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Injured? What to do. (4)

Section 10 of The Civil Liability and Courts Act 2004 has the appearance of being reasonable, but the references to the address and occupation of the defendant are telling. The obligation to plead these is conditional on the plaintiff knowing them. Thus, if they are not pleaded, the defendant knows that the plaintiff does not know them. Of course, given that the Personal Injury Summons is directed to the defendant, it is surely odd that a statute requires a plaintiff to demonstrate knowledge of the defendant. There are practical reasons why the plaintiff needs to know the address of the defendant, but to require that it is pleaded is not to assist the plaintiff or, even, the defendant; he/she knows already.

Then, the plaintiff must plead the injuries suffered. This is fine, if the plaintiff knows what those injuries are. Sometimes, the plaintiff does not know all the injuries, or is in search of a prognosis, implying that he/she cannot fully describe the injuries just yet. Section 10 implies that the plaintiff cannot issue proceedings until these things are fully known.

Then, the plaintiff must plead full particulars of “all items of special damage in respect of which the plaintiff is making a claim”. What does “all” mean? Well, it surely implies that claims not included in the pleading in the Summons are either being waived or cannot later be made.

Legal practitioners have a solution to that; plead every conceivable item of loss and, later, waive those that do not apply. Section 10 prevents this; it requires that “full” particulars be pleaded. This implies that the plaintiff cannot issue proceedings until all these losses are accrued and known, or, as mentioned, that items not pleaded cannot later be claimed.

Then, the plaintiff must plead full particulars of “the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said wrong”. Before 2004, plaintiffs had such an obligation and had to discharge it. But that obligation pertained to the trial of the action, not the issuing of proceedings. Section 10, in effect, is suggesting that, nowadays, a plaintiff cannot issue proceedings until he/she is ready to bring the case to trial. Often, a plaintiff will have need of the reports of experts before he/she can meet the obligation imposed by Section 10. The obligation implies that the plaintiff’s investigation of the event in which he/she was injured is now complete and full, before the issuing of proceedings. This is an ideal, but often impossible to achieve. Indeed, court procedures exist to allow the plaintiff to commence or continue investigations after the issue of proceedings, by the process of “discovery”, for instance. Section 10 undermines this approach to litigation. But Section 10 only applies to plaintiffs suffering personal injury; all other plaintiffs are not so burdened.

Finally, the Section, just to be sure, to be sure, demands that the plaintiff plead full particulars of “each instance of negligence by the defendant”. This is surely redundant; a plaintiff who has successfully pleaded “the acts of the defendant constituting the said wrong …” has already met this obligation.

Bear in mind that the plaintiff must overcome these obstacles within two years of the cause of action; i.e. the accident in which he/she was injured.

 

Injured? What to do. (3)

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;

Injured? What to do. (2)

For some personal injury victims, the Personal Injuries Assessment Board (“PIAB”) is irrelevant. They are the victims of “medical negligence”, a term of wide meaning.

That aside, speaking broadly, it is necessary to submit an application to PIAB. For the person who caused the injury, it is not compulsory to submit to PIAB. If the defendant does not submit, an authorisation issues from PIAB. (This allows the victim to issue proceedings in court).

If the defendant does submit, PIAB will then, normally, make an assessment. Either the victim or the defendant may decline to accept the assessment. If either (or both) decline to accept, an authorisation issues from PIAB, allowing the victim to issue proceedings in court.

Now the victim and the victim’s solicitor will decide the court in which to issue proceedings. This is the jurisdiction issue. It relates to the amount of compensation expected, and the relevant geography. If a sum of approximately €6,300 or less will be satisfactory, proceedings may issue in the District Court area where the accident happened or the defendant resides.  If a sum of approximately €38,000 or less will be satisfactory, proceedings may issue in the Circuit Court area where the accident happened or the defendant resides. Otherwise, proceedings are issued in the High Court in Dublin.

Proceedings are issued by lodging a “Personal Injury Summons” in the court office. The court returns a sealed copy for use and service by the plaintiff.

