Apart from very exceptional cases, a medical negligence claim cannot succeed without support from an appropriate independent medical specialist, supporting the conclusion that the care provided fell below an acceptable standard and that this, at least in part, was a cause for the adverse outcome from your treatment.
Consequently, the first stage of our handling your claim involves finding out whether such an independent specialist (specialising in the area of treatment relevant eg orthopaedic surgeon, GP, psychiatrist etc), supports a claim.
To do this involves:
- You telling us the story of your care, in detail, so we understand what happened.
- obtaining a copy of all of your relevant medical records from your doctors/hospitals etc.
- Then sending this information to a specialist doctor or other health professional with appropriate expertise asking for their opinion concerning your case, the quality of care you received and the reasons for your adverse outcome from treatment.
Ensuring the quality of the information we provide to the expert is as accurate, clear and concise as possible, involves a great deal of hard work and skill (as you will see, if you pursue a claim). The quality of the expert opinion that we obtain depends very much on the quality of the information we provide. We believe that our work in this regard is appreciably better than our competitors.
We aim to complete this investigation stage of your claim and obtain the independent medical specialist’s opinion within 4 – 6 months of your first instructing us to investigate your claim
Pursuing Your Claim
Once we have obtained the independent medical specialist’s opinion, if this supports a claim and you wish to go ahead, a formal claim is begun.
This generally (but not always) in medical negligence claims, involves beginning a court case against the doctor, hospital or other health provider. This is a big step and one we will ensure you are properly informed about, before you decide to go forward.
If you wish to pursue a claim, we will prepare and lodge the necessary documents which begins your claim in the District Court of Western Australia.
After this we will take the various steps in the Court action, required to reach the stage at which a Court supervised discussion will take place (known as a ‘pre-trial conference’) between us and the doctor/hospital or other health professional’s insurance company, concerning your claim and we will at this point ascertain whether the doctor/hospital or other health professional (or its insurance company) is prepared to make an offer of compensation in relation to your claim. This generally takes about 6 months from when the Court action is begun.
As we will discuss with you, if a supportive expert opinion has been obtained concerning your claim, the chances are good that a settlement agreement will be reached concerning your claim at such pre-trial conference. In almost all cases, such a settlement can be reached without the need for any trial.
In a small number of cases, no settlement can be reached concerning the claim and a trial occurs.
It is important that you understand that this will not be ‘forced’ upon you. If no offer is made by the doctor or hospital to settle your case, it is up to you whether you wish to take the matter to trial.
If a trial takes place in relation to your case, this will be heard by a Judge of the District Court (medical negligence claims are not heard by a Jury). If such a trial proceeds, you will need to give evidence and so will the independent expert who supports our criticisms of your care along with other medical and other witnesses.
If a trial proceeds, this will involve an enormous amount of time and effort on our part to ensure you have the best possible chances of succeeding in your claim. This is a collaborative process. We will involve you extensively in planning your case and assisting us in preparing. In our experience, trials are won almost invariably because of hard work done ‘out of court’ before the trial, rather than performance on the day.
For more details of this process and the steps involved, download our sample ‘timeline of a claim’ from here
Also see the Video’s page for more information on this topic + others.