Medical Negligence Claims Gold Coast, Brisbane & Logan

A medical negligence claim (also known as a medical malpractice claim) is able to be pursued when the treatment you receive from a doctor, nurse or other health practitioner falls short of the standard reasonably expected of a health practitioner.

The treatment that you receive from a health practitioner can often lead to far worse outcomes than what you would have expected from your medical treatment. Medical negligence claims are often brought by patients who have suffered serious injuries as a result of the doctor’s negligence. The types of injuries that can result from medical negligence include spinal injuries, brain injuries, nerve related injuries, full or partial unexpected amputations, soft tissue injuries, psychiatric injuries and even fatalities.

Family members who have a close connection with someone who is seriously injured or dies as a result of medical negligence may also have an entitlement to bring a claim for loss of dependency and loss of services, as well as their own personal injury claim if they suffer a psychological injury as a result. These personal injury claims are called nervous shock claims.

Who pays the compensation in medical negligence claims?

Whilst the claim is directed at the hospital, doctor, nurse or other health practitioner involved with your medical malpractice, the management of the claim is taken over by their professional indemnity insurer and the insurer pays out any compensation. The doctor or hospital may have to pay an excess and provide information about what happened but that would be it.

What is the procedure for a medical negligence claim?

Medical negligence claims in Queensland are commenced by serving an “Initial Notice” of the claim on the persons or entities (eg hospital and specialist) responsible for your injury (“the Respondent”).

This is how an average medical negligence claim usually proceeds:

Medical malpractice occurs;
An Initial Notice is served on the Respondent within 1 month of instructing a lawyer to act on your behalf or within 9 months from the date of the treatment;
The Respondent then engages their professional indemnity insurer;
Within 1 month of the Respondent receiving the Initial Notice, the Respondent’s professional indemnity insurer then has to provide copies of all documents held by the Respondent about the medical services provided;
We then request an expert medical opinion and report from a medical specialist to determine whether the treatment you received failed to meet the appropriate standard of care;
Within 12 months of receiving all documents held by the Respondent about the medical services provided, a Form 1 Part 1 Notice of Claim, together with the supportive medical report, must be served on the professional indemnity insurer;
Within 1 month of receiving the Form 1 Part 1 Notice of Claim the Respondent’s insurer then issues a “compliance” notice (confirming that we have provided them with all relevant information);
Within 2 months of the compliance response you must then serve a Form 1 Part 2 Notice of Claim on the Respondent’s professional indemnity insurer;
Within 6 months after compliance has been confirmed, the insurer then has to provide their response on liability (ie whether they accept that the doctor, hospital or other health practitioner caused or contributed to your injuries);
Once your injuries have reached maximum medical improvement (ie have stabilised), independent medicolegal appointments are arranged by us and by the insurer, to assess the nature and extent of any ongoing disabilities and restrictions you have as a result of your injuries;
Once all independent medicolegal reports have been received, we compile an offer of settlement for your consideration, before finalising it and serving it on the insurer;
Your claim then proceeds to a compulsory settlement conference where the parties attempt to negotiate a mutually agreeable settlement of your claim; and
In the event that agreement cannot be reached, Mandatory Final Offers are exchanged by each party and those written offers remain open for 14 days.

If your claim does not settle at the compulsory conference and neither party accepts the other party’s Mandatory Final Offer, then:

Official court proceedings are commenced, which means that a Claim and Statement of Claim is filed in the appropriate Court registry;
Various Court documents are then exchanged between the parties, including a Statement of Loss and Damage, a Statement of Expert and Economic Evidence and Lists of Documents;
Negotiations can continue, or be re-instigated, at any time during this process;
If informal negotiations fail, then the parties will usually proceed to a mediation, which is similar to the compulsory conference but with the intervention and assistance of an experienced mediator.

If the claim fails to resolve at the mediation:

The parties start preparing for trial;
Negotiations can continue, or be re-instigated, at any time during this process; and
If informal negotiations fail entirely, then the matter proceeds to trial.

What compensation can you receive in a medical negligence claim?

