Medical Negligence Claims
Where treatment you receive from a doctor, nurse or other health practitioner falls short of the standard reasonably expected of a health practitioner, you may be able to bring a medical negligence claim.
Medical negligence can often lead to far worse outcomes than what you would have expected from your medical treatment and in some cases the health practitioner’s negligence can lead to very serious injuries, such as brain injuries, spinal injuries, amputations, soft tissue injuries, psychological injuries and even death. Claims can sometimes also be brought by loved ones for nervous shock (psychiatric injury), loss of dependency and loss of services where their family member has been seriously injured or died as a result of the negligence of the medical or health practitioner.
How do medical negligence claims work?
Private hospitals, doctors and other health practitioners have professional indemnity insurance. Queensland Health, which runs all public hospitals, also has professional indemnity cover. When you suffer an injury as a result of the negligence of a hospital, doctor, nurse or other health practitioner, their professional indemnity insurance will cover them and pay any damages and costs that are awarded to you or are agreed as a part of your injury claim.
Professional indemnity insurance does not, however, cover every incident. The injured person has to show that there was some negligence on the part of the person or entity responsible for the accident. If you fall over your own feet, for instance, in a hospital and are injured, then you will not be covered by their insurance.
What is the process?
In Queensland, medical negligence claims are governed by the Personal Injuries Proceedings Act 2002 (Qld) and the Civil Liability Act 2003 (Qld). In that way, they are similar to public liability claims. The procedure for medical negligence claims, however, is slightly different.
A claim is commenced by serving an “Initial Notice” of the claim on the person(s) responsible for your injury (who are then called “the Respondent(s)”).
This is how an average medical negligence claim usually proceeds:
- Medical negligence occurs;
- You serve an Initial Notice on the Respondent (within 1 month of instructing a lawyer to act);
- The Respondent then passes the Initial Notice on to their professional indemnity insurer;
- The Respondent’s professional indemnity insurer then provides you with copies of all documents held by the Respondent about the medical services provided (within 1 month of receiving the Initial Notice);
- An expert medical report is obtained (ie to ascertain or to confirm that the medical treatment failed to meet an appropriate standard of care);
- You then serve a Form 2 Part 1 Notice of Claim on the Respondent’s insurer with the supportive medical report (within 12 months of receiving all documents held by the Respondent about the medical services provided);
- The Respondent’s professional indemnity insurer advises whether the Part 1 Notice of Claim is compliant with the legislation (within 1 month of receiving the Form 2 Part 1 Notice of Claim);
- You serve a Form 2 Part 2 Notice of Claim on the Respondent (within 2 months of the compliance response);
- The Respondent’s professional indemnity insurer advises their position on liability (ie whether they accept that the Respondent caused or contributed to the accident) (within 6 months after compliance has been affirmed);
- Once your injuries have stabilised, medicolegal appointments (for you and the insurer) can then take place, to assess the nature and extent of any ongoing pain and restriction you have as a result of your injuries;
- Once all medicolegal specialists’ reports have been received, an offer of settlement is formulated; and
- A compulsory settlement conference is then held between the parties;
If the claim fails to resolve at the compulsory conference:
- Court proceedings are commenced;
- Court documents are exchanged between the parties; and
- A mediation is held between the parties;
If the claim fails to resolve at the mediation:
- The parties start preparing for trial (whilst often continuing to negotiate); and
- If all other negotiations fail, the matter proceeds to trial.
What can you claim?
The following heads of damage can be claimed in a medical negligence claim:
- pain and suffering, loss of amenities and loss of enjoyment of life
- past lost income
- past out of pocket expenses (eg treatment, rehabilitation, medication, transportation, aids, appliances, prosthesis, home modifications, transport modifications, education and training)
- past paid services (eg attendant care and support services, cleaning, cooking, gardening, housekeeping, mowing, etc), provided these services were not being provided prior to your injury
- past gratuitous (unpaid) services provided by family and friends, if those services are provided for at least six (6) hours per week for a minimum of six (6) months, provided those services were not being provided prior to your injury
- interest on any past lost income, expenses or paid services
- future potential loss of income/ earning capacity
- future potential out-of-pocket expenses
- future potential paid services
- future potential (unpaid) gratuitous services provided by family and friends
So, what is required of you during the claim process?
