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Legal advice in medical negligence proceedings

In the first instance, all relevant medical records in respect of the applicant’s alleged complaint should be obtained promptly. If the application relates to a fatal injury the Post Mortem Report, Coroner’s Autopsy, Death Certificate and the file on the Inquest, where appropriate, should be provided by the applicant, simultaneously, with the medical records. The medical records extend beyond the written records and include diagnostic radiological imaging, and other miscellaneous documents which include written complaints, clinical risk management/ assessment reports and multi-disciplinary case conference notes. It should furthermore be noted:-

  • Medical records in respect of public institutions (public funded hospitals) are obtainable under the Freedom of Information legislation. The applicant must make the request for the records, in writing. There is no fee or charge. From the date of receipt of the written request to the date of release of the records, generally, takes, six to eight weeks;
  • Medical records in respect of private institutions (privately funded hospitals) do not come within the remit of the Freedom of Information legislation. The applicant must make the request for the records, in writing. There may be a fee/charge. Under these guidelines, as a general rule, any such fees or charges must be discharged by the applicant, directly to the relevant institution;
  • Medical records held by a General Practitioner do not come within the remit of the Freedom of Information legislation irrespective of whether the applicant is a private or public patient. The Medical Council of Ireland has set a schedule fee of €250.00 in respect of these records.- subject to change, this is the recommended fee could be much higher; and
  • Radiological imaging (x-rays, scans, ultrasounds) attract a fee/charge of €6.30 per image.

The Board will not be responsible for the payment of fees/charges in respect of the matters above other than in circumstances where it can be shown that it would cause hardship to the client if the Board does not pay. Applications to have the Board make the payment should be forwarded to Legal Services for consideration.

On completion of the review of the medical records, the Statement of Facts including any corrections or clarifications, the client’s instructions and following a consideration of the relevant legal issues, if the solicitor is of the opinion that the contents justify obtaining an independent medical expert opinion/ report,  from an expert outside the jurisdiction the solicitor should:-

  • consider whether the expenditure in obtaining a medical expert opinion/report is justified in all the circumstances; e.g. the damage may be to small to be concerned with; and
  • affirm the opinion / report is necessary and provide reasons.

On receipt of the application Legal Services may authorise obtaining an independent medical expert opinion/ report in accordance with the approved rates.  An established expert in that particular area who is currently in practice should be approached to do the report. .