Traumatic Brain Injuries resulting from medical negligence or accidents can have serious and life-changing consequences for individuals affected, and in some cases can be fatal.
If you or a loved one have suffered a traumatic brain injury, you may feel deeply concerned about what may happen in the future, and you will likely have many unanswered questions.
At Lavelle Partners, we understand that traumatic brain injuries can cause great distress to both the injured individual and their loved ones who are trying to deal with the consequences. Families may struggle to cover the costs of everyday living and those associated with medical care, accommodation and travel to be with your loved one. If the injury was directly due to the negligence of a medical professional or arose directly from an accident, Lavelle Partners can assist you to determine if you can bring a claim against the negligent party for any damages incurred.
What is traumatic brain injury?
Traumatic Brain Injuries are brain injuries caused by a trauma to the head (head injury). They can arise in a variety of circumstances, including road traffic accidents, assaults, and accidents at work. Symptoms can range from balance problems and dizziness to memory problems, anger, and fatigue.
What are the medical implications of traumatic brain injury?
In the long-term, people with brain injuries may fail to awaken, suffer the loss of motor movement or sensation, cognitive impairment, sensory impairment, or damage to the autonomic nervous system which controls breathing and other vital bodily functions.
Whether the injury is minor or more severe in nature, the long-term impact of damage to the brain can take a long time to become apparent. The extent of any outcome varies considerably from patient to patient because no two injuries are the same.
With modern approaches to treatment of traumatic brain injury, both in the acute phase and then in the rehabilitation period, patients now have the best possible chance of making a recovery.
Can I bring a claim for a traumatic brain injury?
To bring a claim for medical negligence relating to brain damage, it will be necessary to provide evidence that:
- The medical care you received was below a satisfactory standard (i.e. that another medical professional would not have made the same error), and;
- This negligence caused you damage or injury.
To prove your case, we will compile evidence including medical records, and seek expert medical opinion.
What might compensation cover?
Claims following brain damage due to medical negligence may cover two areas of loss:
- Pain and suffering due to the injury;
- Specific costs resulting from the injury caused. This may cover costs already incurred, such as transport, accommodation, and medical treatment, and expected future expenses, such as physical therapy and care costs. The costs you receive will be based on the precise injuries suffered and the circumstances of the case.
What is the time limit for a traumatic brain injury claim?
There is a two-year time limit for most types of medical negligence claims, so it is important to keep this in mind when considering pursuing compensation for a traumatic brain injury.
Under normal circumstances, patients have two years to claim compensation for traumatic brain injury treatment due to medical negligence. However, there are some limited circumstances where patients or their loved ones may have longer to claim.
The date of knowledge
The two-year time limit will be counted from the ‘date of knowledge’. This is the date when the claimant was first aware of the following key points:
- That they/their loved one has been injured.
- That the injury was significant.
- That the injury was caused by negligent medical treatment.
- The identity of the person responsible for the injury.
The date of knowledge can sometimes be weeks, months or even years after the injuries occur.
Exceptions to the standard two-year time limit for claims for traumatic brain injuries
Situations where the time limit may be different include:
- Where the claimant was under 18 when the negligence occurred – the two-year time limit will be counted from their 18th
- Where the claimant is deemed to lack the mental capacity to pursue a claim themselves – there is normally no time limit for someone else to make a claim on their behalf.
- Where someone has died as a result of a traumatic brain injury due to medical negligence – a representative of their estate will have two years to bring a claim from the date of death.
Our expertise with brain injury medical negligence claims in Ireland
For 30 years, our medical negligence solicitors in Dublin have helped clients to claim compensation for a wide range of medical errors and injures, including for brain injury as a result of medical negligence.
Handling claims effectively from start to finish, we ensure no detail is overlooked and that clients understand what is happening and what to expect at every stage of the claims process.
Head of Medical Negligence Avril Scally has over 16 years’ experience dealing with a wide range of claims for clients all over Ireland and is a member of AVMA (Action Against Medical Accident) and APIL (the Association of Personal Injury Lawyers).
As well as helping with the legal side of pursuing a medical negligence claim, our team can also assist with accessing specialist care and rehabilitation services.
How traumatic brain injury claims work
Below are the steps involved when bringing a claim.
Establishing medical negligence
Before making a claim for any type of medical negligence, it is first necessary to obtain a report from an appropriate qualified medical expert to confirm that the medical care you received fell below acceptable standards.
To have grounds for a valid claim, this report will need to show that both of the following apply:
- A breached of duty of care– i.e. that the clinical staff responsible for a patient’s treatment owed them a duty of care and that this was breached as a result of mistakes made that no competent health professional would have made under the same circumstances.
- Harm suffered due to that breached duty of care– i.e. that the patient experienced a worse outcome for their health due to the clinician’s errors.
- It must be shown on ‘the balance of probability’ that the worse outcome was caused by clinical errors. This means there must be at least a 50% chance that the clinician was responsible for the harm a patient suffered.
Calculating compensation for a traumatic brain injury
How much compensation is available for a traumatic brain injury will be determined by the impact on the patient of the harm caused.
Compensation can potentially cover:
- Any financial costs or losses caused by the patient’s injuries
- Future financial losses or costs the patient expects to incur due to their injuries
- The non-financial impact on the patient’s life such as:
- Pain and suffering
- Loss of amenity (not being able to carry out activities the claimant previously enjoyed)
Many medical negligence claims are settled voluntarily out of court between legal teams representing the patient and the clinician or healthcare provider responsible for a claimant’s injuries. This can make the claims process faster and involve lower legal fees.
Taking a medical negligence claim to court
Where a settlement is not possible, a medical negligence claim may need to be pursued through the courts. In such cases, it is important for claimants to have effective representation to ensure their case is built and presented in the strongest possible way.
Where a patient needs immediate financial support, it may be possible to secure an advance payment from the defendant while a claim is still ongoing. This can be used to cover costs such as fees for medical treatment, rehabilitation care and other essential support.
Fatal brain injury claims
Where someone has died due to negligent treatment delays, an appointed personal representative of the deceased may be able to make a claim under the terms of the Civil Liability Act, 1961, Part 4. They will have two years from the date of death to do so.
In the event that a personal representative is not appointed within six months of the date of death, anyone who was a dependant of the deceased at the time of their death can potentially pursue a claim within the time limit.
Compensation for a fatal negligence claim can include damages for:
- Psychological distress – capped at €35,000
- Loss of dependency – covering the loss of financial and practical support from the deceased
- Specific financial losses resulting from the death – including funeral expenses
Find out more about fatal medical negligence claims.
Traumatic brain injury claims pricing
The exact fees for pursuing a traumatic brain injury compensation claim will depend on the circumstances. Factors that may affect these costs include whether the claim can be resolved with an out-of-court settlement or whether court proceedings are required.
Our team will discuss costs and funding options during clients’ initial consultation.
Lavelle Partners secures substantial settlement for Plaintiff who suffered an undiagnosed abscess on her brain following brain surgery
For further information on making a claim for brain injury resulting from medical negligence in Ireland, please contact Lavelle Partners in confidence on (01) 644 5800 or email Avril Scally at [email protected]
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with RE.8 of S.I. No. 229 of 2019.