We advise on all types of personal injury claims*, including accidents at work, trip and fall cases, road traffic accidents, medical negligence actions and product liability cases.
Medical negligence claims differ from other kinds of personal injury cases, however. It’s a complex field, so choosing a firm with form in this area is crucial. Prospect Law has a wealth of experience in managing a wide variety of medical negligence/product liability claims. Clients whose reproductive organs were involuntarily removed or who contracted Hepatitis C from the state blood supply are among those we have secured large awards for.
Getting the right advice is imperative in any personal injury case, big or small. If you believe you have been injured as a result of an incorrect or delayed diagnosis or from the side effects of a defective implant, to take just two examples, it is imperative to seek independent expert advice. Cases currently being taken by us include cancer misdiagnosis and vaginal mesh injuries.
Prospect Law will assess whether you may have a claim and whether it is likely to succeed. Expert reports play a key role in this assessment. Our experts in Ireland and overseas have helped hundreds of clients to secure redress for avoidable injuries. And if the prospect of pursuing a claim seems daunting, you may be assured that at Prospect Law your case will be treated with respect and sensitivity.
We have decades of experience in dealing with what insurers call ‘catastrophic injuries’, where these result from the negligence of another. We understand that rebuilding life following a life altering injury requires specialist care and supports and possibly specialist equipment and/or home adaptation. If you or a loved one have suffered such an injury, we will ensure you receive a level of compensation that fully reflects the seriousness of your injuries. We can also advise if you are considering a claim for fatal injuries – we have long provided expert advice to those bereaved by the sudden and unexplained loss of a loved one.
With our help, families who had previously been denied inquests for their loved ones have succeeded in their quest for justice. Thanks to Colm’s work, the family of Bimbo Onanuga finally secured an inquest into her death in a Dublin maternity hospital in 2010. This sparked a successful campaign for mandatory inquests into all maternal deaths.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Personal Injuries Assessment Board
Unless you were injured arising from medical treatment, your personal injuries claim must be brought through the Personal Injuries Assessment Board. Generally, you have two years from the date of injury in which to bring a claim. In some circumstances, however, if a person discovers belatedly that their injury was avoidable, they may still be able to bring a claim. Getting medical reports that adequately document the nature and extent of your injuries is key to securing an award that reflects their impact on your life.
Medical injuries
Being the victim of negligent medical care can be particularly distressing, in our experience, but rest assured, if you have suffered a loss due to negligence and/or a defective medical device, you are entitled to a full explanation and to adequate compensation.
Without legal intervention, unfortunately, you may find it difficult to access information about what happened to you. Disclosure is not the norm, sadly. Many people go to court to access the truth, and to prevent what happened to them from happening to others.
The negligent practice of a hospital, healthcare practitioner, laboratory or other facility can result in misdiagnosis, to take one example. This can lead to delayed medical treatment, and such delays can impact adversely on health outcomes. Medical practitioners have no legal duty to disclose significant information to patients, although draft legislation has been in preparation for some time. Had a statutory duty of candour been in force in recent years, some of the worst failures to disclose cancer misdiagnosis might have been avoided.
Cancer care
Ireland has the third highest rate of cancer in the world, ranked only behind Australia and New Zealand, according to a World Health Organisation report. While cancer death rates here have continued to fall over the past 25 years, high profile failures in cancer testing have dominated the media in recent years. While no medical testing, including cancer screening, is perfect, and the claimed accuracy of the cervical cancer screening programme is only 75 per cent, the continuing failures of CervicalCheck beggar belief.
Approximately 3,000 women in Ireland have been diagnosed with cervical cancer since 2008. Around half of these cases were notified to CervicalCheck, the national screening programme of the Health Service Executive. An internal audit established that laboratories had failed to correctly read slides in 220 cases (now 221). Doctors neglected to inform women of these failures. The scandal only came to light after one of the women affected, Vicky Phelan, went public.
209 of this group of 221 developed cervical cancer, which might have been avoided had their smear tests been read correctly and had they been notified by the HSE in a timely manner. As of February 2019, twenty one women had died from their disease, and eighteen remained in treatment. Many of the women required highly invasive treatment – 65 had radical hysterectomy – and most suffered significant side effects, including infertility.
