Category: Medical Negligence in Ireland

A successful claim for medical negligence in Ireland has to demonstrate that a medical practitioner who owed you a duty of care produced a poor professional performance which resulted in an avoidable loss, injury or the deterioration of an existing condition. When compensation for medical negligence in Ireland is awarded, it should account not only for the physical pain that the victim has suffered due to the lack of care of a medical practitioner, but also for the consequences of the injury and the deterioration in the victim´s quality of life. To ensure that you receive the maximum possible settlement of compensation for medical negligence in Ireland, call our freephone Solicitors Advisory Panel and speak directly to an experienced Irish solicitor.

Almost €250m paid in Medical Negligence Claims during 2017

The State Claims Agency (SCA)  has revealed that a record figure of €248.88m was paid in medical negligence claims during 2017.

This figure is an increase of 20.6% on the amount paid out during 2016, €206.4m in total.

In the report released by the State Claims Agency, figures indicate that that the SCA has paid out €1.123bn since 2010 in relation to medical negligence compensation claims. The figures produced show that between clinical, and €32.87m in general claims awarded against the general health sector, the SCA has paid out €1.235bn in total in the last seven years.

These details were revealed to Fianna Fail Finance Spokesman Michael McGrath by the Minister for Finance Fine Gael TD Paschal Donohoe following a written request for the specific details of the figures paid out by the State in compensation claims.

There were also significant increases in compensation claims against other sectors since 2010 including:

  • €23.6m in personal injury claims awarded against the Defence Forces.
  • €19m out by the Irish Prison Service
  • €11m paid out the Child and Family Agency TUSLA since it was established in 2013
  • €111m paid out by state authorities since 2010.

The main finding of the report was that, by far, that largest portion of compensation pay outs by the SCA in 2017 was taken up by the public medical sector.

Another significant point to note from compensation claims made against the state in 2017 were as follows:

  • €1.38m was last year paid out by the SCA on behalf of Comprehensive and Community Schools with €296,673 paid out by the Dept of Health.
  • €261,569 was paid out by the Deptartment of Justice while €574,632 was paid out on behalf of Day Schools.
  • €196,090 was paid out by Childrens’ Detention Schools.

Claim for a Hospital Fall Injury Heard in Court

A woman, who fractured her spine after falling out of bed, has successfully made a claim for a hospital fall injury at a hearing of the Circuit Civil Court.

The woman – who lives in Finglas, Dublin – made her claim for a hospital fall injury following her accident at the Mater Hospital in April 2015. The woman had attended the hospital as a day patient for a routine gastroscopy procedure. However, as she was recovering from the procedure, she attempted to get out of bed and fell – suffering a fractured spine.

Her injury resulted in an extended stay at the Mater Hospital before being transferred to the Incorporated Orthopaedic Hospital in Clontarf for specialised treatment. She remained in Clontarf Hospital for three months before being removed by her daughter who was concerned about her wellbeing.

After seeking legal advice, the woman made a claim for a hospital fall injury against the Mater Hospital; alleging she had been left alone to recover after the procedure, which – as she had previously been hospitalised following a fall at her home – was in contravention of the hospital´s own falls prevention policy.

Her claim went to the Circuit Civil Court, where it was heard by Judge James O´Donohoe. At the hearing, the judge was told the accident had a serious effect on the plaintiff´s quality of life. Rather than cope with most things by herself, as she had done prior to her accident, the woman now had to wear a lumbar brace and walks with the assistance of a Zimmer frame.

An expert witness on behalf of the plaintiff testified the hospital had failed in its duty of care to the plaintiff by failing to adhere to its falls prevention policy and a representative of the hospital explained how the accident happened. However, the hospital´s representative could not tell Judge O´Donohoe why the nurse who first attended the plaintiff after her fall had not been called to give evidence.

Commenting that the nurse´s absence “speaks volumes” the judge found in the plaintiff´s favour and awarded her €58,500 compensation in settlement of her claim for a hospital fall injury. The judge granted a request to place a stay on the award pending a possible appeal, but ordered that €30,000 of the compensation settlement was paid immediately.

Court Case for Faulty DePuy ASR Hip Replacements Delayed Once Again

The Ohio multidistrict litigation court case for the faulty DePuy ASR hip replacements has been delayed once again and is now rescheduled to start on September 24th.

U.S. District Judge David A. Katz rescheduled the start of the first court case for the faulty DePuy ASR hip replacements to September 24th to allow both parties additional time for discovery and the consideration of other legal matters after the substitution of Ann McCracken in place of the original plaintiff, Faye Dorney-Madgitz.

