Medical injury cases are perhaps the most complex genre of personal injury law

14 July 2011

At present the Injuries Board which was established to assess personal injury claims will refuse jurisdiction in respect of medical malpractice.

To make a claim under medical malpractice/negligence the plaintiff must have suffered an injury as a result of such negligence caused by the person or body who owed a duty of care to the plaintiff. A mistake does not in itself amount to medical negligence and the procedure for proving medical negligence is extremely onerous. Solicitors will only proceed with such a case when they strongly believe that they will win the case. This is due to the protracted nature of the proceedings and the high cost in getting a case to court. Indeed legal proceedings will only be commenced following receipt of an expert medical report supporting the allegations and indeed the court will consider not only did the doctor’s action or inaction cause the injury but importantly would a normal competent doctor have acted in a manner identical to the doctor in question. The State Claims Agency has published that in the region of 84,000 medical accidents are reported each year but in their annual report for 2009 it was stated that only 421 new medical negligence claims were initiated against it. Clearly this shows that very few cases are taken arising out of incidents whereby patients feel that they need to make a complaint.

However, the Minister for Jobs, Enterprise and Innovation as an attempt to reduce legal costs has now proposed the establishment of a medical injuries assessment board similar to the Personal Injuries Assessment Board (PIAB). The new Board would only assess quantum issues and therefore not liability as the plaintiff would still have to demonstrate a duty of care, that this was below a standard reasonable and that the lapse in care caused the injury. It is most likely that the reform proposed by the Minister will lead to a plethora of claims as those with modest or inconsequential injuries will deem it easier to initiate a claim. As each claim will necessitate an investigation it is likely that this will lead to higher costs for the State as medical personnel are interviewed, medical reports reviewed etc.

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