Bringing a Clinical Negligence Action
1. Clinical negligence actions
You or your loved ones can bring a negligence action against members of the healthcare profession including but not limited to family doctors, dentists, nurses, physiotherapists, opticians, Accident and Emergency staff, radiologists, pharmacists, nurses, midwives, nursing home staff, psychologists, social workers, psychiatrists, heart surgeons, cosmetic surgeons, plastic surgeons and cancer specialists.
The specialist healthcare disciplines of medicine, surgery, nursing, dentistry, cosmetic surgery, laser surgery, pharmacy, radiology, physiotherapy, dermatology, psychology and psychiatry are constantly changing and becoming increasingly complicated.
If you believe you or one of your loved ones have suffered an injury, failed to recover fully from a standard procedure or died as a result of a specialist(s) action or inaction. The best action for you or your family member is a clinical negligence action against the specialist(s).
2. Some examples of medical negligence claims against specialists may include:
- Failure to diagnose or treat a serious illness such as a heart attack, cancer, meningitis, HIV.
- Failure to diagnose or treat a serious mental illness such as depression, dementia.
- Failure to warn about the risks of a particular treatment.
- Failure to refer a patient to another specialist where it was necessary to do so.
- Failure to attain informed consent for an optional surgery such as laser eye surgery, weight loss surgery, plastic surgery.
- Failure to carry out an operation properly with the required standard of reasonable care causing a surgical complication which would not have occurred if the operation was carried out properly and with the necessary attention and reasonable standard of care.
- Delay in providing a proper standard of medical care, diagnosis and treatment reducing a patient’s chance of full recovery from their medical condition.
- Poor childbirth care and procedures causing physical and psychological birth injuries to the baby and mother, cerebral palsy to the baby, death of both baby and mother.
- Injury or death caused by careless and negligent heart surgery, plastic surgery, weight loss surgery, key hole surgery, ear, nose and throat procedures.
- Failure to prevent or diagnose deep vein clots which results in a severe heart attack or death.
- Late or incorrect diagnosis causing brain and spinal cord injuries.
- Failure to use clean surgical instruments, swab an open wound, clean your hands before an operation causing the patient to contract an infection such as MRSA (methicillin-resistant staphylococcus aureus).
- Hospital systems failure to maintain a hygienic, clean hospital causing patients to contract infections while in hospital such as MRSA.
3. You or your loved one should seek medical and legal advice
Suffering from a personal injury is one of the most difficult and traumatic experiences you can endure. Suffering can include and is not limited to physical injury and pain, reduced sexual function, and symptoms of fear, anxiety, depression, embarrassment, reduced satisfaction with life and expectations with life and psychiatric illness.
Watching a loved one suffer may cause mental distress or nervous shock and you can bring an action against the specialist who acted or failed to act which caused this distress/nervous shock.
You should seek expert legal and medical advice to ensure you or your loved one has the best chance of receiving appropriate compensation for current and future needs as a result of the injuries suffered.
As clinical-negligence claims are very complicated. You or your loved one needs an expert solicitor with experience of clinical negligence actions. Tyrrell solicitors have expertise and experience in this complex area of law and can explain the medical and legal issues involved in you or your loved ones clinical negligence action against a specialist.
Tyrrell solicitors have extensive experience in carrying out investigations and determining if a clinical negligence action exists and gathering legal and medical evidence to prove that the negligence caused the injuries which have been sustained.
It is advisable to take specialist legal advice as soon as possible, contact a specialist medical negligence solicitor.
4. Time waits for no person
The first step to consider is if you or your loved one is within the time limit to bring a clinical negligence claim? The time limit is two years from the date of the injury or the date you or your loved one are aware that there was a connection between the injuries and the matters you believe to have caused the injuries. Time is of the essence.
If you or your loved one is out of time you will not be able to bring a clinical negligence case against the specialist which you believe caused your injury or injury to your loved one as a result of their acts or failure to act.
You should make an appointment with Tyrrell solicitors to discuss you or your loved ones case at your earliest convenience.
5. First meeting with your Solicitor
Your solicitor will discuss the medical and legal facts of your or your loved ones injuries and determine if a clinical negligence action exists.
We will need as much information as possible that you or your loved one has and we will also require the following information:
The name and speciality of the specialist, the date the act or failure to act occurred.
How many specialists were involved, the dates they acted or failed to act.
A written account of you/your loved ones experiences and why you believe a negligence action against a specialist exists. In some actions we may need both.
Personal details such as loss of earnings, Department of Social Welfare benefits and records of costs.
