Medical Negligence Process

In order to sustain a claim for medical negligence it is necessary to show that the hospital, medical or allied health practitioner who treated you provided you with care or treatment which fell below acceptable standards causing or materially contributing to your injuries.

We first need to investigate the allegations of negligence by obtaining information from you and obtaining complete copies of the clinical records which are relevant to the incident.  Once we obtain the clinical records, we will review them in detail in conjunction with our clinical nurse and prepare a detailed history of those matters relevant to the allegations.

In all medical negligence cases it is necessary to obtain an expert opinion from a specialist or practitioner of the same specialty to comment on the level of care recognised within the profession as competent treatment and care, and to give  an opinion on whether the treatment and care received in the specific case fell below that which is a competent and acceptable level of care. We attempt to limit the expense of obtaining the opinion and in most instances arrange to speak with the expert by telephone to obtain his or her opinion before incurring the costs of a formal report.  If the verbal opinion expressed is supportive of the allegation of negligence, we will ask the expert to prepare a report.

You need to prove that the medical or allied health practitioner owed you a duty to exercise reasonable skill and care in the treatment given to you (Duty of Care), that the duty was breached in that the treatment provided fell below that which is recognised as competent practice in the profession (Breach of Duty), that the breach caused you to suffer an adverse outcome including injury and loss (Causation), and finally the extent of the injury, loss and damage to you (Damage).

In most instances it will be necessary to take legal proceedings against the medical or allied health practitioner? Unfortunately, legal proceedings are often the only way that you can resolve your claim against the medical or allied health care practitioner.
Before commencing legal proceedings for medical negligence, you must have an expert report which contains an opinion which supports the allegation of the breach of the breach of duty of care and that the breach caused your injury/condition and loss.

Once proceedings are commenced, your matter will come before the Court for the purpose of making procedural orders requiring steps to be taken for both your lawyers and the lawyers for the medical or allied health practitioner to prepare all of the expert evidence necessary for the Court to decide the case.

This will most likely mean that you will need to attend appointments arranged by both sides to be examined by various specialists relevant to the issues in your case.

The process of preparing the matter for hearing will often take several months.

Most medical negligence cases are resolved between the parties to the dispute at either an informal settlement conference or a formal mediation. If agreement is reached the agreement is formalised either in the form of a written agreement known as a Deed of Release or by way of judgment of the Court.

Some matters do not settle and are ‘listed’ before the Court for a formal Court hearing before a judge of the Court. His/her decision will be final and binding unless appealed to a higher Court.

Most legal firms will act in medical negligence cases on a no win/no fee basis. This means that if you will only pay your lawyer’s professional fees if you are successful. However, you may be made to pay the legal costs of the medical or allied health professional if you lose. 

If you are successful in your medical negligence claim, the medical or allied health practitioner is responsible for paying a large portion of your legal fees, perhaps 70% to 90%. The balance of your legal fees will be deducted by your lawyer from the award in your favour.

Any claim for medical negligence must be commenced with the Court within three (3) years of discovering negligence may have occurred, causing injury and no later than twelve years from the breach of the duty of care.

This can be quite a complex as discoverability depends on knowledge that the injury or condition has occurred, that the practitioner was at fault and that the injury was serious enough to bring a case. It may be that you do not have that knowledge that the practitioner was at fault until you receive the expert opinion.

It is necessary to instruct a lawyer well before the limitation period is due to expire to allow time for the necessary expert opinion to be obtained and the Court documents to be prepared. Once the Court documents are filed time ceases to run.