Med Neg Evidence

Evidence to Commence

As a general requirement, expert evidence is needed before proceedings are issued in a professional negligence claim. This is a practical requirement but is also close to a legal requirement. The courts have indicated that it is generally required as a question of professional duty.

Failure to have medical evidence may lead to a case being dismissed or struck out. However, it is not necessarily an absolute requirement. If the proceedings are near to being barred by the statute of limitations and there is some other evidence with no material prejudice to the defendant, it would be permissible to issue proceedings for the statute would otherwise be missed. If proceedings are issued in such circumstances, expert evidence will be effectively required to continue the prosecution of the proceedings.

As is generally the case regarding professional negligence, expert evidence is required. This is necessary not only as a practical matter but also as an obligation on the part of the practitioners concerned. Professional expert evidence is sometimes not required for a clear breach of duty or admission.

In a medical negligence claim, reports and opinions will be required of appropriate professional practitioners on the issues in the claim. This will range from treatment acts or omissions, prognosis, care and treatment required, and so on.

The Law Society has published guidance on relationships between solicitors and experts.

Outside PI Board

See the section on the Personal Injuries Board and the special requirements for personal injury claims. The provisions for reference to the Injuries Resolution Board do not apply in respect of a civil claim arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person, or the provision of any medical advice or treatment to a person.

The factual circumstances in which the claim arises may be relevant as to whether it occurred in the course of carrying out the medical or surgical procedure and is within the provisions excluding the Injuries Resolution Board procedure.

In a case where a plaintiff fell under the influence of medication, it was held that the particular circumstances of the claim arose from the prescription of medication rather than the management and maintenance of the hospital premises. The matter will be determined by reference to the wording of the particular claim.

There may be cases involving a medical or surgical procedure where the exception does not apply, which are accordingly subject to the Injuries Resolution Board requirements.

In a case relating to the manufacture of a medical device, the court concluded that the Injuries Board procedure requirements applied. The claim related to the manufacture, provision, and supply of a defective implant. The fact that it was surgically inserted following medical advice was not the particular issue. If, on the other hand, the negligence was not in relation to the manufacture of the device but the manner of insertion, then it would have fallen within the exception.

Personal Injury Procedures

Generally, see the section dealing with special personal injury procedures and provisions. There is a special form of personal injury summons which requires much detailed data applicable in each of the higher courts, circuit court, and district court.

Similar enhanced requirements apply to the defence. There are greater possibilities for acquiring further information and detail generally, whether in the pleadings or in notices for particulars.

Consent to Examination

A person taking a personal injuries claim impliedly consents to an examination on the part of the defendant in relation to the extent of their injuries. This will apply to routine examinations and not some kind of invasive procedure. The court would balance what is routine and reasonable in the circumstances.

The plaintiff should not be required to undergo invasive or painful tests which would subject the plaintiff to undue hardship. If there was a risk of a particular reaction due to the plaintiff’s particular circumstances, this may justify refusal to undergo them.

PI Procedure

It is a requirement that parties exchange details of the terms in which they are prepared to settle the claim. These offers may be made from the commencement of proceedings or 14 days after service of notice of trial. These offers are not disclosed to the judge until after judgement. They may then be taken into account in assessing costs.

The procedures in relation to mediation, which now generally apply, have been applicable to personal injury claims for over 20 years. There are possibilities for the courts to refer the matter to mediation, but ultimately mediation requires the consent of both parties.

Discovery

Discovery is a significant issue in medical-related litigation. Generally, discovery can only be raised once the claim and defence have been finalised. Discovery is not permitted as a prior fishing operation either by the plaintiff or defendant.

Exceptionally, in some cases, discovery may be ordered prior to pleadings being closed where it is relevant and necessary.

In another context, persons may be entitled to their medical records by reference to GDPR and Freedom of Information legislation.

The plaintiff is required to give authority to the defendant to take up medical records relevant to the claim. If these are not given voluntarily, the defendant may issue a motion for discovery. On hearing of the motion, the court may determine the extent of material and records required to be provided.

Discovery Issues

Documents discovered must be material and relevant to a matter in issue and must be necessary for fairly disposing of the matter. In a personal injuries claim, there are questions as to the existence of the duty, breach, causation, and loss. The extent of loss may be a significant issue in many cases because it is an expression of the extent of the injuries and their impact on the particular circumstances.

Discovery may arise in relation to issues surrounding the breach of duty itself. It will also arise in relation to the plaintiff’s particular circumstances. It might include things such as medical records from the institution concerned, medical records and sources relevant to the prior condition of the plaintiff, or post-condition treatment.

Ambulance records and hospital records may be relevant in the particular circumstances. Hospital general policies and procedures in relation to treatment may be relevant. Investigation reports, findings, enquiries, and discussions of the case, documents relevant to staffing and provision of services, and documents relevant to the qualification and experience of persons involved may all be pertinent.

Separately, on the issue of the extent of loss or damage, information will be required regarding the person’s pre-accident records if this is relevant, post-accident records and clinical treatment, post-accident employment records, income, income tax records, and social welfare records.