Requests for information under the Freedom of Information Acts are often a very valuable source of information when preparing a claim against a doctor or a hospital. It is possible to obtain copies of policies, protocols, guidelines and approved practices in relation to a wide variety of aspects of medical care and these can give a helpful indication of whether there was a deviation from the accepted standard of care.
We recently made two such requests and received two quite different responses. In one request, we sought a number of documents in relation to the management of labour at a particular maternity hospital. We received a prompt reply from the hospital and copies of over 20 documents. These cover a wide range of standard procedures and guidelines that apply when a complication in labour arises. These guidelines originate from a number of different sources including the hospital itself but also from An Bord Altranais and the Royal College of Obstetricians & Gynaecologists. The documents will assist us in assessing where the standard of care our client and her baby received may have deviated from the norm and this is an essential element to a successful claim.
Simultaneously, we made a similar request to a Dublin hospital requesting information in relation to procedures and guidelines in their emergency department. We were taken aback when we received a letter saying that our request had been refused relying on section 21(1)(b) of the Freedom of Information Act. The hospital said that our request was refused because disclosure of the records concerned could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions in relation to management. Needless to say, we do not understand what adverse impact disclosure of the records could have on the public body and intend to appeal this refusal.
The Freedom of Information Acts ensure transparency and accountability of public bodies. For our purposes, they provide a convenient way of obtaining documents that are valuable in our assessment of whether or not a doctor met the accepted standard of care when treating our client, as this standard is often reflected in relevant protocols or guidelines.
We were contacted by a new client during the week in relation to a medical negligence claim she wishes to take against her former chiropractor. The lady who contacted us is now being treated by a neurologist because the treatment from the chiropractor aggravated a pre-existing back condition and ruptured veins and nerves such that she can no longer work.
We have investigated the claim and unfortunately, because of the very strict time limits that apply to medical negligence claims, it appears that this person may be statute barred from bringing a claim against her chiropractor.
Recent changes to the Civil Liability and Courts Act 2004 reduced the time limit for issuing such claims from three years to two years from the date of accrual of the cause of action. Medical negligence actions fall into the same category as personal injury claims for the purposes of the time limits that apply. This is in many respects unfair and illogical because medical negligence claims are usually considerably more complex and difficult to investigate when compared to personal injury claims. A further complication is the natural reluctance of a patient to explore a claim against their doctor which can delay matters further and cause serious difficulties for many plaintiffs who ultimately decide to bring a claim as they may come to this decision too late.
It is however important to bear in mind that Section 2 of the State of Limitations (Amendment) Act 1991 includes a “date of knowledge” provision or saver. This means that a plaintiff may rely on that fact that the two year time limit does not start until they had “knowledge” of the injury. The question then becomes what constitutes “knowledge” for the purposes of the Act.
The date of knowledge saver has been the subject of three recent Supreme Court decisions. Two of these Supreme Court cases arose out of claims against Mr Michael Neary, the gynaecologist/obstetrician who performed an inordinate number of caesarean hysterectomies at Our Lady of Lourdes Hospital in Drogheda over a 25 year period. What these decisions establish is that even a limited knowledge or strong suspicion of an injury being caused by negligence of a doctor may be sufficient to constitute knowledge and commence the two year limitation period. In one of the cases, the Court in effect held that the statue had begun to run from the moment the plaintiff wrote a letter of complaint to the Medical Council, notwithstanding the fact that she did not have a supportive medical expert report confirming negligence at that point.
It is therefore absolutely vital that where a prospective plaintiff has a suspicion that an injury may have arisen because of negligence they seek legal advice and obtain a medical report at the earliest opportunity, and well before the two year deadline. Where claims are investigated or litigated too late and the limitation period has expired, a plaintiff whatever the severity of their injury may have no recourse to compensation or relief.
We recently reviewed statistics on the number of medical accidents occurring in Irish public hospitals and found an alarmingly high rate. HIQA run a national web base database for the reporting of adverse clinical incidents and “near misses”. These figures show that in the year 2007, there were approximately 55,000 medical accidents reported by State hospitals to the State Claims Agency through this reporting system. Incredibly, this figure had increased to approximately 84,000 by the year 2010, with similar figures reported for 2011. This represents an increase of approximately 52% between 2007 and 2011.
There is no detail provided on the nature of the medical accidents and whether or not any injury or death followed. Our own experience is that very serious consequences can arise from medical accident or “near miss” but clients face very serious challenges in pursuing their claims and this may explain the absence of a parallel rise in claims of medical negligence.
A major obstacle in pursuing any claim against a hospital or doctor is financial. We are currently dealing with a difficult case where a client was left with a very serious disability following a mis-diagnosis. We received an initial medical report that identifies a plethora of shortcomings in the treatment she received. However, to progress this case further, we need at least three more medical reports to specifically address the issues of the standard of care and causation. Each of these reports are likely to cost in the region of £1,500 and we are expected to pay for the reports before even receiving them. This brings our client’s bill for medical reports alone, well before the claim is even close to a hearing to around £6000, which converts to in or around €7,000.
Our client is currently receiving €218 per week on social welfare. Her injuries are such that it is extremely difficult for her to find suitable employment. She is not in a position to fund her action and it falls to us to do our best to subsidise the claim.
We expect that this case is representative of many others, where patients who experience medical accident and where there possible claim for medical negligence cannot pursue their claim because of financial constraints. It is clear from the HIQA figures that there has been a worrying increase in the number of medical accidents occurring in our State hospitals. Yet anecdotally at least, we do not see a corresponding increase in the number of medical negligence claims and it may be these financial obstacles that are contributing to this in-balance.
