Can a child make a claim for a foreign object left during an operation?
Your child acting alone would not be allowed to make a claim for a foreign object left during an operation because the law does not permit legal minors to initiate legal action or instruct a solicitor. However, if he or she were to be represented by you, another parent or a guardian, then a claim for a surgical error to a child may indeed be possible.
Before making a claim for a foreign object left during an operation, it would be necessary to determine whether your son or daughter had suffered an adverse reaction to the presence of the foreign object, or if their future health was at risk if the foreign object was allowed to remain. If no injury has been sustained, or the removal of the foreign object may cause complications which would be worse than the potential risk of leaving the object untouched, then it will probably not be possible to claim compensation for negligent paediatric surgery.
The way to determine whether you would be able to claim for a surgical error to a child is to speak with a solicitor and explain the circumstances of the operation during which the foreign object was left behind, how long it was until the error was discovered and what – if any – adverse reaction has been diagnosed.
If the solicitor feels you have a viable claim for compensation for negligent paediatric surgery, he or she will then engage the services of an independent medical expert to review the medical notes from the original medical procedure in which the foreign object was left behind to establish where the mistake occurred. It is likely that the HSE will be doing much the same thing when your solicitor sends them a ‘Letter of Complaint’ on your behalf.
The solicitor will then arrange for you to be authorised by the courts to represent your child as a ‘next friend’. As a ‘next friend’ you (or a solicitor) will have to show that making a claim for a foreign object left during an operation for your son or daughter is in their best interests, and that you will be able to cover the costs of legal action if the claim for a surgical error to a child is unsuccessful.
Thereafter, the procedures for claiming compensation for your child´s injury are that the solicitor would write a ‘Letter of Claim’ to the hospital at which the error was made, informing the hospital that you are claiming compensation for negligent paediatric surgery on your child´s behalf and supporting it with the evidence compiled by the independent medical expert.
Once liability is acknowledged, your solicitor will enter into negotiations with the HSE to settle the claim for a foreign object left during an operation for your maximum entitlement. Once a settlement is agreed, it has to be approved by a judge, after which it is paid into court funds where it is held in an interest-bearing account until your child reaches the age of eighteen.
If funds are needed from the compensation settlement before your child becomes a legal adult, to pay for medical needs or educational requirements – or to refund costs you may have incurred in providing care for your child – these can be released from the compensation settlement on application to the court.
As you can see, making a claim for a surgical error to a child is an involved procedure and can take some time to complete. Therefore you are advised to speak with a solicitor at the first possible opportunity to establish that you have a claim for a foreign object left during an operation which is worth your while to pursue and to have an explanation of the procedures that would have to be completed in your child´s particular circumstances to recover compensation for paediatric surgery negligence.