Medical Negligence

Medical Negligence Solicitors Ireland

Medical malpractice* is a very complex area of the law, so it is essential that you are advised by solicitors specialising in medical negligence*. From our experience, people are more concerned about getting answers, than they are about bringing a medical negligence claim*. It is much easier to accept a diagnosis or serious injury if you know, with certainty, that nobody else is at fault. In some cases however, somebody is at fault. In those cases, Hanahoe & Hanahoe will fight for you, until you receive the appropriate redress and compensation.

Medical Negligence Solicitors*

At Hanahoe & Hanahoe, our solicitors specialise in medical negligence. Thankfully in the main, Ireland has a very good healthcare system and often the injuries people sustain are unavoidable and not the result of medical negligence. Generally, medical professionals operate in a dedicated and diligent manner, all while keeping the patient’s best interests at heart.

However, unfortunately sometimes mistakes are avoidable. If something went wrong with your treatment, we can help you find answers. Whether you were not told what happened; you do not believe what you were told; you feel that your questions or concerns were dismissed; or you simply do not understand what happened, we can help. Medical negligence can cause serious or catastrophic injuries, having a profound effect on your quality of life.

In such cases, our team of medical negligence claim solicitors will do all they can to ensure that the mistakes made are acknowledged, and that you receive the correct compensation*.

What is a Medical Negligence Claim*?

Medical negligence* or a clinical negligence claim* are essentially personal injury claims* arising out of a negligent medical error or misdiagnoses. In other words, the patient has sustained personal injury as a result of an error made by a medical professional. Medical negligence claims* generally arise where:

1. There has been an error made during surgery.
2. A medical practitioner has misdiagnosed a patient.
3. A medical practitioner fails to act on or treat an illness or complaint properly.
4. The treatment that a patient receives is not of the standard expected of a suitably qualified medical practitioner.
5. There has been an error made during the delivery of a baby.

Mistakes which fall into the category of medical negligence can include: leaving surgical items behind, mixing up left and right, or damaging organs and destroying otherwise healthy tissue. In most cases, the patient is worse off than they were prior to receiving treatment. Unfortunately, such mistakes can lead to the need for further corrective surgery, serious or cataphoric injuries or even death.

The Irish courts have a high threshold for what they deem as medical negligence*. This can make it difficult for a client to successfully win a claim, especially without the aid of specialist medical negligence solicitors*.

The Law on Medical Negligence Claims*

Medical negligence claims* are governed by the test set out in the case of Dunne v The National Maternity Hospital (1989). This law provides that a practitioner is only guilty of negligence in diagnosis and/or treatment, if he/she was guilty of such failure, as no other medical practitioner of equal specialist or general status or skill would be guilty of if acting with ordinary care.

It is required that you prove two things to establish medical negligence in front of the court:

1. That the practitioner deviated from a general and approved practice, and;
2. That the course taken was one that no other medical practitioner of like specialisation and skill would have followed, when taking the ordinary care required from a person of their qualifications.

Why Choose Hanahoe and Hanahoe?

• We are one of the best medical negligence solicitors in Ireland, with over 40 years of experience and our practice specialises in medical negligence cases.
• We are a recognised and award-winning law firm – having twice won Leinster Law Firm of the Year and the Irish Law Awards. In 2019, we were nominated as Personal Injury/Medical Negligence Law Firm of the Year.
• We have offices in Dublin, Naas, Portlaoise, Carlow and Maynooth and offer a nationwide service. We advise and represent clients from all over the country. Our partners can meet you in-person, over Zoom, or on any one of the other digital consultation platforms used by our team.
• We can access a wide range of medical specialists, who provide us with expert opinions and you with answers – as to whether the treatment you received was negligent.

What is the Medical Negligence Claim* Procedure?

There are four main steps to bringing a medical negligence claim*:

1. Firstly, we take a detailed statement from yourself, setting out the medical treatment you received and why you think it was negligent.
2. We will then take up, review and consider your medical notes.
3. Once we have reviewed your medical notes, we will brief an expert to give us their views on whether the treatment you received was negligent.
4. If it is our expert’s opinion that the treatment you received was negligent, we will brief counsel and issue medical negligence proceedings. *

How to Start a Medical Negligence Claim

Upon our initial consultation, we will take a very detailed statement. Often due to complexity or the personal nature of complaints, our clients prefer to prepare this themselves.

