Is it true that there is a law in Ireland which means my daughter cannot claim for the misdiagnosis of a fracture until she is eighteen?
Although it is true that legislation exists which prohibits children from making person injury claims until they are legal adults (the Courts and Civil Liabilities Act 2004), it does not necessarily mean that your daughter cannot make a claim for the misdiagnosis of a fracture before she reaches adulthood.
Claims for medical negligence for children can be made by a parent or guardian acting on the child´s behalf at any time before the child reaches their eighteenth birthday; provided that a judge considers that the claim for compensation for the missed diagnosis of a fracture is in the best interests of the child and that the parent or guardian is prepared to accept the financial consequences if the claim for the misdiagnosis of a fracture is not successful.
The parent or guardian acting on behalf of your daughter would be granted the legal status of “next friend” by the District Court (a solicitor would usually organise this for you) and the “next friend” would then be able to instruct the solicitor to initiate the process to recover compensation for the missed diagnosis of a fracture on behalf of your daughter.
Claims for medical negligence for children are not always easy to resolve – even when it appears obvious that an error has been made. The solicitor would write to each individual involved in your daughter´s diagnosis and treatment to determine where in the chain of events the misdiagnosis occurred, as it is sometimes possible that it was not the attending doctor who made the misdiagnosis – if, for example, the x-rays provided for him or her were intended for somebody else, or the radiographer who had taken the x-ray had not positioned your daughter so that the fracture could be identified.
Once the reason for the misdiagnosis is established, your solicitor will issue a ‘Letter of Claim’ to the negligent party – most often claims for medical negligence for children in Ireland are addressed to the Health Service Executive – and, once an acknowledgement of liability is received, your solicitor will negotiate a suitable settlement of your daughter´s claim for the misdiagnosis of a fracture.
Because of the legislation which prohibits children from making person injury claims until they become a legal adult, these procedures can be started at any time from now until your daughter´s twentieth birthday (eighteen years plus a two-year time limit in which to claim); however, claims for medical negligence for children have a better likelihood of success if the process is initiated sooner rather than later and while evidence of negligence is still recent. Therefore it is advisable that you speak with a solicitor on behalf of your daughter without delay.