, failing to turn up for follow-up medical
appointments, failing to take medication which has been
prescribed, or consuming alcohol when they have been
advised against this) the court may go on to find that the
claimant is guilty of what is referred to as ‘contributory
negligence.’
In such circumstances the court will go on to assess
the extent to which the behaviour of the patient has
contributed to the problem and it will then reduce the
amount of compensation accordingly. For example, if a
judge determined that a victim of medical negligence was
25% liable for the injuries which they had suffered and if
the court believed that the appropriate amount of
compensation for the injuries was €100,000, this amount
of compensation would be reduced by a percentage
commensurate with the extent of the contributory
14
negligence, with €25,000 being disallowed, resulting in a
net compensation payment of €75,000.
15
4. How will I know if I have a 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
16
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
17
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
18
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
19
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.
20
5. How much time do I have to bring my claim?
The Statute of Limitations imposes strict time limits
within which an injured person must commence their
claim. If you don’t commence proceedings within these
very rigid time limits your claim will be absolutely
extinguished, no matter how seriously you have been
injured. For this reason, the need to take steps
immediately if you suspect that you have been the victim
of medical negligence cannot be emphasised enough.
The general rule is that you have two years from the
date on which you suffered your injury to issue
proceedings. Now, to the layperson, this may seem like a
very long time indeed. But anyone who has been through
a medical negligence claim will tell you that it is a
perilously short period which can by overshot all too
easily if care isn’t taken to commence investigations
straight away.
You’ve got to take on board that most people who
have been seriously injured by clinical negligence don’t
make an appointment to see their solicitor the day after
this has happened. It will often take them several months
to have recovered sufficiently (both physically and
emotionally) to the point where they feel strong and well
21
enough to even consider taking legal advice on whether or
not they have an actionable claim.
You’ve also got to bear in mind that the first thing
that your solicitor will have to do before they can go about
seeking the necessary expert reports is to take up your
medical records. The delays in getting copy records can
be substantial. In the case of some hospitals it can take
up to six months.
It’s also important to understand that the medico-
legal expert who is best suited to consider your claim will
almost always be a very busy professional who is very
much in demand and that it may take a further several
months from the time that they receive the papers from
your solicitor to the time when they will have completed
their report.
When you add up all of these time periods (the
period of time before you first instruct a solicitor plus the
period of time spent assembling your records plus the
period required by the expert to prepare a report) you’ll
find that two years is a very short and unforgiving period
for people who have been the victims of medical
negligence and that great injustice can easily occur if
22
people don’t go about exploring whether they have a case
soon enough.
But, while one should never be complacent or make
any assumptions, there are certain circumstances in
which the extremely harsh rule of imposing a strict
limitation period of two years from the date of the injury
to the date of issuing proceedings is alleviated.
The date of knowledge
The first of these is by applying the ‘date of
knowledge’ test which provides that the two-year period
will not begin to run against you until the date upon
which you become aware of all of the following pieces of
information:
• You have been injured.
• The injury which you have suffered is significant.
• The injury was caused by the fault of someone else.
• The identity of the person who caused you the injury.
• If the fault for the injury lies with someone other
than the person who is liable to compensate you, the
identity of the person who actually caused the injury
and the legal basis for why the person you are
claiming against is liable.
23
The date-of-knowledge test can prevent injustice
from occurring in many scenarios. Take, for example, a
situation where a doctor prescribes a patient with
inappropriate medication for a period of time which has
the effect of causing them serious organ damage. While
the injury may be very serious in nature, it might well not
manifest itself for several years. If the patient does not
begin to experience serious symptoms until three years
after the medication has been taken, an absolute
application of the two-year rule would mean that any
claim against the doctor would be barred by the Statute of
Limitations, notwithstanding the fact that the patient
couldn’t possibly have known that they were the victim of
medical negligence at any time in that period.
