How do these claims arise?

Medical negligence claims can occur under different circumstances. Some examples of medical negligence include:

• During surgery where there is an error.
• A misdiagnosed patient.
• Medical practitioner fails to act, notice an illness or medical need.
• Medical care is below the standard expected from a medical practitioner.
• A medical practitioner causes injury, loss of quality of life, or in some cases, leading to death.

Medical practitioners that may be attributed to the negligence of various injuries and illnesses are:

• Doctors
• Nurses
• Medical Consultants
• Surgeons
• Plastic Surgeons
• Opticians
• Dentists
• Psychologists
• Lab Technicians

The list can also include various members of a medical facility, either in the private or public sector.

What should you do?

It is the worst thing that can happen for the people who are left behind but the scheme provided under Part IV of the Civil Liability Act, 1961 means compensation by way of damages for injury causing death are capped at €35,000. While there can be a claim for other ancillary costs and expenses, the amount that can be recovered compared with if the person had survived, but been very badly injured, is substantially less. However, if there is a situation where the person who has died as a result of the accident had been responsible for providing financially for a family and was killed leaving dependents, then there will be a claim arising by those dependants for the loss that they have suffered as a result of being deprived of the income and support that they received from the deceased person. In that case, the value of that income and support would need to be calculated on an annual basis and then a capital sum arrived at on an actuarial basis based on the period for which the dependent could have expected to continue to be a dependant of the deceased person. Indeed, the loss of benefit arising to a dependent in this way need not only be a financial loss arising on the death of a breadwinner in a family. It can be any manner of benefit that can be converted into a monetary sum. If, for instance, you had a child with elderly parents for whom the child came and provided services to help them (say doing the shopping and washing and that kind thing), even though no money ever changed hands for what was done, if that child were killed in a fatal accident and were no longer available to do what they had been accustomed to doing for their parents, they would then have to pay somebody else to do this for them instead, you would work out what it would cost to provide a replacement for those services and that cost would form part of the claim. Similarly, if you have a husband or wife in a situation where one party doesn’t work full time but takes care of all of the domestic duties on behalf of the family, tending to the household, child care, etc., in the event of the loss of that caregiver the cost of providing professional care to replace what had been done previously free of charge would need to be calculated and capitalised for the purposes of a claim. There’s also the possibility of a claim for nervous shock: if a loved one actually witnesses the accident that gives rise to the fatality or other serious injury, they will be entitled to recover compensation for the psychological injuries that they suffered as a consequence. However, in order for a claim for nervous shock to arise, the claimant will have to have been physically present and a direct witness to the incident that caused the injury. A feature of fatal injury claims is that they are brought by one nominated party on behalf of all of the parties entitled to bring a claim. There is no hierarchy or order of priority in terms of which party is entitled to commence a claim and therefore the first person entitled to initiate a claim will in effect do so on behalf of all. Ideally, this might be done by agreement between all parties entitled to bring a claim but there is no need for it to be agreed and any party entitled may proceed unilaterally. However, all fatal injury cases must be ruled by a court before they can be concluded and, therefore, no matter who brings the claim, the court will oversee the claim and ensure that any compensation arising from the death is distributed appropriately between all parties entitled to claim in accordance with the law.