Next, we seek our client’s medical notes from the various medical institutions you attended. You may have attended a number of hospitals, and it is key that you collect notes from all hospitals you were treated in—not just the hospital you have a complaint against. It is also important to take up the GP’s records. You may find a crucial note or letter here; our medical negligence solicitors* will go through these notes in detail, checking for anything unusual, concerning or telling.

However, although we are specialist medical negligence solicitors*, we are not doctors and therefore, subject to your instructions, we would then seek the preliminary view of an expert medical professional.

This is merely a preliminary opinion and based purely on our attendance(s), together with a small number of notes our medical negligence solicitors* feel are relevant.

While this is only a preliminary opinion and comes with the very large caveat that the expert has not considered all the notes, it gives our clients a greater insight into whether they have a potential medical negligence claim*. A lot of our clients find this very helpful in deciding whether they want to take up full expert medical opinion.

Expert Medical Opinion

In Ireland, a suitably experienced medical expert must confirm that your treatment and/or diagnosis was negligent, before you can bring a medical negligence case*. In fact, if you intend to sue another party, an expert medical opinion is a prerequisite and an obligation. Court decisions such as Reidy v National Maternity Hospital[2] and Cooke v Cronin[3] set this out.

It is important that you note that an expert medical opinion will not guarantee the success of your medical negligence claim*. It is simply the first hurdle you have to overcome before bringing a medical negligence case in Ireland*.

What is the Time Limit for Medical Negligence Claims? *

The Statute of Limitations for bringing a medical negligence claim* is two years, minus one day, from the date of knowledge of the negligent treatment or care. In some cases, the position is clear e.g., the amputation of the wrong limb. In most cases, however, the position is far more complex. This is because a patient may not have knowledge of any potential medical negligence for years after their treatment. Cancer misdiagnosis cases are a good example of this, where a patient may not even know they are sick for years after they were misdiagnosed.

But even in cases where a person does know that they have been ill, that they have received medical treatment and that they have been left with a personal injury, does not necessarily mean that they know that such treatment was inappropriate and led to that personal injury. It is only when a person has this knowledge or it is reasonable to assume they showed have had this knowledge, that time on the two-year statute of limitations begins to run.

The difficulty is defining the date of knowledge, and when it is reasonable to assume a person should have known, that they potential have medical negligence claim. At what point is it appropriate to assume a person has the requisite knowledge to bring a medical negligence case and thus start the clock on the statute of limitations, has been litigated recently in the cases of Gough v Neary, Cunningham v Neary, Farrell v Ryan and Oliver O’Sullivan v Ireland, the Attorney General, Minister Health and Children and others, but unfortunately the position is still not perfectly clear. Each case will turn on its own facts, but certainly action taken by a patient, such as if they made a complaint to the hospital/medical institution; when they took up a copy of their medical notes; when they instructed a solicitor; when that solicitor sought an expert medial opinion, will paly an important role in deciding when they could or should have know that they potential had a medical negligence claim.

We would always recommend that, where possible, you should issue medical negligence compensation* proceedings within two years of the negligent treatment. However, in many cases this is simply not possible and we must emphasise that just because you have not done this, does not mean that your medical negligence claim* is statute barred. This is why it is essential, that before making a decision on the statute of limitations that you should always consult with a medical negligence solicitor. *

 

What Type of Claim Do You Need to Make?

