Vaginal Mesh Implants

If you have been affected by vaginal mesh implants then you are most likely entitled to compensation.  $8 billion paid out globally to date by manufacturers.

 

Vaginal mesh implants were introduced in the late 1990’s as a routine treatment for stress urinary incontinence and pelvic organ prolapse which are common complications following childbirth. These flexible plastic scaffolds have been used widely across Ireland and the UK for many years but have led to life altering complications for many women including nerve damage, pain, vaginal scarring, organ perforation and several reported deaths.

 

It is now widely accepted that up to 25% of women will suffer the consequences of having vaginal mesh inserted. Unfortunately, many of these complications are not initially obvious and may take several years

to manifest. It is also unfortunate that complications have been reported since 2008, yet Irish doctors continued to insert these long after the first FDA warnings appeared. In addition mesh companies engaged in ‘illegal, false and deceptive business practices’ and ‘put profits ahead of the health of millions of women’.

 

MDM Law is dealing with enquiries on behalf of a number of clients who are suffering from complications following such surgeries.  We provide specialist female advice supporting our clients in relation to this issue and work closely with a fully trained urogynaecologist.

 

Our team of exceptional lawyers have extensive experience and knowledge in dealing with this issue.  We take an empathetic sensitive approach and are proud to represent clients in securing compensation for them.

Should you have any queries in respect of this issue please contact us for confidential advices on 0212390620.

 

 

INCLUSION AND DIVERSITY IN THE WORKPLACE – THE GENDER PAY GAP REVISITED

The Government have introduced the Gender Pay Gap Information Act 2001 on the 13th of July 2021.  This legislation places a reporting obligation on Employers to report and publish information relating to the Gender pay gap and where such a gap is identified, the employer is obligated to explain this and introduce measures to reduce this gap.  This legislation is in line with the proposed EU Commission’s draft Directive on Pay Transparency and aims to increase Senior Management and CEO Commitment to reducing the gender pay gap which currently exists.

 

Employers will also be required to publish a statement setting out, in the employer’s opinion, the reasons for such differences in that employer’s case, and the measures, if any, being taken, or proposed to be taken, by the employer to eliminate or reduce such differences in that employer’s case.

 

WHAT IS THE GENDER PAY GAP? 

The gender pay gap essentially refers to the difference in the average gross hourly wage of men and women. This is not the same as the obligation to pay both genders equal pay for like work, where different pay rates may be justified in some circumstances.  Indeed S.19 of the Employment Equality Act 1998 ensures that every employee is paid the same rate of remuneration for like work.  Therefore, while the principal of equal pay for equal work has been enshrined in Irish law for many years, there has been no such reporting obligations on an Employer in relation to the gender pay gap until the current legislation which amends the Employment Equality Act 1998 by inserting a new Section 20A.

 

The gender pay gap is the difference in average gross hourly pay of women compared with men in a particular organisation, such that it captures whether women or men are represented equally across such an organisation.  This legislation is however more aimed at the pay gap against women as has been more commonly reported.

 

It is envisaged that there may be a central database website put in place for employers to upload reporting information. However, this has yet to be put in place.

 

WHICH ORGANISATIONS ARE IMPACTED BY THIS LEGISLATION?

All organisations both public and private with 50 employees or more will have to comply with the reporting standards as set out by this legislation.  The legislation allows for a gradual approach towards organisations to comply with this legislation.  Initially organisations with 250 or more employees will be required to comply with the reporting standards.  By 2023, organisations with 150 or more employees will be required to comply with the reporting standards and by 2024 organisations with 50 or more employees will be subject to the requirements of this legislation.  Interestingly, smaller organisations with less than 50 employees will not be subject to the requirements.

 

While the Act does impose penalties, an organisation found in breach of the requirements as set out under the Act can cause serious reputational damage.

 

ENFORCEMENT

The legislation sets out two methods for enforcement of an employer’s obligations to report and correct the imbalance in its employees.  Firstly, an employee who feels aggrieved by this imbalance may make a complaint to the Workplace Relations Commission who may order a specified course of action against the employer.  Secondly an employee may notify the Irish Human Rights and Equality Commission who if satisfied with the complaints may apply to the Circuit Court or the High Court for an Order against the Employer or Organisation to comply with the requirements of the 2021 Act.

