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How long does a medical negligence claim take?

It is very difficult to predict how long a medical negligence claim will take without knowing the details.

In general, medical negligence claims are often complex and involve extensive expert medical evidence. It usually takes about 12 months from the negligence of a doctor or hospital for the injury to settle down enough for your lawyer to obtain the necessary expert and medical evidence to prove your claim.

It then usually takes about 6 to 12 months for your lawyer to gather the evidence in support of your claim. The lawyer will need to obtain and review your medical records and have you examined by one or more medical experts.

The matter can then be commenced in Court and usually takes a further 6 to 12 months to resolve.

If agreement can be reached without the need to go to Court, then the claim will resolve quicker than if the defendant denies negligence and the matter needs to be heard before a Judge.

Medical negligence claims usually take somewhere between 2 to 3.5 years to resolve.

Why can medical negligence cases take so long to resolve?

Medical Negligence cases take a long time to resolve because they usually involve complex medical and legal arguments.  It is common that your lawyer will need to obtain an expert medical opinion in relation to what the doctor or hospital has done wrong, which has caused your injuries.

This involves finding, briefing, and obtaining a report from a medical professional that outlines why the doctor or hospital was negligent. To obtain this opinion your condition needs to be stable, that is have reached maximum medical improvement and is unlikely to change in the future. Your lawyer will also need to obtain a copy of all your clinical records and notes from all doctors you have seen since your injury. It takes some time for your condition to stabilise and then additional time for a lawyer to obtain all the relevant notes from your doctors.

Once the evidence, both factual and medical, has been obtained in your matter the defendant is also allowed to obtain its own evidence in reply. This will include having you medically examined and obtaining their own expert reports in response to your claim. Once the defendant has had a chance to obtain its own evidence then a settlement conference is usually arranged to see if the matter can be resolved and if that is unsuccessful then is then listed for hearing in the Supreme Court of NSW.

Once you apply for hearing in the Supreme Court it usually takes about 1 year to obtain a hearing date.

What do I need to prove to be successful in my medical negligence claim?

Medical professionals such as doctors, nurses, and hospitals, owe you a duty of care to ensure as best they can that they do not injure you whilst providing you with treatment. To be successful in a medical negligence claim you must be able to prove that a medical professional has breached that duty of care.

A duty of care is breached when someone is injured because of the action (or in some cases, lack of action) of another person when it was reasonably foreseeable that the action could cause injury and a reasonable person in the same position would not have acted that way.

You, therefore, need to prove what action or lack of action, the medical practitioner did or did not take that caused your injury.

This will involve examining in detail, either the procedure that went wrong or some other failure of the medical professional such as a failure to diagnose your condition. Such an examination will involve the following;

  1. Obtaining all your medical records from the medical profession or any other medical professional.
  2. Taking a detailed statement from you in relation to your injury and its effects upon you.
  3. Obtaining expert medical opinion to show how the medical professional breached their duty of care.
  4. Obtain medical and other expert opinion in relation to any damage or any injury that was sustained by you because of that breach of duty of care.
  5. If economic loss is claimed, your lawyer needs to have access to your tax returns for at least 3 years prior to the date of your claim, as well as pay slips and bank statements to show your loss of income.
  6. A copy of all accounts/receipts in relation to any expenses you have incurred because of the breach of duty of care.

Once those documents have been obtained your lawyer will then be able to give you more specific advice as to whether or not your claim is likely to be successful and the value of your claim for damages.

How are medical negligence claims settled?

When commencing a medical negligence claim, most plaintiff’s do not wish to go to Court due to the requirement to give evidence, the cost, the stress, the possibility of a long drawn out hearing, or the time it takes to get a judgement.

If you are a medical negligence plaintiff who does not want to go to Court rest assured there are a number of opportunities throughout your claim to try and resolve the matter, including but not limited to; offers of settlement, informal settlement conferences, and mediation.

What are offers of settlement?

It is not uncommon for offers of settlement to be exchanged in the early stages of a claim. However, these early offers are usually at the lower end of compensation that you should receive. This is because at such an early stage the parties are not aware of the full extent of the injurie(s) sustained or the strengths and weaknesses of each parties case.

For this reason, all offers should be considered with your lawyer prior to acceptance. Often your lawyer will be able to get you 10 – 15 times more compensation than the defendant’s initial offer of settlement.

