Undergoing an internal examination, such as an endoscopy or colonoscopy, requires a great deal of trust in your medical team. These procedures are usually safe and are vital for finding or treating problems in the digestive system. However, they are invasive procedures, and serious injuries can happen.
If you have suffered a significant injury because your medical care fell below an acceptable standard, you may be entitled to investigate a claim. We understand that this is a stressful and confusing time. Our goal is to help you understand your legal position clearly, without using confusing jargon.
Endoscopy and Colonoscopy Explained
Doctors use these procedures to look inside your body using a long, flexible tube with a camera (an endoscope). The name of the procedure changes depending on which part of the body is being checked.
Common procedure types include:
- Gastroscopy (upper GI endoscopy): This looks at the oesophagus (gullet), stomach, and the start of the small intestine.
- Colonoscopy: This examines the entire large bowel (colon).
- Flexible sigmoidoscopy: A shorter exam that only looks at the lower part of the bowel.
- Therapeutic procedures: These involve treatment, such as a biopsy (taking a sample) or a polypectomy (removing a growth).
Why are these procedures done? Usually, your doctor will recommend these tests to investigate troubling symptoms. This might include persistent indigestion, difficulty swallowing, or changes in how often you go to the toilet. Doctors also use them for monitoring existing conditions to make sure treatments are working.
These tests are also used to catch diseases early. For example, the HSE BowelScreen programme offers home testing kits. If a test shows traces of blood, the person is usually referred for a colonoscopy. The aim is to find issues like bowel cancer early, when it is easier to treat.
Complications vs Negligence
It is very important to understand that a bad outcome does not always mean there was negligence. Every medical procedure has risks. Sometimes, complications happen even when the doctor does everything right.
Recognised risks are complications that can happen in a small number of cases, even with the best care. For example, you might feel minor discomfort or have a reaction to the sedation. If these risks were explained to you, and the doctor performed the procedure correctly, it is generally not considered negligence.
However, a claim may arise where care falls below an acceptable standard. This means a mistake was made that a competent doctor would not have made in the same situation.
Care may fall below an acceptable standard if there is:
- Inadequate assessment before the procedure: Failing to check if you were fit for the test or ignoring your medication history (like blood thinners).
- Poor consent process: If the risks were not properly explained to you, or alternatives were not discussed, you could not make an informed choice.
- Technical errors during the procedure: Using too much force or poor technique that causes an injury.
- Inadequate monitoring during sedation: Failing to watch your oxygen levels or heart rate closely while you are asleep or drowsy.
- Delayed recognition of perforation or bleeding: If an injury happens, the medical team must spot it and treat it immediately.
- Inadequate discharge advice: Sending you home without explaining what dangerous signs to watch out for.
Common Endoscopy and Colonoscopy Negligence Scenarios
When errors happen during these procedures, the results can be life-changing. We typically see claims where specific failures led to long-term injury or emergency surgery.
Common negligence scenarios include:
- Perforation or tearing: This is a hole in the bowel, oesophagus, or stomach. While it is a known risk, it can be caused by negligent technique or force.
- Delayed diagnosis of perforation: The most dangerous part of a perforation is often the delay in fixing it. If you are sent home with a hole in your bowel, severe infection (sepsis) can start quickly.
- Bleeding complications: This often happens after a polyp is removed. It can be negligent if anticoagulant medications (blood thinners) were not managed correctly before you came in.
- Sedation and monitoring failures: Giving too much sedation can cause breathing difficulties or lead to stomach contents entering the lungs (aspiration).
- Infection: This includes preventable infections after the procedure that were not treated with antibiotics quickly enough.
- Missed findings and delayed diagnosis: If a doctor misses a polyp or tumour because the procedure was rushed or the bowel was not cleaned properly, it can lead to a delayed cancer diagnosis.
How These Cases Are Investigated
To find out if negligence occurred, we need to build a clear picture of exactly what happened before, during, and after your appointment. This involves gathering specific evidence.
Records and Documents
- Endoscopy report and images: These show exactly what the doctor saw and did inside.
- Consent form: To see if you were actually warned about the risk that caused your injury.
- Anaesthetic/sedation record: This tracks your heart rate and oxygen levels minute-by-minute.
- Nursing notes: These often contain vital details about how you felt in the recovery room.
- Pathology results: Reports on any tissue samples taken.
- Discharge instructions: The written advice you were given when you left the hospital.
Independent Medical Expert Review
Once we have your records, we do not just guess what happened. We send them to an independent medical expert. This is usually a senior consultant working in the UK or Ireland.