 

HOW TO COMPLY WITH THE LEGISLATION:

Organisations and employers affected by this will have to undergo a consultation process with all stakeholders across the organisation.  Employers will have to review the technology used particularly in their payroll departments and must also be cognisant of the Data Protection legislation when compiling such data for the purposes of this legislation.  Here at MDM, our employment law department has guided our commercial clients along this process are here to answer any queries you may have in relation to this legislation and any other employment law issues facing your organisation.

 

INVESTIGATION LIABILITY REPORTS AND GDPR

Driving home from a successful day in Court where a number of Fraudulent cases were successfully dismissed on the strength of admitting a Liability Investigation Report on the Plaintiff’s activities as posted on Social Media, a question arose for those working in the Insurance Industry, is profiling somebody on social media a breach of their privacy rights or indeed, GDPR?

In order for any Insurance Company to successfully identify a fraudulent claim made by a third party, there must be a sharing of information between Insurance Companies.  This was previously covered under the Data Protection Act 1998 where Insurance Companies were covered to process “data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences”. The key wording in the Act is for the purposes of the prevention, investigation and detection of fraudulent representations made by third parties.

On 25 May 2018, the GDPR came into effect replacing the Data Protection Act 1998. The aim of the GDPR is to protect all EU citizens from privacy and data breaches.

There can be serious consequences of processing data and getting it wrong under the GDPR with the top end fines being highly publicised. These fines can be as much as €20m or 4% of annual turnover (whichever is the greater), not to mention the damage any adverse publicity would inflict.

GDPR was introduced in Ireland through the Data Protection Act 2018. Under this Statutory Provision, the Data Protection Commissioner has been replaced with a Data Protection Commission. Each supervisory authority will: Monitor and the enforce the application of the GDPR. Promote public awareness of the rules and rights around data processing.

The Data Protection Acts 1988-2018 are designed to protect people’s privacy. The legislation confers rights on individuals in relation to the privacy of their personal data as well as responsibilities on those persons holding and processing such data.

Personal data means data relating to a person who is or can be identified either from the data itself or in conjunction with other information that is in, or is likely to come into, the possession of the Department. It covers any information that relates to an identified or identifiable living individual. These data can be held on computers or in manual files.

IS THE INFORMATION IN AN INSURANCE INVESTIGATION REPORT IN BREACH OF GDPR?

Any information shared under the GDPR, must be subject to the consent of the party who the investigation is taken upon.  This is very difficult for Investigation departments of Insurance Companies. However, such information can be obtained and shared if “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party”.  This effectively allows an Investigation Unit to obtain and share information such as social media profiles which are posted publicly without the consent of the Third party when it is in pursuance of a qualified legitimate interest such as :

  • Preventing fraud
  • Preventing or detecting a crime
  • Preventing or detecting unlawful acts
  • Necessary for an insurance purpose (the handling of a claim)

 

So now the GDPR provides a stronger position for Insurance Companies to lawfully process information in the circumstances where a fraudulent claim is being investigated. The key steps to protect against a breach of GDPR is for the Investigative Agent to carefully establish the legitimate interest and to document the thought process for arriving at this conclusion.  The Investigative Agent should also ensure and document that they are processing such information for the Prevention of Fraud.

At MDM Solicitors, our specialists in Defence Litigation and anti-fraud have advised our clients on this issue and through our collaborative efforts with our clients we have arrived at a successful outcome with such cases concluding in a resounding dismissal.

Covid 19 – Returning to the workplace – A guide for Employers

As the country reopens and restrictions ease the question on many employers mind is what happens if my employee contracts COVID19 when at work.  The Government announced recently that a phased return to the office would commence from the 20th of September with the Tanaiste being quoted those employees have to honour their employment contracts and return to the workplace if so requested by their employers.  However, no guidelines have yet to be put in place with Employers left to their own devices to bring employees back to the workplace.  So what happens if an employee contracts Covid 19 after commencing a return to the workplace?  What are the legal ramifications for Employers?  Do they face liability and the legal proceedings?  For Insurers, do they have to rethink their public liability policies with their policy holders?

