Medical negligence: not the Board, and a different clock

Start with the complaint, not the claim

If something went wrong in your care, the first route is the one that asks the hospital or the practice to explain what happened. For a public health service in Ireland that is the HSE's Your Service Your Say process. You can complain in writing, online or in person to the service involved, within twelve months of the event or of becoming aware of it, and the HSE's procedure sets times for acknowledging and answering. A private hospital or clinic has a complaints procedure of its own, and a concern about an individual doctor's conduct or fitness to practise can go to the Medical Council.

A complaint does three things a claim does not. It gets you an account, often the first one, of what happened and why. It puts the event on the record with the service. And it costs nothing and needs no lawyer. It also has limits: it does not decide negligence, it does not pay damages, and it does not stop the clock. The clock is the second thing to understand, and it is where a medical case differs from the ordinary accident.

The clock: two years from the date of knowledge

A claim for personal injury caused by negligence must be brought within two years, under section 3 of the Statute of Limitations (Amendment) Act 1991 as substituted by the Civil Liability and Courts Act 2004. The two years run from the date the cause of action accrued or, if later, the date of knowledge. In a medical case the date of knowledge is usually the date that matters.

Section 2 of the 1991 Act defines it. The date of knowledge is the date you first knew:

• that you had been injured;
• that the injury was significant;
• that the injury was attributable in whole or in part to the act or omission alleged to be negligence;
• the identity of the defendant.

Knowledge includes what you could reasonably have found out from facts observable or ascertainable by you, or with appropriate medical or other expert advice. It does not include whether the act was negligent as a matter of law. So the clock does not wait until a solicitor tells you the care was negligent, but it does not start on the day of the operation either if you had no reason then to connect your condition to it.

In practice that means the clock in a medical case often starts at a later consultation, a second opinion, a letter from the complaints process, or a scan. It is also why the date is argued over: a defendant will say you knew, or could have found out, earlier. Write down when you first connected the injury to the treatment and what told you. The time-limit guide explains the date of knowledge with examples, and the time-limit checker counts the days from the date you give it.

Two things in the ordinary rules do not help here. There is no Board application, so there is no pause under section 50 of the 2003 Act. And the two years are two years: section 221 of the Legal Services Regulation Act 2015 would make it three for clinical negligence, but it has not been commenced, and the changes page will say if it is.

Children: time does not run until the child is 18, and a claim for a child needs a next friend and court approval of any settlement. The children's guide covers it.

Not the Board

Nearly every personal injury claim in Ireland must go to the Injuries Resolution Board before court. Claims arising from a medical or surgical procedure, or from medical advice or treatment, are the exception: they are excluded from the Board, and the Board's FAQ for claimants says so in terms. The Board's form, its fee, its medical report form and its periods do not apply. The claim is brought in court, by a personal injuries summons, with a verifying affidavit under section 14 of the Civil Liability and Courts Act 2004.

The one-month notice under section 8 of the 2004 Act does apply as the law stands. Section 220 of the 2015 Act would exclude clinical negligence actions from it, but like section 221 it has not been commenced. The one-month letter guide explains what the notice states and what a late notice costs; in a medical case the month runs from the date of knowledge, and a solicitor usually sends it as the first letter on the file.

The records

Everything in a medical case rests on the records, and you have a right to them. A subject access request under the GDPR (see the glossary) to the hospital, the practice or the HSE gets you a copy of your medical records. The request can be a short letter or email identifying you and asking for the records; the Data Protection Commission's page explains the right. The holder must respond within one month, extendable where the request is complex, and cannot charge for a first copy in the ordinary case.

Ask for everything: the clinical notes, nursing notes, charts, consent forms, operation notes, imaging and reports, prescriptions, correspondence and discharge letters. A solicitor will ask for the same set, and having it already saves months.

The expert report

The courts require that a claim of negligence against a doctor or hospital be supported by an independent expert in the same field who says the care fell below the standard a reasonable practitioner would have met. Without that report, proceedings should not be issued, and a solicitor will not issue them. The report is written from the records, which is why the records come first, and it takes time to obtain: the expert is often outside Ireland, and months is usual.

The test the expert addresses is the one the courts have set since Dunne v National Maternity Hospital in 1989: whether the practitioner did something no practitioner of equal specialisation and skill would have done if acting with ordinary care, and whether a general and approved practice was followed and, if so, whether it had inherent defects that ought to have been obvious. It is a high test, and it is why most concerns about care do not become claims. A complaint answers the question "what happened"; the expert answers the question "was it below the standard"; only the second supports a claim.

Who answers the claim

For a public hospital and its staff, the State Claims Agency manages the claim for the State. For a private hospital or a doctor in private practice, the hospital's insurer or the doctor's indemnifier does. In either case the defendant is represented from the first letter, and the questions of standard of care, causation and the date of knowledge are argued by people who argue them daily.

Why a solicitor, in this case

The site says elsewhere that the Board's process is built for a claimant without a solicitor, and the Board says so itself. Medical negligence is the case where that is not true. There is no Board; the claim is in court from the outset; the verifying affidavit, the expert report and the date of knowledge are each a point on which a case is lost; and section 149 of the Legal Services Regulation Act 2015 means a solicitor's fee cannot be a percentage of the damages, so the arrangement is one to discuss at the first meeting. The costs guide explains how costs work and who pays them. Civil legal aid does not generally cover personal injury actions.

What an injury in a medical case is worth

General damages are assessed with regard to the Personal Injuries Guidelines in a medical case as in any other, by the injury and its course, and the Guidelines guide explains the structure. Special damages, which in a medical case can be the larger part, are vouched: future care, treatment, aids and loss of earnings. The court that hears the case is the one the figure fits, and the courts guide sets out the limits.

Where this leaves you

Make the complaint, request the records and write down the date you first connected the injury to the care. The time-limit checker counts the two years from that date, with no Board pause to rely on. A solicitor is plainly the right step here, and the sooner the records and the date are in a solicitor's hands, the more of the two years is left to use.