At Hanahoe & Hanahoe, we have the expertise to advise you on when you have a stateable medical negligence claim*

 

Table of Contents – Types of Claims Birth & Gynaecological Claims Birth Injury Claims Cerebral Palsy Claims Erb’s Palsy Claims Perineal Tear Injury Claims Bladder & Bowel Perforations Claims Retained Products of Conception Claims (RPOC) Failed Sterilisation & Wrongful Conception Claims Hospital Negligence Claims* GP Negligence Claims* Dental Negligence Claims* Pharmaceutical Claims* Cosmetic/Plastic Surgery Claims* Acquired Brain Injuries Cancer Misdiagnosis Claims*

Birth & Gynaecological Claims

For most, the delivery of a baby is the best day of your life. Unfortunately, this is not always the case, as your child may experience a birth injury or defect, or tragically may not even survive the delivery. While often such circumstances are unavoidable, they are occasionally the result of medical negligence* or hospital malpractice*.

Birth defects (also known as congenital disorders) are conditions present at birth, and can affect almost any part of the body. Birth defects occur while the baby is in the womb, with the cause either natural or unknown. Occasionally it can result from certain toxins or medications that the mother was taking during pregnancy.

Birth Injury Claims

Birth injuries occur during or immediately after the delivery process, and are much more likely to prompt a medical negligence claim* than a birth defect. But that is not to say that birth injuries are always due to medical negligence* – the majority of birth defects are unavoidable, and the fault of no-one. Birth injuries can vary in severity from broken bones to significant brain injury. Some of the more common significant birth injuries are:

• Brain injuries
• Cerebral Palsy
• Erb’s Palsy
• Perinatal Asphyxia Caput Succedaneum
• Neonatal Hypoglycaemia
• Fractures
• Pelvic injuries
• Forcep and vacuum injuries
• Seizures

Cerebral Palsy Claims

Cerebral Palsy is a group of disorders affecting movement, muscle tone or posture. It is caused by damage to a developing brain, often before birth. While brain damage is the cause of Cerebral Palsy, many factors can trigger the damage. These generally include:

• Poor brain development in the womb
• Maternal infections or medical conditions
• Disruption of blood flow to the developing brain
• Genetic conditions
• Ingestion of toxins or drugs during pregnancy
• Damage to the head or skull during delivery
• Complications related to premature delivery

It is important to note that only a small percentage of Cerebral Palsy cases result from negligent management of the mother’s pregnancy, delivery or neonatal care.

Erb’s Palsy Claims

Erb’s Palsy is paralysis caused by injury to the arm’s main nerves. The most common cause of Erb’s Palsy is excessive pulling or stretching of an infant’s head and shoulders during vaginal birth.

In many cases, Erb’s Palsy resolves itself with little to no treatment. However, in severe cases where the nerves in the upper brachial plexus are badly damaged or completely detached, the affected arm may be permanently weakened or paralysed.

Perineal Tear Injury Claims

During vaginal deliveries, particularly in the first pregnancy, it is common for the perineum to tear. The perineum is the area between the vagina and the anus. In approximately 1 in 7 pregnancies, a surgical cut is made between the vagina and anus to help deliver the baby. This procedure is called an episiotomy, and prevents the muscles and skin from tearing. Episiotomies are generally also done when a baby is in distress and needs to be born quickly, or there is a need for forceps or vacuum.

This incision is stitched up within an hour of birth and a mother should recover within a month. When not done correctly, consequences can include:

• Incontinence
• Infection
• Severe pain or loss of sensation
• Adverse effects on a mother’s sexual function

There are four categories of perineal tear, ranging from first-degree through to forth. If you have suffered either a third or fourth-degree tear, you should seek the advice of a medical negligence solicitor*. Medical negligence claims* arise in circumstances where you can prove that the tear was either allowed to extend too far, damaging the sphincter, or where the tear has not been treated correctly.

Bladder & Bowel Perforations Claims

Bladder and bowel perforations can occur during caesarean section deliveries. Because these are known risks of the surgery, you cannot claim medical negligence* merely because your bladder or bowel was perforated.

Like many medical conditions, early identification is key. In fact, this is a major determining factor when it comes to the treatment required and the consequent outcome. If the perforation goes unidentified and the mother’s abdomen closes without repair work being done, infection may develop. This can result in serious illness and may give rise to a medical negligence claim*.

Retained Products of Conception Claims (RPOC)

Retained products of conception is a medical term used to describe the partial or complete retention of parts of the placenta or tissue which is left in the uterus after delivery. RPOC can also occur during miscarriages or abortions.