In a medical negligence claim, you can claim compensation for the following:

pain and suffering and loss of enjoyment of life
past economic loss (lost income)
past special damages, also known as out of pocket expenses (eg treatment, rehabilitation, medication, transportation, aids, appliances, prosthesis, home modifications, transport modifications, education and training)
past paid services (eg mowing, gardening, housekeeping, cleaning, cooking, attendant care and support services, etc), provided these services were not already being provided prior to the accident
Past unpaid (voluntary) services provided by friends and family, if those services were provided for at least six (6) hours per week for a minimum of six (6) months and provided these services were not already being provided prior to the accident
interest on any past economic loss (lost income), expenses and/or paid services
future economic loss – likely loss of income or earning capacity
future likely special damages / out-of-pocket expenses
future likely paid services
future likely unpaid (voluntary) services to be provided by family and friends

What will you need to do during the claim?

You will not need to change anything. You should live your life normally (or at least as best you can with the injury you have) and we will look after the claim side of things.

Your involvement in the claims process will include the following:

We will ask you to attend an initial appointment with us to provide us with any information you have about the incident;
We will need your assistance with finalising the Initial Notice that needs to be served on the Respondent, to ensure we have the facts straight;
We will send the draft Form 1 Part 1 claim form to you and ask you to advise us of any changes that are needed;
We will arrange for you to sign the claim form;
We will arrange for you to attend one or more medicolegal appointments;
You will also need to attend one or more medicolegal appointments for the insurer;
We will ask you to provide us with an impact statement (outlining the impact that the accident has had upon you, particularly your work capacity);
We will ask you to provide us with copies of relevant payslips, tax documents, employment documents and receipts you have (for treatment, paid services, etc) as well as any other relevant documents;
We will need you to provide us with any other information required to put an offer of settlement together;
We will seek your approval in relation to any offers of settlement that we propose to make on your behalf;
We will seek your instructions in relation to any offers of settlement made by the insurer;
You will need to attend a compulsory settlement conference to answer any further questions we might have and to provide us with your instructions regarding any offers of settlement;
You will not be required to answer questions from the insurer or their legal representatives during the conference.

(N.B. 7 out of 10 claims resolve at the compulsory conference)

If your claim fails to resolve at the compulsory conference and neither party accepts the other’s Mandatory Final Offer, then:

We will, some time later, ask you to attend a mediation to answer any further questions we might have and to provide us with your instructions regarding any offers of settlement.
You will not be required to answer questions from the insurer or their legal representatives during the mediation.

(N.B. 9 out of 10 of claims resolve by this stage)

If your claim does not settle at the mediation:

If further offers of settlement are made or received, then we will need to seek your instructions;
If the matter does not resolve informally, then it will be set down for trial and you will need to attend court and give evidence as a witness.

(NB less than 2% of personal injury claims proceed to trial)

So, what can East Coast Injury Lawyers do to help?

We provide free initial advice. We will consider all available information, undertake investigations where needed and provide you with our opinion regarding your claim. This will include whether we believe you would succeed in a claim, what your options are with respect to the various insurance schemes and the NDIS and what you should do immediately to ensure that you receive the best treatment, care and support as quickly as possible.

If we consider that your medical negligence claim is likely to have reasonable prospects of success, then we will agree to take your matter on, on a “no win no fee” basis. If we cannot determine whether your claim would succeed without an opinion from a medical specialist, we will ask you to fund the cost of a report from a medical specialist. If the medical expert’s report is supportive of your claim, then we will agree to conduct the balance of your claim on a “no win no fee” basis and will pay for all further expenses related to your claim. Click here for more information on how we charge.

Strict time limits apply to medical negligence claims, so speak with one our expert personal injury lawyers today.

FAQs

When should I get a personal injury lawyer involved?

You should engage a personal injury lawyer as soon as possible. This is so:

We can make sure you do not miss any important time limits
We can provide you with advice about your rights and obligations
We can help prepare your Initial Notice to serve on the Respondent
We can arrange for an independent medicolegal assessment to determine whether the treatment you received fell short of the standard reasonably expected of a health practitioner
We can help prepare your claim form to serve on the Respondent
We can make sure that what you are telling your doctors and the insurer is consistent – ie your story about what happened needs to remain the same, or conflicting versions need to be clarified as soon as possible, as credibility is critical in these claims
We can make sure that you are telling the doctors and the Insurer the full story (eg disclosing previous injuries or claims), so that your credibility remains intact
We can make sure that your claim form and medical certificates list all injuries you have sustained, no matter how insignificant – sometimes the doctors need some guidance in that regard
We can make sure that all of your injuries are being fully investigated and treated
We can start putting your offer of settlement together

How to start a medical negligence claim?

