In addition to our unique position as the only specialised Healthcare Law Firm in the North of Ireland, we can also assist patients who have suffered because of substandard care in the Republic of Ireland. Our team of specialised healthcare lawyers are qualified and experienced in resolving healthcare disputes on both sides of the border, from the initial complaint to the issuing of legal proceedings and trial if necessary. If you have suffered an injury arising from medical treatment and would like to discuss this further, please contact Patrick Mullarkey or Joe Moore.
The Law in relation to healthcare claims is generally similar on both sides of the border. To establish a claim in negligence, you need to establish three key elements:
- Duty of Care
- Breach of Duty
- Damage as a consequence of the breach
The principles guiding medical negligence claims in Ireland were established in the seminal case of Dunne v National Maternity Hospital. The key principles are:
- A claim in negligence may be established if the patient can prove that the care provided was of such a standard that no medical practitioner of equal specialist or general status and skill would provide if acting with ordinary care;
- Even if the medical practitioner can establish he has not deviated from an approved practice, the practitioner will have no defence if it is established that the approved practice was inherently defective.
These principles remain the guiding star under which all claims in medical negligence are based in Ireland. While most medical negligence claims allege negligence, claims can also be made for defective products under the Defective Products Act 1991, and breach of contract relating to private medical or dental care.
For guidance on our areas of practice regarding medical claims, see here.
Not all healthcare disputes result in the patient bringing a claim. It may be that a patient simply seeks an explanation of what went wrong, or an apology from the medical practitioner / healthcare provider involved. Often the first port of call for any dispute is to raise a complaint with the relevant practitioner / healthcare provider. This allows you to obtain more information as to what actually occurred and decide what action to take next.
If you intend to make a complaint in relation to care provided, it is useful to provide the healthcare provider with details of how to contact you, who or what you are complaining about, where and when the event that caused your complaint happened, and, where possible, what action you would like the organisation to take. We recommend that you speak to one of our specialist healthcare lawyers before making a complaint, as we can provide guidance in relation to the key issues that should be addressed in any complaint.
If a fatality has arisen from medical care, in certain circumstances the Coroner for the area in which the death occurred may order an Inquest. Legal representation for the family of the deceased if often essential to ensure that the Coroner’s investigation is as fulsome as it needs to be to establish the crucial facts relating to a patient’s death. We can provide assistance to the family and next of kin in the conduct of the investigation and, if convened, the Inquest into the death.
If a dispute is not resolved by way of a complaint, you may wish to discuss the possibility of bringing a claim against the healthcare provider involved. The following are the key steps involved in bringing a claim in Ireland:
Once we have met with you and discussed your complaint in detail, the first step will be to obtain copies of your medical records. This allows us to consider the documentation relating to treatment provided by you and to properly instruct independent experts to consider the standard of care provided to you.
Once we have reviewed your medical records, the next step is to seek expert evidence in relation to the care provided. Generally, we will first seek expert evidence in relation to breach of duty. This allows us to identify whether you may be able to establish that the standard of care provided was substandard. If so, we will then require evidence in relation to causation, to establish whether the injury you have suffered is a result of the substandard care provided. Even if substandard care has been provided, it can often be the case that any damage caused can not be connected to the breach of duty. In this situation, you will have difficulty advancing a claim in negligence.
If the expert evidence on breach of duty and causation indicates that there has been a breach of duty which has resulted in injury to you, it may then be appropriate to issue and serve legal proceedings. No proceedings can be served on the medical practitioner in Ireland unless appropriate medical evidence has been obtained.
Perhaps the key different between the law North and South of the border is that in the Republic of Ireland, a patient has only two years from the date of the incident or the date the patient became aware of an injury to issue legal proceedings. This means that there is a tight timescale for an investigation to take place in relation to the merits of a case before issuing proceedings. If you or a family member are / were under 18 at the time of treatment, you will have 2 years from the date of your 18th birthday to issue proceedings. The Statute of Limitation does not apply to persons under a disability.
Failure to issue proceedings within the relevant timeframe can be fatal to your case, therefore it is important to speak to our healthcare team as early as possible to ensure the correct limitation period is identified, and the matter investigated accordingly.
Letter of Claim
If the medical evidence is supportive, the next step is to formally write to the proposed Defendant(s) to advise of your intention to bring a claim.
