Medical Negligence

The Vatican is an uncivilised place. A place is uncivilised if a person may die and the cause of death remains unexplained. This happened on the death, in the Vatican, of Albino Luciani, Pope John Paul I, in 1978.

He was Pope for one month.

What if he had died in Ireland?

Depending on the circumstances there would be an inquest. An inquest is an inquiry by a coroner into the causes and circumstances of certain deaths. A death such as that of the Pope in 1978 would certainly, in Ireland, require an inquest and a post mortem medical examination.

The procuring of a coroner’s inquiry is two-fold. There is an obligation on certain people to report the death to the coroner. Then there is the obligation on the coroner to have an inquest. Even where there may not be an obligation on the coroner he frequently has an option to have one.

The general thrust of the law is to relieve the coroner of the obligation, if a person dies of an illness following treatment, by a medical practitioner, for not less than one month prior to death from that illness.

Section 17 of the Coroner’s Act 1962 states as follows:

“17.—Subject to the provisions of this Act, where a coroner is informed that the body of a deceased person is lying within his district, it shall be the duty of the coroner to hold an inquest in relation to the death of that person if he is of opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest should be held.”

This is a bit vague and woolly. Things get a bit more interesting with the next Section, Section 18.

It states:

“(4) Every medical practitioner, registrar of deaths or funeral undertaker and every occupier of a house or mobile dwelling, and every person in charge of any institution or premises, in which a deceased person was residing at the time of his death, who has reason to believe that the deceased person died, either directly or indirectly, as a result of violence or misadventure or by unfair means, or as a result of negligence or misconduct or malpractice on the part of others, or from any cause other than natural illness or disease for which lie [sic] had been seen and treated by a registered medical practitioner within one month before his death, or in such circumstances as may require investigation (including death as the result of the administration of an anaesthetic), shall immediately notify the coroner within whose district the body of the deceased person is lying of the facts and circumstances relating to the death.”

Anaesthetic? What’s that about?

Well, it would also be uncivilised if the members of the medical profession were to be able to cover up their negligence, or worse. So, oddly enough, a death in a hospital is more likely to occur in circumstances requiring notification to the coroner than if the death occurred in the home of the deceased person.

The notification obligation is quite extensive. There is an obligation under the Civil Registration Act 2004 to notify the Registrar (“an tArd-Chláraitheoir.”) (who is not the coroner) of the death. If you discover a dead body you are legally obliged to report finding it. The fact that the enforcement of this obligation is weak is unlikely to cause practical problems. Few people would fail to report such a thing; if they admit such a failure the investigation is more likely to focus on their role in the death than in the failure to report it.

We are a firm of lawyers. Our website should deal with legal subjects. Hopefully, we do not lapse from that rule and, without going to the trouble of conducting an audit, we think we do not.

It’s a broad rule and allows us to write (polemically if necessary) about such diverse topics as road accidents,  accidents at work,  medical negligence,  planning act infringements and fingerprints.

We could, if necessary, even comment on Bilbo Baggins’ contract with the dwarves at the beginning of The Hobbit. (1)

Now this, we think, gives us a practical turn of mind. Admittedly, it is difficult to know what that means and I think its meaning varies from situation to situation, but it probably means that we expect to reach for and grasp finality, or, as they say in the USA, we expect to reach closure (for our client).

That militates against interest in reviews of the current state of the law but certainly does not exclude it; we read or write them if we need to do so, but they are not our reading of choice. (2)

It is possible that a certain interest we express, in probabilities, springs from this utilitarian approach. Sometimes this appears so clearly our client notices it; one such litigious client bought us a crystal ball because we had lamented (too often) we lacked one. (3)

Being practical also means being discreet. At the beginning of the US civil war in 1861, the newspapers published the Federal army’s plans for forthcoming movements, having got the information from the army’s generals. Undoubtedly, the sales of newspapers increased substantially in Richmond VA. We try to avoid equivalent mistakes.

We also know the difference between discreet and discrete, (otherwise we would be incomprehensible) and we try to avoid being that. In the same vein we distinguish our inferences  from perceived implications and we deplore the use of “presently” to mean “currently”.