The first steps that you need to take with respect to a medical negligence claim are as follows:

We will arrange for you to see one of our personal injury law experts as soon as possible. We are happy to meet with you at a location most convenient to you, including at a hospital, at home or a coffee shop somewhere. There is no additional cost for this.
At the initial consultation, we will discuss your potential claim, consider your prospects, go through the process with you and discuss what costs may be involved. You then decide whether you want to proceed.
Once you have engaged us to act on your behalf, we will serve an Initial Notice on the hospital, doctor or other health practitioner responsible for your injuries (ie the Respondent).
The Respondent’s professional indemnity insurer will then assume the conduct of the claim on behalf of the Respondent and will contact us.

If you haven’t done so already, you should also:

Arrange a time to see your GP (or a different doctor, if your GP was at fault) to report all injuries and issues you are now experiencing as a result of the treatment, so that everything is on record.
Arrange a time to see the original, at fault, specialist or health practitioner to discuss the issues you are now experiencing. They may suggest further treatment, to try and remedy the situation.
Consult with a similar specialist or health practitioner for a second opinion regarding the treatment you have received and any proposed treatment they are now recommending.

What time limits are involved with medical negligence claims?

An Initial Notice must be served on the hospital, doctor or other health practitioner (“the Respondent”) within one (1) month from the date you first instruct a lawyer to act on your behalf or within nine (9) months from the date of treatment, whichever is the earlier.

You are still able to serve an Initial Notice on the Respondent outside the nine (9) month timeframe, up to three (3) years after the date of treatment but you must provide a reasonable excuse for the delay.

The Respondent is then required to provide copies of all documents they have relating to the medical services provided within one (1) month.

Once those documents have been received, you then have twelve (12) months to serve a Form 1 Part 1 Notice of Claim on the Respondent’s insurer, together with the supportive specialist 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.

Who will I be suing and who pays?

The claim is directed at the hospital, doctor or other health practitioner whose treatment fell short of the standard expected of a health practitioner but they then pass the claim on to their professional indemnity insurer who takes over the conduct of the claim and pays out any compensation. The health practitioner may have to pay an insurance excess to their insurer.

What is my claim worth?

How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:

What ongoing problems you have as a result of your injuries – obviously, we won’t know this until your injuries are stable and stationary and have been assessed by the medical experts
Your age, which impacts on how long you were going to work for and how long you will experience pain and suffering from your injuries
What the doctors say about your injuries, particularly the degree of impairment and the level of disability you have as a result of your work related injuries
Whether you have pre-existing degeneration, previous injuries or other conditions that were impacting on you, or are going to impact on you in the future
What restrictions and difficulties you have, particularly with respect to your work capacity
What your income and earning capacity was like pre-injury, compared to what your income and earning capacity is now like
What treatment, care and support needs you have
Whether you have needed voluntary (unpaid) care and assistance as a result of your injuries and, if so, the nature and extent of that assistance
Whether you have needed paid care and assistance because of your injuries and, if so, the nature and extent of that assistance
Whether you have an ongoing need for voluntary (unpaid) care and assistance as a result of your injuries and, if so, the nature and extent of that assistance
Whether you have an ongoing need for paid care and assistance because of your injuries and, if so, the nature and extent of that assistance
How much ongoing treatment and medication you are likely to need in the future

Depending on the extent of the injuries you have suffered, some medical negligence claims can settle for millions of dollars.

What if the person that caused my psychological injury was a co-worker or my employer?

There is no adverse impact on your co-workers at all. They may have to give a statement about what happened but that would be it. They may also be required to give evidence if the matter went to trial, which is extremely unlikely (less than 2% of personal injury claims actually proceed to trial).

In terms of the impact on your employer, their future workers’ compensation premiums might be affected to some extent.

What is my claim worth?

How much compensation or damages you will be entitled to receive is dependent on a lot of different factors, including:

What ongoing problems you are likely to have as a result of your psychological injury – obviously, we won’t know this until your psychological injuries are stable and stationary and have been assessed by the medical experts
Your age, which impacts on how long you were going to work for and how long you will experience pain and suffering from your psychiatric injuries
What the doctors say about your psychological injuries, particularly the degree of impairment and the level of disability you have as a result of your psychiatric condition
Whether you had a pre-existing psychiatric or psychological condition, previous injuries or other health issues that were impacting on you, or are going to impact on you in the future
What restrictions and difficulties you have, particularly with respect to your work capacity
What your income and earning capacity was like pre-accident, compared to what your income and earning capacity is now like
What treatment, care and support needs you will have because of your psychiatric condition
Whether you have needed paid care and assistance because of your psychological injury and, if so, the nature and extent of that support
Whether you have needed voluntary (unpaid) care and assistance because of your psychological injury and, if so, the nature and extent of that support
Whether you will continue to require paid care and assistance because of your psychological injuries and, if so, the nature and extent of that support
Whether you will continue to require voluntary (unpaid) care and assistance because of your psychological injury and, if so, the nature and extent of that support
How much ongoing treatment and medication you need in the future

Psychological injury claims often settle for hundreds of thousands of dollars or more.