The expert will look at two main things: standard of care (did the doctor make a mistake?) and causation (did that mistake cause your injury?). Their honest, objective opinion is the foundation of any case.
Proving Endoscopy & Colonoscopy Negligence in Ireland
Medical negligence law in Ireland can seem complicated, but the core rules are actually quite straightforward. To win a case, your solicitor must prove three specific things.
- Duty of care: We must show the medical professional had a legal responsibility to look after you. In a doctor-patient relationship, this is automatic.
- Breach of duty: We must show the doctor failed to meet the required standard of care. This is the most important part.
- Causation: We must show that the specific failure directly caused your injury, rather than your underlying illness causing it.
In Irish courts, doctors are not expected to be perfect. However, they must not make errors that a competent doctor would have avoided. The legal test asks: "Would a general and approved body of medical opinion support what this doctor did?"
If the doctor followed a practice that is widely accepted by other doctors, they are usually not considered negligent, even if the procedure went wrong. Our job is to help you find out if your treatment fell outside of this safe, accepted practice.
Time Limits
In Ireland, the Statute of Limitations for medical negligence is strictly applied. You generally have two years to start a legal action.
This two-year clock usually starts ticking from the date of the injury or the "date of knowledge". The date of knowledge is when you first realised (or should have realised) that your injury was significant and potentially caused by medical error. While there are some exceptions, you should always assume the two-year rule applies to avoid losing your right to claim.
The Legal Process
We want the legal process to be transparent so you know what to expect.
- Initial information-gathering: We start by listening to your story. We then request your full medical file from the hospital or clinic to create a timeline of events.
- Expert opinion: We send your files to a specialist expert. If the expert supports your case, we can move forward. If they do not believe negligence occurred, we will explain exactly why, so you can have closure.
- Pre-action engagement: We write to the "defendant" (the hospital or doctor) to set out your claim. Many cases are resolved at this stage through negotiation or mediation, without ever needing to go to court.
- Court proceedings where required: If an agreement cannot be reached, we may issue court proceedings. However, the vast majority of medical negligence cases settle before a trial is needed.
Making a Complaint vs Seeking Legal Advice
Many patients start by making a formal complaint to the hospital or the HSE. This is a good way to get an explanation or an apology. However, a complaint cannot award you compensation.
Seeking legal advice is a different process. It is focused on securing financial support for the harm you have suffered. You can make a complaint and seek legal advice at the same time,you do not have to choose just one.
How Michael Boylan LLP Can Help
When you are dealing with a medical injury, you need a team that understands the medicine as well as the law.
At Michael Boylan LLP, we maintain a specialist focus on medical negligence. We have decades of experience handling complex cases involving surgical errors and delayed diagnoses.
Our role is to take the burden off your shoulders. We handle the difficult work of reviewing records, finding the right experts, and dealing with the hospital's legal team. We explain your options at every step so you stay in control.
FAQs
If I signed a consent form, does that mean nothing can be done?
No. Signing a consent form means you agreed to the procedure and its known risks. It does not mean you consented to negligent care or errors. If the doctor made a mistake that should not have happened, the consent form does not protect them.
What if the hospital says it was a known complication?
Hospitals often use this defence. However, a "known complication" like a perforation can still be caused by negligence (for example, if the doctor used too much force). We use independent experts to determine if the complication was truly unavoidable or if it was caused by poor skill.
Can missed polyps or delayed follow-up after colonoscopy amount to negligence?
Yes. If a doctor misses a polyp that should have been seen, or if the hospital fails to bring you back for a repeat test on time, and you develop cancer as a result, this can be considered negligence.
What if symptoms started days after I was discharged?
This is very common. Perforations often do not show symptoms immediately. If you reported severe pain days later and were ignored or dismissed, the delay in diagnosis may be the main part of your claim.
Does it matter if the procedure was in an HSE hospital or a private clinic?
No. The standard of care required is the same in both public (HSE) and private hospitals. You have the same legal rights regardless of where you were treated.
Can a family bring a case if a patient has died?
Yes. If a patient passes away due to a medical error (such as a missed bowel perforation leading to sepsis), the family can bring a claim. This is known as a fatal injury action.
Do I need to make a complaint before seeking legal advice?
No. You do not have to complain to the hospital first. You can contact a solicitor immediately.
What records should I request and keep?
Ideally, keep any discharge letters or appointment cards you have. However, your solicitor will formally request your full medical file directly from the hospital to ensure nothing is missed.
Do you have questions about an endoscopy or colonoscopy injury?
If you or a loved one has suffered due to a medical error, we are here to listen. Contact Michael Boylan LLP today for a confidential discussion about your experience.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
