FREQUENTLY ASKED QUESTIONS.

Negligence is a failure to take reasonable care to avoid causing injury or loss to another person.

Medical negligence occurs when the treatment provided by a health service provider falls below an acceptable standard of care. It needs to be proved that:

• the doctor or hospital’s treatment did not meet the relevant Australian standards of care (breached their duty of care);
• the poor treatment resulted in suffering or injury to you, or
• any physical or psychological injury was caused by the negligence

to be legally considered medical negligence.

Establishing whether or not your doctor was negligent can be difficult. 

The most common types of negligence are:

You can read more about negligence and whether or not you qualify for compensation in our article here. 

Medical negligence can be a complex area of law, so it is always recommended that you consult a lawyer to be certain of your rights.

Roughly, you can assume you are eligible to claim for negligence if:

If you're unsure about your eligibility to claim, you can check out our article here which goes through the audit process step-by-step. 

Duty of care extends much further than just GP's. 

Negligence can also be claimed against: 

And many more. 

Patients generally can make a complaint directly to the hospital.

Most hospitals and health services have patient liaison officers which handle compliments and complaints.

However, it is important to understand that making a complaint directly to a hospital is unlikely to result in a compensation payment being made to patient.

Occasionally, hospitals and health services offer to make ex gratia payments to patients who have been aggrieved. However, these are rare.

In addition, without fully investigating the nature and extent of a patient’s injuries and the consequences of the incident, it is difficult to determine whether an ex gratia payment will be sufficient compensation to cover the patient’s losses and damages.

Probably not.

Most Australians think making a compensation claim is hard.

So hard that almost 200,000 people think about making a compensation claim every year but don’t.

So, what’s causing this compensation claim reluctance?

It seems that people’s reluctance to compensation claims is due to a multitude of factors, including having to go to Court.

The words ‘Court Proceedings” can send shudders down the spines of most Australians.

It’s a hassle most of us can agree we would just rather not have to go through.

Thankfully, the truth is...

Most compensation claims don't make it to court, ever. 

Usually, the at-fault party or their insurer.

In the case of an accident caused by the negligent driving/use of a motor vehicle, the compulsory third party (CTP) insurer of the at-fault vehicle will be responsible for paying your compensation.

In the case of an accident caused by the negligence of another person (such as a local council), that negligent person will be responsible for paying your compensation.

Thankfully, most at-fault persons have some form of insurance (such as CTP insurance or public liability insurance). That means your claim is very likely to be against an insurer (and not an individual person).

Clients are entitled to seek a second opinion regarding their claim, or the conduct of their instructed lawyers.

What is required of a client wishing to change lawyers during their claim will depend on the terms of their costs agreement with their previous lawyers. This may require they pay outstanding costs and outlays incurred, or may require issue of lien over their file to be paid upon successful completion of their claim.

Yes, you can.

If you'd like some guidance on how to run a claim on your own, we'd be happy to give you some pointers - just give us a call.

However, claimants with legal representation are likely to receive greater compensation than those without.

If you're on the fence about whether to engage a lawyer, get in touch with us and we can explain your options. We're happy to help, whichever way you go.

Yes, you can.

If your child has been injured in an incident, they may have an entitlement to bring a claim.

A person under the age of 18 years is considered (in the eyes of the law) to not have capacity to make decisions regarding legal matters. Therefore, they cannot bring a claim themselves (until they are 18 years or older).

However, an adult with full capacity can bring a claim on a child's behalf. This is often referred to acting as a child's 'litigation guardian'.

As with all claims, it is best to act quickly and not wait. Therefore, rather than waiting until your child turns 18, it is best to take action now.

For further information about bringing a claim for a child, contact us.

Claims for medical negligence focus on facilitating monetary outcomes. That is, bringing a claim for medical negligence will only generally result in a negligent medical practitioner making a payment of money to compensate the patient.

In some circumstances, a negligent medical practitioner may make an apology or an ‘expression of regret’ as a term of the settlement.

Bringing a claim for medical negligence will not result in a negligent medical practitioner being prohibited, suspended or restricted in the practice of medicine. The Office of the Health Ombudsman and the Australian Health Practitioner Regulation Agency (AHPRA) are responsible for handling professional disciplinary proceedings against medical practitioners.

In addition, although a claim is brought against a medical practitioner, the conduct of the claim is generally handled by their insurer.