We hope we can understand an opponent even, or particularly, where we disagree with him. Take the National Newspapers of Ireland, for example.  It is this writer’s contention that the NNI position on its claimed property rights in internet links may be an old and sad error; a failure to know and use the subjunctive  in writing or speech.

Be that as it may (4), such an error can end in trying to defend the indefensible and what lawyer, at least, wants to end there?

What is the subjunctive? It is one of the three moods of English verbs: the indicative, the imperative and the subjunctive. The subjunctive conveys ambivalence and uncertainty. (5)

NNI cannot deny the uncertainty of its position on links; it asked the Copyright Commission to remove the perceived (by NNI) uncertainty.

So, the original position of NNI was this:

“Were we to possess a property right in internet linking to our websites we would charge our notified rates”

Unfortunately if your journalists, particularly your editors, are unfamiliar with the subjunctive you will retreat to the indicative  or even the imperative: now you have rubbed everybody up the wrong way.

1. Bilbo lacked legal advice. Surely he was more like a consumer than a professional burglar, as Gandalf had described his role? Nowadays if you go white water rafting, say, the organisers must ensure that you will come through the experience unharmed.
2. This brings CPD (continuous professional development) to mind. We do our CPD quota of hours every year, and more besides. Otherwise, professionally, we are toast.
3. In due course, when the shop in which he bought it went out of business we lamented to him how unforeseeable it was (not least for the shop) that that would happen!
4. The subjunctive!
5. When Phillip of Macedon sent a message to the Spartans – “You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”, they replied; “If.” 

Noted in the Irish Times, 2nd February 2013, page 6.

“Eoin was born in moderate condition at 6.35 am on July 30th, 2002, without any inherent defect or genetic abnormality, as the hospital, among various claims, had alleged”.

This sentence means the hospital alleged Eoin … “was without any inherent defect or genetic abnormality”. This cannot have been the case; there would have been no proceedings, for the newspaper to report, otherwise.

IT SHOULD READ:

“Eoin was born in moderate condition at 6.35 am on July 30th, 2002, without any inherent defect or genetic abnormality, despite various claims, including the contrary, by the hospital”.

Hospitals and doctors’ offices in Ireland will give a person their medical records if they ask for them.

Mostly. Eventually. When they get to it. And, sometimes, if you pay them over €100 (for a large file).

But, like so much else in the legal world, there is a set of magic words you can incant to place a 40 day deadline on the delivery of your papers and limit the cost to €6.35.

You invoke the Data Protection Acts data access request procedure.

A sample letter is given on the Data Protection Commissioner’s site.

Here it is at the bottom of this post very very slightly amended.

Sign it. Print it. Put it in an envelope with a bank draft, cheque or postal order for €6.35 and post it in a post office. You don’t have to pay for registered post. Just ask at the counter for a Certificate of Posting, which is free.

Keep the Certificate somewhere safe and then put a reminder in your diary to write again demanding a response if you haven’t got your papers within 40 days.

Our experience suggests, you will have them.

Any Medical Negligence case we take on will start with a request of this sort but you might have your own reasons for looking for your file.

It is your personal data.

<<Your Name>>

<<Your Address>>

The Data Protection Officer

<<The Hospital or Doctor’s Address>>

Re: Data Access Request from <<Your Name>>

DOB: <<Your Date of Birth>>

Dear Sirs,

I wish to make an access request under the Data Protection Acts 1988 and 2003 for a copy of any information you keep about me, on computer or in manual form.  I am making this request under section 4 of the Data Protection Acts.

I enclose a cheque for €6.35, being the maximum fee possible for such a request.

Please send all replies, including copies of all data to me at my above address. 

Yours faithfully,

_______________

<<Your Name>>

Medical negligence is a serious problem in Ireland. It needs to be treated in a serious manner.

In 2008 we posted some facts relating to such claims on our website. See the post HERE.

Not surprisingly, medical errors happen everywhere; they are not unique to Ireland. In the USA and the UK, the responsible authorities collect statistics to find out why those errors happen. Those statistics indicate the areas of risk where those errors occur.

Information like that is very valuable; it can result in precautions being taken to prevent such errors being repeated (if medical administrators are so minded).

In Ireland, the State Claims agency is responsible for defending claims made arising from such negligence, where the defendant is a State employee or is otherwise its responsibility.

