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Legal Forensics – Our Medico-Legal Investigation Process

Posted in [Blog Medical Negligence ] on Wednesday, February 26th, 2014

As a medical lawyer with Cantillons Solicitors, I work exclusively in the area of medical negligence claims. This blog will take you through the life cycle of a medical negligence investigation, a complex yet intriguing and rewarding journey which I embark upon daily, in serving the needs of my clients. Medical negligence cases take all sorts of shapes and sizes. At Cantillons, our experience ranges from a catastrophic injury type cases, for example cerebral palsy/birth injury cases, to cases where tumours are missed, the wrong medication is prescribed, a failure to investigate ongoing symptoms, a failure to diagnose a fracture to the more contemporary case of a plastic surgery procedure generating a poor outcome. In the first instance, it should be said that although I will try and simplify the procedures involved with medical negligence cases as much as I can, it should be made abundantly clear that medical negligence cases are extremely difficult. Anyone who requires advice in this area should certainly take same from a firm who specialises in this field. Such specialist solicitors will have the expertise and experience to deal with your query in the best possible manner and further, they will have the best bank of expert witnesses upon whom to call for assistance, when it comes to the stage of commissioning reports.At Cantillons, when we are first contacted by a new Client, we take detailed notes as to past medical history, what procedure or treatment was involved and what the adverse outcome is. The majority of cases are not pursued beyond this point, where it becomes clear that it won’t be possible to establish either negligence or causation. In a minority of cases, we will recommend that records be obtained. I will come to the matter of taking up records later. Having got in the records (which can take some months under the Freedom of Information and Data Protection legislation), and having gone through them, I meet with the Client again. There may be factual controversies arising and they need to be clarified by cross-referencing the instructions with the records. It takes a lot of time but you need to give it that time because a lot can come out in that meeting which could turn out to be very important. These meetings can oftentimes take almost a full day.At this stage, I would consider that I have enough information to create a detailed chronology. It is important to set down an accurate sequence of events in order to brief the expert appropriately. At Cantillons Solicitors *, we are very careful to go through the hospital records with a fine tooth comb. The records oftentimes arrive from the hospitals in a disorganised fashion, so we re-structure them in a structured and sequential fashion so as to divide the records up into relevant sections, in chronological order. Headings include areas such as administration, clinical notes, investigations, observations, drug charts, correspondence, etc. These headings are all fairly self explanatory. The clinical notes obviously relate to the doctors entries. The Investigations are oftentimes very important and in particular, very interesting information can be gleaned from requests for x-rays, bloods, microbiology etc. Usually, the queried diagnosis is inserted in a box provided by the requesting doctor. This can prove extremely important. Recently, we had a case where there was a delay in treating meningitis. The hospital put forward the defence that they did not believe that meningitis was suspected until quite late in the day and that they sought to treat it as soon as it was suspected. However, the parents maintained that they had been informed at an earlier stage that meningitis was suspected. The problem was that there was nothing in the clinical notes or the nursing notes to record this but through careful scrutiny of the records, we did find a record in an x-ray request where the doctors had noted the query diagnosis was in fact meningitis at an early stage. The observations can also be particularly important. For example, in a cardiac patient, a consistently elevated or lowered blood pressure can indicate that there is an increased risk of cardiac arrest and so closer monitoring is merited. If you have a case whereby somebody has, say, a heart attack whilst in hospital and there is a query as to whether or not this could have been reasonably foreseen, often a good place to look would be at the observation sheets as they will record the vital signs and in particular the blood pressure which gives a good indication as to the condition of the patient leading up to the relevant acute event. At this point, we have already met with the client and taken a detailed history. We will also have gone through the records with a fine tooth comb and will now be in a position to form a view as to whether or not the matter merits further investigation. Essentially, we need to form a view at this point as to whether or not there was “causative medical negligence”, within the legal framework. We must ensure that you have both breach of duty and causation. Negligence/Causation:Breach of duty or negligence arises where it can be proven that no other doctor of like expertise, skill and experience, would have acted likewise, if faced with the same set of circumstances. In other words, the care afforded to the patient fell below the requisite standard. It is not enough to say another doctor would have acted differently. Proof of negligence goes much further than that. Causation arises where it can be proven that “but for” the negligent act or omission, the outcome would have been different. A very simple example that I give to clients when I am trying to explain this framework is the case of Barnett v Chelsea & Kensington Hospital Management Committee[1]. In that case, a workman was turned away from hospital having become unwell after drinking tea. It transpired that the tea was poisoned with arsenic. The man died. His widow sued the hospital for negligently discharging him, but she lost her case. The Defendant’s expert evidence succeeded in establishing that, given the amount of time which elapsed between when the deceased ingested the arsenic and his presentation to hospital, he was in fact going to die anyway. The fact that he was discharged from the hospital had no bearing on the ultimate outcome which was going to be death, whether or not he was admitted. It was the arsenic and not the doctor’s failure to see the patient that caused his death. Once we have established in our own minds that there is a stateable case in medical negligence, we then proceed to brief an independent medical expert who has the experience and qualifications to say as much in his/her report. By law, it is not for us as laypersons to say a medical professional was negligent. Only another independent doctor/nurse/midwife/pharmacist (as the case may be) can say so. Having got the report some time later, we then need to consider whether or not it is sufficient to issue proceedings. If you have a straight-forward, clear report, then it is likely that we will advise our client of the prospects of success, should proceedings be instituted. However, frequently, the issue of causation requires a second report to be generated. I usually ensure that I have at least two reports before we issue proceedings. The risks are extremely high in medical negligence cases and the risks are far more calculated if you have further reports backing up the initial findings. Proceedings/Time LimitsOnce we have all of the liability reports, if the client instructs us to do so, we issue High Court proceedings for personal injuries suffered. Just a word about the Statute of Limitations (SOL). By virtue of the Civil Liability and Courts Act, 2004, the SOL for all of these types of cases is two years from the date of wrongdoing or the date of knowledge. Two years is an extremely short and oftentimes a prohibitive timeframe for victims of medical accidents. It is often many years, having exhausted all efforts to correct the poor outcome, before the victim will approach a solicitor. Oftentimes, by then, the SOL has expired. We have yet to meet a client in our department who charges from the operating theatre to the solicitor – it simply does not happen but the tight SOL timeframe seems to require it. The SOL is a matter we flag and monitor from the outset in each file, to ensure the relevant legal deadlines are always met on time. Having launched proceedings, investigations at Cantillons Solicitors continue, quite frankly until the day the case concludes. Various further reports, papers, research and reports are commissioned and investigated to ensure the very best outcome for each and every one of our clients. Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or if you would like more information.* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.[1] [1969] 1 Queen’s Bench 428* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. Share on Social

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