The logic in the title to this post is lurking in every action alleging negligence, but it is a formidable retort in a medical negligence action.
A plaintiff must prove the liability of the defendant. This is not equivalent to proving causation. Liability may arise where proof of an error in judgment or management is established, but the plaintiff must go in to prove that that error was the cause, or a cause, of the untoward outcome for the patient.
Each purchaser in a supply chain has a claim for breach of contract against the supplier. Thus, the shops and retailers generally in Ireland are obliged to make good the loss to the consumer by the breach of contract. That loss, currently is measured by the cost of the defective product. (The burden of proving the product is defective lies on the purchaser, but that is an issue unlikely to represent a problem).
The extent of injury inflicted on hospital patients by clinical negligence is a case in point. We do not know what it is. When it happens the consequences are real. Somebody somewhere pays for the injury. Clearly, the victim suffers the injury and pays in that fashion. The family of the victim may pay in care deployed or care costs paid. Or, if the family consists of children of the victim, the children may suffer diminished life opportunities by being deprived of care they would have got from the victim.
She suffers from cerebral palsy after the alleged mismanagement of her birth.
In a medical negligence action, in order to fix the Defendant with responsibility, the Plaintiff may have to prove that his illness (his medical condition) was not the cause of his injuries.
Time only runs against a plaintiff who knows he/she has been injured (or could reasonably ascertain he/she has been injured) AND knows who or what has injured him/her (or could reasonably ascertain who or what has injured him/her).
Under the Regulations, the plaintiff client will become liable for fees only if he/she:
a) fails to co-operate with the legal representative;
b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;
c) fails to give necessary instructions to the legal representative; or
d) withdraws instructions from the legal representative.
They have meaning only to medical practitioners and health care managers willing to delude themselves that they can avoid shouldering responsibility for such infections in the absence of being confronted with a video or other visual record (and therefore, presumably unchallengeable) of the mechanism of infection.