Unfortunately nearly everyone falls sick some time or other and needs to go to hospital for medical attention. The HSE, who run our hospitals, owe you a duty of care. This standard of care has two parameters;
- The standard of care should be acceptable to a general body of experts. The standard of care should also be up to date considering the current improvements in the field of medicine. This means that the HSE are required to keep abreast of new practices in medicine. Further, all the medical professionals involved in providing the treatment procedure are required to possess the necessary skills and competence.
- The standard of care should also meet what is known as the “common sense” test. Typical examples of a lack of duty of care for example are blood transfusion is performed using of the wrong type of blood, employing unqualified nurses, Doctors, etc.
A misdiagnosis, or an inaccurate treatment can lead to disputes that we know as medical negligence. In Ireland all personal injury claims have to go to the Injuries Board for assessment. However, Medical Negligence cases do not have to go to the Injuries Board for assessment. The Statute of limitations is the same and is two years, but in the case of Medical Negligence claims it is two years from the date that an injury has occurred or two years from the date you became aware that you have sustained an injury. In some cases, this may be immediately after the incident, while in other cases it may take weeks/months/years for you to realize that you have an injury or illness or that something is wrong. A good example of this is the recent cervical debacle where tests were performed, sometimes many years before and the two years starts from the time of discovery of the mistakes. The date of knowledge, as referred to above, refers to the date when you first had knowledge of the injury or illness. The date that you became aware of the following facts will help you determine the date of knowledge:
- You have sustained an injury/illness / or have found our you have misdiagnosed
- The injury suffered was significant
- The identity of the person at fault
- The injury was a direct result of the actions or of inactions of another person
This way, the statute of limitation allows people to make claims years after an incident. For example, if a person goes for the cervical test and is consequently misdiagnosed, and nothing was done, that person may not become aware of their cancer misdiagnosis until the scandal hit the press and even then it took time to get the results to everyone. There is no way that a person could have known that they were subject to medical malpractice at the time, and the date of knowledge rule allows them to seek justice when they do became aware of the misdiagnosis. The clock is ticking and that is why you need a solicitor to advise you of your Statute of Limitations position and to issue legal proceedings if you decide to proceed with a claim.