Medical negligence claims 101: Understanding your case's journey

In a medical negligence claim, your case will go through several phases. Here, Lynch Solicitors guides you through the ins and outs involved when taking a medical negligence claim.

Phase 1 - Gathering Information

The early months of your case will primarily involve gathering all the information.

This is a critical stage where we gather information to see if we have a case.

We will take your medical records and get as much detail from you and others as possible. We also talk to you and any other person who can give background information on the circumstances of your treatment history.

We do a preliminary in-house review of the facts and the law.

We do this to see if, based on our experience, it is worth going further.

We also do an initial assessment to see whether you are in time to take a case. This is another critical factor in medical negligence cases. You may have a case but need more time to take one.

We do a preliminary assessment of both of these crucial elements of your case.

By doing this, we save you time, money and stress.

Some of the work we do:

• We will record details about the circumstances that gave rise to your problem and your injury.
• Identify any parties who may be responsible for your injury.
• Talk to witnesses.
• Take up your medical records.
• Do a preliminary review of your medical records.
• Make contact with all the health professionals involved in your care or treatment.
• Open communications with parties who may be responsible, such as their solicitors or insurers.
• Begin getting a preliminary expert opinion on whether or not you have a case.
• Source: an appropriate expert for an initial opinion.

This stage is a preliminary assessment of whether or not you may have a case:

• Do you have a case on the facts?
• Do you have a case on the law?
• Are you in time to take your case

Phase 2 - Preparing for issuing court proceedings

If we believe you may have a case, we begin a more detailed assessment and gathering of information.

It is essential to understand that, under Irish law, we can only start the Court process against a health professional if we have a report that states that you have a case.

We will review all medical records and cross-check them with your instructions.

Sometimes, we may send them to a medical records expert for analysis.

Please write to the doctor, health care professional, or institution we believe is responsible for the injuries caused.

We will then ask medical experts specialising in the particular area of medicine involved to consider whether or not the treatment received was negligent or sub-standard and, if so, the extent of the damage it caused.

If we have enough evidence to prove a case of medical negligence, we advise starting court proceedings immediately.

Phase 3 - Issuing court proceedings

This process involves taking our information on your case and drafting the court documents.

The documents vary depending on whether your case will be dealt with in the Circuit or High Court.

The choice of Court is based on the seriousness of your injury.

The Circuit Court deals with compensation between €15,000 and €60,000.

Cases with compensation over €60,000 are taken to the High Court. There is no limit to the award of compensation in the High Court.

Note: This does not mean that the minimum figures bind a Court.

For example, if you take a case in the Circuit Court, the maximum which you can be awarded is €60,000, but you can be awarded less than €60,000

Warning: If you get less than the minimum, this has negative implications for costs.

Phase 4 - Progressing your case

Once the first document which sets out your claim is completed, it is sent to the Court Office. We then send it to the other side or their solicitor.

Following that, various court documents will be exchanged to put all the paperwork in place to hear the case.

All these documents set out your case and the answer from the other side of your case.

These documents (called Pleadings) are essential and need to be accurate.

If either you or the other party fails to complete a document, either party can ask the Judge to order them to provide the document.

Phase 5 - Settlement options

We may try to settle your case at any time during this process. This can be done by mediation or having both sides meet to settle the case through negotiation.

We will only do so if your injuries have settled and we are clear on the value of your claim.

We usually arrange such settlement meetings in a courthouse. Mediations are arranged through a mediator.

You will not have to speak with anyone other than your Legal Team and the mediator.

We will talk to you and negotiate a settlement on your behalf.

We will explain the details of any offer made by the other side.

We will give you our opinion on the likely outcome of your case and our views on the correct compensation that the Court would provide you.

Litigation is not an exact science.

However, you can expect that the advice you will be given will include a range of figures that the Court might be expected to award.

In most cases, we will advise on fairly specific compensation figures below, which we could not recommend settlement.

Of course, if, for some reason, you do not wish to accept an offer of compensation, you are perfectly entitled to do so.

Be aware, however, that if you refuse an offer, there may be implications for costs.

Phase 6 - Preparing for the court hearing

Most cases settle before the day the case is due to be heard by the Judge.

Other cases go right to the day of the Court before they are settled.

Only a small number go into the Court to be heard by the Judge.

Nevertheless, as your solicitors, we must ensure that everything is ready to get the best possible outcome if your case goes all the way to a hearing.

Having filed all the paperwork, we will try to agree as many aspects of the case with the other side. This should make the hearing of the case more time and cost-efficient.

We will make arrangements for the attendance of witnesses, such as doctors, consultants, expert witnesses, actuaries, rehabilitation, consultants, occupational therapists, witnesses to the accident and witnesses to prove your out-of-pocket expenses.

We will also prepare you for the hearing.

We explain how the hearing will run, for example, where you sit, who asks what questions, what role the Judge has in the hearing, and who the various witnesses will be.

In our experience, the more you understand how courts work, the better you can explain your experience and injuries to the Judge.

You will also meet with us before the case is heard to ensure all your questions are answered.

We usually use the services of a Barrister at a settlement or a case hearing. Their job will be to ask the questions at the hearing and assist in running the case on the day.

Phase 7 - Finalising your case

When a court has settled or decided upon your case, we will have more work to do.

Our priority is to get your compensation cheque.

Usually, this happens within 16 weeks of your case being settled or heard.

The compensation cheque will be paid to our office.

Before we pay you the compensation money, we will give you a statement of account.

If you win your case, the other side has to contribute towards your costs, which are party and party costs.

In the statement of account, we will only be able to give you an estimate of any fees or outlays you pay and any outlays refundable by the other side.

The estimate is because it can take several months to agree on the party and party costs with the other side.

Accordingly, it is not always possible to give you a final statement of fees and outlays when we get the compensation monies.

We will pay you the compensation monies less any estimated items on the account statement.

We will give you a final account when we agree on the other side’s contribution for fees and outlays.

We will pay you any balance owed.

Conclusion

In conclusion, pursuing a medical negligence claim involves distinct phases, starting with information gathering and progressing through court proceedings, settlement considerations, and preparation for a potential hearing. 

The goal is to assess the validity of the case, gather necessary evidence, and seek fair compensation. At Lynch Solicitors, we guide the client in making strategic decisions and ensure adherence to legal procedures. Whether through settlement or a court decision, the ultimate aim is to secure compensation for the client’s injuries and losses.

For more information, contact Lynch Solicitors by phone at +353 (52) 6124344 or by email at reception@lynchsolicitors.ie

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