When medical treatment goes wrong the consequences can be lasting — physically, financially and for the whole family. Medical negligence claims are among the most complex in this area of law and are handled differently from other injury claims. We advise clients across County Donegal, from Inishowen to the south and west of the county, with the care and rigour these cases require.
What is medical negligence?
Medical negligence arises where the care provided by a doctor, hospital, dentist, midwife or other healthcare professional falls below the standard reasonably expected of a competent practitioner in that field, and that failure causes injury.
The test Irish courts apply comes from Dunne v National Maternity Hospital [1989] IR 91. In broad terms, a practitioner is not negligent simply because another practitioner would have acted differently. What matters is whether the approach taken was one that no practitioner of like specialisation and skill would have followed, or whether there was a deviation from general and approved practice that no reasonable practitioner would have made.
A poor outcome is not the same as negligence
This is the point clients find hardest, and it is worth being direct about it. Medicine carries risk, and treatment can go badly without anyone having done anything wrong. To succeed, a claim has to establish two separate things:
- Breach of duty — the care fell below the expected standard
- Causation — that failure caused or materially contributed to the injury
A case can fail on causation even where the standard of care was plainly poor, if the same harm would have followed anyway. This is why we do not give a view on the strength of a claim until the records and expert evidence are in.
Types of claim we advise on
- Misdiagnosis or delayed diagnosis, including cancer
- Surgical errors and post-operative complications
- Birth injuries affecting mother or baby
- Medication and prescription errors
- Failures in follow-up, referral or acting on test results
- Failure to warn of a material risk before a procedure
- Dental negligence
- Nursing and hospital care failures
- Claims following a death, including where an inquest is involved
How these claims differ from other injury claims
The Injuries Resolution Board does not assess them
Medical negligence claims are outside the Board’s remit. There is no assessment stage, and proceedings are issued in court. Other personal injury claims follow a different route.
Independent expert evidence comes first
A claim cannot responsibly be issued without supportive reports from appropriately qualified independent practitioners — usually in the same speciality as the treatment complained of. Obtaining those reports takes months, not weeks, and often needs more than one expert where several stages of care are in question.
The defendant is often the State
Claims against the HSE and public hospitals are managed by the State Claims Agency. Claims against private hospitals, GPs, consultants in private practice and dentists are dealt with by their indemnifiers. It affects how a claim is run, though not your entitlement to bring one.
Getting your medical records
Your records are the foundation of any claim, and you are entitled to them. A written access request under data protection law obliges the hospital, GP or clinic to provide your records, normally within one month. We can make the request for you and review what comes back.
If records appear incomplete — missing notes, absent test results, no entries for a critical period — that is something we pursue rather than accept.
Open disclosure
Under the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023, health services must inform patients about certain notifiable incidents and hold an open disclosure meeting. If you have been invited to such a meeting, or have already had one, it is worth taking advice beforehand about what to ask and what to record. Information given at open disclosure is subject to statutory protections, and how it can be used later is a question we can talk through with you.
Time limits and the date of knowledge
The general limit is two years. In medical negligence the harder question is usually when that period began, because patients often do not know at the time that anything went wrong.
Time runs from the date of knowledge — when you first knew, or ought reasonably to have known, that you had a significant injury and that it was attributable to the act or omission you are complaining about. That can be considerably later than the treatment itself: a diagnosis that emerges years afterwards, or a second opinion that reveals what an earlier scan showed.
For children, time runs from the 18th birthday, so a claim can generally be brought up to the 20th. A claim can be brought earlier by a parent or guardian as next friend, and in birth injury cases there are good reasons not to wait. There is more on time limits for bringing a claim.
If you think a deadline may have passed, take advice rather than assuming the position — the date of knowledge point is often arguable.
Birth injury and catastrophic injury claims
Where a baby suffers a brain injury around the time of birth — often described as hypoxic ischaemic encephalopathy, or diagnosed later as cerebral palsy — the claim is about a lifetime of care, therapy, equipment, housing and lost earning capacity. These cases need expert evidence in obstetrics, midwifery, neonatology and neuroradiology, alongside evidence on care needs and cost.
Since the Civil Liability (Amendment) Act 2017, courts can make periodic payment orders in catastrophic injury cases, so that future care is paid annually for life rather than as a single lump sum. Which structure suits a particular family is something to work through carefully.
Where someone has died
Claims following a death can involve both a dependency claim under the Civil Liability Act 1961 and, separately, a coroner’s inquest. The inquest is an inquiry into how the death occurred, not a trial, and it does not determine fault — but what emerges there can matter a great deal. Families are entitled to be represented at an inquest and we can advise on that.
Areas we cover in more detail
- Birth injury claims — including hypoxic brain injury, cerebral palsy and Erb’s palsy
- Misdiagnosis and delayed diagnosis claims — including delay in diagnosing cancer
- Surgical error claims — including consent and post-operative care
Fees and costs
We give you a written notice at the outset setting out how our costs are calculated. Medical negligence claims carry real outlay — expert reports in particular — and we will be straight with you about that before you commit to anything.
Speak to us in confidence
We will listen, obtain your records, and give you an honest view of whether a claim is worth pursuing. Call 074 972 5105, email info@mcintyreobrien.ie, or request a consultation at our Letterkenny or Donegal office.