However, the application of the date-of-knowledge
test in such a case would mean that the two-year period
would only start to run from the date that the patient
found out that they had suffered a serious injury (organ
damage) and that this injury was caused by someone’s
negligence (the doctor’s prescription of inappropriate
medication).
Disability
Another relaxation of the harshness of the Statute of
Limitations is that time will be deemed not to run against
24
a patient during any period in which they are deemed to
be under a legal ‘disability.’
One important example of such a legal disability is
where someone is under the age of eighteen. The effect of
the rule is that a child will have two years from the date of
their eighteenth birthday within which to commence
proceedings for any medical negligence which they have
been the victims of at any time during the first eighteen
years of their lives.
Another disability which is recognised by the Statute
of Limitations is when one is found to be legally of
‘unsound mind’ which might be rephrased as meaning
lacking the fundamental cognitive abilities of your typical
adult. Accordingly, any period during which an adult
person is in an impaired mental state will not be included
when calculating the two-year period.
For example, if an adult of otherwise normal mental
ability was caused by the negligent actions of a medical
practitioner to fall into a coma for several years, the two-
year period would only start to run from the date when
the patient came out of the coma and regained their
normal faculties sufficiently to enable them to assemble
25
and appreciate all of the information required to satisfy
the date-of-knowledge test described above.
There’s never a good reason for delaying
But even where there may be some basis to argue
that, in the particular circumstances of your case, the
strict two-year period from the date of the medical
accident to the date of commencing proceedings should
be extended, there is no merit whatsoever in sitting on
your hands and adopting a ‘wait and see’ approach.
This is for two reasons, the first of which is that you
can rest assured that your claim will be defended on the
basis that it has been extinguished by the Statute of
Limitations and, if the two-year period has expired, even
if the issues of liability and causation are pretty much
‘open and shut’, you’ll still have to endure the uncertainty
of not knowing whether or not the defence’s argument
that your claim is statute-barred will be upheld until a
judge has heard all of the evidence and has teased out in
forensic detail precisely when you learned each relevant
fact and whether you have acted with sufficient haste in
all of the circumstances.
The other prejudice that you can suffer if you let time
slip by is that the opportunity to collect crucial time-
26
specific evidence (for example, scans or x-rays taken
shortly after the medical accident under investigation)
which might assist your expert in dismissing arguments
thrown up by the defence may have been lost.
In conclusion, two things need be said about the
Statute of Limitations:
1. You can never be too hasty in commencing
investigations if you suspect that you’ve been
subjected to medical negligence, and there’s
absolutely no upside to adopting a relaxed
approach. You won’t be rewarded for waiting
around, no matter what the circumstances.
2. That said, if there have been more than two years
between when the medical accident occurred and
when you found out that you might have a claim,
you shouldn’t assume that your case is hopeless.
It’s still worth talking to a solicitor specialising in
medical negligence to see if either or both of the
date-of-knowledge test or the disability test or any
other rule of law can save the day in your case.
27
6. What compensation am I entitled to?
If you’ve got this far in the guide you’ll be in no
doubt about one thing: every medical negligence case is
as unique as it is complex. For this reason if anyone is
willing to give you an opinion on what your claim is worth
before some pretty lengthy and painstaking investigations
have been carried out, you should start listening for alarm
bells.
It will almost certainly be impossible to tell you at
the early stages of the investigation of your case what
compensation you would receive were you successful for
one very simple reason: until detailed expert evidence on
your long-term prognosis has been assembled, there is
absolutely no way of making a rational assessment of
what you will need to be paid to accommodate you for
your loss.
For this reason, this part of the guide is concerned
with describing the principles underlying how
compensation is assessed rather than attempting the
impossible (and completely disingenuous) feat of reeling
off numbers based on completely superficial facts.
How compensation is assessed
28
The legal principle underlying the awarding of
compensation to people who have been subjected to
medical negligence is to attempt to put them back in the
position they would have been in had they not fallen
victim to the substandard care which has caused them
injury.