If you or your loved ones can not carry out certain activities or hobbies.
You or your loved one may also have the cost of ongoing treatment, the cost of extra care or equipment which you may require, the cost of adapting your home.
We will take detailed instructions from you or your loved one and outline the costs involved in taking a clinical negligence action against a specialist/specialist(s).
6. Investigating the clinical negligence action
(i) Depending on the particular facts of you or your loved ones case we will attain a copy of various records.
For example with a medical negligence action your solicitor will attain a copy of you or your loved ones GP’s records under the Data Protection Act.
We will attain a copy of you or your loved ones hospital records under the Freedom of information which may include:
(a) Doctor’s clinical records
(b) Nursing notes/cardex
(c) Blood pressure, heart and temperature charts
(d) Fluid intake chart
(e) Drug administration and chart
(f) Surgeon’s operative notes
(g) Anaesthetic records
(h) Recovery room record
(i) Pathology/laboratory test results
(j) Xray, ultra-sound
(k) Discharge summary
(l) Consultant’s reports/correspondence/referral letters.
(m) Consent forms
(n) Accident & Emergency (A&E) Casualty Card
(ii) Your solicitor will then send a letter before action stating the nature of the claim to all of the relevant specialists which are responsible for the injuries sustained because of their actions or failure to act. These letters will be served by registered post.
(iii) The nature of the injury will determine the various expert specialist reports that will be required to support you or your loved ones claim of action.
Clinical negligence procedure worked example: Failure to diagnose Cauda Equina Syndrome in a timely manner.
Cauda Equina Syndrome is a collection of signs and symptoms resulting from compression of the bundle of nerve roots emerging from the end of the spinal cord below the 1st lumbar vertebra.
It is characterised by severe lower back pain with bilateral sciatica associated with saddle anaesthesia, urinary retention and bowel dysfunction.
It is a surgical emergency requiring immediate treatment or the patient can be left with very severe symptoms which can include paralysis. Patients usually first present with this problem at Accident & Emergency or at their GP’s.
The following medical reports would be required:
- Radiographer report [Failure to take X-rays of sufficient clarity?]
- Radiologist report [Failure to diagnose from the X-rays?]
- Neurologist report [Would earlier diagnosis would have made any difference?]
- Urologist report [Condition and Prognosis]
(iv) Your solicitor would then analyse all these reports and use them to support and prove you or your loved ones claim.
(v) A Personal Injury summons would then be issued and sent to the specialist’s solicitors.
(vi) The clinical negligence action has commenced and your solicitor on behalf of you or your loved ones behalf will plead the case almost immediately.
7. Proving a clinical negligence case
To successfully win a clinical negligence case it must be proved but for the specialist(s)’ negligence you or your loved one would not have suffer from injuries and these injuries were caused by the specialist(s)’ negligence.
This consists of three parts:
(i) you or your loved one suffered an injury and
(ii) The specialist(s) were negligent, the relevant standard of care owed to you or your loved one was below the reasonable standard of care and skill practiced and accepted by a responsible body of members of the healthcare professional in the general or specialised area in which the skill was practiced and
(iii) this negligence caused the injuries complained of.
In other words you or your loved one must establish on the balance of probabilities that there was a causal connection between the alleged negligence and the injury sustained.
In relation to part (ii) it is worth noting that, the Court may decide that a specialist is negligent if the specialist follows the general and accepted practice among healthcare professionals but there are inherent defects which would be obvious to a specialist in their area.
The Court may also decide that if a specialist departs from a general and approved practice that the specialist is negligent.
8. Settling at various stages of you or your loved ones clinical negligence claim
Clinical negligence claims rarely end up with a trial in court. Many cases are settled after all the investigations are completed and before legal proceedings are issued, and the majority before a trial commences.
Your solicitor will assess and discuss with you and your loved one the merits and disadvantages of settling or continuing a legal action depending on the compensation awarded at various stages of you or your loved ones clinical negligence claim.
9. Damages & Out of Pocket Expenses
You or your loved one will also receive a sum for out of pocket expenses (also known as special damages) which may consist of past, current and future doctor’s fees, nursing, carer fees, physiotherapy fees, medication and medical appliances, the cost of adapting your home, past and future loss of earnings.
10. Type of Damages i.e. compensation for the injuries you or your loved one (or both) have suffered
- Damages for general loss of quality of life.
- Damages for loss of opportunity or chance.
- Damages for Psychological injury such as grief and mental distress.
- Damages for Psychiatric injuries such as nervous shock. Failure to prescribe the correct medication to treat an illness.