You can live your life normally and we will take the pressure off you by handling the vast majority of your claim. What we will need from you might include the following:
- You will need to attend an initial appointment to provide us with relevant information about the incident;
- You will have to help us finalise the Initial Notice, to ensure that we get your story straight, and then sign that form;
- You will need to attend a medicolegal appointment to determine if there was indeed some medical negligence;
- You will have to help us finalise the Form 2 Part 1 Notice of Claim, to ensure we have all details correct, and then sign that claim form;
- You may need to attend further medicolegal appointments for us and the insurer to determine what ongoing symptoms and restrictions you have;
- You will need to provide us with copies of any relevant documents that might be required including receipts (for treatment etc), tax documents and an impact statement (setting out how your injuries have affected you);
- You will need to approve any offer of settlement that we put together on your behalf; and
- You will have to attend a compulsory settlement conference to provide us with any information we need and instructions regarding any offers of settlement. You will not be required to answer questions from the other side during the conference. (70% of claims resolve at this stage)
If the claim fails to resolve at the compulsory conference:
- You will need to attend a mediation to provide us with any further information we need and instructions regarding any offers of settlement. (90% of claims resolve by this stage)
- You will not be required to answer questions from the other side during the mediation.
If the claim fails to resolve at the mediation:
- You will need to provide us with instructions in relation to any further offers of settlement that are forthcoming or that we wish to make prior to trial;
- You will need to attend court and give evidence as a witness if the matter proceeds to trial. (less than 2% of personal injury claims proceed to trial)
How can we help?
We will assess the events that led to your injury and will provide you with our expert opinion as to your prospects of success in relation to the medical negligence claim. If we consider you to have reasonable prospects of success, and that your claim is economically viable, then we will agree to act on your behalf on a “no win no fee” basis.
We will serve the Initial Notice on the Respondent on your behalf and then set about obtaining the expert medical evidence required to support your claim.
If we cannot decide on your prospects of success until after we receive an opinion from a medical expert, then we will ask you to pay for the report from that medical expert and then, if your prospects appear to be good, will agree to act on your behalf on a “no win no fee” basis for the remainder of the claim.
Once we have the supporting medical report, we will arrange to have your Form 2 Part 1 Notice of Claim served on the Respondent as soon as possible thereafter. Set out below is a detailed list of what we would discuss during your free initial consultation.
Don’t delay! Very strict time limits apply with respect to medical negligence claims. Speak with one of our expert personal injury lawyers today. We offer free initial advice. Click here for more information on how we charge.
FAQs
The short answer is “as soon as possible”. This is so we can:
- assist you with lodging the claim;
- make sure that your version of events surrounding the negligence of the health practitioner is accurate and comprehensive;
- give you advice in relation to your rights and obligations;
- ensure that you are telling the health practitioner’s professional indemnity insurer and your doctors everything you need to tell them about your injury;
- ensure that the health practitioner’s professional indemnity insurer is aware of all the injuries you have sustained; and
- start compiling the evidence we need in order to put an offer of settlement together for you once your injuries are stable and stationary.
These are the steps you should take to lodge a medical negligence claim if you are injured as a result of a health practitioner’s negligence:
- Contact one of our offices to make a time for one of our expert personal injury lawyers to see you. If it is easier for you, we will come to the hospital or your home or we are happy to meet at a nearby coffee shop.
- At our initial consultation with you, we will complete an Initial Notice with you.
- We will then serve the Initial Notice on the health practitioner responsible for your injuries (ie the Respondent) and ask them to pass the claim on to their professional indemnity insurer.
- The professional indemnity insurer will then respond to your claim and start communicating with us on behalf of the Respondent.
If you haven’t done so already, you should also:
- Attend upon your GP (or a different doctor, if your GP was at fault) as soon as possible to report all adverse symptoms you have suffered (no matter how insignificant they seem).
- Raise your concerns with the health practitioner involved. They may suggest further treatment, to try and remedy the situation.
- Seek a second opinion from a similar health practitioner / specialist regarding the treatment you have received and any proposed revision surgery or treatment.
You have one (1) month from the date you instruct a lawyer to act on your behalf or nine (9) months from the date of treatment, whichever is the earlier, to serve an Initial Notice on the health practitioner responsible for your injuries (ie the Respondent).
You can still serve an Initial Notice on the Respondent after the nine (9) month timeframe up to three (3) years after the date of treatment but you have to provide a reasonable excuse for the delay.
Once the Respondent provides us with all documents held by them about the medical services provided, you will then have twelve (12) months within which to serve a Form 2 Part 1 Notice of Claim on the Respondent’s insurer, together with a supportive expert medical report.
You will not be able to pursue a claim against the Respondent if the claim is brought more than three (3) years after the treatment was provided.