In so many cases this is of course not possible in any
truly meaningful way: no amount of money will restore a
person who has had a limb amputated unnecessarily to
the position they were in before that terrible event
occurred.
But, while far from perfect, the law regards providing
monetary compensation to victims of medical malpractice
as the best practical way of doing justice in respect of the
wrong that has been committed to them. In attempting to
arrive at the correct figure, compensation (also referred to
as ‘damages’) is broken down into two distinct categories.
General damages
General damages are intended to represent
compensation for the pain, suffering, inconvenience and
loss of the joy of living which the injury has already
caused and will continue to cause to a victim of medical
negligence for the remainder of their life.
29
By definition this will mean that the amount of
general damages to which a person is entitled will be
peculiar to their specific circumstances. For example, if a
botched operation results in continual agonising pain, a
younger claimant will receive more compensation than a
more senior victim to take account of the fact that, in all
likelihood, the younger victim will endure this pain for a
longer period if they see out their natural lifespan.
Likewise, a young person with a promising sporting
career would be expected to receive greater compensation
for an injury which impairs their athletic ability than
would someone of a similar age who had been accustomed
to living a less active life prior to the accident.
Applying the same logic, a botched medical
procedure which resulted in grave facial disfigurement
would be seen as imposing a much greater burden on a
young single woman than it would on a married man in
his senior years.
The cap on general damages
As the law of negligence developed in this country
the judiciary eventually felt the need to impose an upper
limit or ‘cap’ on the amount that could be awarded in
30
general damages having regard to the unique subjective
factors which had to be considered in each case and being
mindful of the fact that society could be seriously
adversely affected if burdensome awards in damages had
to be funded by increased insurance premiums,
heightened taxes, or a reduction in public services.
For this reason in the landmark 1984 case of Sinnott
v. Quinnsworth Limited it was decided by the Supreme
Court that the maximum award for general damages for
the most catastrophic injuries imaginable was
IR£150,000 (roughly €190,000).
As the country’s economic fortunes improved it was
acknowledged by the courts that this figure needed to be
revised upwards and this trend continued to the point
when, at the height of our short-lived period of perceived
opulence, it was decided in the 2009 case of Yang v. MIBI
that the cap needed to be raised to €450,000 to take
account of improved living standards.
However, like so many other things that have come
under uncomfortable scrutiny in the last several years of
recession, the cap has also been revised downwards and
the general consensus is now (at the time of writing in
June 2013) that it is in the region of €350,000.
31
For this reason it will become apparent that when
you hear about those multi-million euro awards in the
media, the amount which is awarded for pain and
suffering and loss of enjoyment of life (no matter how
terrible that is) only makes up a small fraction of the
overall award. The balance is made up of what are known
as ‘special damages’, which we will turn to next.
Special damages
In contrast to general damages (which, as we have
seen from the previous section, attempt to put a money
value on things like pain and the loss of the ability to
enjoy life) special damages comprise those items which
are objectively quantifiable and which require to be paid
to put someone back in the same financial position as if
they had never been injured in the first place.
The most common categories of special damages
that are recoverable are loss of earnings (both past and
future) and the cost of medical treatment necessitated by
the injury suffered.
While calculating special damages is a much more
scientific process than determining what the right figure
to place on someone’s misery is, an injured party’s
32
individual circumstances will nevertheless have a
profound bearing on the level of damages awarded,
particularly when it comes to determining the amount
attributable to loss of earnings.
For example, if a world-renowned professional
sports player who was accustomed to receiving a six-
figure annual salary before they were maimed in a
negligently performed procedure is to be given a sum of
money to restore them to the position that they would
have been in had the operation been carried out correctly,
this will be of a completely different order of magnitude to
the amount of money required to compensate someone
who has suffered the same injury but who was earning the
average industrial wage at the time that they underwent
the procedure.
The other items of expenditure that can be recovered
by way of special damages are as varied as the
circumstances in each individual case, but typical
examples of legitimate claims for compensation include:
• The costs of any specialist treatment (both past and
future) which an injured person needs as a
consequence of the injury they have sustained.
