The number of enquiries by those affected by medical negligence has increased significantly over the last few years. This is a worrying trend. It indicates that under staffing and under-funding of hospitals may be having an impact on patient care and safety leading to an increase in possible medical negligence incidences.
Medical negligence is an area where many of those who make an enquiry do so a few years after the act of alleged negligence. A delay of more than two years usually results in a full defence for the wrongdoer by virtue of the Statute of Limitations. Those who have been affected by medical negligence should therefore act quickly and consult their solicitor. Some hospitals are taking an inordinate length of time simply to photocopy a patient’s file so that it can be reviewed and advice takes on that hospital’s actions. It can also sometimes take quite a while to obtain a report on negligence in complex cases. Where an enquiry is made within the two year period, a protective writ can be issued even in the absence of a report on negligence while the report is obtained. It is preferable however to make the enquiry early so that you have all the facts to hand at the early stages.
The test applied by Irish Courts to the question of medical negligence is quite onerous. To establish negligence in diagnosis or treatment on the part of a medical practitioner it must be proved that he/she is guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of, acting with ordinary care. Your solicitor must obtain an opinion from a suitable medical expert in a similar field of practice, that the act or omission in question is negligent as required in this definition. Until recently, that meant obtaining a report from a practitioner in the United Kingdom as most medical practitioners in Ireland would not provide reports regarding their colleagues. This is changing and there are now a growing number of medical experts practicing in Ireland who will provide reports on medical negligence. It is however changing slowly and within certain fields, it remains necessary to engage UK experts.
Once the report on negligence has been obtained, the claim follows the normal court proceedings for injuries claims, albeit that the burden of proof is higher.