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Floyd Bakewell

- 24 Jan 2020
  • Medical Negligence

  • Personal Injury

Why do medical malpractice claims in Australia take so long to resolve?

Sometimes, there are good reasons for the delay in progressing and resolving medical negligence claims.

 

Compared with other injury compensation claims, medical malpractice claims (also known as medical negligence claims) often proceed at a slow pace. In South Australia, it can take months, sometimes years, to finalised some claims. It’s frustrating, especially when you’re trying to move on with life.

There are plenty of reasons why, because medical malpractice claims are often complicated with many moving parts.

Sometimes the progress of the claim depends on you. But there are other elements that may be out of your, and our control.

 

Is there a time limit for making a medical malpractice claim in South Australia?

 

There are time limits for taking legal action for any type of personal injury claim, including a medical malpractice claim.  Legal action usually starts by filing a claim in court.

For medical malpractice claims in South Australia, you have three years from the date of the injury to make your claim. In some circumstances, there may be a longer time in which to claim, for example, if you have a disability or if you’re under the age of 18.

The time limits are usually strict, so it’s important to make your claim within the required time. Once the time limit has passed, you are statute barred, meaning that you no longer have the right to make a claim for that injury.

It’s possible to ask the court for an extension of time if you’re outside the time limit, but it’s very rare for a court to allow this.

If the three-year anniversary of your injury is approaching, or if it has passed, you should contact us as soon as possible.

Although you’re generally required to start your legal action within the time limit, your claim may be settled by negotiation. If you can’t reach an agreement, your claim may go to trial. This means your claim will be heard and decided by a judge.

Most medical negligence claims in Australia are resolved by negotiation and settlement.

 

What must happen before my medical malpractice claim is filed in court?

 

When you meet with us to discuss whether you should make a claim, we’ll usually start by gathering information to work out your chances of success.

This process starts with investigations. We will request your medical records from your health practitioners about:

  • Your general health
  • Any pre-existing injuries
  • Your injury

Usually, there are a lot of medical records to locate, so getting the records can take a long time. It may take weeks or months for a medical office to process our request for your records. It’s one reason  a medical negligence claim in South Australia can take a long time to resolve.

Once we have your medical records, we’ll usually use them to prepare a chronology of events. This helps us understand what has happened. The more records, the longer this process takes.

Then we’ll get a medical opinion. This is an important step because it helps us understand whether the injury was caused by negligence (meaning the medical treatment wasn’t competently performed).

We’ll ask for the opinion to cover:

  • How your injury was caused
  • Whether the medical treatment caused your injury
  • How much of the injury was caused by the medical treatment

We may need to seek medical opinions from more than one expert.

Some experts provide their opinions soon after we request them. Others take a long time, depending on how busy they are. Sometimes, it can take months before a written opinion is provided.

Once the investigations are complete, we can assess the medical reports. We’ll weigh up your chances of success if you make a medical malpractice claim. Usually, we’ll give you plenty of advice so you can make an informed decision.

If you instruct us to lodge a claim in court, we need to make sure we’ve followed the court’s rules and processes. For example, we must:

  • Notify the other party of the claim
  • Give them a chance to respond to the claim
  • If appropriate, give the other party a detailed letter of offer to resolve the claim
  • Give them a chance to respond to the offer

 

What’s the court process for a medical malpractice claim in South Australia?

 

Once legal proceedings have been lodged, the progress of your claim will be controlled by the court.

The court makes sure the claim continues to move towards resolution. This may be through a trial, or through a more informal process which helps the parties work out whether they can settle the claim without going to trial.

After we lodge your legal proceedings, they must be served on the other party (the defendant). The defendant then has 28 days to file a defence in court. This is a response to the allegations in the claim.

We’ll then prepare a Statement of Loss, which details your losses and the injuries you’ve suffered. We have up to 28 days after receiving the defence to file and serve this document.

The claim is then listed for a settlement conference, at which both parties explore whether a settlement can be agreed.

If the parties can’t agree, the court will hold a directions hearing and make orders for disclosure. During this process, you and the defendant must inform each other of all relevant documents and other material. The court usually allows 21 days for disclosure.

If the claim is complicated, more directions hearings may be necessary. The court may make other orders to progress the matter.

Once both parties are ready to proceed to trial, which they indicate by providing a certificate, the court will set a trial date.

The trial date may be up to a year into the future depending on the availability of:

  • The court
  • Witnesses
  • Legal teams

When the trial ends, the judge must write a judgment. The judgment sets out the decision and the reasons for the decision. It may take many months for a judge to finalise the judgement.

The matter will take even longer if one of the parties appeals the judgment. It will go to a hearing in an appeal court. There will be another delay while the court decides the appeal and provides a further judgment.

The trial process is uncertain and so there’s often strong incentive for both parties to agree to resolve the matter by negotiation.

 

What other factors slow the progress of medical malpractice claims?

 

Other issues that can delay the resolution of your claim include:

  • Your injuries may not have stabilised (meaning the injuries reach a point where they’re not getting any worse). Until they stabilise, it will be difficult to work out how they will impact your life. Neither you nor the defendant will be able to resolve the claim until the injuries are stabilised, so that we can consider:
  • The likely cost of future treatment
  • Pain and suffering
  • Care and assistance needs
  • Loss of future earnings and other income
  • If you have litigation funding, you may need to wait for approval to use the funding to cover some of your costs
  • Your lawyer waiting for you to provide information

 

Is there any benefit to my Lawyer if my claim is delayed?

 

When a medical malpractice claim progresses slowly, lawyers are often blamed.

But as we’ve illustrated, there are many reasons for the slow progress of a claim.

There’s no benefit to us if your claim is delayed. We mostly act on a no win no fee basis for medical injury claims. This means we’re paid only when the claim resolves. The longer it takes to resolve, the longer it takes for us to receive payment.

We have a professional and ethical obligation to act in your best interests at all times

 

Things to remember about your medical malpractice claim

 

It’s not just the assessment and court process that makes a medical malpractice claim a lengthy process. Some claims are drawn out because they’re difficult to resolve quickly. Reasons include:

  1. Medical malpractice claims are often complex. Plenty of work is required to collect evidence and pinpoint legal issues
  2. Medical experts are usually busy, so it can take months to get legal reports, especially if several reports are needed. It may also take time to find experts with the appropriate experience
  3. Many aspects of the claim may be disputed by the defendant, for example how the injury was caused, who was at fault, the amount of money claimed, and the seriousness of the injury

Your best interests are our priority. We know that maintaining close communication with you is an excellent way of keeping things on track

If you’ve got a possible medical malpractice claim, give us a call to find out how we can help you get on with life.

 

By Floyd Bakewell

Floyd Bakewell is an Associate at DBH, working in all areas of injury law including medical negligence. His knowledge of medico-legal issues is impressive, and his clients benefit from his excellent legal services and his ability to achieve exceptional results.