Statute of Limitations for Medical Negligence Claims*
The statute of limitations for a medical negligence claim in Ireland is two years less a day from the date that an injury is known to have been sustained. In some cases, this may be immediately after the accident, while in other cases it may take weeks/months/years for you to realise an injury or illness.
Almost all personal injury cases are assessed by the Injuries Board first, with just a few exceptions. Medical Negligence cases are treated differently in that these cases are not assessed by the Injuries Board. This is why you need a solicitor to issue legal proceedings if you decide to proceed with a claim.
The Date of Knowledge
The date of knowledge refers to the date when an injured party first had knowledge of the injury/illness. The date that you became aware of the following facts will help you determine the date of knowledge:
- You have sustained an injury/illness / or have found our you have misdiagnosed
- The injury suffered was significant
- The injury was a direct result of the actions/inactions of another person
- The identity of the person at fault
This method and clause in the statute of limitation allows for people to make claims years after an incident. For example, if a person is suspected of having cancer and is subsequently misdiagnosed, and given the wrong medication, that person may not become aware of their cancer misdiagnosis until their symptoms start to progress and they get a second opinion. There is no way that person could have known that they were subject to medical malpractice at the time, and the date of knowledge rule allows them to seek justice when they do become aware.
Issuing Legal Proceedings
The clock stops when you issue legal proceedings. You have two years less a day to do this. Two years may seem like a long time but there are a number of processes that must be met before legal proceedings are issued. For example:
- It may take time for you to feel strong enough following an injury to speak with a solicitor and start the claims process.
- Your solicitor must request medical records before issuing proceedings and these can take some time to be received.
- Your solicitor will also need to consult an independent third party medical expert to help to determine whether medical malpractice was the cause of your injury. These experts may be busy meaning that you may have to wait for their response.
This is why speaking with a solicitor as soon as you can is important to ensure that your claim gets started, legal proceedings are issued and the clock on your claim is stopped.
In most cases, the date of knowledge will be the same date of the accident. In some cases, the injury may not come about until sometime after the incident. In these cases, the date of knowledge is the date in which they found out that they were injured.
Medical negligence time limits are treated differently when the injured is a child. A child legally cannot bring a claim forward themselves, hence why these claims have a time limit of two years less a day from the date of their 18th birthday.
However, the parent or guardian of the child does have the option to bring a claim forward on the child’s behalf before their 18th Birthday and can do so directly after the date of knowledge if they wish to do so. In some cases, it may be necessary for a parent/guardian to do this as it may be easier to source reliable evidence and reports at that time. Your solicitor will be able to advise you on the right action for your case.
Person Under a Disability
Another aspect of the statute of limitations is that the two years less a day time limit would not run against a person who is deemed to be ‘under a disability’. The act defines a person under a disability to be:
- An infant/minor – a person under the age of 18
- A person of unsound mind – a person who lacks the mental/cognitive capacity to under act on their own behalf. This may also be extended to any person who’s mental state has been impaired, for example, a person who is in a coma.
Making a Claim
The process when making a claim for medical negligence in Ireland is different to other personal injury claims.
If you would like to make a medical malpractice claim you should ensure that you have obtained proof of the negligence. It is important to keep any medical records, from doctors or hospitals, relating to your claim and try to take pictures of any injuries sustained as a result.
In order to make a medical negligence claim there are a number of steps that you should follow:
1. Speak to a Medical Negligence Solicitor
Medical negligence is a complex topic and it is important to speak to the right solicitor in order to have a successful case. Your solicitor will be able to inform you of the steps you should follow when making a claim. At this stage, it is important to note that either you or your solicitor should make contact with the medical professional in question. You will need to inform your doctor of any concerns that you may have as they may be able to inform you of how or why the incident happened.
2. Medical Records
After a Solicitor has examined your case and any evidence you have provided they will need to find a medical expert to both examine your records and, if necessary, carry out any further examinations in order to prove negligence. When doing this it is crucial that you choose the right person to do this. A medical expert, in the correct field, will be able to assess your situation and come to a trustworthy opinion on your claim and any injuries or losses you sustained.
These medical records and examinations will determine if you have actually suffered from a poor duty of care and if your injuries may have been avoided if another reasonably competent doctor was to carry out any procedures you received.
3. Letter of Claim
Once your medical negligence claim has been proved, your solicitor will be able to advise you on the best course of action. They will send a letter of claim to the relevant people involved outlining the nature of your claim and what the next steps should be. If the medical practitioner decides to settle your claim when they receive this letter, your case may not need to be brought to court for a full hearing.
If you do decide to pursue a medical negligence claim you may be entitled to pursue legal action along with any additional expenses known as damages:
Non-financial damages for pain and suffering and/or physical and emotional damage as a result of medical negligence.
Out of pocket expenses incurred as a result of clinical negligence. This may include loss of wages, medical bills and any added travel costs as a result of the effects, such as travel to and from the hospital.
The settlement amount awarded to you is dependent on certain factors like:
- Medical History – If you have experienced similar medical issues in the past
- Long-term effects of your injury/illness – This comes down to the estimated lifespan of both people. For example, an 18-year-old person that suffered a lifelong injury or illness may be awarded more than an 80-year-old person who suffered an injury/illness.
- Type of injury or illness sustained – Injuries arising from medical negligence range from minor to serious and a court may award higher compensation to an individual with a serious injury than that of a person with a minor, treatable injury.