To be useful, on issuing the proceedings, it is essential that the Statute of Limitations period not have expired. That period, for personal injury, is two years, measured from the date of the cause of action. Generally, there is no difficulty ascertaining the date of the accrual of the cause of action. For a road accident victim, say, it is the date of the accident. Even so, sometimes the time does not begin to run. It does not begin to run until the victim knows (or could reasonably know) that an injury has been sustained and/or knows (or could reasonably know) the identity of the defendant. This implies that a victim must make active inquiries about his or her health and/or the cause of that ill health (if there are symptoms of injury).

For PIAB  applicants, time stops running after PIAB issues a receipt for a valid PIAB application. (A valid PIAB application is one which is not a “medical negligence” claim). It starts running again when PIAB issues the authorisation (with an extra six months added to the two years). For all other victims, time does not get extended. (This includes victims whose claim is for “medical negligence”. For them, time keeps running even after the erroneous lodgment of a claim in PIAB).

Injured? What to do.

Accidents are confusing. Meeting the unexpected (or just the unwelcome) is disturbing. Many personal injury victims have difficulty orienting themselves after an accident. For some, the difficulties are greater than others. Some accidents are more unexpected than others. Road accidents are relatively common, whereas to be hit by an object falling from a defective building is very unusual.

Some injuries bring mixed emotions; accidents at work, for incident. It is difficult to bring yourself to sue your employer even in the absence of simple fear of losing your job in retaliation.

Nonetheless, the principal thing for an accident victim, whether injured in a road traffic accident, an accident at work or in a public liability accident, is to take the initiative.

This is both a large move and a small move, but it is foremost exactly what the law requires. In Ireland, (and other Common Law jurisdictions), civil actions are adversarial, not inquisitorial. There will not, normally, be “an inquiry” into your accident or your injury.

There will, instead, be a contest and you, the victim, will be in the thick of it.

You cannot prevail in a contest unless you take the initiative. This word has two meanings; it means to start something, but it also means to dictate the run of the play.

Initially, all you need to do is to start (the) process, then, you leave it to your lawyer to dictate the run of the play.

What is the process? It is whatever the extent of the injury requires. For a lawyer, the question of liability is to the fore; for a victim the possibility of recovery from injury is to the fore. The lawyer is right to think of liability. Without fault and proof of fault, there will be no victory in the contest. But the norm is not to have struggles over liability. (They do happen). It is to struggle over the claimed extent of the injury. (Sometimes there is no struggle).

The process is twofold; medically, getting better, and, forensically, documenting that process.

At McGarr Solicitors, we tell our injured clients that they need four things; a medical report, €45, a completed PIAB form and a solicitor.

We leave the “getting better” to our clients and their doctors. We look to the forensic documenting. In the Personal Injuries Assessment Board system that means, in effect, the production of a medical report. In the Courts system it may mean a great deal more.

DePuy Hip Recall: A Patient’s guide to what to ask your doctor

This is a reference guide to help people with defective Metal-On-Metal hip implants, specifically the recalled DePuy ASR XL Acetabular System.

It deals with the information to give to your doctor that he/she needs to make a full assessment of your needs.

Tell your doctor if you are having any pain or discomfort. Tell your doctor if you’ve noticed any changes in your hip(s) or your gait. Tell your doctor if you have noticed any stiffness or resistance in the hip(s) with the implants.

Ask your doctor if he/she intends performing a blood test to check the levels of cobalt and/or chromium in your blood. These metals can be harmful if present in your body in elevated amounts and have been associated with damage to soft tissue and can also be an early indicator for hip implant failure.

The UK Medicines and Healthcare products Regulatory Agency recommends, as a guideline for doctors, that the presence of these metals in the blood at a level of just 7 parts per billion (ppb) is an unacceptable level. They recommend check-ups every 3 months for people with those levels of metals in their blood.

You may be notified of the the levels of Cobalt and Chromium in your blood. Ask your doctor what the meaning of those levels are. Also, be sure to ask whether those levels are falling, rising or staying the same. If they are rising- even if they have not reached the 7ppb level, you should ask your doctor what is his/her opinion on revision surgery is in your case. Is it necessary?

For reference: 7 parts per billion (ppb) equals 119 nmol/L cobalt or 134.5 nmol/L chromium

If your doctor recommends surgery, ask him/her what impact this will have on your future health and whether the proposed replacement hips are likely to need to be replaced in your lifetime. If so, ask your doctor for his/her assessment of what the lifespan of your new, replacement, hip implants might be.

