Medical Negligence

If you have received medical treatment or undergone a medical procedure that has, in any way, not gone to plan or you have suffered a complication or injury arising from the treatment or procedure you may have a claim for medical negligence against:

• A doctor;
• A hospital; or
• An allied health professional.

In order to be entitled to compensation for medical negligence, it is necessary to demonstrate that:

1. the treatment you received was below what is known as the standard or care; or
2. the complications which you have suffered as a consequence of the treatment or procedure were not properly explained to you or you were not properly warned of the risks of such complications prior to the procedure being undertaken.

The amount of compensation that a claimant is entitled to varies from case to case and is determined by features such as:

• The age of the claimant;
• The claimant’s financial circumstances both prior to and following the procedure;
• The nature and extent of any injuries the claimant has suffered.

In almost every case, the respondents to a claim for medical negligence will have insurance with a corporate insurer.

The medical negligence compensation claim process is commenced by providing the potential respondent to the claim (ordinarily the insurer of the doctor, hospital, or allied health professional) with an Initial Notice.  The Initial Notice is designed to provide the potential respondents with some preliminary information about your claim so that they can commence their own investigations. 

Within 12 months of providing the respondent with an Initial Notice, it is necessary for the person seeking compensation for medical negligence to serve all possible respondents with a Notice of Claim along with a preliminary medico-legal report from an appropriately qualified expert providing an opinion as to why the treatment the person received fell below what is known as the standard of care. 

Once the Notice of Claim has been served, the respondent to the Notice of Claim have 6 months in which to provide a response to the notice in which they are required to advise:

• Whether they admit or deny liability in full;
• Whether they admit or deny liability in part; and/or
• To provide an offer of settlement.

Once the respondent’s response to the Notice of Claim is received, the person claiming compensation for medical negligence will ordinarily undertake a process by which they will be independently medically examined by an expert witness and provide a copy of that examination report to the respondents along with their disclosure.  The claimant’s disclosure ordinarily contains information relating to the medical treatment the claimant has received both prior to and since the procedure which is the subject of the claim along with financial information about their personal circumstances so as to demonstrate any loss they have suffered as a consequence of the treatment or procedure. 

In certain cases, the respondents to the compensation claim may wish to have the claimant independently medically examined by one of their own doctors to obtain a report of their own in respect of the nature and extent of the claimant’s injuries.  Once both the claimant and respondent have undertaken disclosure and obtained all necessary evidence including the independent medical examination reports, the parties are required to participate in a compulsory conference which is a negotiation between the parties in which the claim is sought to be resolved. 

At the compulsory conference, the claimant is ordinarily represented by their solicitor and quite often a barrister who is briefed on their behalf and the respondents are quite often represented y the relevant insurer, in some cases the insurer’s solicitors and/or a barrister briefed on the insurer’s behalf. 

In the event that the parties are capable of negotiating settlement of the claim at the compulsory conference, a Deed of Settlement is signed by which the respondents agree to pay the claimant an agreed amount of compensation for the injuries suffered as a consequence of the treatment or procedure and the compensation claim is at an end once payment is received.  If the claimant and respondents cannot agree on an appropriate amount of compensation, the matter will often then be subjected to Court proceedings by which the complainant will commence proceedings by filing the claim and statement of claim in the District or Supreme Court.  Within 28 days of filing the claim and statement of claim, the respondents must file a defence.  14 days after the defence is filed, the claimant must file their reply and 28 days after the reply is filed, the parties must deliver one another a list of documents. 

Following the conclusion of the above steps, the parties would ordinarily participate in a mediation which is a process similar to the compulsory conference save that in a mediation the Court ordinarily appoints a senior barrister (often a QC) to seek to broker an agreement between the parties. 

In the event mediation is unsuccessful in resolving the claim and the parties still cannot agree on an appropriate amount of compensation, the claimant’s claim is listed for trial and a judge will ultimately make rulings on the outcome of the case, including liability and the amount of compensation which is payable by the respondents.

The amount a claim ultimately costs to bring and/or takes to complete varies from case to case and is generally determined by the nature and extent of a person’s injuries or complications.  In most cases, injury compensation lawyers will accept cases on a no-win no-fee basis and will attend to paying any costs associated with the claim which are incurred throughout the life of the claim.  This means that there is no up-front cost per se. 

If your claim is settled at the conference stage, it usually takes 12 months from the time you provide the respondent with an Initial Notice for payment to be received.  If the claim cannot be resolved and conference and must proceed to Court, it can take up to 3 years