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29 Sept 2022

A guide to medical negligence - An overview of your case in phases, by Lynch Solicitors

A guide to medical negligence - An overview of your case in phases, by Lynch Solicitors

A guide to medical negligence - An overview of your case in phases, by Lynch Solicitors

In a medical negligence claim, your case will go through several phases.

Phase 1 - Gathering Information

The early months of your case will primarily take up with gathering all the information. This is a critical stage where we gather information to see if we have a case.

We take up your medical records and get as much detail from you and others as possible. We also talk to you and any other person who may be able to 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 on whether you are in time to take a case. This is another critical factor in medical negligence cases. You may have a case, but you may be too late 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, 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 that you may have a case, we begin amore detailed assessment and gathering of information.

It is essential to understand that, under Irish law, we cannot start the Court process against a health professional unless 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 the information we have on your case and drafting the court documents.

The documents vary depending on whether your case is to 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 by the other side to 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

At any time during this process, we may try to settle your case. This can be done by Mediation or by both sides meeting to try to settle the case by 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 do the talking for you and negotiate a settlement on your behalf. We will explain the detail 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 will be able to explain your experience and your injuries to the Judge.

You will also have meetings with us before the case is heard to ensure that 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 your case has been settled or decided upon by a court, there is more work to be done by us.

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 pay a contribution towards your costs, called party and party costs.

In the statement of account, we will only be able to give you an estimate of any fees or outlays payable by you 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 statement of account. We will give you a final account when we agree on the contribution for fees and outlays with the other side. We will pay you any balance owing.

For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.

The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional  advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

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