Subsequent CervicalCheck failures continued to be covered up, this time around HPV screening, a second line of testing in cases where low grade cellular changes have been found. Quest Diagnostics, the US for profit laboratory under contract to CervicalCheck to do 90 percent of its testing, failed over a number of years to test smears in a timely manner. In July 2019, HSE finally admitted that Quest had carried out HPV testing on 11,500 out of date samples, a massive increase on the 800 cases initially reported. Women were not notified in a timely manner, and, again, it took one of those affected to expose this second, major debacle.
Around 4,000 women have been recalled for repeat smear taking, but whether the other 7,500 women affected have been informed of their flawed HPV tests is unclear. Meanwhile, in a separate audit of cervical cancer screening in Ireland, over 1,000 women are set to receive their results from the Royal College of Obstetricians and Gynaecologists in London. A review into the screening history of every woman diagnosed with cervical cancer since the beginning of the CervicalCheck programme in 2008 has found that there were missed opportunities to prevent or diagnose cancer earlier in the cases of 159 women.
Maternity care
Maternity care has been the Cinderella of the health service for many years, under resourced and under developed. Hospital overcrowding coupled with an acute shortage of midwives and obstetricians militate against a high quality service. Fragmented care is the norm. Postnatal care levels are among the lowest in Europe.
While many women feel their hospital care during birth was first class, in some cases, treatment has on occasion resulted in injury or even death. Concern is growing over the rise in maternal deaths in recent years. In the case of eight women who died in the Irish maternity services between 2008 and 2014, coroners eventually ruled that their deaths were due to ‘medical misadventure’. As Deputy Clare Daly told the Dáil, their deaths were avoidable.
Autonomy is another area that is problematic. The ‘active management’ of women in labour, a blueprint for medical intervention to accelerate labour that assumes patient consent, is widespread. This has contributed to a culture in maternity care where your right to make decisions about your care may be overridden by staff. Surveys done by the Association for Improvements in Maternity Care show that non-consensual intervention during pregnancy and labour is a major issue.
Transvaginal mesh injuries
Awareness of mesh injuries is growing worldwide. Particular concerns have emerged in relation to the use of what is termed ‘transvaginal mesh’, a net-like plastic material (polypropylene) that is or was used routinely to support weakened pelvic and bladder tissue. In July 2018, the Department of Health announced that it had asked the HSE to halt the use of all procedures involving transvaginal mesh in public hospitals. Officials were briefed by the Irish Medicines Board (now the Health Products Regulatory Authority) as far back as October 2012.
Many women who have undergone transvaginal mesh procedures have developed serious side effects. Reported complications include chronic inflammation, chronic pain, and incontinence. Should scar tissue embed itself into the mesh, this may result in pain, infection, protrusion through the vaginal wall, and pain during sexual activity. The Irish government has ruled out a redress scheme for such injuries.
Transvaginal mesh is similar to other mesh implants classified as medical devices and used for procedures such as hernia repair. Because of this similarity, transvaginal mesh was approved under a Food and Drug Administration pathway that did not require testing on patients. The FDA recently recalled the mesh that is used in the transvaginal treatment of pelvic organ prolapse. An estimated 100,000 lawsuits are pending in the United States.
Cosmetic surgery and defective medical devices
One area of medicine that has been shown to be particularly problematic is cosmetic surgery. While many people may have had positive experiences of such treatment, lack of regulation has led in some cases to negligent practice and serious injury.
Defective medical devices, such as metal on metal hip implants, prescription drugs, such as opiates, and consumer products, such as talcum powder, have all been shown to cause significant adverse effects.
Fatal injuries and inquests
Ireland is the first European country to legislate specifically for mandatory inquests into maternal deaths. Among the core measures of the 2019 Coroners (Amendment) Act are:
- mandatory reporting of all maternal deaths, stillbirths, intrapartum deaths and infant deaths
- mandatory inquests for all maternal and late maternal deaths (with no discretionary loopholes)
- stronger powers for coroners, including compelling witnesses to attend the coroner’s court; directing the production of ‘any document, article, substance or thing’ deemed relevant; and powers of entry to premises to ‘inspect, copy, take extracts from or seize documents’
- legal aid for families seeking inquests into maternal deaths
The act, which extends to both private and public hospitals, followed a five-year campaign by activists. Following the death of Bimbo Onanuga in 2010, Colm, acting on behalf of her family, took legal action to obtain an inquest into her death. That inquest took three years and resulted in a verdict of medical misadventure. Eight high profile maternal deaths followed. In each of these cases, the hospital’s failure to notify the coroner led to public unease. These deaths should have been reported because they raised issues of potential medical error, and, under the 1962 Coroners Act, were unnatural. The verdict, in each of the nine cases, was that the death of the mother in childbirth was avoidable.
