Misdiagnosis in Child and Adolescent Mental Health Services

There are three broad types of medical misdiagnosis, and these apply to psychiatric misdiagnosis too. They areas follows:

Failure to diagnose – Misdiagnosis may have occurred if a psychiatric professional fails to spot signs of illness, meaning your condition is completely undiagnosed.  If illness goes undiagnosed, the patient’s mental health may decline as a result, and in some cases may suffer long-term consequences.

Delayed diagnosis – Depending on the nature of the condition, any delay in diagnosis can result in permanent or persistent psychiatric and/or psychological damage.

Incorrect diagnosis – If a mental health professional has provided an incorrect diagnosis, you may be given treatment which not only do you not require, it may cause your condition to remain untreated.  In some cases, the treatment provided may cause unnecessary side-effects, health complications, or even damage.

It is the role of healthcare professionals to make the correct diagnosis, even when the evidence and presenting signs and symptoms suggest a range of possible conditions. The process of deducing which is the correct diagnosis from more than one is referred to as making a ‘differential diagnosis’. It may be important to understand what this term means in the context of any claim for medical negligence due to misdiagnosis.

To bring a claim for psychiatric misdiagnosis, it will be necessary to provide evidence that:

• The care you received was below a satisfactory standard (i.e. that another  mental health professional of the same level would have made a correct diagnosis), and;
• This negligence caused you damage.

To prove your case, we will compile evidence, including medical records, and seek expert medical opinion.

Claims following medical misdiagnosis which leads to injury or disease may cover two areas of loss:

• Pain and suffering due to the injury; and

• Specific costs resulting from the injury caused.  This may cover costs already incurred, such as transport, accommodation, and medical treatment, and expected future expenses, such as physical therapy and care costs.  The costs you receive will be based on the precise injuries suffered and the circumstances of the case.

Establishing that psychiatric 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 dependent of the deceased at the time of their death can potentially pursue a claim within the time limit.

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.