At this stage, it is imperative that the correct Defendant is identified. There is considerable overlap in Ireland between private and public healthcare, with private healthcare often provided in public hospitals. Generally, if the care is provided publicly or in a public hospital, the Health Service Executive (HSE) will be the proper Defendant and are indemnified by the State Claims Agency. Alternatively, if the care is provided privately through a private medical insurer, the individual practitioner and / or the private hospital will be responsible for dealing with a claim. Our specialist healthcare team will identify precisely the correct Defendant(s). Failure to identify the correct parties at the outset can significantly delay resolution of your case.
If the healthcare provider does not accept responsibility for the substandard care at the outset, then legal proceedings may have to be issued.
Mediation / Alternative Dispute Resolution
Mediation is a process whereby the parties agree to meet and discuss a dispute, with the guidance of an agreed Mediator who will guide the discussions between the parties with a view to resolving the dispute. We can provide assistance through this process, as explained here.
Once legal proceedings are issued, we will continue to obtain expert evidence from relevant experts to help us put a valuation on your case. In more complex cases, this can include experts in relation to nursing care, your employment prospects, occupational therapy, psychiatric injury, and actuarial reports to quantify your future loss. All the while, we will liaise with the Defendant’s solicitors and seek to exchange expert evidence at the earliest opportunity.
There is considerably less judicial input in the Republic of Ireland in relation to the management of complex medical negligence claims pre-trial. The risk of instructing non-specialist lawyers is that your claim is advanced much slower than appropriate. While medical negligence cases can and often do take many years to resolve, our expertise in advancing such cases will allow you to press your claim to resolution in the earliest timeframe possible.
The case is advanced through Pleadings, which are formal legal documents stating the Plaintiff’s case and the Defendant’s defence. The Pleadings generally proceed as follows:
Personal Injury Summons
This is the originating document which forms the basis of your case. It should contain a detailed description of the treatment provided, detailed allegations of negligence against the relevant Defendant(s), and a summary of the injury you have suffered.
Notice for Particulars / Replies
On receipt of the Personal Injury Summons, the Defendant will ordinarily seek further details by way of a Notice for Particulars. Our response to the queries raised by the Defendant will be provided in our Replies to Particulars.
Once the above steps have been complied with, the Defendant will then be compelled to indicate the nature of their Defence. While an early admission of liability is often appropriate, unfortunately this is rarely provided by Defendants in these cases.
Notice of Trial
Once the Defence is provided, the Plaintiff may issue their Notice of Trial and obtain a date for trial. The Parties are then obliged to exchange expert evidence, although unfortunately this is often not done until closer to trial. We will seek to exchange expert evidence at the earliest opportunity to help us advise you fully on the prospects of your case succeeding.
Further Particulars of Negligence / Personal Injury
During the above steps, and right up to the trial, the Plaintiff may serve additional allegations of negligence and updated particulars of personal injury. This allows us to formally state precise nature of your case to the Defendant on an ongoing basis.
The vast majority of meritorious medical negligence cases do not go to trial. The reason for this is that the Defendants are keen to avoid hefty trial costs in circumstances where they are unlikely to succeed. Most meritorious cases are therefore resolved during pre-trial settlement negotiations. However, in certain circumstances, the case may proceed and will be generally be heard at the High Court in Dublin.
Unlike in the North of Ireland, there is no legal aid available for patients in the South. Accordingly, you have the following options:
You may be able to fund the investigation of your case privately, and we can advise you about the costs of bringing a claim.
Some insurance policies provide cover for legal expenses which may cover expenses investigating a claim. We can advise you if any insurance you have provides such cover.
After the event insurance
More and more claims are funded by insurers if they are satisfied your case has a reasonable prospect of success. We have relationships with various insurers who may be able to provide such funding.
Instructing O’Reilly Stewart
We are available to provide you with free legal advice in relation to a potential claim. We have the expertise to guide you through any complaints procedure. If needs be, we can expertly guide you through legal proceedings, instructing the appropriate independent experts and providing you with expert legal advice throughout the process. It is imperative that these complex cases are dealt with by specialist healthcare lawyers, and our team at O’Reilly Stewart are uniquely placed to provide expert legal advice on both sides of the Irish border.