The reason for the substitution is still unclear and McCracken -v- DePuy was originally scheduled to be the second of the ‘bellwether’ court cases to be heard in a series of Federal cases which will determine how juries will perceive the relative strengths and weaknesses of each case. It is not yet known whether Dorney-Madgitz -v- DePuy is still intender to be heard as a bellwether case, or when that might be.

Ann McCracken made her DePuy injury compensation claim in March 2011; alleging that she suffered a dislocated hip due to metallosis from the DePuy implant damaging the soft tissues around her hip. Ann received her DePuy ASR metal-on-metal hip replacement system in August 2009, but had to undergo revision surgery in January 2011 after her hip dislocated.

The 57-year-old single mother from Rochester in New York claims that when her orthopaedic surgeon removed her DePuy ASR XL Acetabular Hip Replacement System he saw evidence of metallosis which had killed healthy tissue around the implant.

Ann had to undergo further surgery in October 2011 to insert a device restricting the movement of her hip, which has decreased her mobility still further and which will result in her present hip replacement system wearing out quicker than normal – resulting in more operations in the future.

Ann´s case is also to be decided without the DePuy hip replacement recall of August 2010 being referred to in court, after Judge Katz ruled that Ann´s injury “began with the initial implementation” and agreed that, to mention the recall during the court case for the faulty DePuy ASR hip replacements, might deter other companies from voluntarily withdrawing potentially harmful medical devices in the future.

The relative strengths and weaknesses of the plaintiffs´ claims and DePuy Orthopaedic´s defence will be evaluated during the first court cases of the multidistrict litigation, to see if an acceptable yardstick can be determined for the settlement of the other 7,800 claims attached to this court case for the faulty DePuy ASR hip replacements.

If no yardstick can be established – or negative verdicts are delivered by the jurors – the outstanding claims will be referred back to the U.S. District Courts in which they were originally filed, and each will have to be heard individually. This would also be the case in Ireland, where plaintiffs who have served notice of cases against Johnson & Johnson, DePuy Orthopaedics and the Health Service Executive may have to pursue legal action to resolve each court case for the faulty DePuy ASR hip replacements.

Plaintiff to Pay Costs of a Court Hearing despite Successful Claim

A plaintiff has been ordered to pay a proportion of the costs of a court hearing despite making a successful claim for medical negligence against the HSE.

Madeline Wright won her claim for medical negligence against the Health Service Executive (HSE) in May, after it was determined that there had been an avoidable and unacceptable delay in the treatment she received following a motorcycle accident in 2005.

However, further claims made against the Misericordiae and Sligo General Hospitals, and her orthopaedic surgeon – Mr Keith Synott – were found to be unsubstantiated, and considered by Ms Justice Mary Irvine to have taken up almost 80% of the courts time.

In a departure from the legal principal of “costs follow the event” the judge said although “[Madeline] must be deemed to be the overall winner of proceedings in which the defendants denied any liability” the claims of medical negligence were proven in only one leg of the court action and Madeline should be responsible for some of the costs of a court hearing.

Ms Justice Mary Irvine explained her position thus: “Just because a plaintiff has one good point they should not, to my mind, be permitted to litigate a myriad of others and have the court make an order requiring the successful defendant on such issues to pay for that luxury. There must be some sanction in terms of costs should this occur”.

The judge acknowledged that ordering Madeline to pay 80% costs of a court hearing was too harsh due to the complexity of the claim and – as there was no precedent in this type of litigation – that a reduction of 35% should act as a deterrent to any future plaintiff who may attempt to attach unsubstantiated allegations to a genuine claim.

Misdiagnosis and Prescription Errors Responsible in Most Claims for Negligence against GPs

Misdiagnosis and prescription errors have been identified as being the most common reasons for claims for negligence against GPs according to a report commissioned by the Royal College of Surgeons Ireland.

The report – “The Epidemiology of Malpractice Claims in Primary Care: A Systematic Review” – was prepared by the Centre for Primary Care Research in Dublin with the aim of identifying which areas of primary care needed specific attention when planning future educational strategies and developing risk management systems for primary healthcare practitioners.

