How long does a medical negligence claim take?

Learn about how long a medical negligence claim takes, what you need to do and the common pitfalls you may face.

The time to resolve a medical negligence claim can vary due to a number of factors. The rule of thumb is 12 to 18 months from when the matter is filed in court, but this time frame can be shorter or longer depending on the complexity of the claim. For complex claims, there may be a lengthy period of investigation before the claim is filed.

What is medical negligence

Medical negligence is negligence that occurs by a medical professional including a doctor, nurse, pharmacist or even a hospital. The term exists as the skillset of a healthcare professional is considered deserving of a higher standard of care than a member of the general public. 

Some examples of medical negligence include:

• No informed consent was obtained before providing treatment.
• Failure to diagnose a medical condition.
• Delay in diagnosing a medical condition.
• No adequate warning of risks of medical treatment.
• Errors with prescriptions.

RELATED: What are the four D’s of medical negligence?

How to prove medical negligence

The elements to prove medical negligence are similar to standard negligence. 

They are:

• A duty of care existed between the healthcare professional and patient,
• The duty of care was breached either by an act or omission of an act, and
• Harm resulted from the breach.

A duty of care in medical negligence claims can generally be established by proving a doctor and patient relationship existed. To prove that a breach occurred and harm resulted, you need to show a direct connection between the two. 

It is always advisable to gather all relevant material before lodging the claim. Documents that your lawyer can use to prove medical negligence claims include:

• Records of appointments attended.
• Expenses of medical treatment.
• Medical documents and reports.
• Statements from you and other witnesses. 
• A diary of the daily effects of your injury.
• Statements from medical experts. 

Due to the higher standard of care required by medical professionals, the standard of proof is also high. It is essential to consult a medical negligence lawyer as they can provide the appropriate advice and assist with compiling the required evidence including expert opinions.

Common pitfalls when pursuing medical negligence claims

Medical negligence is a complicated area and your claim may fail if it is not correctly pursued. The best outcome is when the defendant quickly admits liability because then all that is left is for the value of the claim to be determined. 

Here are some common pitfalls to avoid when lodging your claim:

• Outside the time limit
  There are strict time limits to filing a medical negligence claim so if you think you have a claim, it is best to consult a lawyer as soon as possible. In some states of Australia, the time period is 3 years. 
• Not being prepared to go to trial
  Many medical negligence claims get settled outside of court but there is always a chance that your case may go to trial, so it is important to be prepared for this possibility.
• No expert evidence
  With medical negligence claims, expert medical evidence is highly critical and without it, claims generally fail. A medical negligence lawyer can assist with compiling evidence from medical witnesses.

How do I start the process for a medical negligence claim

If you think you have a claim for medical negligence, you should first consult a medical negligence lawyer. The more information you are able to provide, the stronger your case will be. 

Write down all the details of your claim including the names of people involved and the negligent act. If you have any records or reports about your medical condition, include them also.  

Gathering the required evidence will take time so the sooner you start the better. Once you have provided what documents you have, your lawyer will start the process of gathering the evidence and obtaining medical experts. 

Once everything is ready, a statement of claim will be filed and from there, the court process will commence. This is also when the defendant will have their own experts assess your injuries and medical situation. 

Depending on the amount of evidence and the defendant’s response, medical negligence claims can take some time to be resolved. 

Contact the medical negligence experts at Masselos & Co Lawyers today for a free consultation.