Dealing with a negligence claim

There are different processes in different states.

1. In some States, litigation is commenced by a “statement of claim” or “writ”
2. in some States the plaintiff must have expert opinion in support of their case to commence a claim.
3. Some States (eg ACT and QLD) have a pre-litigation process, where certain steps must be carried out before a claim can be brought formally in a court.

In each State and Territory there are numerous steps that need to be taken by lawyer to prepare a medical negligence matter. Depending on the jurisdiction, these steps may include:

• obtaining records relevant to the claim including medical records, hospital notes and employment records
• drafting documents such as statements, defences, affidavits and other court documents
• obtaining and exchanging expert opinion
• attending court for directions and timetables for the preparation of the matter.

Nearly all medical negligence matters are referred to compulsory mediation so the parties can seek to resolve the matter before any hearing. The majority of matters settle.

The fact that a case is settled does not mean you have admitted that you were negligent in your treatment of the patient – most cases are settled without any admission of liability, and most cases are settled on a confidential basis.

Medical negligence claims are time-consuming and can take in excess of 18 months to resolve. If there are several defendants involved (such as other doctors and hospitals) medical negligence claims can take years to resolve. Often it will seem like nothing is happening, and then there may be periods of high activity, (eg reviewing expert opinion or drafting statements), depending on where the matter is up to in the process.

If you receive a statement of claim or writ, contact Avant’s Medico-Legal Advisory Service for advice as soon as possible. Do not approach the plaintiff, or the plaintiff’s solicitor.

Usually litigation is commenced several years after the incident that gave rise to the claim, and memories fade over time. The earlier we can speak with you after the incident the better.

At Avant we aim to make this process as straightforward as we can for you. However we recognise that it can be extremely confronting to be accused of negligence, and you should not underestimate how stressful this can be for you and your family.

Your claims manager and lawyer are available to answer any questions you might have about your claim or the process involved.

Medical negligence cases are time-consuming and can take several years to resolve. It is critical that you look after yourself, and your family, through the process of dealing with a claim. Our section on “Dealing with the stress of a claim or complaint” provides tips on how to look after yourself during this process.

Contact Avant’s Medico-legal Advisory Service for further advice. You can also contact Avant’s Personal Support Program for confidential counselling.