The disproportion financial fire-power between each of the parties is stark. On one side you have an insurance company defending a doctor against potentially very serious claims that may impinge very drastically on his or her professional livelihood. In our experience, resources are not constrained and medical reports are readily accessed in order to defend the claim. On the other hand you have applicants of often very limited means who in the first instance have a very poor understanding of how to bring such claims.
As representatives in several medical negligence cases, we have to prepare cases as best we can and pursue all avenues to secure redress despite the limited financial means of our client. These cases are complex in many respects and the high costs of progressing them add a further layer of difficulty.
If you have been injured due to Medical Negligence or Dental Negligence our experienced, committed and specialist Medical Negligence solicitors at Brophy Solicitors will work with you to establish if you have a case related the medical error or dental error. We have over 30 years cumulative experience in advising clients in matters relating to medical negligence.
Whatever your motivation, we have a clear understanding of your needs, and we are confident that our experienced and dedicated team of medical negligence lawyers will be able to offer you comfort and legal support through these often difficult times. We recognise that a medical accident has significant emotional and financial consequences for you and your family and we will do everything we can to make the process run as smoothly for you.
The following are amongst the areas of medical negligence and dental negligence that we advise upon:-
Medical Negligence Cerebral Palsy & Birth Injury Claims
Acquired Brain Injury Claims
Oncology & Cancer Claims
Gynaecological & Obstetric Injury Claims
GP Claims
Dental Injury Claims
Eye related claims
Hospital Acquired Infection claims - MRSA
Fatal Injuries
Inquests
Defective Medical Products
PIP Implants
DePuy Hip Replacements ASR
Cosmetic Surgery Claims
Psychiatric/psychological Injuries
General Medical Problems
PROVING MEDICAL/DENTAL NEGLIGENCE
Proving that a medical/dental practitioner has acted negligently in his or her treatment of a patient is a rather complex task and it should be noted that the law only offers the opportunity for a victim to recover compensation if it can be demonstrated “on the balance of probabilities” that the treatment received was carried out in a negligent fashion by the healthcare professionals involved and that this directly caused or contributed to your injury.
What exactly constitutes medical negligence is now always clear. However, there are a number of circumstances in which it can be clearly argued that a medical professional has breached his or her duty of care. These include:-
Erroneously or belatedly diagnosing illness or injury
Failure to take action following test results
Mistake in performance of an operation or procedure
Error in administration of medication
Sub-standard follow up care
Failure to advise a patient of the risks associated with procedures prior to their administration. I order to prove that a doctor/dentist is negligent, it is necessary to establish that no reasonably competent practitioner in the relevant field, at the relevant time, with the same qualifications and expertise, faced with the same circumstances, would have acted in the same way. Therefore, even where the treatment administered has caused or contributed to the injury, same may not be deemed negligent if it can be demonstrated that it was the “reasonable” action of a competent medical/dental professional given the circumstances.
WHAT ACTION CAN I TAKE IF I SUSPECT I HAVE BEEN INJURED BY NEGLIGENT TREATMENT
The very least you can expect is a full explanation as to how the injury occurred and an apology where appropriate, and an assurance that all steps will be taken to investigate your complaint. It may also be entitled to compensation by taking legal action.
As stated above, in order for you to be successful in your legal claim, there are two strands of the case that need to be proven on the balance of probabilities:-
Negligence – that the care you received fell below medically acceptable standards; and
Causation - that the breach of duty or negligence of the clinician/medical attendant directly resulted in an injury to you.
As part of the initial investigation, we will require a supportive opinion from a suitably qualified independent medical expert. They will base their opinion on
Your medical records
Your account of what happened to you
Any other documents supporting your case.
Without a supportive report from an independent expert, your case will not succeed.
Because of the complicated nature of these claims, it may take some months to obtain an expert report and these can usually only be obtained after we have obtained your medical records. Claims are not required to be submitted to the Injuries Board (formerly known as the Personal Injuries Assessment Board).
STATUTE OF LIMITATIONS/TIME LIMITS IN MEDICAL NEGLIGENCE
Normally the date of knowledge will be the date on which the injury was sustained. It is therefore essential that an injured party seeks legal advice as soon as possible following an incident or medical malpractice. The reality is that, except for a small number of specific exceptions, the opportunity to make a claim for compensation will be lost exactly two years after the date of knowledge. Exceptions do, however, exist particularly with respect to cases of medical malpractice such as an illness that went unchecked due to misdiagnosis because the date of knowledge may at times be difficult to clarify. In such circumstances, you should always seek legal advice at the first opportunity, even if it seems that it is too late as an exception may apply.
INJURIES TO INFANTS & MINORS
In the case of medical negligence/malpractice involving a child, it is important to note that the date of knowledge of the injury is actually the victim’s eighteenth birthday. i.e. time does not begin to run against the injured party until he or she attains the age of majority (eighteen years of age). Thereafter, under current law, the injured party has a period of two years within which to issue proceedings in court. A child victim can however pursue a medical negligence compensation claim before his or her eighteenth birthday provided a parent or guardian acts as his or her “next friend”.
·The two year rule referred to be above can be extended where the injury occurred to somebody under the age of 18 and can also be extended if you did not know or could not reasonably have known that you were injured at a particular time (particularly relevant in medical negligence claims).
·If either party is unhappy with an award made by PIAB, they can pursue their claim through the court system.
·To get an idea how much your claim is worth, go to the Book of Quantum on the PIAB website. Although the Book of Quantum was prepared in June 2004, thanks to the recession, it is still fairly accurate.
Give me a ring or email me if you need any further information.
