A medical negligence claim is unlike other personal injuries claims in almost every respect that matters. It is decided by a test the Supreme Court laid down in 1989 and confirmed in 2020, it cannot responsibly be started without an independent expert report, it bypasses the Injuries Resolution Board altogether, and it runs against a two year clock that starts not on the date of the treatment but on the date the patient knew, or ought to have known, that something had gone wrong. This article explains how such a claim proceeds in Ireland, from the first request for records to trial, and what a patient or family can expect at each stage. It is written to inform. Whether any particular case should be brought is a question that can only be answered on its own facts and on expert evidence.
What has to be proved
The starting point is that a bad outcome is not, by itself, negligence. Medicine involves risk, every treatment has a failure rate, and the law does not make a doctor or a hospital an insurer of the result. What the law requires is care of a particular standard, and the standard was set by the Supreme Court in Dunne v National Maternity Hospital in 1989 in a series of principles that every Irish medical negligence case has applied since.1 A practitioner is negligent where they did something, or failed to do something, that no practitioner of equal specialist or general status and skill would have done if acting with ordinary care. Where the practitioner followed a general and approved practice, that is not negligence unless the practice itself had inherent defects which ought to have been obvious to anyone giving the matter due consideration. An honest difference of opinion between practitioners as to which of two courses was preferable is not negligence, and the court does not choose between two schools of thought. It asks only whether the course taken was one a careful practitioner of the same kind could have taken.
Those principles were tested in Morrissey v Health Service Executive, the CervicalCheck case decided by the Supreme Court in March 2020. The High Court had held that a screener reading a cervical smear must have absolute confidence before reporting it as clear, and the medical profession feared that a new and stricter standard had been introduced. The Supreme Court rejected that reading. The Dunne principles remain the test, the standard is the one the profession itself applies as established by the evidence, and the court does not impose its own view of what a careful practitioner should do. The court also confirmed that the HSE owed the women using the screening programme a duty it could not delegate to the laboratories it had engaged, and it fixed the ceiling for general damages in the most serious cases at €500,000.2
Breach of duty is only half of the case. The patient must also prove causation, that the failure caused the injury complained of, and in medical cases causation is frequently the harder question. A delayed diagnosis is negligent only if an earlier diagnosis was reasonably possible, and it is actionable only if the delay made a difference to the outcome. Where the condition would have taken the same course in any event, there is no claim however poor the care. The expert evidence on causation is therefore as important as the evidence on breach, and a claim that is strong on one and weak on the other is a weak claim. A separate line of authority governs consent. A patient must be warned of the material risks of a procedure, and the Supreme Court has held that a failure to warn of a risk which then materialises can found a claim even where the procedure itself was carried out with proper care.3
The time limits
A personal injuries action must be brought within two years. For medical negligence the period runs from the date on which the cause of action accrued or, if later, the date of knowledge, which is the date on which the patient first knew that they had been injured, that the injury was significant, that it was attributable to the act or omission complained of, and the identity of the defendant.4 Knowledge means knowledge the patient had or might reasonably have been expected to acquire from facts observable by them or ascertainable with the help of medical or other expert advice which it was reasonable to seek. The Supreme Court considered the test in Gough v Neary, a case arising from an unnecessary hysterectomy, and held that a patient does not have knowledge for this purpose until they know enough to make it reasonable to begin investigating whether there is a claim, which in that case was years after the operation.5
The date of knowledge is the most litigated question in this area and it is not a licence to delay. A patient who suspects that treatment went wrong, who is told by another doctor that it should have been done differently, or who reads an audit result disclosed under the Patient Safety Act, will usually be found to have the knowledge the statute describes from that point, and the two years run from then. Where the patient is a child the period does not begin until their eighteenth birthday, and where the patient has died the dependants' claim must be brought within two years of the death.6 There is no general power to extend the period. A solicitor consulted close to the deadline will often issue protective proceedings to stop the clock while the expert evidence is obtained, and that is one reason the preliminary steps described below are started as soon as the firm is instructed.
Before proceedings issue
The first step is the records. A patient is entitled to a copy of their medical records from a hospital or practitioner under the data protection legislation, and from a public body under the Freedom of Information Act 2014, and the request should cover the clinical notes, the nursing notes, the imaging, the laboratory reports, the drug charts and the correspondence, because the sequence of events is usually reconstructed from the margins of those documents rather than from the discharge summary. The records are then read, a chronology is prepared, and the patient's own account is set against it.7
The second step is the expert report, and it is not optional. The Supreme Court held in Cooke v Cronin that it is an abuse of the court's process to issue proceedings alleging professional negligence without first having reasonable grounds for the allegation, and in Connolly v Casey it made clear that those grounds will ordinarily take the form of a supportive opinion from an independent expert in the same field.8 In practice the solicitor instructs a consultant in the relevant specialty, often from outside Ireland so that the expert is not asked to criticise a colleague, who reviews the records and reports on whether the care fell below the Dunne standard and whether any failure caused the injury. The report takes weeks and sometimes months, it is paid for as an outlay, and if it does not support the claim the claim does not proceed. More than one report may be needed, for example from a radiologist on the reading of a scan and from an oncologist on what an earlier diagnosis would have changed.
