There have been far- reaching changes in Medical Negligence litigation in recent times. This seminar will analyse the principles of law and their practical application. The subject matter will be addressed both from the perspective of the solicitor acting for a plaintiff and a defendant. It will cover existing and emerging trends in case law both in terms of the assessment of liability and the calculation of quantum. It will provide practical guidance in relation to avoiding potential problems and pitfalls.
 
Grounding a Claim and Defending a Claim: Tips and Traps
  • Funding of a case:  how to fund disbursements
  • Costs in medical negligence actions: Implications of the decision of the Supreme Court in Sheehan V Corr
  • Practice Direction HC71: Payment on account of costs pending taxation: what constitutes a “reasonable sum”? 
  • When is prior authorisation under the Personal Injuries Assessment Board Act, 2003 necessary?
  • Second renewal of Personal Injury Summons
  • Choosing the right expert and how to deal with the difficulties posed by new cases and existing cases where two experts of the same speciality are already involved. Implications of recent judicial rulings
  • Proper review of Medical records
 
A Review of Recent Case Law
  • The Statute of Limitations and the “date of knowledge” test. Can a plaintiff wait until she receives her medical records before time starts to run against her under the statute? Implications of the judgment of the Court of Appeal in Farrell V Ryan
  • Does” knowledge” mean “know for certain” or does it mean “know with sufficient confidence to justify embarking on the preliminaries”? Murphy V HSE
  • Are the principles enunciated in Dunne V National Maternity Hospital applicable to claims of negligence against nurse practitioners? Kiernan ( a minor) V HSE
  • “General and Approved Practice”: How was this interpreted by the Court of Appeal in Farrell V Ryan? Must a ”general and approved practice” have a logical basis? Is it necessary to prove that those who supported the practice took into account” the perceived risks and benefits of the procedure at the time”?
  • Material contribution causation: Kiernan ( A Minor) V HSE   Can a plaintiff succeed in proving causation by proving that she sustained “legally significant damage” which was “materially causative” of the plaintiff’s present condition?
  • Emerging trends in birth injury litigation: Neurological cognitive deficits/ learning difficulties caused by hypoxia at birth. Therapeutic cooling in the neo-natal period
 
The Legal Services Regulation Act, 2015: Implications for Medical Negligence Litigation

The Legal Services Regulation Act, 2015 will have significant impact on clinical negligence actions. Although the legislation has not yet been commenced, practitioners need to be aware of its far- reaching changes.
  • The change in the limitation period
  • Pre- Action Protocols: What are the implications for the timing of disclosure of clinical records? Can a court order a stay on proceedings for non - compliance? What are the implications for costs and interest in the event of non - compliance?
  • The effect of an apology: what are the changes?
  • Can the courts have regard to the terms of an offer of settlement made before the commencement of proceedings?
  • Costs implications for both sides for rejection of pre-action offers 
The Civil Liability (Amendment) Bill 2017
  • The Civil Liability (Amendment) Bill 2017 paves the way for the introduction of periodic payment orders in cases of catastrophic injury.  What are the issues for plaintiffs with the proposed form of indexation?
  • Lump sums V periodic payment orders: The advantages and disadvantages
  • Implications of Russell V HSE: The “Real Rate of Return” case:  Is it likely that lump sum awards in favour of plaintiffs with catastrophic or long term injuries will be higher in the future?
  • Implications of “open disclosure”: Will it assist plaintiffs in establishing liability? Will the content of an “open disclosure” be admissible?
 
The Perspective of the Doctor as an Expert Witness
  • What is a Medical Expert Witness?
  • Why do some doctors chose to act as expert witnesses?
  • Why do some doctors chose not to act as expert witnesses?
  • What do lawyers look for in choosing medical expert witnesses?
  • Why do medical expert witnesses often differ significantly in their views?
  • Evidence v Experience v Opinion
  • Complexity, Nuance & Clarity
  • The Professional Expert
  • Liability & Expert Reports 
  • 'Known Knowns, Known Unknowns & 
  • Unknown Unknowns' (courtesy of Donald Rumsfeld)
  • A need for change?