Another area where we hope to see progress lies in the area of stillbirths. At present, parents whose child is stillborn are unable to seek the same recourse as families whose child is born alive but dies after birth. If adopted, the Civil Liability (Amendment) Bill 2018, otherwise known as Conor’s Law, will bring about greater equality between these parents before the law. Mignon and Derek Underwood’s son, Conor, was stillborn in Wexford General Hospital in September 2012. Mrs Underwood sued the HSE, claiming the death of her son and the injuries she herself sustained were due to medical negligence, in particular, the hospital’s failure to diagnose pre-eclampsia in a timely manner. The case settled and the hospital apologised for the shortcomings in its care. If Conor’s Bill is passed into law, families whose child is stillborn due to medical negligence will be able to seek compensation for psychological distress.
Sports Related Injury
Recent news of Rugby World Cup winner Steve Thompson and seven other former players claim bringing personal injury claims for permanent brain damage has opened questions about Irish rugby authorities and the playing rugby community here.
The controversy surrounding permanent brain injuries arising from intense collision sports, such as rugby, has been reported on for more than 10 years. From a legal perspective, key issues will emerge in the actions being brought by Steve Thompson and others.
For example, was it reasonably foreseeable that brain injuries would result from repeated collisions?
When did sporting bodies and rugby become aware or ought to have known that repeated collisions could have long term consequences for athletes?
Will the athletes and their families be compensated and will that compensation assist them in living with their injuries?
What steps should sporting bodies take in order to prevent further injuries to their players?
Should children and teenagers play rugby and how can the risk of brain injury be minimised?
Steve Thompson (Rugby World Cup Winner with England), Michael Lipman (Former England Rugby International) and Alix Popham are only a handful of players who claim that their brain injuries resulted from repeated concussions while playing rugby.
Those concussions may have varied greatly from micro or minor concussion to a more serious concussion which would have been obvious to any clinician. These players will argue that the cumulative effect of collisions in rugby, be they micro concussions or more serious concussions are directly linked to their current injuries, including early onset dementia and CTE (chronic traumatic encephalopathy).
CTE is a progressive brain disease which is caused by repeated brain injury, such as may occur during contact sport like American Football or through collisions in Rugby.
The test which courts will apply is whether it was reasonably foreseeable and then, when it was reasonably foreseeable that collisions in rugby would lead to serious brain injury. It is likely that the players will rely on scientific evidence which may demonstrate that information was available which should have led to safeguards being put in place.
The way in which athletes must seek care and compensation is through court actions which are based on medical reports. If a brain expert and clinician believes that a player suffered his injuries through rugby, then it is likely that a case should be pursued so that the player and his family will have means to provide the best medical care and be compensated for their injuries/
Clearly it would be preferable if a less confrontational method of seeking compensation were to be put in place though this may be unlikely.
Our experience of personal injury class actions, such as with the survivors of symphysiotomy, which we pursued through the Irish courts, the United Nations Committee on Human Rights and the European Court of Human Rights is that compensation awards for those injured, must be fought for.
The first step which sporting bodies ought to take is to inform parents and players about the dangers or potential dangers of repeated concussions, be that an obvious concussion or repetitive subconcussive or minor concussion. Clearly schools, clubs and coaches have a duty of care to ensure that at teh very least, those that wish to participate are fully aware of the risks.
Another practical step being taken by New Zealand Rugby was to introduce weight limits. Clearly a collision involving a 65kg athlete and a 120kg athlete would not end well. In boxing it would be incomprehensible that athletes with such a weight disparity could compete but in rugby it is common course. These disparities can be more pronounced at underage level and the age system does not always protect the smaller athlete.
The consequences of brain injuries for players and their families are fatal and so the response of government and sporting bodies must be proportionate and immediate.