Personal Injury Law

Medical Negligence Claims:What do I do?

June, 2014

By Gavin Hanrahan

Legal Disclaimer

This presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon any

of the information contained within this seminar

without seeking the advice of a qualified solicitor who

specialises in the particular area of expertise and

jurisdiction that you require.

Introduction

If you’ve been treated in a NSW hospital and the level of treatment you received was below an acceptable standard, and you suffered an injury or a worse outcome as a result of the treatment, then you may have an entitlement to bring a 'Medical Negligence Claim' against the hospital.

The following slides outline our process for handling medical negligence claims.

1. Contact us ASAP, time limits apply

Under the Law both adults and children must commence legal proceedings within 3 years of their claim being “discoverable”. To ensure proceedings are commenced in time, we recommend where possible they be commenced within 3 years of the act of negligence.

Once you have contacted us, we will expect you to explain to us in detail, the circumstances surrounding your treatment. We will be making an initial assessment as to whether there is the possibility of a medical negligence claim.

1. Contact us ASAP, time limits apply

That is, we will be listening for facts suggesting that you were treated negligently by the hospital staff (liability), and as a result experienced an adverse outcome, that is a worse outcome than otherwise would have been the case (causation) and that the adverse outcome has resulted in you suffering a compensable loss (compensation)

ASSESSING LIABILITY

2. Obtain your medical records

Critical to us being able to properly assess your claim is to obtain a copy of your medical records from any relevant hospital. We will have you sign an authority addressed to the hospital authorising the release of your medical records.

3. 1st Review – Medical Records

We review your medical records with a view to assessing if therein there are any documents that would tend us to the view that your treatment was not negligent. We will then arrange to discuss the outcome of our review with you.

4. Obtain opinion of a medical expert as to liability

If your claim proceeds to a hearing before a Judge, in deciding the outcome of your claim the Judge will rely on the opinions of medical experts engaged by us (on your behalf) and the Hospital, to inform him or herself as to the appropriateness of the treatment provided to you.

4. Obtain opinion of a medical expert as to liability

Accordingly, during the review referred to at step 3, we will discuss with you the nature of the expert opinions necessary to support your claim if your claim is to have prospects of being successful.

We will then engage the expert/s you agree to use and send to them relevant documents for them to assess and comment on including your medical records and any necessary statements of evidence.

The expert will provide his or her opinion in a written report.

5. 2ND Review - Liability

We review the expert’s opinion to assess if it supports an assertion that you received treatment below the standard to be expected. If it doesn’t, you prospective claim will likely end at this step. If it does, we move to step 6.

ASSESSING CAUSATIONAND COMPENSATION

6. Obtain opinion of medical experts as to causation and compensation

If your claim proceeds to a hearing before a Judge, in deciding the outcome of your claim the Judge will rely on the opinions of medical experts engaged by us (on your behalf) and the Hospital, to inform him or herself as to whether the negligent treatment caused an adverse outcome.

We will also engage these medical experts to provide their opinion as to how the adverse outcome impacts upon your daily life.

7. 3RD Review – Causation & Compensation

We review the experts’ opinions to assess if they supports an assertion that you suffered an adverse outcome as a result of the negligent treatment.

If the opinions collectively support that assertion, we will also review the experts’ opinions as to the nature of the injuries that make up the adverse outcome and the potential financial losses that result from same.

We will then discuss with you any other evidence that will be needed to support claims for compensation to compensate you for:

Your pain and suffering; Need to incur medical, care or travel expenses; Loss of income and superannuation; Loss of life expectancy; and The voluntary services provided to you by family and

friends in the nature of assistance with care and home maintenance etc.

7. 3RD Review – Causation & Compensation

8. Final Review – Ready to Proceed?

With you we review all of the evidence to assess if it is sufficient for legal proceedings to be commenced. We cannot act for you in commencing legal proceedings unless we are prepared to certify to the court that your claim has reasonable prospects of success.

LEGAL PROCEEDINGS

9. Commence legal proceedings

We draft two documents necessary to commence proceedings:

1. Statement of Claim; and

2. Statement of Particulars.

We then file these with Court and serve copies on the Hospital.

10. Obtain any additional evidence

Some evidence that supports your case may only be discoverable by way of subpoena.

Now is the time to discover such evidence and we will discuss this with at step 9.

11. Settlement or Mediation

Once both parties have gathered their evidence it is likely that either a settlement conference or a mediation will take place.

12. Hearing

If a settlement is not achieved then your claim will proceed to a hearing.

13. Verdict

After the hearing, a verdict will be reached.

Turnbull Hill Lawyers – Contact Us

If you have any further questions about medical negligence or you'd like to discuss a related matter, please do not hesitate to call:

Gavin Hanrahan on 1800 994 279 or email him.

We will endeavour to respond to your enquiry within 24 hours.