33
• Rehousing costs. If someone has been left
wheelchair bound or paralysed by a negligent act
they may not be able to continue to live in the
accommodation they had prior to the injury, in
which case they may be entitled to have the costs of
refurbishing their existing dwelling, or if this is not
practical, the costs of acquiring a new property
which is necessary to accommodate their needs.
• Round-the-clock nursing care. If someone has been
catastrophically injured they may require specialist
nursing assistance on a continuing twenty-four-hour
basis. If so, the award of special damages will
include an amount calculated to pay for these
nursing services into the future.
• Devices and aids. Depending on the nature of the
injury, a claimant may need state-of-the art medical
devices and aids and specially adapted vehicles to
alleviate their suffering to the greatest extent
possible. The amount of special damages awarded
will also be calculated to attempt to determine a fair
figure for these expenses.
It probably won’t come as a surprise to you that
paying for all of these items for a person who has been
34
catastrophically disabled at an early age, and who may
live for a very significant time to come, can mount up into
truly awesome figures. This is why we hear media reports
of awards of several million euro being made from time to
time.
Up until very recently all of these highly uncertain
factors had to be taken into consideration and applied in
coming up with a single lump sum in cases where a
person could be expected to live for decades into the
future, without anyone being able confidently to predict
how their physical condition would develop (in the most
profound cases, courts were asked to crystal-ball gaze for
young children who were expected to live for another fifty
or sixty years).
Thankfully the level of uncertainty for claimants has
been reduced by the recent introduction of periodic
payment orders where every few years a court again
assesses the injured person’s circumstances and reviews
how much is needed for them to get the care they will
need to make their life as bearable as possible.
35
7. What happens if a victim of medical
negligence dies?
To answer this question properly, it is necessary to
distinguish between:
(a) a situation where a person who is injured by medical
negligence dies subsequently and the cause of death
is not related to the injury suffered; and
(b) a situation where a person dies as a direct result of
the negligent medical act which they have been
subjected to.
Survival of actions of injured parties who die
In the first scenario, the law regards any damages for
pain and suffering or loss of expectation of life (which are
described as ‘general damages’ and which are dealt with
in more detail in the previous section entitled ‘What
compensation am I entitled to?’) that would have been
awarded to a claimant had they survived as being
compensation for purely personal loss suffered by the
injured party alone. For this reason, if a claimant dies
before they have received an award of general damages,
the entitlement to that award also dies with them.
This legal principle can throw up bizarre results in
some situations. For example, consider a situation where
36
a person who has been left in continuing agonising pain
by a botched medical procedure for which they would be
entitled to, for the sake of argument, an award of general
damages of €200,000. If that person were to die in a car
crash the day before their case was to be heard in court,
the entitlement to this sum of money would completely
evaporate. If, on the other hand, a court awarded this
person €200,000 for general damages and they were
killed in a car crash an hour after the court case was
concluded, this sum would still be payable to the deceased
person’s estate.
While some items which fall into the category of
special damages might, in certain situations, be deemed
not to be sufficiently personal to the injured person as to
survive for the benefit of their estate, these would be
limited in nature, with the result that, in most situations,
a compensation action will be discontinued if the victim of
medical negligence dies before the claim is settled or an
award of damages is made by a court.
Fatal injuries actions
In the second scenario, where the medical accident is
the actual cause of the patient’s death, different rules
apply. In this type of case, referred to as a ‘fatal injuries’
or ‘wrongful death’ action, the law provides the deceased
37
person’s dependants with an entitlement to be
compensated. The term ‘dependant’ is defined very
broadly and includes a spouse, parent, grandparent, step-
parent, child, grandchild, step-child, brother, sister, half-
brother, half-sister, divorced spouse, or cohabitating
partner.