3 years. You have 3 years from the date of the accident to make a claim for compensation. 

Extensions are available in some cases, but are extremely difficult to obtain.

If you are under 18 years at the time of the crash, different timeframes apply. The limitation date is 3 years after your 18^th birthday if you have not already commenced a claim. And the only way to commence a claim before your 18^th birthday is if a parent of guardian commences the claim on your behalf.

To qualify to make a medical negligence claim, you must establish the following:

1. The medical practitioner owed you a duty of care;

2. The medical practitioner breached their duty of care to you.  

3. The medical practitioner’s breach of duty caused your injury;

4. The injury caused by the medical practitioner resulted in you suffering loss or damage.

To prove a medical practitioner breached their duty of care, you need to establish that the medical practitioner’s care fell below the standard expected for a competent medical practitioner in Australia.

If you are seeking assistance to understand whether you qualify to make a medical negligence claim, contact team at McInnes Wilson Lawyers for obligation free consultation.

Generally, a claim for medical negligence commences by serving a written notice of the claim (‘initial notice’) on the medical practitioner. The initial notice gives notice of the patient’s intention to bring a claim for medical negligence, and sets out briefly the details of the patient and the alleged medical negligence incident. 

Upon being served with this written notice, the medical practitioner must then disclose a complete copy of all documents in their possession which relate to the medical negligence incident. 

After reviewing the disclosed documents, the patient must instruct a medical expert to provide their opinion in relation to the following questions:

1. Did the medical practitioner owe the claimant a duty of care?

2. Did the medical practitioner breach their duty of care to the claimant?

3. Did the medical practitioner’s breach cause the claimant’s injury?

If the experts answers all 3 questions in the affirmative and provides a written report to support this opinion, then the patient will serve a Part 1 Notice of Claim form on the medical practitioner. This document formally commences the claim for medical negligence against the medical practitioner. 

The patient will then serve a Part 2 Notice of Claim form on the medical practitioner. This document sets out the nature and extent of the patient’s loss and damage.

In some circumstances, it may be appropriate to start a claim for medical negligence by filing a Claim and Statement of Claim in the relevant court registry. For example, if a patient instructs a law firm to act on their behalf and commence a claim shortly before their limitation period expires.

There is a common perception that lawyers will bleed you dry. And we don't disagree, there are some firms that will do just that.

We want to help you better understand your fees.

We also want to help you stay in complete control of your legal spend and save money by doing so by offering you a number of ways we charge.  

For starters, we pay for your disbursements. 

Disbursements are the outlays (monies) that a law firm has spent in pursuing the compensation. They typically include payments for court fillings, medical experts and barrister’s fees. We will:

• Pay for these for you until you have received compensation
• Cover these costs from our own bank account, meaning lower charges for the service

We are happy to lend you our services. In addition to maximising your future money, we also want to save your current money. 

If you receive compensation as a result of a claim for medical negligence, this may affect payments from Centrelink. This will depend on the type and amount of compensation payment received and the nature of the Centrelink payments. 

Centrelink must be notified of a successful completion of a claim for medical negligence (by settlement or court order), and provided with the details of the compensation payment. 

If the payment includes compensation for economic loss, Centrelink then uses a formula to calculate a preclusion period. 

During the preclusion period, the claimant is not entitled to get Centrelink payments. Accordingly, this may mean the claimant must pay a refund to Centrelink for payments they received during that preclusion period, and/or the claimant may be barred from receiving Centrelink payments for a period in the future.

No.

Often, your legal fees are absorbed by the firm acting for you until the time of your settlement meaning you will not pay a single cent on legal fees before that point. 

Yes, this will require you to address the compliance requirements of the ATO. Failing to do, may result in the matter being referred to the ATO compliance division. 

We have accountants that can assist in getting a great outcome, and having compliant ATO measures will result in a better outcome in your claim.

If the at-fault medical practitioner is insured, compensation is generally paid for by their insurer. There may be some exceptions to this. For example, if the conduct of the medical practitioner which is the subject of the medical negligence claim falls outside of the scope of their insurance policy, or if the medical practitioner fails to appropriately report the claim to their insurer and pay the excess. 

If the at-fault medical practitioner is not insured, they will be personally responsible for paying compensation.

Alternatively, if the medical negligence incident arises out of conduct of the medical practitioner in the course of their employment, their employer may be vicariously liable. That is, the employer may be required to pay compensation.