 

What is wrong with DePuy hips?

The main problem with defective DePuy hips is the design failure. The hip will fail mechanically. This is a serious matter. Instead of ease of movement, the hip will hinder movement. Movement will be painful, probably noisy, and anything but smooth.

The victim may also suffer “metallosis” from the microscopic particle of metal shards leaking from the working surfaces of the hip sections. Long before such a consequence is suffered, the shedding of metal can be detected by testing of the victim’s blood.

The testing is for traces of chromium and cobalt.

These occur naturally in humans; they are to be found in normal healthy diets. However, in excess they are dangerous; particularly when they take the form of many minute metal fragments, as they do when leaking from the DePuy defective hips.

DePuy litigation

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.

Bother your Aarhus?

Can a whale hear? It must if it sings songs. Can it read? Unlikely. Can it read this map HERE? Unlikely; this writer cannot read it. It is from the website of the Department of Communications, Energy & Natural Resources.

A friend tells this writer that the Minister has authorized a seismic survey off the west coast of Ireland. The survey involves months of work. The work includes the creation of loud noises in pulses every fifteen seconds. This will go on for the duration of the survey.

Can an Irish whale hear?

Unlikely.

Medical Negligence – the Statute of Limitations

Medical Negligence Statute of Limitations * in Ireland Illustrated by a clock

Why is Ireland’s Medical Negligence* Statute of Limitations 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 (or Statute of Limitations) 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 known as being ‘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. There is a critical difference between how the two year Medical Negligence* Statute of Limitations is treated and most other forms of personal injury*.

Other forms of personal injury claims* must be be processed first by the PIAB Injuries Board

From the time the applicant to PIAB Injuries Board has their assessment acknowledged to six months after an Authorisation is issued allowing a Plaintiff to take a court action, the two year Statute of Limitations doesn’t run against the claimant. In effect, the clock which runs against injured persons is stopped.

However, the PIAB Injuries Board doesn’t deal with claims relating to Medical Negligence*. Therefore, the two year Medical Negligence* Statute of Limitations can only be stopped by an injured party actually filing court proceedings. However, it is generally recognised that Medical Negligence claims are particularly difficult for a claimant to make. Indeed, when the Dáil debated lowering the Statute of Limitations on personal injuries generally to one year, it was the argument that it would unreasonably affect people injured as a result of Medical Negligence* which resulted in the Statute of Limitations eventually being set at two years.

Those additional difficulties are widely recognised. Firstly, there is is a question of how a person who is not a medical expert should recognise that they have suffered as a result of medical negligence* as opposed to some other misfortune. 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. In order for a claimant’s lawyer (or a litigant in person, in the unhappy situation of a person representing themselves) to calculate when the time began to run against the injured person, they must first assess at what point the nature of the claim was known, or when it ought to have reasonably known.

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.

Photo credit

Faulty PIP Breast Implants, the CMO and assessing risk

We have already written critically about the Chief Medical Officer’s proposal to decide how, where and whether women with PIP Breast Implants should receive medical attention.

However, this is not the only problem with the State’s medical establishment’s response to the PIP Breast Implant scandal.

RTE, the Irish Times and other news organisations included a similar reassuring coda to their reports.

According to the department and the Irish Medicines Board, there is no evidence of increased risk of cancer for women with PIP implants, while the risk of rupture is low.

– Irish Times

The first claim- that there is no evidence of an increased risk of cancer is unquestionably, happily, true. Large scale expert studies have found no additional risk of cancer associated with the PIP Breast Implants.

But the same study, from the NHS in the UK, found that PIP Breast Implants were up to six times as likely to rupture as standard implants.

The NHS study also tentatively estimates up to 30% failure rate by 10 years for PIP implants.

By any reckoning, this is not a low risk of rupture.

Furthermore, the NHS studied records of women who had had both normal and PIP Breast Implants removed. It found that women with PIP Implants were 4.6 times as likely to have inflammation and/or lymphadenopathy than women with normal implants. They were 23.3 times as likely to present with lymphadenopathy alone.

Women should be reassured about the lack of evidence of a cancer risk from PIP Breast Implants.

But the evidence of real risks should not be ignored if women are to be empowered to make an informed decision about actions they should take about their own bodies.

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