How do medical negligence claims resolve?

There are a number of ways your medical negligence claim may resolve

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 judgment.

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 the 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.

About Matthew Garling

Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.

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