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Sian Chapman

- 28 Apr 2020
  • Medical Negligence

What to do when medical negligence causes a terminal illness

When a life-threatening condition is the result of medical malpractice, you may only have a short time to make a legal claim

When medical negligence causes a terminal illness, the stress to you and your family is enormous. Often, these types of claims are due to cancer misdiagnosis. Perhaps at the time of the investigation, it wasn’t identified. Maybe the cancer could have been treated if not for the delay. You need to know what to do to manage the medical claim as quickly as possible.

Why do terminal illness medical negligence claims require special treatment?

When the medical negligence or misdiagnosis decreases your life expectancy, you need a plan to work out how to tackle the claim. It’s not the same as other medical negligence claims.

Usually, medical negligence claims take a long time because of the evidence that’s required and how it needs to be collected. For example, getting medical records from hospitals or medical practices can take up to six months. If you’re terminally ill, you can’t wait this long.

Expert evidence is also needed to establish liability. Liability means legal responsibility (or fault). A big part of a negligence claim is working out who should be legally responsible for the injury.

In medical malpractice claims, usually, the claim is made against the insurer of the medical professional. If the insurer refuses to accept liability, (and this is common), the expert reports are essential to prove your claim and establish liability. If the reports aren’t available for months, this adds to the time it takes to investigate the claim and when negotiations can start.

How to reduce the time it takes to settle a terminal illness medical negligence claim

Every claim is different, but often the first step is to write to the medical professional or their insurer (the respondent). We put them on notice of your potential claim and find out whether they accept liability.

Occasionally, it’s obvious an error was made, and it doesn’t take much evidence to show it. The respondent may admit liability straight away, but these situations are rare.

More commonly, the respondent denies liability.

For terminal illnesses, there are options available so we can get hold of your medical records urgently. For example, we can make an application to court for pre-action disclosure of medical records. This means we ask the court to order that medical records are made available to us, even before we’ve formally started your legal action.

We can also ask the court to hold an urgent hearing. This costs more, but usually, we can get the records and other documents quickly. When we meet to discuss your claim, we’ll give you a cost estimate for this type of application.

The respondent can claim costs for complying with the court orders. We will factor this into our cost estimate and discuss your options.

What can I claim?

If the respondent accepts liability, or if we have enough evidence to prove liability, we can propose a settlement offer to the respondent. This is known as a formulated claim.

In terminal illness medical negligence claims, it’s possible to make a legal claim for damages in the following areas:

  • Pain and suffering (including loss of years of life)
  • Loss of income (past and future)
  • Medical expenses (past and future)
  • Loss of years of life
  • End of life care or palliative care
  • Dependency
  • Suffering caused by a loved one’s death (solatium)
  • Loss of ability to enjoy a normal relationship with your spouse or partner (loss of consortium)
  • Funeral expenses

These areas are known as heads of damage.

Pain and suffering is known as non-economic loss. Often, it forms a significant part of a claim.

The amount of your claim will depend on the circumstances. It also depends on how your claim is measured against a point scale under South Australian law. We’ll discuss this with you.

You can claim for lost income, depending on whether you were working at the time of the negligent act. For example:

  1. If you were a retired pensioner at the time of the negligence, you wouldn’t be able to claim for lost income because you were receiving a Centrelink pension rather than wages
  2. If you were getting a government benefit at the time of the negligence (for example, the Disability Support Pension), you can’t claim for loss of income because you were already unable to work

Claiming for end of life care is aimed at covering the cost of your care when you’re in a hospice (or similar). It’s a high cost and will depend on predictions of how long you’ll need the care.

A claim for solatium is for the suffering experienced by your family because of the negligence. Usually, it’s not the central part of a medical negligence claim.

The dependency part of your claim can be for either financial or care dependency.

An example of financial dependency is when family members depend on you for mortgage payments, buying groceries and other living expenses.

An example of care dependency is the assistance your dependent family members will no longer receive, such as helping your parents or spouse with household chores. Without your assistance, they’ll need to pay service providers to do those jobs.

If your partner meets the legal criteria, they can claim compensation for loss of consortium. This compensates them for the loss of your emotional and physical services in the relationship.

What happens if I pass away before finalising my medical negligence claim for terminal illness?

Illness is unpredictable. As time goes on, your prognosis may change. You may pass away before your claim is finalised.

Unfortunately, this is the risk of making this type of claim. We’ll do everything we can to avoid this, but we can’t guarantee a settlement within a specific time.

If you do pass away before finalising your claim, its value will be significantly affected, because the types of damages for which you can claim are reduced. For example, a claim for lost income will no longer be relevant.

Other things to think about

Many people hope that making a claim will stop a similar injury from happening to someone else. But this is unlikely. There’s no guarantee your claim will force a change in the operations of a medical professional, hospital or other organisation.

The final word about terminal illness medical negligence claims

Medical negligence claims are usually made in stressful circumstances. When there’s a terminal illness and time is of the essence, the stress levels significantly increase. To help your quality of life and to do your best for your loved ones, it’s essential to act quickly. The crucial first step is to get our help. We’re skilled medical negligence lawyers, and we’re here to help ease your path to financial security and peace of mind.

Learn more about how we can help you.

By Sian Chapman

Sian Chapman is a medical negligence and personal injury lawyer and Associate at Duncan Basheer Hannon. Her clients appreciate her ability to handle medical claims sensitively, act with urgency, and her clear and regular communication.

Contact Sian to discuss your medical or injury claim.