1. RECENT DEVELOPMENTS IN MEDICAL NEGLIGENCE CASES
Roger Murray,
Head of the Clinical Negligence Unit
Callan Tansey, Solicitors
Sligo . Dublin . Boyle . Ballina . Galway  
© 2019, Callan Tansey, Solicitors.

2. Topics to be Covered
Recognising that Medical Negligence cases are different
The prevalence of medical error  
Numbers, types and trends in medical claims  
PIAB
The Statute of Limitations and date of Discoverability  
Open Disclosure and the Patient Safety Bill  
Possible Reforms
© 2019, Callan Tansey, Solicitors.

3. Why Medical Cases are different
Sense of Betrayal
Causation
Lack of knowledge
Desire for Justice/Change
Disparity of Resources
© 2019, Callan Tansey, Solicitors.

4. Prevalence of medical errors
3rd Largest Cause of Death in US
1 in 8 patients in Ireland suffer adverse outcome
70% preventable
17% Death/Permanent Impairment
70% Mild to Moderate Impact
© 2019, Callan Tansey, Solicitors.

5. Rate of claims –v- HSE 2010 – 2014 41,000 incidents reported per year
614 cases brought per annum
Claims rate = 1.5%
© 2019, Callan Tansey, Solicitors.

6. Most common incidents reported
Delay/Failure to Treat
Faulty Equipment
Incorrect Dosage
Missed Medication
Serious Soft Tissue Damage
Lost/Mislaid Records
Medication on Discharge/Transfer not reconciled
Post Birth Haemorrhage
Perineal Tear (3rd/4th degree)
© 2019, Callan Tansey, Solicitors.

7. Most common CLAIMS Faulty Equipment Failure to Diagnose
Delay in Diagnosis
Unexpected Complications following surgery
Failure to Treat
Unnecessary Operation
Wrong Operation
Unexpected Complication during surgery
Damage to Organs
© 2019, Callan Tansey, Solicitors.

8. Headline numbers Average Award/Settlement - €177,500
Spike in Claims 2012 onwards due to Du Puy Hip Claims and
Lourdes Redress (Symphysiotomy) Scheme
Outstanding liability 2017 €2.7 Billion of which
maternity/birth injury claims €1.4 Billion
© 2019, Callan Tansey, Solicitors.

9. Piab Section 3 of the 2014 Act Gunning (2009) Murphy (2015)
Dignam (2015)
? Extension of PIAB
? MIAB
© 2019, Callan Tansey, Solicitors.

10. Time 2 Years: 2004 Act ? Soon to be 3 Again
Knowledge – Actual –v- Constructive
© 2019, Callan Tansey, Solicitors.

11. SECTION 2 OF 1991 ACT
The date of knowledge is to be construed as the date in which the Plaintiff first had actual knowledge of the following facts:
That they had been injured
That that injury was significant
That the injury was attributable in whole or in part to the act or omission complained of
The identity of the Defendant
It is irrelevant if the acts/omissions did or did not as a matter of law involve negligence, nuisance or breach of duty
A person will be fixed with knowledge (constructive knowledge) from knowledge which they might reasonably have been expected to acquire from
Facts observable or ascertainable by the Plaintiff personally, or
From facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
© 2019, Callan Tansey, Solicitors.

12. The Spargo case Constructive Knowledge = (a) . Broad knowledge of
. Essence of
. Causally relevant act/omission
(b) Firm belief in broad terms sufficient to seek Solicitor’s advice
(c ) No Knowledge if barking up the wrong tree or knowledge is so vague or general cannot begin to
know where to look
. Thinks it is capable of being attributed to act/omission but needs to check with an expert.
© 2019, Callan Tansey, Solicitors.

13. Records Farrell –v- Ryan (2016) Arrival of Records = start of clock
Green –v- Hardiman (2018)
5 years to start a case not Statute barred:
“General suspicions ill-founded”
© 2019, Callan Tansey, Solicitors.

14. Open disclosure
Part IV, Section 8 of Civil Liability Amendment (Act), 2017
Patient Safety Incident
Voluntary Open Disclosure
Section 10
Open Disclosure/Apology not admissible as evidence
© 2019, Callan Tansey, Solicitors.

15. Patient safety bill 2018 Mandatory Reportable Safety Incidents
Criminal Sanction for Non Compliance
© 2019, Callan Tansey, Solicitors.

16. Possible reform Pre-action Protocols
High Court Medical Negligence List
New Rules of Court
Statute from 2 to 3 years
© 2019, Callan Tansey, Solicitors.