What is an informal settlement conference (ISC)?

Depending on the value and complexity of your medical negligence / medical malpractice claim, your lawyer may suggest an ISC which is an informal form of alternative dispute resolution.

An ISC is arranged and undertaken by both parties. Usually, the plaintiff and their legal representative, the insurer, and the defendant solicitor partake in the ISC.

At the conference parties will sit in separate rooms and offers of settlement will be communicated backward and forward between the parties. If an offer is reached that both parties are satisfied with then the matter will be settled at the ISC.

If parties cannot reach an agreement the parties will likely go to mediation, or if the matter has not already been commenced in court, the plaintiff’s solicitor will have to file the Statement of Claim in court and commence proceedings.

If your claim is in the Supreme Court jurisdiction and is very complex, or if there are great disparities between the plaintiff’s and the defendant’s medical or liability evidence your lawyer will likely instruct you to attend mediation instead of attempting an ISC.

What is mediation?

Mediation is an alternative dispute resolution process involving an independent impartial mediator who assists parties in settling their legal disputes outside court.

At the mediation, the plaintiff and their legal team will be in one room, and the defendant and their legal team will be in another room.

At the commencement of mediation, the mediator will bring parties together to undertake opening submissions. Depending on the nature of the case, the submissions may be between legal counsel only.

Once submissions have concluded and each party have articulated their issues, the parties will go back to their breakaway rooms and begin the negotiations.

Once negotiations have commenced, the mediator will travel between rooms conveying offers to each party. Anything that is discussed with the mediator in the breakaway room is confidential.

If your matter does not settle at mediation the defendant may continue to make offers after mediation in the lead up to hearing.

When will my case go to court?

If you have failed to resolve your case outside of court and you have exhausted all alternative dispute resolution avenues your matter will be listed for a hearing date.

In our experience 98% of matters settle outside of court. Some even settle on the morning of the first day of the hearing!

If you want to know more about resolving your medical negligence claim, contact Garling & Co Lawyers for a free case assessment.

Garling & Co Lawyers

Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by New South Wales Law Society. He is admitted to practice in the Supreme Court of NSW and the High Court of Australia. Matthew is also a member of...
Ray H.
07:33 13 Jun 24
Matthew Garling and Team are kind, patient, polite, professional, empathetic and efficient. I was treated terribly by the at fault insurer. Garling and Co. had my back. Matthew gently and patiently... kept me up to speed on all the steps to go through. From my personal experience I recommend these guys. They are safe hands. Thank you team.read more
Jo L.
05:58 07 May 24
So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more
Linda O.
21:53 06 May 24
Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more
Keith H.
20:51 23 Apr 24
After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more
Anthony T.
00:50 16 Apr 24
Thank you Matthew and his team who guided me through the legal process, a truly positive experience with total professionalism.
Mikaele N.
03:01 15 Apr 24
Garling &Co Lawyers were awesome, I called every compensation law firm and was told that I couldn't claim for compensation.The whole experience and process was simple and stress free.Mr Matthew... Garling and Allison deserve an accolades for the very best in client service. I would highly recommend their service to anyone.read more
Tamara L.
02:10 15 Apr 24
I want to thank Garling & Co so much for all the help they have given me and helped with my claim. We got the win last week and it was the best news I have gotten considering how much my life has... been turned upside down the past 2 years. Emma and Rebecca have been incredible to work with and explained everything from the start even when I had hesitation to go ahead regarding how much everything would cost or how fair it could go or even if I had a chance, but they explained everything thoroughly, so I understood it all. Thank you for making this process seamlessly easy and helping me get the win it will make things a little easy for me that's for sure financial thank you for all your help I cannot recommend you and your services enough. Thank you again.read more
Sigrid W.
05:01 11 Apr 24
Utter professionalism from first phone call to final settlement. It was a pleasure to be represented by a firm that actually cares for their clients. From office staff, to paralegal and solicitor... Rebecca, Emma and Matthew thank you for your support and expertise throughout my claim. No wonder your firm has won many awards. I'm extremely happy with my outcome and can confidently recommend your firm.read more
BJ S.
01:09 09 Apr 24
Highly recommend Matthew & Allison at Garling and Co ! Quick response ! helpful every step of the way ! If you want the best compensation lawyer, Matthew @ Garling and co is the bestDoesn’t waste... time. Very informative ! excellent guidance! They get the job done ✅Website is perfect guide5 Star ⭐️ is not enoughI’m so grateful to Matthew, Allison and team for my outcome so far !Thank you 😊 Garling and co are awesome 👏 🤩read more
Jaimie K.
06:11 02 Apr 24
Have had a rollercoaster ride with Garling and Co over the several years we have been battling the system that injured workers are faced with. The wheels of progress are slow within this system.... However Garling and co have always stood by me. Calls are returned and matters are always followed up in a timely manner.read more
READ ALL TESTIMONIALS