Two further steps follow. Section 8 of the Civil Liability and Courts Act 2004 requires a claimant to serve a letter of claim on the defendant within one month of the date of the cause of action, stating the nature of the wrong alleged, and a court may penalise in costs a claimant who does not, though the sanction is rarely applied where the delay is explained by the time needed to obtain the records and the expert evidence.9 And since September 2024 the Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023 has obliged health service providers to make open disclosure of notifiable incidents, which at present are incidents resulting in unintended or unanticipated death, and to tell patients of their right to a review of cancer screening results. The Act provides that the information given and any apology made at an open disclosure meeting do not amount to an admission of liability and are not admissible in proceedings, so the meeting is a source of facts rather than of evidence, but the facts are often precisely the ones a claimant needs.10
What a medical negligence claimant does not do is apply to the Injuries Resolution Board. The Board's governing Act excludes from its remit any claim arising out of the provision of a health service, the carrying out of a medical or surgical procedure or the giving of medical advice or treatment, so there is no assessment, no authorisation and no pause in the limitation period. Proceedings issue directly in the courts.11 Nor, as yet, is there a pre-action protocol. The Legal Services Regulation Act 2015 provides for regulations establishing a protocol for clinical negligence actions, with an exchange of information and expert evidence before proceedings issue and costs consequences for a party who does not engage, but a decade after the Act was passed those provisions have not been commenced, and the question remains the subject of study and lobbying rather than law.12
The proceedings
A medical negligence action is a personal injuries action and is subject to the regime the Civil Liability and Courts Act 2004 created for such actions. It is commenced by a personal injuries summons which must plead the injuries, the wrong alleged and the particulars of negligence with a precision that ordinary pleadings do not require, and both the summons and the defence must be verified by affidavit, sworn within twenty one days of service, in which the party swears that the assertions made are true. A party who gives false or misleading evidence, or who swears a false affidavit, faces the dismissal of the claim under section 26 of the Act and prosecution.13 Most claims of any size are brought in the High Court. The Circuit Court's jurisdiction in personal injuries actions is limited to €60,000, which is below the value of most claims in which the expert evidence justifies proceeding at all.
The defendant is rarely the doctor alone. Claims arising from treatment in public hospitals and by the HSE are managed and defended by the State Claims Agency under the National Treasury Management Agency legislation, which instructs its own panel of solicitors and experts. Claims against consultants in private practice and against private hospitals and clinics are defended by their indemnifiers. The defence, when it is delivered, will usually deny everything and plead that the care was in accordance with general and approved practice, and the real shape of the dispute emerges only when the expert reports are exchanged.14
After the pleadings close the case moves through discovery of documents, which in a medical case is often confined to the records already obtained together with protocols, guidelines, incident reports and the audit trail of the electronic record, and then to the exchange of expert evidence. The Rules of the Superior Courts require each side in a personal injuries action to disclose to the other, before trial, the reports of the experts it intends to call, together with the names of the witnesses it intends to call, so that neither side goes into court without knowing the case it has to meet.15 The exchange is the point at which most medical negligence claims settle, because it is the first moment at which the defendant's advisers see the strength of the claimant's expert evidence and the claimant's advisers see whether the defence has an expert prepared to support the care that was given.
