Medical negligence litigation is the legal process of taking a case through court when you or a loved one has been the victim of medical negligence. Litigation is required as, to prove cases of medical negligence, professional medical opinion is sought by the courts to determine whether the actions – or lack of them – taken by the defending medical practitioner were in fact negligent, or whether injuries that you may have sustained were unavoidable in the course of your treatment.
To prove a case of medical negligence, it has to be established that you suffered an injury which was directly caused or contributed to by a registered medical practitioner failing in their duty of care and demonstrating poor professional performance – whether a lack of skill or a failure to apply that skill. Because judgment in these cases is based on opinion, rather than hard evidence, applications for medical negligence compensation are declined by the Injuries Board of Ireland, and this is why medical negligence litigation is necessary.
Determining When Medical Negligence Litigation is Necessary
You may be considering claiming compensation for medical negligence if you feel that you have suffered a specific injury due to a lack of care by a medical practitioner. However, determining under what circumstances medical negligence litigation is necessary can be complex. Clearly, if you have been misdiagnosed with an illness that you did not have (while the real cause of your symptoms manifested into a more severe ailment) then medical negligence litigation is the appropriate course of action, provided that it is indisputable that your original ailment should have been identified at the time of the misdiagnosis.
There is a fine line between what may or may not qualify for medical negligence litigation. For example, if you visited a chiropractor and experienced pain during the course of his treatment, that would not in itself be a sufficient reason for medical negligence litigation. If, however, you later discovered that his manipulation of your spine had caused an injury that could have been avoided with greater care, you are entitled to claim compensation for medical negligence. Likewise, having a tooth removed at the dentists can be painful and expensive, but it is only when it can be proven that the removal of the tooth was unnecessary that there is a case for medical negligence litigation.
Hospital Accidents and Medical Negligence Litigation
There is also a distinction between what constitutes a medical accident and malpractice. Suffering an injury because you slipped on a wet floor in a hospital is an accident – one you can claim personal injury compensation for against the hospital, but not medical negligence. Litigation would be required though if you contracted an infection – such as MRSA – due to a lack of hygiene standards and cleanliness, provided that it could be determined, for example, that the bacteria that caused the infection were present on surgical instruments that were used on you during surgery or post-operatively.
To confuse the picture even more, there may have been a number of medical practitioners who administered treatment to you during the course of a stay in hospital, and finding out which one is liable for your injuries can make the process leading up to medical negligence litigation a very long and complex one. Once this is determined, a medical expert will be required to give an independent assessment of your condition, and whether it was caused or exaggerated by medical negligence. Only once this is ascertained would a case be presented to court for medical negligence litigation.
The Courts and Circumnavigating Medical Negligence Litigation
There is a three-tier court system in Ireland for dealing with medical negligence litigation and most commonly cases will be heard in the High Court. However, should your solicitor and medical expert determine that the “value” of your compensation would be less than €38,092.14; the medical negligence litigation may be judged in a District Court or Circuit Court. Generally, both your solicitor and the legal team representing the negligent medical practitioner prefer to use the High Court as the judges overseeing these cases have a greater experience of medical negligence litigation.
All medical practitioners in Ireland have to be covered by a medical insurance policy in order to practise medicine. This insurance policy may be held by an individual, a practice (such as a GP´s surgery) or held by a hospital or regional health authority. It is the medical insurance company which is responsible for payments agreed after medical negligence litigation has found the policyholder guilty of malpractice.
Often, medical insurance companies or the Health and Safety Executive are keen to circumnavigate the medical negligence litigation process with an early offer of compensation. This process reduces their costs and the amount of time it can take for you to receive a compensation payment, and is something that should be discussed with your solicitor if such an offer is forthcoming.