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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 they 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...
Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
READ ALL TESTIMONIALS

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Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
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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