The average time of a medical negligence claim is 12-18 months
Many medical negligence claims settle within 18 months. However, this can stretch out substantially for complex or delayed matters, especially if expert testimonies are required or if the case goes to court.
Factors That Affect the Duration of Medical Negligence Claims
Due to their complexity, medical negligence and malpractice claims can be some of the most complicated to finalise in personal injury law. While this is not always the case, as some matters are straightforward, many medical negligence cases take extended time periods to assess and present properly. To make a successful claim under medical negligence law, you will often need extensive expert medical evidence, which a knowledgeable personal injury lawyer can assist you with.
Challenges in Assessing Negligence and Pre-Existing Conditions
A medical malpractice claim often involves grey areas, such as assessing pre-existing conditions or measuring the full extent of the negligence, which may require multiple assessments by medical experts. This process alone can be taxing for someone who wants to make a medical negligence claim because they will need to revisit often traumatic details to provide sufficient evidence to make a successful claim.
Time Lag Between Negligence and Manifestation of Effects
Depending on the nature of the negligence, it may take time to see its effects on the person making the claim. For instance, a surgery that went wrong may take time to heal and settle before the situation is fully clear. It may even take years to understand the full effects of negligence after the initial recovery period.
In some cases, matters can be resolved much more quickly, such as when someone is given the wrong medication and reacts or has a clearly documented incorrect diagnosis.
What timelines need to be considered with a medical negligence claim?
All compensation claims can take time, regardless of their nature. It’s not unusual for matters to stretch out over a few years. Medical negligence claims can be particularly time-consuming for a number of reasons, including:
Initial recovery & treatment
After an injury due to medical negligence, the patient typically requires immediate recovery and medical treatments, which can be a short period or stretch over years in some cases. This phase often takes significant time as the effects of the injury are addressed. While the focus is on recovery, it may be unclear how severe or permanent the injury is.
As a result, it may take months or even years to understand the full extent of the injury and required care, which is essential when assessing the potential for a medical negligence compensation claim. Furthermore, during this period, medical expenses can accumulate, further complicating the claims process.
Injury stabilisation
In many medical negligence claims, the injury must be stabilised before any assessments can occur. This can be a lengthy process, particularly in cases involving severe injuries such as birth injuries or complex surgical errors. It’s essential to understand the injury’s long-term effects, which may require specialist input.
Stabilisation is vital for clarifying the victim’s current health status and ensuring accurate calculations of future medical needs and long-term care. Any delays in stabilising the injury can further delay the entire claims process, making it more difficult to determine how much compensation is appropriate.
Ongoing treatments
After stabilisation, many victims of medical negligence need ongoing treatments. These may include rehabilitation, physiotherapy, or psychological support. The timeline for such treatments can vary greatly depending on the nature and severity of the injury.
Often, medical negligence claims are put on hold during this phase, as the full extent of the victim’s needs can’t be determined until they have received sufficient treatment. These ongoing treatments can contribute to the complexity of the medical negligence claim, especially when calculating future care costs and lost wages.
Establishing negligence (or malpractice)
To prove medical negligence, it’s essential to show that a medical practitioner breached the expected standard of care. This process often takes extensive time as it requires expert evidence and opinions from independent specialists. Gathering these expert reports to establish negligence is complex, especially in cases involving complicated medical conditions.
Legal teams will need to present evidence that the medical professional’s actions (or lack thereof) directly caused harm. Gathering expert opinions and legal arguments can lead to delays, extending the length of the case.
Record gathering
Gathering medical records is one of the most time-consuming aspects of a medical negligence claim. It involves acquiring the victim’s complete medical history, including doctors’ notes, hospital records, test results, and other essential documents.
Accessing these records can be delayed due to administrative backlogs, hospital systems or even the need for written consent from the client. These records are vital for demonstrating the medical professional’s negligence, as they provide an evidence trail that supports the client’s claims. Delays in obtaining the necessary records can prolong the entire claims process.
Assessment of injuries
Accurately assessing the injuries sustained due to medical negligence is crucial for making a successful medical negligence claim. In addition to initial medical evaluations, many claims require independent assessments by specialists to determine the full extent of the injury. Depending on the complexity, multiple specialists might be involved.
