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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 stabilize 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 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.

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...
Yanthi S.
01:51 18 May 22
I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or kind of negotiation in the... hearing. I assumed that as a Lawyer she should experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Arbitrator only gave me less than 5 minute to make decision and pushed me to accept the disappointed outcome and what she said totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.read more
Lynda S
00:34 04 May 22
For such complicated matters, it is extremely important to have a good team in your corner. The right team.Garling and co is just that and much more.They listen to you and care. They support you... during the entire process. You will have so many questions and they always return your calls and reply to your emails.Thank you so much to Renee, who explained everything to me and what to expect in details and really reassured me. The process felt less heavy and stressful because she was there. She was professional and so efficient. She took over my case from previous lawyer and I wish I could have met her first. She was available to answer the many questions I had along the way. There is also Kelli, she was the first person I got on the phone most of the time when I called and she is nice and very helpful, I had so many questions and doubts, I was stressed yet she had the patience to explain and seek answers to my questions.Natasha took over my case towards the end and she also was great in listening and supporting me and made sure to defend my best interests against the other side at all time.The Worker’s compensation process is very stressful, it can last for a long period. In my case it was three years and it is to the upmost importance to have people who treats you well, are professional and efficient.I am very satisfied with the outcome and I hope that this reviews helps the next person.Your assistance made the difference and I would have not been able to do it without your precious help.read more
Melinda B.
23:57 04 Apr 22
Workers compensation and the medical-legal process is a complicated and a difficult process.If you are looking for a highly professional compensation/personal injury lawyer, I would without... hesitation definitely recommend Matthew Garling who is a genuine, caring & dedicated lawyer.Matthew, Allison Luck and co. are extremely professional, clear and concise with all communication and an exceptional support during the whole process of my claim, I felt confident and secure that I had made the right decision having Matthew represent me, they worked tirelessly and where 100% committed to getting me the best possible outcome.My case was complicated and Matthew never gave up fighting for me, he didn’t just take the first option for a quick and easy resolution.He and his team got me the best possible outcome for my WPI and I will be forever grateful for their hard work and diligence. I now have peace of mind knowing I have lifetime medical assistance and payment till retirement age.read more
Jim M.
12:25 27 Mar 22
Garling and Co lawyers you have done again with Success for my TPD claim! Ms. Emma Perkins and her team have assisted my TPD claim with great success after the hard work, She is a very down-to-earth... person, professional, and highly knowledgeable with insurance claim law. She is very approachable and always willing to help and often reply my question of email after business hours. I will most delighted to recommend Garling and Co Lawyers. Ms. Emma Perkins and her team to any person who needs insurance claim law service like me. by Julieread more
Anthony N
22:13 17 Mar 22
I had Garling & Co Lawyers handle my workplace dispute, I could not be happier with the outcome, handled in such a professional way with excellent communication throughout the entire process.Natasha... and Kelli were very understanding in every aspect, requesting information via phone or email was never an issue, fast response times and helpful in every way. I HIGHLY RECOMMEND the team @ Garling & Co Lawyers. 👍read more
Yvonne M.
05:03 21 Jan 22
Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
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Yanthi S.
01:51 18 May 22
I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or kind of negotiation in the... hearing. I assumed that as a Lawyer she should experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Arbitrator only gave me less than 5 minute to make decision and pushed me to accept the disappointed outcome and what she said totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.read more
Lynda S
00:34 04 May 22
For such complicated matters, it is extremely important to have a good team in your corner. The right team.Garling and co is just that and much more.They listen to you and care. They support you... during the entire process. You will have so many questions and they always return your calls and reply to your emails.Thank you so much to Renee, who explained everything to me and what to expect in details and really reassured me. The process felt less heavy and stressful because she was there. She was professional and so efficient. She took over my case from previous lawyer and I wish I could have met her first. She was available to answer the many questions I had along the way. There is also Kelli, she was the first person I got on the phone most of the time when I called and she is nice and very helpful, I had so many questions and doubts, I was stressed yet she had the patience to explain and seek answers to my questions.Natasha took over my case towards the end and she also was great in listening and supporting me and made sure to defend my best interests against the other side at all time.The Worker’s compensation process is very stressful, it can last for a long period. In my case it was three years and it is to the upmost importance to have people who treats you well, are professional and efficient.I am very satisfied with the outcome and I hope that this reviews helps the next person.Your assistance made the difference and I would have not been able to do it without your precious help.read more
Melinda B.
23:57 04 Apr 22
Workers compensation and the medical-legal process is a complicated and a difficult process.If you are looking for a highly professional compensation/personal injury lawyer, I would without... hesitation definitely recommend Matthew Garling who is a genuine, caring & dedicated lawyer.Matthew, Allison Luck and co. are extremely professional, clear and concise with all communication and an exceptional support during the whole process of my claim, I felt confident and secure that I had made the right decision having Matthew represent me, they worked tirelessly and where 100% committed to getting me the best possible outcome.My case was complicated and Matthew never gave up fighting for me, he didn’t just take the first option for a quick and easy resolution.He and his team got me the best possible outcome for my WPI and I will be forever grateful for their hard work and diligence. I now have peace of mind knowing I have lifetime medical assistance and payment till retirement age.read more
Jim M.
12:25 27 Mar 22
Garling and Co lawyers you have done again with Success for my TPD claim! Ms. Emma Perkins and her team have assisted my TPD claim with great success after the hard work, She is a very down-to-earth... person, professional, and highly knowledgeable with insurance claim law. She is very approachable and always willing to help and often reply my question of email after business hours. I will most delighted to recommend Garling and Co Lawyers. Ms. Emma Perkins and her team to any person who needs insurance claim law service like me. by Julieread more
Anthony N
22:13 17 Mar 22
I had Garling & Co Lawyers handle my workplace dispute, I could not be happier with the outcome, handled in such a professional way with excellent communication throughout the entire process.Natasha... and Kelli were very understanding in every aspect, requesting information via phone or email was never an issue, fast response times and helpful in every way. I HIGHLY RECOMMEND the team @ Garling & Co Lawyers. 👍read more
Yvonne M.
05:03 21 Jan 22
Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.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
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