In this blog, I will be discussing medical negligence claims and what is required for a claim to be viable or successful.
Each year we receive many inquiries from clients or potential clients who feel aggrieved and upset by the outcome of a medical procedure or medical advice who are looking to pursue a compensation claim.
It is important to always keep in mind that an adverse medical outcome does not necessarily mean that your treating doctor or hospital has been negligent. It can but an adverse medical outcome may not involve any medical negligence.
All medical negligence claims are governed by the provisions of the Personal Injuries Proceedings Act 2002 (‘PIPA’) and this legislation sets out a series of steps or pre-court procedures which must be complied with before a settlement conference can be arranged and prior to the commencement of any court proceedings.
The first step is for an initial notice to be sent to the medical practitioner or hospital which provides some basic information regarding the alleged medical incident. After sending the initial notice, the medical practitioner or hospital must provide a complete copy of the medical records relating to the medical incident.
The initial notice is helpful because it puts the medical practitioner or hospital on notice that there may be a medical negligence claim and it allows the claimant and their lawyer to receive a copy of the medical records which will help the claimant and their lawyer to determine if there might be a viable claim to pursue.
Before a medical negligence claim can be commenced, PIPA requires the injured person to obtain an expert report from a medical specialist who is competent to assess the alleged medical incident and provide an opinion which explains that:
- there was a failure to meet an appropriate standard of care in providing medical services;
- the reasons justifying the opinion; and
- that as a result of the failure, the claimant suffered personal injury.
Obtaining this expert evidence is rather critical and important. Careful consideration must be given as to whether there are any expert witnesses available who are willing to consider the matter and provide an adverse opinion regarding one of their colleagues in the medical profession. This is often the most challenging or difficult part of the process.
Even if an appropriately qualified expert can be identified and the expert is willing to comment on the matter, it must always be remembered that prior to receiving the medical advice or treatment in question, there is usually a medical problem or issue that caused the claimant to seek medical advice and treatment in the first instance.
Some important matters to consider before embarking upon any medical negligence claim includes:
- What was general health and wellbeing of the claimant or injured person prior to the alleged medical incident which is being investigated;
- Even if a medical negligence claim can be established, is the injury or damage done by the negligent doctor, hospital or allied health care provider sufficiently serious to justify a common law claim for damages being pursued?
Prior to commencing a medical negligence claim, it is very important for the claimant and their lawyer to fully investigate and understand these basic or fundamental matters.
Establishing the causal link or causal connection between the alleged negligence or breach of duty and the damage or ongoing disability can be the most challenging aspect of conducting medical negligence claims which is why careful selection of the expert witness is very important and the brief to the expert needs to be thoroughly and carefully prepared.
If the investigations reveal or establish a viable claim then other expert evidence will generally be required including expert witnesses to comment on the quantum [or full value] of the case which might involve medical specialists, an occupational therapist to comment on residual functional work capacity and the need for care and assistance, a psychologist and/or psychiatrist and possible a forensic accountant if there is a more complex claim for economic loss if the injured person has a business or company structure.
Once a medical negligence claim has been commenced, a settlement conference is generally able to be organized within 6 to 9 months.