Mediation runs alongside. The Mediation Act 2017 requires a solicitor to advise a client of mediation before issuing proceedings and to swear a statutory declaration that they have done so, and the court may invite the parties to mediate and may take an unreasonable refusal into account when awarding costs. The State Claims Agency mediates regularly, and a mediation in a medical negligence case can address matters a court cannot, such as an explanation, an apology or a change in practice, alongside the money.16 The 2004 Act also provides for formal offers. Each side may make a formal written offer of settlement after the notice of trial is served, the offer is not disclosed to the judge until the case is decided, and a party who does no better at trial than the offer they refused is at risk on costs from the date of the offer.17
Where the case does go to trial it is heard by a judge sitting alone, the expert witnesses give evidence and are cross examined, and the judge decides breach, causation and damages in a written judgment. General damages for pain and suffering are assessed under the Personal Injuries Guidelines adopted by the Judicial Council in 2021, which the Supreme Court upheld in Delaney v Personal Injuries Assessment Board in 2024, subject in the most serious cases to the ceiling of €500,000 fixed in Morrissey.18 Special damages cover the past and future cost of care, loss of earnings, aids, appliances and accommodation, and in catastrophic injury cases the court may, with the consent of the parties, make a periodic payments order under the Civil Liability (Amendment) Act 2017 so that the cost of future care is paid annually for life rather than as a lump sum.19
Costs
Three rules govern the cost of a medical negligence claim. The first is statutory. Section 149 of the Legal Services Regulation Act 2015 prohibits a legal practitioner from charging fees in contentious business calculated as a percentage or proportion of any damages or other money payable to the client, and any agreement to the contrary is unenforceable. The second is the obligation under section 150 of the same Act to give the client, before any work is done, a written notice setting out the legal costs that will be charged or the basis on which they will be calculated, the outlays, and the circumstances in which the client may become liable for another party's costs.20 The third is the general rule that costs follow the event. A successful claimant recovers a substantial part of their costs from the defendant, measured by agreement or by the Legal Costs Adjudicator, and an unsuccessful claimant may be ordered to pay the defendant's costs. The expert reports, which can run to several thousand euro each, are outlays that must be funded as the case proceeds. Any solicitor advising on a medical negligence claim should explain that exposure in plain terms at the first meeting, and any client should expect to be told the realistic prospects of the claim before, not after, the money is spent.21
What to expect
From first instruction to the expert's report usually takes three to six months. From the issue of proceedings to the exchange of expert reports, allowing for the defence, discovery and the court's lists, usually takes between eighteen months and two and a half years. Claims that settle generally settle at or shortly after that exchange or at mediation. Claims that go to trial are typically heard within three to four years of the events, longer where the injury is to a child whose prognosis must be established before the case can be valued. None of this is quick, and none of it is certain. What a properly run claim offers is an honest answer, grounded in expert evidence, to the question every patient in this position asks, which is whether what happened should have happened, and if it should not, a remedy fixed by a court rather than by the institution responsible.
This article is for general information only and does not constitute legal advice. The law and the court procedures described are those in force in October 2026. Advice should be taken on the facts of any particular case.
Notes
- Dunne (an infant) v National Maternity Hospital [1989] IR 91 (Supreme Court, Finlay CJ). ↩
- Morrissey v Health Service Executive [2020] IESC 6 (Clarke CJ, 19 March 2020). ↩
- Geoghegan v Harris [2000] 3 IR 536; Fitzpatrick v White [2007] IESC 51. ↩
- Statute of Limitations (Amendment) Act 1991, sections 2 and 3, as amended by the Civil Liability and Courts Act 2004, section 7. ↩
- Gough v Neary [2003] 3 IR 92 (Supreme Court). ↩
- Statute of Limitations 1957, section 49; Civil Liability Act 1961, section 48(6), as amended by the Civil Liability and Courts Act 2004, section 7. ↩
- Regulation (EU) 2016/679, Article 15; Data Protection Act 2018; Freedom of Information Act 2014. ↩
- Cooke v Cronin [1999] IESC 54 (14 July 1999); Connolly v Casey [2000] 1 IR 345. ↩
- Civil Liability and Courts Act 2004, section 8, as amended by the Central Bank (National Claims Information Database) Act 2018, section 13. ↩
- Patient Safety (Notifiable Incidents and Open Disclosure) Act 2023, commenced 26 September 2024. ↩
- Personal Injuries Assessment Board Act 2003, section 3(d), as continued by the Personal Injuries Resolution Board Act 2022. ↩
- Legal Services Regulation Act 2015, sections 219 to 221 (not yet commenced); Law Society Gazette, Study underway on clinical litigation pre-action protocols, 30 June 2025. ↩
- Civil Liability and Courts Act 2004, sections 10, 12, 14 and 26. ↩
- National Treasury Management Agency (Amendment) Act 2000, Part 2, and the delegation orders made under it. ↩
- Rules of the Superior Courts, Order 39, rules 45 to 51, inserted by the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) 1998 (S.I. No. 391 of 1998). ↩
- Mediation Act 2017, sections 14, 16 and 21. ↩
- Civil Liability and Courts Act 2004, section 17. ↩
- Personal Injuries Guidelines adopted by the Judicial Council on 6 March 2021 under the Judicial Council Act 2019; Delaney v Personal Injuries Assessment Board [2024] IESC 10; Morrissey v Health Service Executive [2020] IESC 6. ↩
- Civil Liability (Amendment) Act 2017, Part 2, commenced 1 October 2018. ↩
- Legal Services Regulation Act 2015, sections 149 and 150. ↩
- Legal Services Regulation Act 2015, Part 11, in particular sections 168 and 169. ↩