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

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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.

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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.

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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.

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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.

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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.

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• 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.

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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