This should not necessarily be such a headache.  After all, under the Safety, Health and Welfare at Work Act 2005, the Employers are obliged to create and maintain a safe and healthy work environment.  This requirement is absolute.  Indeed, if an employee makes such a claim against an employer in relation to the contraction of Covid 19 then they must establish that they contracted it at work as opposed to on public transport on the way to work, or at a social event over the weekend.  This will be quite difficult for a claimant to prove.  The Employer can enter a robust defence to say that they put in every measure they could in place.

The Health and Safety Authority (HSA) has published COVID-19 advice for employers. There is specific advice for workplaces where:

  • There is no occupational exposure health risk to COVID-19
  • The nature of the work poses an occupational exposure health risk to COVID-19, such as healthcare and laboratory settings

Employers are advised to follow the latest public health advice and must:

  • Identify measures to mitigate the risk of COVID-19 infection
  • Implement suitable control measures in the workplace.

These guidelines are a reflection of the Safety, Health and Welfare at Work legislation and an employer who has had solid legal advice will have such measures already implemented.  If you are an Employer concerned by the issues raised in this article, contact our Employment Law Specialist Anthony Shields in MDM Solicitors at 021 2390620 or anthony.shields@mdmsolicitors.ie who will  advise you.

Judicial Guidelines: A case for more exaggerated claims in Ireland?

With the introduction of the Judicial Guidelines on the 20th April 2021 as enacted through the Family Leave and Miscellaneous Provisions Act 2021, S. 20 of the Personal Injuries Assessment Board Act 2003 and S.22 of the Civil Liability and Courts Act 2004 were both duly amended.  This has the effect of abolishing many minor soft injury claims from the remit of the Circuit Court to the District Court. Running such a claim in the District Court will not garner the interest of many solicitors as the costs associated will not make it worthwhile.  This is because the jurisdiction of the District Court cannot exceed €15,000.00 which ultimately means lower legal costs.  The net effect of this, it is hoped, is less claims for minor soft tissue injuries.  However, the other aspect of this is the potential for claimants to exaggerate their injuries.

In the UK this is an offence under S.57 Criminal Justice and Courts Act 2015 with penalties ranging from dismissal of the claimants claim to custodial sentences for Contempt of Court.  This is highly effective in deterring exaggerated claims and associated fraudulent activity.

In Ireland, a defendant can rely on S.26 of the Civil Liability and Courts Act 2004 which has the same ethos of deterring false and exaggerated claims.  However, it falls short of enforcement and does not contain the same bite as of its UK equivalent.  However, a recent tactic deployed by defence lawyers is to admit into evidence surveillance taken of the claimant demonstrating a conflict of what was claimed of injuries suffered to a defence medical practitioner.  This in turn usually results in a claimant withdrawing his case, his/her solicitor coming off record and a Notice of Discontinuance being filed into Court.  In the UK, rather than bearing their own costs, Insurance Companies are now applying for a stay on the Plaintiff withdrawing their case until a Costs Order is made against them.  This has the effect of deterring opportunistic claims for exaggerated injuries.

It is interesting to note that when fraudulent claims in the form of exaggerated injuries are proved to a Court then the Court has the power to dismiss the claimant’s case unless it would cause an injustice.  S.26 has several hurdles for a defendant to overcome.  Most notably is the threat of an award of aggravated damages against the defendant if S.26 is not relied upon properly.  Therefore, there must be a clear finding of fraud against the plaintiff before the defendant should entertain a S.26 application before the Court.  The most useful effect of a S.26 application is its threat in settlement negotiations.

With the introduction of the Judicial Guidelines comes the potential for a high level of exaggerated claims so that such claims can be run in the Circuit Court as opposed to the District Court.  While insurance companies are currently examining their anti-fraud departments, the use of both private investigators and S.26 applications will be intensified to send out a message that such claims will not be entertained.  The practice now of keeping a claim open until a Costs Order is awarded against the plaintiff will send out a message that such claims will not only be dismissed but an opportunistic plaintiff will have a judgement registered against them which will someday be realised.

At MDM Solicitors, our anti-fraud specialists advise our London market clients on the best tactics and strategies to employ to deter and ultimately reduce exaggerated claims.  If you have any concerns in relation to exaggerated or fraudulent claims tel: 00 353 (0) 21 2390620 or email: anthony.shields@mdmsolicitors.ie for specialist advice in this area.