If the retained placenta or tissue is left untreated, it will decay and cause infection. If untreated, the infection can have serious consequences for the mother and may result in sepsis in severe cases.

Failed Sterilisation & Wrongful Conception Claims

Wrongful conception refers to the birth of a child who would not have been born without negligent treatment. This can happen through a failed vasectomy, or failed sterilisation.

• Failed vasectomies occur in less than 1% of men, and can be the result of medical negligence*, engaging in sexual activities too soon, or the tubes reconnecting naturally.
• In some cases, sealed tubes reconnect either immediately or years later. If the fallopian tubes are not properly tied or clipped in the surgical procedure, you may have grounds for a medical negligence case*.

Hospital Negligence Claims*

Hospital negligence claims* are medical negligence claims* arising out of a patient’s treatment in hospital. These claims often arise as a result of improper care provided in accident and emergency departments—often chaotic environments. Unfortunately, wrong decisions made in accident and emergency departments can have catastrophic consequences.

Identifying Negligence Against the Hospital

The law is very clear: when a patient is suing a hospital, it is essential that they identify (by way of expert report) distinct negligence against the hospital, in addition to any findings of a private consultant. Recent decisions of Hunt v Gormley & Ors ([2019] IEHC 316) and Mangan (a minor) v Dockery & Ors ([2014] IEHC) emphasised the importance of suing the correct defendant in hospital negligence cases, put an end to the previously well used tactic of suing everyone to ensure you got the correct defendant . As a result of these cases, it is more important than ever to engage an expert medical negligence solicitor* in hospital negligence cases.*

Types of Hospital Negligence*

Examples of hospital negligence include:

• Failing to refer patients for further investigation/follow up
• Discharging a patient when it is not appropriate to do so
• Failing to, or delaying in diagnosing an illness/injury
• Failing to take appropriate action on test results
• Failing to communicate the risks linked to a specific procedure
• Failing to obtain informed consent
• Surgical negligence
• Error in administering prescriptions/medication
• Hospital system failures resulting the patients becoming susceptible to infections and bed sores

General Surgery Claims

As a general rule, the standard of surgery in Ireland is very high. It is important that patients know: just because surgery does not go according to plan, it does not necessarily mean that you have a medical negligence claim. There are inherent risks associated with surgery and unfortunately things can go wrong and patients can be injured, without the surgeon being negligent. Sometimes however, mistakes are made that should not have been and in these incidents, injured patients may well be entitled to bring medical negligence compensation claims.

The most common incidents we see resulting in medical negligence claims are:

• Misdiagnosis or delayed diagnosis resulting in a delay of surgery
• Carrying out unnecessary surgery
• Inadvertent lacerations to organs during the course of surgery
• Damage to nerves following surgery
• Anaesthetic mistakes
• Leaving surgical instruments inside the body following surgery
• Failures in post-operative care

GP Negligence Claims*

Your GP is generally the first point of contact with the health system. It is the role of a GP to assess a wide variety of problems, spot signs or symptoms of disease or injury and make decisions on how a patient should be treated, including whether they need to be referred for further treatment. Thankfully, in the main, Irish GPs provide their patients with excellent care. Unfortunately, however, sometimes mistakes are made.

As with all areas of clinical negligence*, delay or failure to diagnose or refer can have devastating consequences for a patient.

Examples of GP negligence include:

• Failing to investigate symptoms properly
• Failing to diagnose possible strokes/brain haemorrhages
• Failing to treat infections appropriately
• Failing to make urgent referrals, for example in the case of meningitis, appendicitis or cardiac arrest
• Failing to refer to a specialist for investigation or treatment
• Failing to consider and act on test results appropriately

Dental Negligence Claims*

Dental negligence is where a dentist’s standard of care falls below that of a reasonably competent dentist and causes injury to the patient. As per the Medical Practitioners Act 2017, dentists are now legally recognised medical practitioners in Ireland. They are therefore obliged to meet the same high standards as any medical practitioner.