The method of calculating damages payable to
dependants in fatal injuries actions is quite different to
that which applies to injured parties who are suing in
their own right. Generally speaking, the types of damages
which are recoverable can be grouped into three
headings:
1. Reimbursement of the expenses actually
incurred as a result of the person’s death which
will include items like the cost of the funeral,
the erection of a headstone, etc.
2. Compensation for the mental distress which has
been caused to the deceased person’s
dependants as a consequence of their wrongful
death, referred to as ‘solatium’.
3. Payment of an amount equal to all pecuniary
benefits which the dependant has been
deprived of by reason of the death.
Compensation for mental distress
38
It is of course entirely proper that a medical
practitioner whose negligent treatment devastates a
deceased patient’s loved ones should be liable to
compensate those survivors and it is therefore
commendable that the law allows for this. But what is
deeply regrettable is that, no matter what the
circumstances of the wrongful death, the amount of this
solatium payment is capped at €25,400, with this amount
to be divided between all of the surviving dependants.
Understandably, this statutory cap on the solatium
payment regularly causes extreme frustration to judges
who are anxious to award adequate compensation for the
mental anguish suffered by the grieving loved ones of a
patient who has been fatally injured.
Nervous shock
In certain cases where a dependant who has
witnessed directly the death of a loved one which was
caused by medical negligence and that experience has
caused the dependant to suffer from a recognised
psychiatric injury such as, for example, post-traumatic
stress disorder or clinical depression the dependant may
be in a position to recover general damages from the
medical practitioner who caused the death if a court is of
the view that the incurring of this psychiatric injury by the
dependant was as a direct result of their experiencing the
39
death of their loved one and that it was a reasonably
foreseeable outcome, with this phenomenon being
referred to legally as ‘nervous shock’. Where it can be
shown that nervous shock has been suffered by one or
more of the deceased patient’s relatives this enables
judges to make more appropriate awards, removing, as it
does, the strait jacket of the statutorily capped solatium
payment.
Loss of pecuniary benefits
Where a patient who has died was accustomed to
performing the role of ‘bread winner’ for one or more
dependants (such as a spouse and minor children) an
exercise will have to be carried out to determine what the
average annual financial loss to those individuals is as a
result of the death, together with a consideration of how
many years into the future they could reasonably have
expected to receive this pecuniary benefit from the
deceased person had they survived.
Working out this annual average figure will often be
an extremely complicated exercise as matters such as the
income being received at the time of death, prospects for
promotion in the future, and fringe benefits such as the
right to a company car, bonuses and pension entitlements
will all have to be taken into account. For this reason,
40
where there are any significant pecuniary losses involved
it will be necessary to retain an actuary to work out the
average figure and then to calculate the right multiplier to
be applied to this annual amount so as to arrive at a single
capital sum to compensate the dependants for the overall
loss.
41
8. How much will bringing a claim cost me?
Not surprisingly, this topic is to the forefront of the
minds of most people who suspect that they have been the
victims of medical negligence and want to know if they
have an actionable claim. Because this is a complex issue
which will depend on the individual contractual
relationship which a person enters into with their solicitor
at the outset, the best way to deal with it is probably by
addressing some of the more frequently asked questions
which potential claimants have.
Am I entitled to legal aid?
There is presently no system in place where victims
of medical negligence can avail of legal aid if they retain
their own solicitor who is in private practice. However,
the Legal Aid Board is a State-funded organisation which
provides legal representation to victims of medical
negligence in certain circumstances.
The lawyers employed by the Legal Aid Board who
represent people awarded free legal aid are expert
professionals who are on a par with practitioners in the
private sector. But the problem is that the service is
means-tested and, even if you qualify to be represented,
their resources are badly stretched, meaning that claims
42
which are seen as more deserving or more likely to
succeed may be given priority.
If you take the private route, how much you pay will
be a purely contractual matter to be agreed between you
and your solicitor. If you are considering this option, here
are a few questions that you should ask before deciding on
whether or not to retain a medical negligence solicitor to
act on your behalf.
Is the first consultation free?
