Legal column: If our dad's surgery was unduly delayed, do we have a case?

Q: My 70-year-old father suffered a fall and is now paralysed. Could this be medical negligence?

My dad has ankylosing spondylitis, a form of chronic inflammatory arthritis. Last summer, he tripped and fell in our garden. Because this condition increases the risk of spinal fractures, we brought him to A&E as a precaution.

We faced a long wait before he was seen by a doctor, and then further delays before he received a CT scan.

While waiting, my dad began experiencing weakness, numbness and eventually paralysis in his legs and chest.

We repeatedly informed medical staff, but there didn’t appear to be any urgency in his care.

After several hours, we were told the CT scan results were concerning and that he would need an MRI. It was very late that night before we received the MRI results, which showed a haematoma compressing his spinal cord. We were told he needed urgent surgery.

However, he was not operated on until the following morning. Sadly, he never regained feeling in his legs and is now paralysed up to his chest.

As a family, we feel that if he had undergone surgery sooner, the outcome might have been different. Do we have grounds for a medical negligence claim?

A: I am very sorry to hear about what your father and your family have gone through.

In Ireland, a claim for medical negligence generally requires three key elements to be established.

Firstly, it must be shown that a duty of care was owed to the patient. In a hospital setting, this is usually straightforward, as medical professionals clearly owe a duty of care to those they treat.

BREACH OF DUTY

Secondly, it must be proven that there was a breach of that duty. This means that the care provided fell below the standard that would reasonably be expected of a competent medical professional in similar circumstances.

In order to assess this, a solicitor would typically instruct an independent medical expert in the same field as the treating doctors.

In your father’s case, an independent A&E specialist would likely be asked to review the medical records and consider whether the initial decision to carry out a CT scan, rather than an MRI, was appropriate, and whether the delays in diagnosis and treatment were reasonable.

Thirdly, it must be established that the injury suffered was caused by that breach. This is often the most complex aspect of a medical negligence case. It would need to be determined whether earlier intervention, particularly surgery, could have significantly improved your father’s outcome.

An independent neurosurgeon would usually be required to give an opinion on whether earlier surgery might have prevented or reduced the extent of his paralysis.

TIME LIMITS

It is also important to be aware that strict time limits apply to personal injury claims in Ireland. In most cases, legal proceedings must be initiated within two years of the date of the incident, or from the date you first became aware that negligence may have occurred.

If you wish to explore this matter further, you should consult a solicitor who specialises in medical negligence. They can obtain your father’s medical records and arrange for an expert review to determine whether there are grounds for a claim.

You may also consider making a formal complaint to the hospital through its patient complaints process, which could provide further clarity on what happened.

Aideen McGarry is a solicitor in Cantillons Solicitors of 39 South Mall, Cork, an award-winning law firm practising in all areas of litigation.

Since the firm was founded in 1980, they have been involved in precedent making cases, amongst them Best v Wellcome, Louise O’Keeffe v Ireland, Russell v HSE and Gibson v HSE, a medical negligence claim, in which they achieved damages of €23m, then highest ever award in Irish personal injury litigation to date.

This weekly column is a readers’ service and is not intended to replace professional advice.

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