Medical Negligence can be one of the most challenging forms of personal injury claim and rightly so – health care providers perform an immensely valuable role in our community. It should be no easy thing to make a claim against a doctor.
So it is that the law imposes significant additional requirements on claims for so-called Medical Negligence over and above that which apply to other forms of personal injury compensation claim, such as claims for motor vehicle accidents and work-related accidents. It is not enough to simply show that a doctor has made an error—one must go further and show that no reasonable doctor would have made that error in the same circumstances. That is quite a higher test than is applied to the question of whether a driver of a motor vehicle has committed negligence, or whether an employer has breached a duty of care owed to an employee.
This standard of proof places a heavy burden on a claimant in deciding whether or not to pursue a compensation claim, especially where the only option for the claimant is to file a claim in court. In those circumstances, the claimant faces significant challenges in obtaining records and expert evidence to prove that a doctor has been negligent before taking on the considerable risk and stress of an actual court process, noting that if they lose (and many medical negligence claim are unsuccessful in court) they will have a very significant liability to pay the costs of the doctor’s insurer.
That is the situation that still exists in many jurisdictions in Australia and, some time ago, was also the situation in Queensland.
Fortunately however, Queensland claimants have for some time now had the advantage of the pre-court claims process under the Personal Injuries Proceedings Act 2002 (PIPA), which provides a far more beneficial process for the handling of these claims.
The PIPA pre-court process is a pre-court claims process which is designed to try and achieve a negotiated outcome of a medical negligence claim before a claim is commenced in court. The claimant still has the option of pursuing a claim in court, but only if the pre-court process has first been followed and settlement negotiations have been unsuccessful.
The essence of the pre-court process is a 3-stage notification, as follows:
- The giving of a preliminary notification of the claim to the doctor. This is essentially just a solicitor’s letter setting out very basic details of the claimant, the injury suffered and what is alleged against the doctor. Once in receipt of this notification, the doctor then has 30 days to provide all of their records;
Once the doctor’s records are received, the claimant’s solicitors can then make enquiries of an appropriate medico-legal expert to see if they can obtain expert support for a medical negligence claim; - If that evidence is obtained, the claimant can then move to the next stage of the notification, which is the giving of a more formal notice setting out with greater particularity what is alleged against the doctor in terms of negligence. The report of a medico-legal expert is required to be attached to that notice;
- The third stage of the Notification is a document that sets out everything the claimant is claiming for as a result of the medical negligence, and which also makes an offer to settle the claim. This document is usually prepared with the benefit of additional medical and other expert reports assessing the impact of the injuries on the claimant’s life and work.
Upon the completion of the third stage of the notification process, the Claimant and their lawyers should be in a position to negotiate a settlement of the claim. That negotiation is conducted at what is called a Compulsory Conference, the end point of the pre court process which is a meeting between the parties and their representatives aimed at discussing a possible resolution of the claim.
A resolution at the Compulsory Conference is not guaranteed, but if the matter does not resolve, at least the Claimant and their lawyers will have had the opportunity to gain a detailed understanding of the position of the doctor and their insurer.
As can be seen, the PIPA pre court process provides Queensland claimants in medical negligence cases the opportunity to put forward a detailed and thoroughly investigated claim and to discuss that claim with the doctor and their insurer, all before incurring the costs, time, and stress of court proceedings. This is a great improvement on the position that used to exist in Queensland, and which still applies in other Australian states and territories.