The key findings of the report were published in the British Medical Journal and included:-

  • The misdiagnosis or delayed diagnosis of cancer was the most common individual reasons for making claims for negligence against GPs.
  • The most frequently misdiagnosed cancers were breast cancer, colon cancer, lung cancer and cancer of the female genital tract.
  • The second most common grounds for successful negligence claims against GPs were prescription and medication errors.
  • The misdiagnosis of heart attacks also accounted for a significant number of claims for negligence against GPs and primary healthcare practitioners.
  • The most frequently misdiagnosed condition for children was appendicitis, but the incorrect diagnosis of meningitis accounted for 30% of compensation paid.
  • The annual prevalence of claims for negligence against GPs for missed diagnosis or delayed diagnosis appears to be on the increase

Lead researcher for the report – Dr Emma Wallace – admitted that primary healthcare practitioners are referring patients to consultants more frequently, as the fear of litigation inhibits their willingness to make diagnoses. This situation is leading to patients´ conditions deteriorating unnecessarily and creating more pressure on an under-resourced health service.

Dr Wallace – who is herself a GP – acknowledged that claims for negligence against GPs were “not a perfect substitute for adverse events”, but said that when medical negligence claims are made against GPs, the medical practitioners involved often experience increased levels of stress – reducing the effectiveness of service they are able to offer, and placing more patients at risk of a delayed diagnosis or medication error.

She added “this systematic review is timely considering the increased interest in focusing on primary care as a way of improving patient care and safety” and she hoped that the report would provide an insight into the types of adverse effects in clinical practice and their causes, which would subsequently increase the standard of primary care and reduce the number claims for negligence against GPs in Ireland.

Claim for Loss due to Lack of Hospital Treatment Resolved Out of Court

A family have resolved their claim for loss due to lack of hospital treatment out of court following the death of 69-year-old Eileen Maloney at Mayo General Hospital.

The family made their claim following an investigation into the circumstances of Eileen´s death in February 2009. Eileen had been admitted to the Mayo General Hospital on Sunday 1st February, complaining of an acute abdominal pain, and although an X-ray revealed a small obstruction in her bowel, no review of the x-ray was conducted to check for a perforated bowel.

Eileen – who was suffering from cancer at the time – underwent a CT scan on the following Friday (6th February) which revealed a tumour had developed in her large intestine; but again a perforated bowel was not considered to be the cause of her ongoing pain – allegedly due to a lack of experienced doctors being available – and surgery was not scheduled until the next week (12th February).

Eileen died five days after her operation, and the family claim they were informed that Eileen would have survived the surgery and lived for a further six months had her condition been diagnosed and acted upon correctly. With this information, the family made a claim for loss due to lack of hospital treatment against the Mayo General Hospital and the Health Service Executive (HSE).

The claim for loss due to lack of hospital treatment was initially denied by the HSE but, at the High Court in Dublin, Mr Justice Michael Peart heard that an out-of-court settlement had been agreed without admission of liability that would see the family receive €50,000 in compensation for their loss. After hearing the circumstances of Eileen´s death, the judge approved the settlement – extending his sympathies to the family and saying that this was a “very, very tragic case”.

Medical Negligence Claims

Medical negligence claims for compensation are acknowledged to be the most complex of all personal injury claims in Ireland and due to this the Injuries Board has no remit to process applications for assessment of medical negligence compensation.

The Injuries Board will return any assessments it receives in error, and potential plaintiffs who have suffered a loss, an injury or the deterioration of an existing condition due to the negligence of a medical practitioner will have to engage the service of a solicitor to pursue their claim.

Seeking legal advice about medical negligence claims can be disconcerting for a patient who is still suffering an injury from the negligent treatment – or lack of treatment – they received, but plaintiffs should not be discouraged from speaking with a solicitor at the first possible opportunity.

The process for claiming compensation for medical negligence usually starts with the patient (or a family member representing the patient) having an informal discussion with a solicitor about the circumstances of the injury and what the consequences of the injury have been.

If the solicitor feels that there is a claim for medical negligence compensation which has a high probability of success, he or she will ask the patient for permission to access their medical notes and these will be reviewed by an independent medical expert.

If the medical expert agrees that “under the circumstances and at the time” the loss, injury or deterioration of an existing condition could have been avoided with greater care, the expert will provide the solicitor with the evidence of negligence that the solicitor needs to support a “Letter of Claim”.

The “Letter of Claim“ is then sent to the negligent medical practitioner, hospital or private medical facility, advising them that a compensation claim for medical negligence is being made against them and, depending on the strength of evidence collected, inviting the negligent party to make an offer to settle.