It now appears, according to the Irish Times (HERE) that the State Claims Agency thinks medical negligence claims are rising in Ireland because patients need to generate new sources of income.

This is a repetition of the claim that Ireland has (or had) “a Compo culture”. The people who made that claim were either incompetent in their job or, simply, represented the unacceptable face of the insurance industry.

Litigation needs an engine; that is, something must drive the process forwards. For a personal injury victim that engine is, normally, the persistent fact of the injury. From the medical point of view this will imply difficulty coming up with a prognosis. A prognosis is a doctor’s estimate of the progress (or lack of it) expected of the patient.

A failure of the injury to settle itself will prevent settlement of the claim by the victim, assuming a willingness to settle on the part of the defendant.

Of course, there are other factors preventing settlement. It is a basic fact that a personal injury victim is forced to engage in an adversarial process. This fact demands that the victim, in some sense, be an engine himself/herself. This is often too much to expect and is a full explanation of the necessity of having the help of a solicitor to take the necessary action.

Compounded with this is the fact that the victim has an opponent; the person who caused the injury.

In modern times the opponent will be, generally, the insurer of the opponent. This is good because it drains the personal element from the contest, but it does not eliminate the fact of the contest.

It is a fact that the contest is conducted in circumstances engineered to favour the defendant. These circumstances are not insurmountable, but they do exist. The first circumstance is the unchallenged claim of the insurance industry that fraud is rife, when it is not.

Then there is the obligation on the victim to present the claim within narrow parameters. This comes about as a consequence of Section 10 of The Civil Liability and Courts Act 2004 and the two year limitation period referred to earlier.

Under Section 10 a plaintiff must plead his/her case in great detail.

This includes the obligation to plead:

a)   the defendant’s name, and the address at which he or she ordinarily resides and his or her occupation;

b)   the injuries to the plaintiff alleged to have been occasioned by the wrong of the defendant;

c)   full particulars of all items of special damage in respect of which the plaintiff is making a claim;

d)   full particulars of the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said wrong;

e)   full particulars of each instance of negligence by the defendant;

DePuy hip victims need to apply commonsense to the DePuy hip scandal. What will commonsense tell them?

They will know:

A)            That they have excessive, abnormal and dangerous levels of cobalt and chromium in their blood;

B)            That it is now, or soon will be, necessary to have one or more defective DePuy hips removed from their body;

C)            That these circumstances will cause them pain and suffering of indeterminate extent and duration;

D)            That no compensation will be given to them by anybody who is not compelled to do it;

They can get more commonsense, if they need it, from their legal advisors:

1)             Will the litigation be quick and easy? No. No litigation is quick and easy;

2)             Will it be impossible to succeed? No. Liability is not a major issue. DePuy are already offering payments to deter resort to litigation.

3)             Will it be expensive? Yes. All litigation is expensive.

4)             How expensive? Less expensive than C) above.

5)             What is the big issue in the litigation? Proof of damage.

Legal advisors will, or should, advise that the urgent issue is to commence the litigation. This is necessary to stop time running under the Statute of Limitations. Plaintiffs in personal injury actions have only two years within which to issue their claims in court. If they miss the deadline their right to litigate is extinguished. See our post on the subject HERE.

It is essential to know that the Injuries Board has no role in the DePuy hip scandal. If a victim lodges an application to the Injuries Board, it is a mistake. The Injuries Board will, in due course, reject it. Worse than that, time will continue to run against the plaintiff while the application is being made and considered. In short, it is a waste of valuable and scarce time.

There are excellent arguments to show that for some, possibly many, people time has not yet started to run and therefore cannot expire. The problem with those arguments is this; it is possible to lose the argument. The loss of that argument is a very expensive loss. Everything should be done to avoid having to make the argument in the first place. In short, issue the proceedings.

It is not necessary to know the full extent of the loss to properly issue proceedings.

Issue first and measure afterwards.

Why is Ireland’s limitation period for personal injury two years rather than, say, three years?

In the UK, the equivalent period is three years. In addition, judges in the UK are given a discretion to permit proceedings to continue despite the limitation period having expired. Irish judges do not have such discretion.

A limitation period is a period of time after (in these cases) an accident causing personal injury. If an injured person does not issue proceedings during that period (or its extension, if it is extended) the claim is statute barred.