Dental negligence claims* arise when a person suffers an injury, or unwarranted pain or where their appearance has been negatively affected as a result of dental treatment they received. In serious cases, especially where infections are not treated appropriately or where a nerve has been damaged, dental negligence can cause significant injuries over and above your typical dental injuries. If you have suffered a dental injury and you believe it may be as a result of dental negligence, please contact one of our dental/medical negligence solicitors* to discuss your case.

Typical Types of Dental Negligence Claims*

• Unnecessary or incorrect tooth extraction
• Facial or jaw muscle injuries
• Delayed or misdiagnosis of medical conditions, such as gum disease or oral cancer
• Performance of unnecessary dental procedures
• Nerve damage claims
• Errors made during the administration of anaesthetic
• Injuries caused as a result of a poor standard of dental work
• Fractured mandible claim

Pharmaceutical Claims

In the normal course of life when prescribed medication by our GP, we do not question or consider it; we simply take it on the basis of their expert advice. Likewise, we do not question or take note of whether our pharmacist has provided us with the appropriate medication as contained in the prescription. Unfortunately, in a rare number of cases a pharmacist can provide us with the wrong medication. Thankfully this rarely has a dramatic effect on our health, but in certain circumstances this may occur, resulting in severe physical or mental injuries.

Cosmetic/Plastic Surgery Claims*

As cosmetic and plastic surgery becomes more popular, we are seeing an increasing number of cases where our clients have suffered significant injuries as a result of undergoing cosmetic procedures. We regularly see clients who have suffered nerve damage, unexpected scarring or other injuries associated with the surgery or procedure.

Unfortunately, cosmetic surgery is an area of medicine that is largely unregulated. It is important that people realise that there is a difference between a cosmetic surgeon and a plastic surgeon. A fully qualified surgeon has about 15 years’ training and will be registered with the Medical Counsel as a plastic surgeon. However, any doctor on the general register can refer to themselves as a cosmetic surgeon. This can often confuse patients and in some cases lead to substandard care. Patients can go to medicalcouncil.ie if they want to be sure their practitioner is competent.

Common causes of cosmetic surgery claims include:

• Nerve injuries
• Scarring
• Skin loss
• Infections
• Liposuction resulting in perforated bowels
• Removal of cancerous moles leading to delay in cancer diagnosis

Acquired Brain Injuries

Acquired brain injuries can occur as a result of both medical and non-medical factors. An acquired brain injury happens after birth and is not hereditary, congenital or degenerative. Acquired brain injuries include both traumatic and non-traumatic brain injuries. According to Acquired Brain Injury Ireland, the main causes of brain injuries are strokes (39%), road traffic accidents (14%), falls (14%), tumours (7%), and assaults (5%.

Two types of acquired brain injuries: traumatic and non-traumatic.

Traumatic Brain Injury

A traumatic brain injury is an injury caused by external factors—such as a blow to the head—which disrupts the normal functioning of the brain. Common causes of traumatic brain injuries are road traffic accidents, assaults or falls. These injuries can vary in severity and can be categorised as mild, moderate or severe.

If you or a loved one has suffered such an injury, it may be possible for you to bring a personal injury claim and against the persons responsible for the injuries. Given the complexity of the injuries sustained in such accidents, it is advisable that you seek the advice of an expert personal injury solicitor.

Non-Traumatic Brain Injury

A non-traumatic brain injury occurs as a result of non-external factors. The injury is the result of something that happens inside the body that affects the brain. The most common cause of such injuries are strokes and brain tumours. However, they can also be caused by oxygen deprivation following cardiac arrest, meningitis, brain infections like encephalitis, or toxic injury.

In some cases, these injuries could have been prevented or at least greatly reduced if appropriate medical care had been provided. In such cases, the patient may well have a medical negligence claim. Again, due to the severity of injuries and issues in relation to cause and duty of care, this is a very complex area of law and it is essential that you seek advice from a specialist medical negligence solicitor.

Symptoms of Brain Injuries

While every brain injury and its effects differ greatly, common symptoms are:

• Problems with motor skills
• Sensory problems
• Communication difficulties
• Issues with executive functioning
• Memory problems
• Behavioural issues
• Emotional changes
• Changes in bodily functions
• Seizures
• Visual challenges

If you feel that you have any of these symptoms, you should immediately contact your GP and or indeed a neurologist.

