How to Bring a Medical Negligence Claim?

The decision to pursue a medical negligence claim is generally not one that people make lightly. Pursuing a medical negligence claim can seem daunting, especially as the vast majority of people are unlikely to have gone through the legal process before. 

The aim of this article is to provide a brief summary of the steps involved in bringing a medical negligence claim from the initial contact with our firm to the conclusion of your case. 

1. Making Initial Contact:

The first step is for you to contact an experienced medical negligence solicitor and provide a brief summary of why you think you may have a claim. If you choose to contact our firm, Laura will appropriately advise you and help you compile the necessary evidence to determine whether or not you have a medical negligence claim. 

It is important that you make this initial contact quickly. 

There are very strict rules (known as the Statute of Limitations) which dictate the length of time you have to make a medical negligence claim.  

Generally speaking, you have two years from the date of the negligent act to bring a medical negligence claim. 

There are some exceptions: 

  1. If you did not know that you received negligent medical treatment or you did not know you had been injured at the time you received medical treatment, you may be able to rely on the “date of knowledge” argument. In relaying on this argument,  the 2 year time limit will run from the date you became aware of the negligent treatment or the date you discovered you had been injured. 
  2. For minor children, the 2 year time limit does begin to run until the child’s 18th birthday. However, a claim can be brought by the child’s parents while the child is still under 18 years of age. This may be advisable in circumstances where the child is injured and the compensation will provide much needed therapies and support to reduce the impact of his/her injuries. 

In order to protect yours or a loved one’s legal rights, it is essential that you start the legal process as soon as possible to ensure that the legal claim is commenced in advance of the time period expiring. 

Even if you are not sure about the strength of your claim, you should make contact with a suitable solicitor for advice. Laura understands that when you suffer an injury, your recovery takes precedence and you may not feel in the best place to consider bringing a legal claim. However, making contact with a specialised medical negligence solicitor early will ensure that you receive the appropriate advice in a timely manner, within the legal timeframe, thereby protecting any potential claim you may have. 

2. Obtaining a Copy of the Relevant Medical Records:

With your permission, Laura will request a copy of your medical records from the relevant medical practitioner(s) and Hospital(s). 

Once the relevant medical records have been received, Laura will review the records in detail and provide her expert legal opinion as to whether or not it is worth pursuing a claim. If Laura believes you have a case worth pursuing, she will highlight the potential medical errors made and recommend that you obtain a medical report from a medical expert who can definitively opine as to whether you or a loved one received negligent medical treatment.

3. Instructing Medical Experts:

In Ireland, prior to bringing a medical negligence claim, it is a legal requirement that you have a report from an appropriate medical expert which makes findings of medical negligence and links the negligence to the injury/death in question. Laura works with the best medical experts and will be able to advise you as to the best choice of expert for your case. 

If the medical expert report concludes that the medical treatment provided was negligent, you are deemed to have a legal case and the legal process can commence. 

4. Commencing Court Proceedings: 

Once we are in receipt of the necessary supportive expert report(s), we will put the Defendant(s) (the wrongdoer) on notice of the claim being brought by writing a “Letter of Claim”. A letter of claim summarises the allegations being brought against the Defendant(s) and invites them to admit liability. However, it is rare that a Defendant would admit liability at this early juncture. 

Failing an admission of liability, we will commence the court process by lodging a “Personal Injuries Summons” with the Court and serving this document on the Defendant. The Personal Injuries Summons will set out in detail the nature of the injury, the identified Defendant(s), the allegations of negligence being made against the Defendant(s) and details of the Plaintiff’s (the injured party’s) current condition and the personal injuries he/she has suffered. 

5. Reply by the Defendant:

The Defendant is then given time to reply to the Personal Injuries Summons. They will essentially play catch up with the Plaintiff and instruct their own experts to opine as to whether or not there was medical negligence. 

Once the Defendant has concluded their investigations they will lodge a formal reply to the Personal Injuries Summons in a document called a “Defence”. The Defence will set out the Defendant’s replies to the allegations being made by the Plaintiff.

6. Valuing a Claim:

While the Defendant is undertaking their investigations in relation to the allegations of medical negligence being made, we will assess the value of your claim. To value your claim, we will consider the extent of your pain and suffering (general damages) as well as your out of pocket expenses (special damages). 

General Damages are damages awarded for pain and suffering, for loss of amenity (how your day to day life has been affected by your injury and reduced life expectancy (if applicable). General Damages are calculated by reference to Court Guidelines and previous settlements involving injuries of a similar nature. 

Special Damages are damages awarded to compensate you for financial losses you have suffered or will suffer into the future because of your injury. Examples of special damages include, travel expenses, medical expenses, loss of earnings. 

In some cases it may be necessary to instruct experts to quantify the financial loss you have suffered and/or will suffer into the future. 

7. Proceeding to Trial/Settlement:

Once both the Plaintiff and Defendant have compiled all the necessary evidence, they will inform the Court that they are ready to proceed to Trial and more often than not, try to resolve the case by way of negotiated talks in advance of any Trial date.  

The vast majority of claims do not proceed to Court. Instead, both parties will meet for settlement/mediation talks and resolution is typically achieved. 

8. Length of Time to Conclude Case:

The legal claim process can be lengthy, with the average claim taking 24-36 months to conclude. Typically it can take 2-3 months for you to compile all the necessary information and for the relevant Hospitals and Medical Practitioners to release the medical records. Depending on the volume of medical records, Laura aims to have the records reviewed and her expert opinion with you within 1-2 weeks of receiving the records. The process of obtaining a medical expert report can take several weeks or months depending on the medical expert’s caseload. On average, the process of investigating a medical negligence claim can take between 6-9 months and the court process can take anywhere from 12-24 months. 

Laura aims to deliver an efficient service and will keep you advised at every juncture as to what the next steps are and what the updated projected timeframe is.  

As discussed above, given the length of time the investigation process can take, it is important that you act quickly and contact a solicitor well in advance of the 2 year statutory time frame expiring. 

If you or a family member have suffered a serious injury which you believe was as a result of negligent medical treatment, you may be entitled to bring a medical negligence claim. 

To speak with an experienced medical negligence solicitor who will listen with the utmost empathy, please contact Laura today.