There are many cases where an injured person fails, for understandable reasons, to meet this deadline. Effectively, a wrongdoer, injuring someone, has been relieved of the obligation to compensate that innocent person. The wrongdoer has been excused due to the circumstances of the victim.

Those circumstances include those of the victims of medical negligence. When persons are in hospital they frequently expect to suffer personal injury in the form of a medical operation. So, the fact of injury is not itself suggestive of negligence on the part of the hospital. What is or might be suggestive of negligence in such circumstances is open to debate. The issue becomes one of when it was reasonable of the injured person to seek evidence of negligence and to issue proceedings within two years of that time. If the victim’s lawyers issue proceedings more than two years after the event, the defendant’s first resort will be to seek the trial of a preliminary issue:- is the plaintiff statute barred?

In doing this the defendant will know that the plaintiff was not free to serve proceedings without first obtaining a report from an eminent medical expert confirming the negligence of the defendant. It takes a long time to source and receive such a report. The report cannot be commissioned until the defendant has delivered copies of the plaintiff’s medical records to the plaintiff.

There are no extensions of time available for victims of medical negligence, unlike victims of road traffic accidents who get extensions of time in the Personal Injuries Assessment Board system.

So, what does a victim of medical negligence have to do? He/she must, within two years of the event:

A)            Resolve to investigate the injury:

B)            Find and consult with a specialised solicitor;

C)            Receive copies of the medical file;

D)            Find a suitable medical expert willing to give evidence in a negligence action against medical colleagues;

E)             Commission the expert’s report;

F)             Wait while the report is written (by a busy professional);

G)            Receive the report;

H)            Instruct the solicitor to draft and issue proceedings

I)              Issue the proceedings;

These are the circumstances that, in the UK, will prompt a judge to exercise the discretion to extend the UK three year period for the issuing of proceedings.

In Ireland it must, without fail, all happen within two years.

Who are the Defendants?

The parent company of “DePuy” is Johnson & Johnson Inc. There is more than one “DePuy”. The principal companies of that name are DePuy Inc. and DePuy Orthopaedics Inc. DePuy Orthopaedics Inc., a subsidiary of DePuy Inc., is the principal company manufacturing the hip replacement products. It is the company licensed to do so in the USA. For the rest of the world, “DePuy” transacts its manufacturing business through DePuy International Limited, a UK company based in Leeds. This is the entity recorded by the Irish Medicines Board as the “producer”. A factory controlled by DePuy Orthopaedics Inc. is located in Ringaskiddy in Cork. It exports its products to the USA. In addition, there is a distribution arm in Dublin called Johnson & Johnson (Ireland) Limited. For the purposes of the Liability for Defective Products Act 1991, there can be more than one “producer” pursuant to that Act; a person importing a product into the European Union is also a “producer” under the Act.

The hospitals fitting DePuy hips are liable, generally, under the Sale of Goods and Supply of Services Act 1980 for breach of contract.

What is the damage?

Currently, it is believed that 49% of DePuy recalled hips will fail. This figure is not intended to count persons with elevated cobalt and chromium ions in the bloodstream. It means that the implant has broken down and forced ex-plantation. If bloodstream contamination is the issue, the failure rate is much higher, possibly 100%. Bloodstream contamination is potentially serious; it damages local tissues and itself undermines the implant, besides being a poison. If the implant “breaks down”, so too will a person’s bone and that is not replaceable.

What are the causes of action?

“DePuy”is a “producer”; it is liable under the Liability for Defective Products Act 1991. Under this act it is not necessary to prove negligence on the part of the producer. It is necessary to prove the defect and the damage. “DePuy” was negligent; there were reliable technologies for the manufacture of hip implants; it was negligent to get it wrong. The Irish hospitals that fitted the hips did so under contract with patients; they are liable in contract, because the hips are defective.

What is the forum for disputes?

Ireland is the place of jurisdiction. It is the location of the commission of the torts and breaches of duty and contract of the defendants.

Is it necessary to wait?

No, not if it is possible to obtain all necessary medical reports on the current and prospective condition of the hip implants.

Is it desirable to wait?

Definitely not. The limitation periods applicable to the causes of action are now running against potential plaintiffs.

Can I join a class action?