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Ray H.
07:33 13 Jun 24
Matthew Garling and Team are kind, patient, polite, professional, empathetic and efficient. I was treated terribly by the at fault insurer. Garling and Co. had my back. Matthew gently and patiently... kept me up to speed on all the steps to go through. From my personal experience I recommend these guys. They are safe hands. Thank you team.read more
Jo L.
05:58 07 May 24
So very impressed with the professional team who looked after me throughout the last 4 and 1/2 years. A special mention to Kerry and Nathan who navigated each request to fight for my right to gain... access to further treatments and physio and to ensure medical treatment would be covered moving forward. I was so grateful I could hand it all over to you and not have to go through this very challenging time without your support.I thank you for the compassion you have provided to me, from the first contact with Matthew and Natasha, to finalisation with Kerry and Nathan.I highly recommend the team at Garling and Co for any third party compensation claims. You are in good hands with them all.read more
Linda O.
21:53 06 May 24
Emma, Rebecca and the team at Garling and Co have worked diligently throughout my workers compensation claim. The level of professionalism, support and communication has been faultless. Of particular... note has been the sensitivity displayed to me throughout the lengthy process. Worker’s compensation claims are complex and not easy to navigate, particularly when you are unwell. I do not hesitate to recommend Garling and Co to help you find a way through this otherwise unfathomable system.read more
Keith H.
20:51 23 Apr 24
After my case stalled with another firm, I decided to give Matthew Garling a call. He took my case and not only won, but achieved an outcome that far exceeded my expectations. This firm is the best... in the business in my opinion and I wouldn't hesitate to recommend them to anyone.read more
Anthony T.
00:50 16 Apr 24
Thank you Matthew and his team who guided me through the legal process, a truly positive experience with total professionalism.
Mikaele N.
03:01 15 Apr 24
Garling &Co Lawyers were awesome, I called every compensation law firm and was told that I couldn't claim for compensation.The whole experience and process was simple and stress free.Mr Matthew... Garling and Allison deserve an accolades for the very best in client service. I would highly recommend their service to anyone.read more
Tamara L.
02:10 15 Apr 24
I want to thank Garling & Co so much for all the help they have given me and helped with my claim. We got the win last week and it was the best news I have gotten considering how much my life has... been turned upside down the past 2 years. Emma and Rebecca have been incredible to work with and explained everything from the start even when I had hesitation to go ahead regarding how much everything would cost or how fair it could go or even if I had a chance, but they explained everything thoroughly, so I understood it all. Thank you for making this process seamlessly easy and helping me get the win it will make things a little easy for me that's for sure financial thank you for all your help I cannot recommend you and your services enough. Thank you again.read more
Sigrid W.
05:01 11 Apr 24
Utter professionalism from first phone call to final settlement. It was a pleasure to be represented by a firm that actually cares for their clients. From office staff, to paralegal and solicitor... Rebecca, Emma and Matthew thank you for your support and expertise throughout my claim. No wonder your firm has won many awards. I'm extremely happy with my outcome and can confidently recommend your firm.read more
BJ S.
01:09 09 Apr 24
Highly recommend Matthew & Allison at Garling and Co ! Quick response ! helpful every step of the way ! If you want the best compensation lawyer, Matthew @ Garling and co is the bestDoesn’t waste... time. Very informative ! excellent guidance! They get the job done ✅Website is perfect guide5 Star ⭐️ is not enoughI’m so grateful to Matthew, Allison and team for my outcome so far !Thank you 😊 Garling and co are awesome 👏 🤩read more
Jaimie K.
06:11 02 Apr 24
Have had a rollercoaster ride with Garling and Co over the several years we have been battling the system that injured workers are faced with. The wheels of progress are slow within this system.... However Garling and co have always stood by me. Calls are returned and matters are always followed up in a timely manner.read more
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
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