It’s worthwhile looking back at some of the legal develpments during the first 20 years of the 21st Century.
Some of these may have a long lasting and profound impact on Irish legal landscape
While this was a story initially broke in 2018, it continued in to 2019.
There was fresh outrage after a review led by the Royal College of Obstetricians and Gynaecologists in the UK found hundreds of “discordant” results. The review group had re-examined slides of over one thousand women who had been tested for the disease under Cervical Check, given the all clear and later developed cancer.
The re-examination of the smear test by Royal College reviewers produced a result that was different from the original finding by Cervical Check.
The extent of the individual divergences from the initial results is not yet known, but the review has found some cancers could have been prevented.
The Cervical Check story will continue in 2020 as many women have cases yet to come before the courts, a large number of whom are represented by us at Lynch Solicitors.
One of the women brought her case before the High Court and won.
The case was appealed to the Supreme Court and has yet to be decided.
The novel development was the intervention of the State. The State has effectively guaranteed the compensation not matter how the Supreme Court decided the case.
The case taken by 26 year old Aoife Bennett which came before the court in November 2019 also has major ramifications for the State.
Aoife, from Co Kildare, developed the sleep disorder narcolepsy as a result of being given the Pandemrix swine flu vaccine.
Her case was settled with no admission of liability in what was considered to be a test case. There are an estimated 100 people who have developed the crippling life long condition as a result of taking the vaccine.
The case was heard over weeks of evidence but was not concluded – i.e the Judge did not make a decision on the case.
It was settled at a private mediation session.
Therefore, the fact that it was successfully mediated is a good outcome for other claimants.
The outcome of this case will prove pivotal for the others affected as we prepare to take their cases to court in 2020.
The ‘but’ is that we do not know the ‘how” . – how was fault dealt with , who was at fault and how much was it settled for.
How long do I have
The State of Limitations in Medical Negligence cases have come into focus.
Generally the window of time in taking a case is 2 years, with a rider the the 2 years cannot start until you know or ought to have know certain facts to make a case.
There has been a considerable amount of confusion as to when exactly the clock starts ticking under the ‘knowledge’ principle.
Two cases came before the Supreme court which clarified the situation.
In one case, a man from Cork raised questions around when your two year limit should start and the other case involved a woman from Cashel.
These cases involved an analysis of the ‘knowledge’ principle as it is applied.
These cases were vitally important in the field of Negligence as they set out a clear blueprint on how to assess whether or not someone is out of time to take a case.
While these cases may not been widely reported, their effect will be long lasting and will have implications for people taking negligence and , in particular,Medical Negligence cases in the future.
Vaginal Mesh scandal
Vaginal Mesh implants are non-absorbable implants, made of synthetic netting that are implanted in a surgical procedure to treat a number of conditions, most commonly pelvic organ prolapse and stress urinary incontinence.
It is now emerging that thousands of women in Ireland and worldwide have suffered traumatic complications as a result of vaginal mesh surgery.
A number of women recently won their class-action lawsuit in Australia against Ethicon, a subsidiary of Johnson & Johnson. This was one of Australia’s largest ever product liability class actions.
The Australian Federal Court held that Johnson & Johnson and Ethicon breached their duty of care to the claimants. The Court stated that the risks were known not to be insignificant and on Ethicon’s own admission, they knew serious harm could ensue.
The response of the Irish State to the Scandal
The Chief Medical Officer recommended in July 2018 that a pause be put in place on the use of procedures involving synthetic mesh for treatment of stress urinary incontinence and pelvic organ prolapse.
The Health Products Regulatory Authority has stated that it is conducting a review of the regulatory aspects of these products as a matter of priority.
On 26th June 2018 the HSE circulated a learning notice to Hospitals concerning the use of Mesh devices in Uro-Gynaecological Procedures, noting the “controversy about the use of mesh devices” in many jurisdictions.
The Notice did acknowledge that “a significant cause of patient dissatisfaction is the difficulty in accessing services should serious complications develop. Such patients have a firmly held conviction that their needs are not being addressed to their satisfaction in Ireland.”
By way of addressing this, the HSE has convened a Response Group to address and propose remedies to these issues.
The legal system in Australia is based on the same model as the Irish System.
Therefore, anyone affected by this will find considerable solace in the approach taken by the Austalian Court.
For further advice or if you wish to discuss any other legal area please contact [email protected] or telephone 052-6124344.
The material contained is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.