If the solicitor you are dealing with is going to afford
the level of detail and attention that is demanded in a
medical negligence case, they will first of all have to take
detailed instructions from you in one or more meetings
which could take some considerable time to complete.
Before arranging such a meeting you should not be
behind the door in asking whether you will have to pay
any money for the time spent by the solicitor in this initial
process before they advise you on whether or not you have
a claim worth investigating and whether they would be
willing to act on your behalf.
Will the investigative process be undertaken free
of charge?
43
As you’ll recall from the section entitled ‘How will I
know if I have a case?’, even where your solicitor feels
that you have a case that’s worth looking into, you won’t
really have a good idea as to whether or not a claim is
worth progressing with until detailed instructions have
been taken, all of your medical records collated, a brief
sent to a medico-legal expert, and an expert opinion on
liability and causation procured on your behalf.
This is quite a time-consuming process for the
solicitor which may take several months to conclude.
Some solicitors will undertake this investigative process
free of charge whereas others will only agree to carry it
out on payment of an agreed fee (which could be fixed or
based on the amount of time spent).
If there is an investigation fee payable to the solicitor
you should be prepared to pay both this and the cost of
the medical expert’s report even if it later transpires that
the opinion does not go in your favour, with the result
that you don’t have a viable claim for compensation.
If the initial investigation suggests that I have a
case worth pursuing, how will the charges be
based from this point on?
44
Assuming that the initial export report(s) show that
you have a claim worth pursuing, be sure that you have
clearly agreed the basis upon which the legal fees that you
will incur after this point are calculated. Make sure to ask
whether the solicitor is willing to work on a no-win-no-fee
basis or whether there will be a fee even if you are
unsuccessful.
If you don’t receive a clear statement in writing from
your solicitor setting out the basis for the professional fees
that you will have to pay at the conclusion of your case,
together with clear answers to any questions that you
might have, you should start getting concerned.
Who will be responsible for paying for any
medical reports that will be needed?
This will depend on the individual arrangement that
you come to with your solicitor. Generally speaking the
cost of the initial report(s) required to establish whether a
sustainable claim exists are borne by the client. If any
follow-up reports are required in the course of the
proceedings, whether these are discharged by the client or
the solicitor is for agreement in each instance. However,
irrespective of whomever pays for the reports that are
necessary to progress the claim, you should bear in mind
that you may not recover the full cost of these reports
45
from the defendant if your claim succeeds, meaning that
some of the cost of the reports may require to be funded
out of your compensation award.
Will my legal team’s legal costs be fully paid by
the other side if I win my case?
It all comes down to what agreement you’ve made
with your solicitor regarding fees, but in many cases the
short answer is ‘no.’
This is because the defendant will only be obliged to
pay a contribution to your costs which equates to the
absolute bare minimum amount of work that would be
required to successfully complete your case. The reality is
that no-one in their right minds would take on something
so daunting as a defended medical negligence action on
such a half committed basis, and any shortfall will have to
be picked up by the claimant.
You’ve also got to bear in mind that your legal team
will have to explore certain avenues to ensure that you
secure the maximum amount of compensation available.
In some instances this may lead to a considerable amount
of time being spent on investigations which may
ultimately prove to be completely unrecoverable.
46
For example, consider a case where a patient is the
victim of a poorly performed procedure after which they
have significant pain and ill health from the very outset.
They then suffer a heart attack a month after the
procedure. Any medical negligence solicitor worth their
salt will exhaustively investigate whether or not this heart
attack was caused by the poorly performed surgery: if it
was, this will significantly enhance the value of the claim;
however, if it wasn’t caused by the botched procedure and
was a pure coincidence, then all of the work done in
investigating this aspect of the claim will understandably
not be recoverable from the defendant and will fall to be
paid out of the compensation award that the patient
eventually receives.
How do no-win-no-fee arrangements work?
