Wondering How to Start a Medical Negligence Claim? Here’s Everything You Need to Know

Written by
Piarais Neary on
22 May 2023

What Constitutes Medical Negligence in Ireland?

If you have suffered due to receiving substandard medical care at a public hospital or private clinic you may be entitled to bring a medical negligence claim for the pain and suffering you have experienced to date and into the future. 

If you have lost a member of your family due to medical negligence you may also be entitled to bring a claim for wrongful death.* 

There are two aspects that must be established in order to bring a successful medical negligence case:

1. Negligence

The treatment that you received is below the standard of care that one would ordinarily expect to see that a patient should receive from a consultant, doctor, hospital, nurse or employee of the hospital.

2. Causation

Due to the negligent treatment that you have received your recovery has been delayed or you have suffered further injury and sustained a loss. 

What Is the Time Limit for Medical Negligence Claims?

There is legislation that prescribes strict time limits in which legal actions must be commenced. This is the statute of limitations. In relation to medical negligence, the general rule is that proceedings must be issued within 2 years, less a day, of the date of the negligent act. 

In some cases, a person will know immediately that there was a negligent act. The statute of limitations clock stops when court proceedings are issued. However, situations arise where it may be a period of time afterwards before a person realises there was a negligent act or wrongdoing and in those circumstances, the ‘date of knowledge’ is then relied upon. The two-year period would only start to run from the date the person found out they had suffered an injury, and that this injury was caused by someone’s negligence. 

If you think you have a concern about your treatment it is crucial that you seek legal advice and investigate the matter as soon as possible. If a case is statute-barred you could be prohibited from succeeding in a successful case. 

  • Date of Knowledge

The date of knowledge is the date on which the injured person discovered the following:

  • That they had been injured
  • That the injury was significant
  • That the injury resulted from negligence, nuisance or breach of duty by the party responsible for the accident
  • They know the identity of the party at fault

The date of knowledge is often the day of the accident if the injuries are immediately noticeable. However, in some cases, an injury or illness may not become apparent for some time after the accident. In these cases, the date of knowledge is the date the injury was discovered. The claim is considered made once it is submitted to the Injuries Board. 

  • Time Limitations for Children and Individuals with Intellectual Impairment

If a child is subject to medical negligence, the process of making a claim differs from that of an adult. A minor – persons under the age of 18 years of age – may be in a position to bring a claim forward in the first two years following their 18th birthday. 

However, it is advisable to proceed with a claim on behalf of a minor child without delay. In order to do so, a parent /or guardian does so on their behalf.

This extension of time also applies to persons with intellectual impairment. 

  • Whom Can I Claim Against?

If you are the victim of negligent treatment in an HSE hospital you would normally pursue a case against the hospital. The hospital in a public setting provides cover to the doctors and staff working there under the government's clinical indemnity scheme. 

In a private hospital, it could be necessary to proceed against the treating doctor and the consultant and/or staff member directly. 

How to Make a Medical Negligence Claim?

If you are unhappy with the treatment that you have received from your doctor or health care institution, you may wish to contact a solicitor who is an expert in the field of medical negligence to investigate your case. 

It can be a daunting task for a victim of medical negligence to consult with a solicitor to review the issues that they have had with their care. 

  • Consult a Solicitor

The first step in any case is for the solicitor to take up a copy of your medical records from the relevant doctor or health care institution. 

The solicitor will review your records and instruct an independent expert to carry out a report to consider whether the treatment that you have received is below the standard of care that should normally be applied. 

If you are seeking the expertise of a solicitor in the specialised area of medical negligence, you should research the cases the solicitor has been involved in.

  • Making a Medical Negligence Claim with HOMS Assist

At HOMS Assist, we have over 50 years of expertise in assisting clients with their medical negligence cases and assisting them to bring their cases to a successful conclusion. 

We understand that you or your family member may have been through a very stressful time in the medical treatment that you received. We are conscious of taking the stress out of the investigation of the case from you. 

We make the process of investigating your case straightforward. With your authority, we will take up a copy of your medical records and engage with our panel of medical expert witnesses to review your medical records. If the expert is of the opinion that negligence has occurred, we will proceed with an action on your behalf.

  • Gathering Proof/Medical Care and Rehabilitation    

We work closely with a team of doctors in Oxford who on review of your file will within a period of 21 days indicate to us whether there are issues that have arisen regarding your care.

We can obtain a screening report from the experts in the UK who from an initial review of the records can indicate the possible issues before proceeding to complete a full report on the issues in your case. On receipt of a positive report from the independent expert, we will meet with you to review the file and guide you on the next steps in the case.

If you are happy to proceed, a barrister will be briefed in order to draft court proceedings on your behalf. In order for a solicitor to issue proceedings in a medical negligence action, we must have a positive independent expert report before proceedings can be issued. 

We would not proceed with a case on your behalf unless we had a positive report from the medical expert and that we were confident of a successful conclusion of your case.

Solicitors’ Legal Fees    

Solicitor’s fees depend on the complexity of the case. A solicitor needs to examine your case and speak with you before they can give you an estimate.

Solicitors can enter into ‘no win, no fee’ agreements with clients, but they are strictly prohibited from advertising these agreements.

  • ‘No Win, No Fee’ Explained

This fee arrangement means that you will not pay for a solicitor’s services if the case fails. If your case succeeds either by way of settlement outside of court or in court, legal fees will apply. A ‘no win, no fee’ agreement gives you a legal avenue to pursue a claim regardless of your financial status.

Solicitors in Ireland are strictly prohibited from advertising ‘no win, no fee’ services. If you encounter a website that is advertising and offering ‘no win, no fee’ legal services, this is probably either: an unregulated “claims harvesting site,” which offers to put you in touch with a solicitor, who is breaching the Solicitors Acts that govern their profession, or a solicitor who is flouting the laws regulating their profession.

In some cases, you may have to pay costs, such as court stamp duty and medical costs, even if your case is unsuccessful and you have been offered a ‘no win, no fee’ agreement. You may also be liable to pay the other side’s legal fees if your case is unsuccessful.

If you or your loved one has suffered from medical negligence or personal injury, get in touch with us.

With over 50 years of expert legal experience advising patients, we are here to provide expert advice when you need it most.

Call us today on 1800 207 207 or contact us online.