Medical negligence claims in Ireland are often rigorously defended, and it may take some time before a claim for medical negligence compensation is resolved. However, court action is rarely required when there is sufficient evidence of negligence, as the party responsible for causing the injury is unlikely to want court costs added to the settlement of a claim made against them.

It is important to note that no two medical negligence claims are identical – even when the nature of the injury or its cause has happened many times before. Each claim for medical negligence compensation should be assessed on its individual merits and in relation to the personal circumstances of the plaintiff.

There are many different ways in which an injury due to medical negligence can affect a plaintiff – from the physical and emotional trauma they experience to the non-financial changes they have to make to their lives.

Any settlement of compensation for medical negligence should also take into account all the financial implications of an injury including the cost of care to look after the injured party and any income they may have lost due to the avoidable mistake made by a medical practitioner.

Therefore, it is important that an assessment of a plaintiff´s right to claim compensation for medical negligence is conducted at the earliest possible opportunity and why you should speak with an experienced medical negligence solicitor if you or a loved one have suffered an injury, a loss or the deterioration of an existing condition due to the poor professional performance of a medical practitioner.

Delayed Hospital Compensation Action Approved in Court

A settlement of delayed hospital compensation action has been approved at the High Court in the case of Brid Courtney – two years after the brain damaged child was awarded an interim payment.

Brid, who is now nine years old and comes from Ardfert in County Kerry, was born in Tralee General Hospital in February 2003 suffering from brain damage after medical staff at the hospital allegedly failed to act on a dramatic change in the foetal heart rate pattern.

As a result of the decrease in heart beat, Brid suffered perinatal asphyxia in the womb and because of the oxygen starvation is now confined to a wheelchair from which she has to be lifted bodily. She is also unable to speak and has to depend on the use of her eyes and facial expressions to communicate with her family.

Following a claim for injury due to delayed hospital action filed through her mother – Deidre – the Health Service Executive agreed to settle the claim without admission of liability and, in November 2010, Mr Justice John Quirke approved an interim payment of 2 million Euros and adjourned the case for two years to allow for the introduction of periodic payments.

However, a system for periodic compensation payments for catastrophic injuries has still not been introduced by the government and – two years after the initial payment of compensation for delayed hospital action was approved – the case returned before the court for the approval of a final settlement.

At the High Court, Ms Justice Mary Irvine heard testimony from experts that a further 9 million Euros in compensation for delayed hospital action would be required to provide adequate care for Brid through the remainder of her expected life and, as both Brid´s mother and the Health Service Executive agreed with the expert´s assessment, Ms Justice Mary Irvine approved the settlement.

GP Over-prescription Claim Investigated

The Medical Council is looking at a number of GP over-prescription claims against a Dublin GP who allegedly over-prescribed psychoactive benzodiazepines.

It is claimed that Dr Mohammed Ahmed Khan, with a practice on Wicklow Street, Dublin, prescribed up to four times the recommended dosage of drugs such as Valium to patients suffering from anxiety and depression. The Medical Council are also looking into allegations that Dr Khan failed to make adequate enquiries as to whether any of the patients he was prescribing these drugs to were already being treated by another doctor.

Dr Khan has also been accused of poor professional performance due to his alleged failure to refer some of his patients with a dependency on benzodiazepines to drug treatment centres or specialist substance misuse practitioners and due to his reliance on prescription drugs where an alternative form of treatment may have been more beneficial to the patient or in their best interests.

The Medical Council is the regulatory body for doctors to practise medicine in the Republic of Ireland.  Its statutory role, as outlined in the Medical Practitioners Act 2007, is to protect the public by promoting and further ensuring high standards of professional conduct and professional education, training and competence among registered medical practitioners.

Cerebral Palsy Birth Injury Settlement of 1.4 Million Euros Approved in Court

A young woman, who was found to have cerebral palsy shortly after her birth, has had a cerebral palsy birth injury settlement of 1.4 million Euros approved in the High Court.

Deborah French (24) was diagnosed with cerebral palsy shortly after her birth in August 1987 at Wexford General Hospital. Her parents brought a claim for birth injury compensation against consultant obstetrician Harry Murphy and the South Eastern Health Board, alleging that Dr Murphy had been negligent in the hours in the run-up to and during Deborah´s birth.

The case was settled without admission of liability by the defendants, a course of action supported by Mr Justice John Quirke as he approved the cerebral palsy birth injury settlement, stating that the conflicting opinions offered by medical experts may have put the family at risk of getting nothing in a trial.

The judge recommended that the funds be transferred to Deborah´s parents – Ann and John French – in annual increments of 100,000 Euros.