These assessments often take time due to the need for detailed evaluations and reports. Furthermore, delays in securing appointments or obtaining specialist opinions can significantly delay the claim, impacting the timeline for compensation.
Challenges with proving negligence or causation
Proving negligence can be difficult if you have pre-existing conditions, hard-to-prove injuries (like nerve pain or mental health issues), or if the case isn’t clear-cut. To prove causation, the patient must show that the injury happened because the healthcare provider made a mistake. They need to prove that the injury wouldn’t have happened if the healthcare provider had done things differently. In New South Wales, this is governed by the Civil Liability Act 2002 (NSW).
Determining ongoing needs, future care, costs, pain and suffering
A critical and often time-consuming part of a medical negligence compensation claim is determining the ongoing needs, future care, and the full cost of medical treatment. The long-term nature of care requirements needs careful planning and expert opinion to calculate future costs, including specialist treatment, rehabilitation, and potential lost wages.
Additionally, assessing the impact of pain and suffering can be subjective, requiring expert testimonies on how the injury has impacted the victim’s quality of life. These aspects of the claim require thorough and careful evaluation, which can extend the time before settlement.
Legal negotiations
Legal negotiations between medical negligence lawyers and the other party can often take significant time for these sorts of claims. Initial informal settlement conferences might take several rounds of discussions as the parties work to reach an agreement without going to trial.
The medical negligence team, along with potentially a barrister, will present arguments and evidence in attempts to settle the matter. Both sides may propose different compensation amounts, and the process may involve negotiations over medical expenses, lost wages, or future care costs. Delays in reaching an agreement can extend the overall timeline, as negotiations can often take months.
Legal delays
Legal delays can occur due to several reasons. Clients may need a break from the proceedings, particularly if the medical negligence claim is affecting their mental health or wellbeing. Additionally, delays in accessing necessary records, assessments, or obtaining expert opinions can hold up progress.
The medical professional’s legal team may also engage in tactics that delay the process, such as requesting additional time for responses or further discovery. Other delays may arise from unforeseen circumstances, such as changes in the client’s health or the availability of expert witnesses, further prolonging the claims process.
Court proceedings
While many medical negligence claims are settled out-of-court, if negotiations do not result in a settlement, court proceedings may become necessary. These proceedings can take years, particularly if the case is complex or involves significant medical issues.
In such cases, detailed legal arguments must be presented, and the case will go through several stages, including hearings and potentially a trial in the Supreme or District Court. The court’s schedule, the need for expert testimonies, and ongoing legal arguments can extend the case timeline, making the entire process time-consuming. Legal fees can also accumulate during court proceedings, adding to the client’s financial burden.
What can medical negligence compensation cover?
If medical negligence is proven, you may be entitled to compensation for:
- Initial, ongoing and future medical treatment and medications
- Hospital fees and charges
- Rehabilitation costs
- Assistive or injury management equipment
- Travel expenses related to treatment
- Loss of income
- Physical or psychological pain and suffering
- Disability or permanent impairments
- Loss of future earning capacity
- Costs of care provided by your family, or ‘gratuitous services’
Steps involved in a medical negligence claim
- Notify the healthcare provider: You must inform the healthcare provider of your intention to make a claim within 3 years of the incident (unless you were under 18 at the time).
- Independent medical assessment: A medical professional must confirm that your injury wouldn’t have occurred if the healthcare provider had acted differently.
- Damages: Compensation can cover pain, suffering, loss of life enjoyment, medical costs (including Medicare), lost income (past and future), and domestic help. The injury must be at least 15% severe to qualify for damages.
- Start a Claim: The claim process can’t start until the injury is stable and is unlikely to change (known as maximum medical improvement). If further treatment or surgery is required, it may be hard to fully assess the injury and its impact right away.
Get a Free claim assessment
If you’ve suffered from medical negligence, don’t wait. Our highly experienced team of medical negligence lawyers are here to guide you through each stage of the claims process. Contact the team at Conrad Curry today for an obligation-free consultation and get the expert advice you need to move forward with confidence. Time limits apply, so act now to protect your future.