How much do lawyers charge to pursue a medical negligence claim?

The amount of legal costs incurred will depend on how much work is required to achieve a settlement of your claim. For more information on how we charge, click here.

Do I have to pay the insurer’s costs if I lose?

This is extremely unlikely. You only have to pay some of the insurer’s costs if you proceed to trial and lose completely or if you receive a judgment for less than what the insurer has previously offered to pay you.

The number of personal injury claims that actually proceed to trial is less than 2 in 100, so the chances of you having to pay the insurer’s costs are very slim. During the course of your claim, we will provide you with detailed advice on the quantum of your claim, so that you know what amount would be considered to be a good settlement amount.

Can I pursue a medical negligence claim and also have a workers’ compensation claim running at the same time?

Yes. If the original injury that you suffered was sustained during the course of your employment and the medical negligence then occurred during the treatment of that injury, then you will be able to continue to receive workers’ compensation benefits for the added impact that the failed treatment is having upon you.

You can then also lodge a medical negligence claim against the hospital, doctor or other health practitioner that caused your injury.

WorkCover Queensland (or the workers’ compensation self-insurer) will pay for all reasonable and necessary treatment and rehabilitation, as well as weekly benefits for any time off work, upfront. The medical negligence claim will simply run alongside the WorkCover claim until the WorkCover claim ceases. The medical negligence claim will then proceed on its own.

The amount that WorkCover pays will need to be refunded to them once your medical negligence claim settles. We will claim what WorkCover pays to you from the professional indemnity insurer in your offer of settlement and then refund that amount so that you do not lose out in any way.

Will I have to refund what WorkCover pays to me?

Yes. The professional indemnity insurer will have to refund, out of your settlement monies, whatever WorkCover has paid to you.

The amount that WorkCover has already paid, however, is added to the other amounts that are claimed from the professional indemnity insurer in your offer of settlement, so you do not lose anything.

Am I able to claim benefits from the National Injury Insurance Scheme (NIISQ) if I have a medical negligence claim?

No. The Queensland Government has not extended coverage under the National Injury Insurance Scheme to medical negligence claims. You have to have been injured at work or in an accident on the road to qualify for NIIS benefits.

You may, however, be entitled to make a claim under the National Disability Insurance Scheme (NDIS). For more information about the NDIS, click here.

Am I able to claim benefits from the National Disability Insurance Scheme (NDIS) if I have a medical negligence claim?

Yes, provided you are between the ages of 7 and 65 when making the application to the NDIS.

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

Will I have to refund what the NDIS pays me?

Yes. The professional indemnity insurer will have to refund, out of your settlement monies, whatever the NDIS has paid to you, or on your behalf.

The amount that the NDIS has already paid, however, is added to the other amounts that are claimed from the professional indemnity insurer in your offer of settlement, so you do not lose anything.

You may also be precluded from claiming certain benefits from the NDIS for a period of time into the future (if a claim has been made for those costs from the professional indemnity insurer).

Do I have to pay tax on any compensation I receive from the professional indemnity insurer?

No. In personal injury claims in Queensland we only claim net losses (after tax), so the ATO does not impose tax on any settlement monies. If, however, you invest those funds and earn income then you may well have to pay tax on that income. You should seek advice from your accountant or financial advisor in that regard.

During your free initial consultation, we will:

Determine exactly what injuries you have suffered;
Work out precisely how the injuries occurred;
Decide whether someone else caused or significantly contributed to your accident;
Decide whether your claim is likely to be economically viable;
Provide you with our advice on whether we believe you will win and whether your claim will be viable;
Discuss the medical negligence claims process and what will be required of you;
Discuss what costs will be involved and how we charge; and
Respond to any questions that you might have in relation to your claim.

*East Coast Injury Lawyers is led by Accredited Specialists in Personal Injury Law: Sean Delpopolo, Helen Ashton, Nickelle Morris.