If the initial investigations that your solicitor carries
out for you indicate that you have a good chance of
succeeding with your claim for compensation, your
solicitor may be willing to take on your case on a no-win-
no-fee basis. These arrangements (sometimes also
referred to as no-foal-no-fee) basically provide that your
solicitor will agree to defer payment of your legal fees
unless and until you succeed in securing compensation
from the other side.
47
It’s arrangements like these that provide the vast
majority of victims of medical negligence with the means
of accessing justice. If lawyers were only willing to take
on these highly technical and specialised cases, which can
run for many years, on a pay-as-you-go basis only
extremely wealthy individuals would have any meaningful
prospect of securing the compensation to which they were
entitled.
If your solicitor is willing to take on your claim on a
no-win-no-fee basis you should make sure that they
confirm this for you in writing and that they set out
clearly any conditions which may attach to their
willingness to defer payment of their costs until your case
has concluded.
48
If my solicitor agrees to take my case on a no-win-
no-fee basis, does this mean I’m not assuming any
risk?
No, it doesn’t. Even if your solicitor gives you the
most cast iron of assurances that you won’t owe them a
penny unless you collect yourself, you must always
remember that the general principle underpinning legal
costs in this country is that the successful party is entitled
to have their costs paid by the losing side. So if you fail to
bring your case home, while you may not be faced with
paying your own lawyers any fees, you may still be faced
with what could be a financially devastating court order to
pay the costs of the defendant’s legal team.
This is why no-win-no-fee arrangements are not the
‘no-brainer’ option that some unscrupulous practitioners
would have you believe. In order to ensure that you are
not being put in the way of unacceptable financial peril
you therefore need to satisfy yourself that the solicitor
that you retain has got sufficient expertise and integrity
only to agree to take on your case on the basis that they
genuinely believe that you have a decent chance of success
(remembering always that this can never be guaranteed,
as litigation will always bear some inherent level of risk,
49
even in what appears to be the most cut-and-dried of
cases).
If you’re unlucky enough to come upon a solicitor
with too much free time on their hands who’s willing to
‘give it a lash’ with your case in the knowledge that all
they’ll have lost if you go down is the juicy fee that they
might have received if the gamble had paid off, then you
are definitely at high risk of turning out to be the patsy in
that particular poker game.
50
9. How long will my claim take?
It’s a bit like asking ‘how long is a piece of string?’
But you can be assured of one thing: if your case is in any
way typical, you should expect to think in terms of years
rather than months.
With most claims for compensation for personal
injuries an injured party first has to submit their claim to
the Injuries Board for assessment before they receive an
authorisation to issue court proceedings. It can often take
the Injuries Board up to a year to either issue an
authorisation or make an assessment for consideration by
both sides. However, medical negligence claims are one
of the few exceptional types of case for which there is no
need to obtain an Injuries Board authorisation before
issuing court proceedings. But, as you can read more
about in the section entitled ‘How will I know if I have a
case?’, you can’t issue proceedings alleging negligence
against a healthcare professional without first having
obtained an expert report confirming that the standard of
care provided to you fell below the standard to be
expected.
Typically, by the time all medical records have been
obtained and this expert medico-legal report has been
51
procured, the investigative process can take in the region
of around twelve months. Only at this stage is one in a
position to progress your court proceedings in earnest if
the investigations yield a positive result.
How long things will take from this point on will vary
dramatically on the circumstances of the case. For
example, if the facts are such that there has been what
amounts to gross negligence on the part of the medical
practitioner which is so obvious that no lawyer in their
right mind could recommend mounting a defence to the
claim, there could be an acceptance of liability very early
on, meaning that the sole issue to be determined would be
the amount of damages to be awarded to the injured
patient.
If a judge has to make such an assessment of
damages only, rather than to hear evidence from experts
from both sides and then to decide on whether there is
fault on the part of the defendant, it will reduce the length
of time from start to finish considerably.
If, on the other hand, there is a ‘full fight’ involving
various different points of contention, requiring both
parties to obtain several expert reports from different
specialists, followed by a lengthy hearing, a period of
52
several years from the commencement of proceedings to
their conclusion would not be unusual.