There are some very limited exceptions to the three (3) year rule, so we would recommend you speak with one of our expert personal injury lawyers to discuss your options in that regard, where applicable.
Your claim will be against the individual, company or hospital that caused or significantly contributed to your injuries (ie the Respondent). Negligence is alleged against the Respondent but their professional indemnity insurer then takes over the conduct of the matter.
Every case is different and the amount of compensation or damages payable to you will depend on many things, including:
- How you recover from your injuries
- The medical evidence
- Your age
- What other pre-existing injuries or conditions you had
- What permanent restrictions you have, particularly with respect to your work capacity
- What your earning capacity was like prior to the accident, compared to what your earning capacity now looks like
- How much care and support you have needed in the past and how much you are likely to require in the future
- How much ongoing treatment and medication you need
Many medical negligence claims settle for hundreds of thousands of dollars or more.
This depends on how much work is done. For more information on how we charge, click here.
Costs are payable to the insurer if you proceed to trial and lose or receive a judgement for less than what the professional indemnity insurer has previously offered to you.
Less than 2% of personal injury claims actually proceed to trial, so there is a very small chance of you having to pay the insurer’s costs.
Yes, if the injury that the health practitioner was originally treating (before the medical negligence) was caused by work, then you will be able to continue to receive workers’ compensation benefits for any ongoing issues you have as a result of the treatment you received.
In that case, WorkCover Queensland would pay for any reasonable and necessary treatment and rehabilitation as you go, as well as weekly benefits for lost wages and they will offer you a lump sum for any permanent impairment you have as a result of your work related injury.
As a part of the offer of settlement that we make on your behalf, we claim from the professional indemnity insurer what WorkCover has paid and then refund it to WorkCover upon settlement of your claim. Given that we are claiming for something that you have already received the benefit of, you do not lose anything in that regard.
Yes but when we put your offer of settlement together we claim what WorkCover has paid from the professional indemnity insurer and that amount is then refunded to WorkCover upon settlement of your claim. Given that we are claiming for something that you have already received the benefit of, you do not lose anything in that regard.
No. At this stage, the Queensland Government has only introduced legislation enabling individuals who have suffered serious personal injury at work or in a motor vehicle accident to qualify for NIIS benefits.
You may, however, be entitled to make a claim under the National Disability Insurance Scheme (NDIS).
Yes, if you are between the ages of 7 and 65 when making the application for those benefits.
The NDIS provides the following benefits:
- daily personal activities needs
- transport to enable participation in community, social, economic and daily life activities
- workplace help to allow a participant to successfully get or keep employment in the open or supported labour market
- therapeutic supports including behaviour support
- help with household tasks to allow the participant to maintain their home and home environment
- help to a participant by skilled personnel in aids or equipment assessment, setup and training
- home modification design and construction
- mobility equipment
- vehicle modifications
The NDIS will NOT fund a support that is:
- the responsibility of another government system or community service (eg something funded by NIISQ)
- not related to a person’s disability
- relates to day-to-day living costs that are not related to a participants support needs
- is likely to cause harm to the participant or pose a risk to others
Yes but when we put your offer of settlement together we claim what the NDIS has paid from the professional indemnity insurer and that amount is then refunded to the NDIS upon settlement of your claim. Given that we are claiming for something that you have already received the benefit of, you do not lose anything in that regard.
In Australia, you are not taxed on any settlement monies that you receive from your personal injury claim. If, however, you invest that money and earn interest or a have a capital gain from that investment, then tax may be payable on that interest or capital gain. You should seek financial and/or accounting advice about this where applicable.
During your free initial consultation, we will:
- Ascertain what injuries you have sustained;
- Discuss the circumstances of the accident that led to your injuries;
- Determine whether a hospital, doctor or other health professional has failed to provide the appropriate standard of care;
- Consider whether your claim is likely to be economically viable;
- Provide you with advice on your prospects of success and the viability of your claim;
- Explain the process of medical negligence claims and what will be required of you;
- Discuss the costs involved and how we will charge; and
- Answer any further questions that you might have.
*East Coast Lawyers is led by Accredited Specialists; Sean Delpopolo, Helen Ashton.
Our Promise To You:
- No Win No Fee
- Free Initial Consultation
- Home Visits
- Hospital Visits
- After Hours Visits
- 30% cap on professional fees (excl GST)
- No uplift fees
- No litigation lending or interest charges on outlays
- Immediate Assessment of Your Claim
*Strict time limits apply when making a claim. Do not delay.