Cancer Misdiagnosis Medical Negligence Claims*

In Ireland, an average of 43,000 new cancer cases are diagnosed each year. Alarmingly, it is predicted that Ireland will see a doubling in incidences of cancer by 2045. Despite this high number of annual cancer diagnoses, quite often cancer goes undiagnosed, or there is a delay in diagnosis. A delay in diagnosing cancer can have devastating consequences for a patient. It can often mean a patient won’t receive the timely and appropriate treatment they require. This can significantly decrease their survival rate, and could result in the need for much more aggressive or invasive treatment.

In such cases you are likely to have a medical negligence claim*, and you should seek the advice of specialised medical negligence lawyers. *

Common misdiagnosed cancers include: breast, cervical, colorectal, pancreatic and lung cancer. Medical practitioners can often fail to diagnose these and other cancers due to their:

• Failure to investigate or identify certain symptoms associated with cancer
• Failure to carry out and properly analyse abnormal blood tests
• Failure to perform appropriate scans, x-rays or biopsies
• Failing to investigate or act on certain recommendations made by the testing laboratory
• Failing to make the appropriate referrals
• Failure to provide proper follow up care

Medical Negligence FAQs

Here are some of the most common questions clients ask our medical negligence solicitors.

Medical Negligence Claims – How Much Compensation Will I Receive?

This will depend on the details of your case. We would be very wary of any solicitor who attempts to answer this question at an initial consultation. Firstly, before even considering the compensation value of a case, it is necessary to establish negligence. This requires us taking up an expert medical opinion from a suitably qualified medical expert. Once we have such an expert report, we can assess the appropriate compensation for your injuries; this will depend on the injuries you sustained, the effects those injuries had on the you, the treatment required, and your prognosis for the future.

The level of compensation will also be broken down into two categories: general and special damages.

General damages cover the compensation you receive for your injuries. In Ireland, this figure is capped at €550,000.00.

Special damages are compensation for present and future out of pocket expenses. This can include medical expenses, future care costs, necessary home alteration costs, loss of earnings and other such expenses. The amount a client receives for these costs, particularly in big medical negligence cases, can end up being considerably more than the compensation they receive for their injuries.

Can I Make a Medical Negligence Claim After 2 Years?

The Statute of Limitations for bringing a medical negligence case is two years minus one day from the date of knowledge of any potential negligence. As such we would always recommend that, where possible, you issue medical negligence compensation* proceedings, within two years of the negligent treatment.

However, it is often the case that patients are not aware that the treatment they received was negligent until years later. As such, we would strongly advise that you consult with a medical negligence solicitor* before making a decision on the statute.

Can I Claim For Medical Negligence After 20 Years?

Generally, the Statute of Limitations limits people to making claims within two years. However, we emphasise, that just because you have not done this, does not mean that your medical negligence claim* is statute barred. The statue will depend on the individual circumstances of each case, so its essential that you consult with an expert medical negligence solicitor.

How Long Does a Medical Negligence Claim Take?

Medical negligence is a complex area of the law. Each case is different and there are a number of factors that impact on how long a case will take, such as the complexity of medical issues, the injuries sustained and the number of potential defendants. Going through the steps of litigation can take some time. If you’re taking legal action in this area, it’s essential that you do so with the help of solicitors specialising in medical negligence*.

Can I Claim for Medical Negligence?

If you feel you have experienced injury as a direct result of medical malpractice, you may be able to bring a medical negligence case. To be successful, your injury will need to have been avoidable if proper care had been provided. You will also need to prove:

• A relationship with the offending doctor or institution existed
• The medical action taken was negligent

If you believe that you, your partner, a loved one or a family member has suffered an injury as a result of medical negligence*, please feel free to contact one of our medical negligence solicitors* and we will advise you of your options.

The process of pursuing litigation in this area can be difficult to navigate. With the help of an experienced medical negligence solicitor*, you can determine whether you have a case and gain the answers you require.