53
10. Who will pay my compensation and what
consequences will the medical practitioner
face?
Public hospitals
If you were the victim of a medical negligence event
that occurred in a public hospital at any time after July
2002, the Clinical Indemnity Scheme (CIS) will apply, in
which case a Government-run body entitled the State
Claims Agency will handle the defence of your claim.
Under the CIS the State assumes full responsibility
for payment of all damages arising out of clinical
negligence claims, meaning that your compensation will
be paid by the taxpayer rather than the medical
professional who caused you the injury.
The CIS does have certain benefits for claimants as,
before its introduction, every single defendant in the
proceedings was represented by a completely different
legal team, resulting in much more time and expense
being spent before a claim was ready to go to trial.
As already stated, the CIS is effectively confined to
hospitals operated by the Health Service Executive and it
54
doesn’t cover medical accidents that occur in private
hospitals, with the exception of obstetric practices in
Mount Carmel Hospital in Dublin and the Bon Secours in
Cork.
Private healthcare professionals
The Medical Council’s Guide to Professional Conduct
and Ethics for Registered Medical Practitioners stipulates
that doctors must ensure that they have adequate
professional indemnity cover for all healthcare services
which they provide prior to engaging in the practice of
medicine within the State. However, there is no statutory
obligation on private medical practitioners to take out any
minimum level of indemnity cover, although the
introduction of such mandatory insurance has been
mooted in recent times.
Although not legally mandatory, the vast majority of
medical practitioners working in private practice in
Ireland carry professional indemnity insurance, meaning
that any award in compensation, together with the legal
costs of both the claimant’s and the medical practitioner’s
legal teams, will be paid by an insurance company rather
than by the medical practitioner themselves.
55
Other possible consequences for healthcare
practitioners
In situations where a patient is injured by a medical
practitioner by reason only of a genuine error, the
repercussions for the practitioner will be confined to the
payment of compensation and, as is explained above, if a
doctor is working within ethical guidelines, this
compensation pay-out will be covered by an insurance
policy.
However, if the behaviour which caused the injury
was such that the doctor was guilty of breaching any
principles of professional conduct or ethics, they may also
be complained to the Medical Council who will investigate
the claim and will decide on appropriate disciplinary
measures.
The Medical Practitioners Act 2007 empowers the
Medical Council to impose sanctions of varying degrees of
severity depending on the seriousness of the misconduct
complained of. These include:
• An advice, or admonishment or censure in
writing.
• A censure in writing and a fine not exceeding
€5,000.
56
• The attachment of conditions to the
practitioner’s registration, including restrictions
on the practice of medicine that may be engaged
in by the practitioner.
• The transfer of the practitioner’s registration to
another division of the register.
• The suspension of the practitioner’s registration
for a specified period.
• The cancellation of the practitioner’s
registration.
• The prohibition from applying for a specified
period for the restoration of the practitioner’s
registration.
Apart from being liable to professional sanction, if
the medical practitioner’s behaviour is so egregious that it
constitutes unlawful activity, the Director of Public
Prosecutions may also decide to prefer charges, resulting
in a prosecution in the criminal courts.
57
Please let me hear your feedback
The reason for preparing this guide was to answer
some of the more frequently asked questions posed by my
clients and to provide some assistance to people who
suspect that they may have been injured through medical
negligence.
For this reason I’m extremely grateful to receive
feedback from anyone who’s taken the time to read the
guide so that I can get an idea as to whether or not I’ve
explained myself clearly enough or whether I’ve neglected
to deal with any topic which is of interest to people who
find themselves in this position.
If you believe that there’s any way that this guide can
be improved on, or if you would like to ask me any
questions regarding medical negligence, please feel free to
get in touch with me by emailing me at john@mccarthy.ie
or by telephoning me on (023) 888 00 88.
Thanks for reading.
John McCarthy
Recommended