Not in Ireland. We do not have provision for such actions. They are permitted in the UK, in Canada and in the USA. The people with immediate responsibility for failing to make such provision in Ireland are sitting on the Superior Courts Rules Committee.

Is it necessary to apply to the Personal Injuries Assessment Board?

No. Although the principal claim is for, inter alia, personal injury, the claims fall under exceptions to the Personal Injuries Assessment Board Act 2003.

What must be proved?

A plaintiff must prove the defect and damage. The fact of the DePuy “recall” is useful to prove the defect, but it would be necessary to engage an expert in the issue. The damage would vary from case to case, but it is difficult to see how any plaintiff with a DePuy hip would avoid ex-plantation before the expiration of the expected use life of the hips, 10 to 15 years. That means the claim is for metal contamination and an unnecessary medical operation and all the losses that would imply.

Disclaimer
Please note that no solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between McGarr Solicitors and you until you have received a written letter of engagement from us in which we confirm our appointment as your Solicitors. The contents of this website are not intended to constitute legal advice and should not be taken as such.

See our other websites HERE and HERE

What is the “time problem”?

Every claim lodged in a court, to be successful, must be lodged within a “window” of time. That window is defined by the Statute of Limitations, or some other statute of similar effect. Missing the window will result in a bar on successfully bringing a claim.

Depending on the basis of the claim, or the kind of claim, the window may be long or short; it may be rigid or flexible in its point of commencement.

If it is inflexible, the knowledge of the woman is irrelevant. Time just starts to run. If it is flexible, time does not start to run in the absence of knowledge by the woman that she has been injured or could reasonably have found out that she was injured.

Irish women with PIP breast implants normally learned that they had been fitted with them when they received a letter from a clinic or a doctor confirming that that was the case. This happened belatedly because PIP implants were not marketed to the women, the ultimate consumers, by brand name; the implants were “brandless” when they were fitted. Of course the clinic or doctor that fitted them was aware of the brand, even to the extent of keeping records (in most cases) about the individual implants.

This fact of belated learning by the women means that, in relation to any proceedings based on allegations of negligence, the limitation period of two (2) years for such actions (under the Statute of Limitations) will not begin to run before they are so informed. The two-year period will, generally, begin to run from the day they receive the letter.

The clinics may argue that time began to run before that date. They may point to the so-called “controversy” arising from the “recall” of the PIP breast implants and try to suggest that the controversy put, or ought to have put, the women on notice to actively make inquiries from a date early in 2010. Such arguments are without merit, particularly in circumstances where the clinics, or one or more of them, were not promptly forthcoming with the written alert to the individual patients.

Is “negligence” the only basis to make a claim?

No. Each Irish PIP victim entered into a contract with the clinic fitting the implants. A claim based on breach of contract must be lodged before the expiry of six (6) years from the date of the breach. “Breach” here must mean the fitting of the implants and time runs from that date.

Is there any other basis for PIP victim claims?

Yes. The breast implants are “defective products” within the meaning of Ireland’s Liability for Defective Products Act 1991 and Council Directive No. 85/374/EEC. Claims under the 1991 Act must be lodged within three (3) years of the occasion on which time starts to run, and never later than ten (10) years after the product was put into circulation. In the case of Irish PIP victims, that is the date they received the letter from the clinic informing them that they had PIP breast implants.

What is the interaction between the two-year (or three-year) period and the six-year period?

There is none. The two-year (three-year) period begins to run from the knowledge or imputed knowledge of PIP implants having been fitted. The six-year period begins to run on the date of the operation to fit the PIP implants. For the six-year period, knowledge or ignorance is irrelevant; time just starts running. After six years the action, for breach of contract, is barred.

So, one right of action might become barred and the other survive?

Yes. The individual facts of each woman’s circumstances will show what her rights are.

What are the actual relevant dates from which time is running?

For negligence claims the date is the date the woman received a letter from the clinic informing her she had PIP breast implants.

For breach of contract claims the date is the day of the operation fitting the implants.

Disclaimer
Please note that no solicitor/client relationship or duty of care or liability of any nature shall exist or be deemed to exist between McGarr Solicitors and you until you have received a written letter of engagement from us in which we confirm our appointment as your Solicitors. The contents of this website are not intended to constitute legal advice and should not be taken as such.

See our other website HERE.