Medication Negligence Claims*

If you receive the incorrect medication or dosage this can impact on your health and exacerbate the illness that it was supposed to treat.

Recent related news

January 24th, 2023: CAMHS Report finds 140 ‘lost’ cases

January 23rd, 2023: CAMHS services under considerable pressure across Cork and Southwest

January 23rd, 2023: Tánaiste describes findings of Interim Report on CAMHs ‘unacceptable’

February 4th, 2022: HSE Report on long waiting lists at CAMHS across the country

February 2nd, 2022: Government committed to ‘non-adversarial scheme’ in compensating those affected by CAMHS Report in South Kerry

January 27th, 2022: CAMHS Report in South Kerry prompts “full audit nationwide”

What constitutes incorrect medication prescription or over-medication?

A claim for incorrect medication or over-medication generally involves;

• A doctor or psychiatrist prescribing incorrect medication or dosages causing health issues in the patient
• Or a pharmacist giving the incorrect dose or type of medication.
• Or nursing staff giving the incorrect medicine or dosage.

Instances of incorrect medication prescription or over-medication

There are many ways that healthcare professionals can administer the incorrect medication or the incorrect dose. These include:

• Misdiagnosis followed by prescription of incorrect medication.
• A patient’s medical history is not appropriately checked, resulting in medications reacting with each other or the patient being allergic to the medication administered.
• Incorrect dosages are either prescribed or administered.
• Medication is incorrectly labelled.
• A mistake is made in writing a prescription.
• Patients medications are mixed up.
• A child is given adult dosages.

How medical negligence claims related to incorrect medication or overmedication work

Establishing that medical care was negligent Before anyone can make a claim for medical negligence, they must first obtain a report from an appropriate qualified medical expert to confirm that the medical care you received fell below acceptable standards. For a valid claim, it will need to be shown that two conditions have been met:

A breach of duty of care – It must be shown that the clinical staff providing treatment owed the patient a duty of care and that they breached that duty of care by making mistakes that no other health professional would have made under the same circumstances.

Harm suffered due to that breach of duty of care – It must be shown that the harm a patient suffered was caused by the clinician’s errors i.e. on the balance of probability, the harm would have been avoided if the clinician had not made the errors that they did. The balance of probability means that it must be shown there is at least a 50% chance that the clinician was responsible for the harm a patient suffered.

Calculating compensation How much compensation is available for a specific instance of medical negligence will be determined by the impact on the patient of the harm caused. This can include:

• Any financial costs or losses caused by the patient’s injuries
• Future financial losses or costs the patient expects to incur due to their injuries
• The non-financial impact on the patient’s life such as:
  • Pain and suffering
  • Loss of amenity (not being able to carry out activities the claimant previously enjoyed)

Out-of-court settlements for medical negligence claims In many cases, it is possible to settle medical negligence claims out of court through a voluntary settlement with the clinician or healthcare provider responsible for a claimant’s injuries. This can potentially make the claims process faster and involve lower legal fees.

Taking a medical negligence claim to court Where a settlement cannot be negotiated, it may be necessary for a medical negligence claim to be pursued through the courts. In such cases, it is important for claimants to have effective representation to ensure their case is built and presented in the strongest possible way.

Interim payments for medical negligence Often there is the need for immediate financial support to cover costs such as fees for medical treatment, rehabilitation care and other essential support. Where this is the case, it may be possible to secure interim payments while a claim is ongoing, allowing the claimant to access the support they need sooner.

Fatal medical negligence claims Where someone has died due to medical negligence, an appointed personal representative of the deceased  may be able to make a claim under the terms of the Civil Liability Act, 1961, Part 4. They will have two years from the the date of death to do so. In the event that a personal representative is not appointed within six months of the date of death, anyone who was a dependant of the deceased at the time of their death can potentially pursue a claim within the time limit. Compensation for a fatal medical negligence can include damages for:

• Psychological distress – capped at €35,000
• Loss of dependency – covering the loss of financial and practical support from the deceased
• Specific financial losses resulting from the death – including funeral expenses

Find out more about fatal medical negligence claims.

Time limits for medical negligence claims

Patients normally have two years to claim compensation for medical negligence in most circumstances. However, there are some situations where patients may have more time to claim. The date of knowledge for medical negligence claims A key point is that the two-year time limit will be counted from the ‘date of knowledge’ i.e. the date when the claimant was first aware of the following key points:

1. That they/their loved one has been injured.
2. That the injury was significant.
3. That the injury was caused by negligent medical treatment.
4. The identity of the person responsible for the injury.

The date of knowledge could potentially be weeks, months or even years after the injuries occur, so this can have a significant impact on how long a person has to claim.

Time limits for medical negligence compensation for children Where the claimant was under 18 at the time the negligence occurred, the standard two-year time limit will be counted from their 18^th birthday. They and/or their parents or guardians will therefore have until the claimant turns 20 to make a claim.

Time limits for claimants who lack mental capacity If the claimant is deemed to lack the mental capacity to pursue a claim themselves, there is normally no time limit for someone else to make a claim on their behalf. If the claimant later regains mental capacity (e.g. if they wake from a coma) then the two-year time limit will be counted from the date of knowledge as with a standard claim.

Time limits for fatal medical negligence claims If someone has died as a result of medical negligence, then a representative of their estate will have two years to bring a claim from the date of death.

Our medical negligence claims pricing

The exact fees for pursuing a medical negligence compensation claim will depend on the circumstances. Factors that may affect these costs include whether the claim can be resolved with an out-of-court settlement or whether court proceedings are required. Our team will discuss costs and funding options during clients’ initial consultation. *In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with RE.8 of S.I. No. 229 of 2019.

For further information on making a claim following an injury due to medical misdiagnosis in Ireland, please contact Lavelle Partners in confidence on (01) 644 5800 or email Avril Scally at ascally@lavellepartners.ie