If you suffered personal injury due to medical treatment or advice provided by a health professional or a hospital you may be entitled to compensation for the injury you have suffered as a result.
What do I have to prove to win my case?
To be entitled to compensation you will need to prove that the health professional or hospital was negligent (at fault), and their negligence caused your injury.
Doctors will sometimes differ in relation to the treatment recommended for the same illness. It is only if the treatment or medical advice falls outside what would be considered acceptable to a large number of medical practitioners in that area of practice within Australia that the treatment would be considered negligent.
Seek Early Legal Advice – 3 Year Limitation Period.
It is best to seek legal advice as soon as possible after your injury so there is time to fully investigate and prepare your case, and so there is time to explore a negotiated settlement (if that is what you want) before your case has to be lodged with the Court. (Note – Cases must be lodged with the Court prior to the 3rd year anniversary from the date of the treatment that caused the injury).
In some circumstances you may be able to lodge your claim outside the 3-year period if the injury and negligence were not discoverable immediately. For example, you may have not realised your injury was the result of the negligence of a health professional until some time after the injury.
How do I bring a claim?
We would start your case by first taking a detail history from you, so we understand your claim. We then obtain your medical records in relation to the treatment complained of.
Once we have a copy of your medical records we work with a medical expert, in the field of expertise of your claim, to review your records and provide an opinion in relation to whether the treatment/advice fell outside what is considered acceptable to a large number of practitioners in that area of practice and whether the treatment caused your injury. The report produced from the work with the medical expert is called a liability report.
Once we have obtained a liability report we concentrate on obtaining the evidence to prove the loss you have suffered as a result of the injury sustained. This will include medical evidence regarding your injury and the cost of future treatment required, along with the effect of your injury on your ability to work and to attend to domestic chores. The reports we obtain in relation to this aspect of your claim are called reports on damages (compensation).
What compensation can I claim?
The compensation you are entitled to receive will depend on your individual circumstances, including the extent of your injury, whether you lost wages due to your injury, whether you needed and will need ongoing assistance because of your injury and the extent of medical treatment required due to your injury.
Because each case is different, we take a detailed history from you at the beginning of your case, so we understand how the injury has affected your life and thus what compensation you are entitled to claim. We get periodic updates from you about your situation during the life of your claim.
With your permission we also obtain details from family, friends and work colleagues as to how the accident has affected you. Such evidence is very persuasive and helpful in getting the best outcome for your case.
How long will it take?
This will depend on your recovery. As you can only make one claim for a particular injury, it is important to fully understand the full extent of your injury and its effect on your future life before the claim is finalised. Thus, it is recommended that your case is not finalised until your injury has stabilized.
Each case is different, but as a general rule most injuries are considered stabilised at about 12 months post injury. Once your injury is stabilised, we can obtain medical evidence regarding the damages aspect of you claim as referred to above. While waiting for your injury to stabilise we gather the evidence needed to prove your case (liability report) and also the evidence to prove your loss and the compensation you are entitled to as a result of that loss, such as tax returns, evidence from your employer, educational records and statements from friends and family regarding the help they had to provide to you due to your injury.
As a general rule most cases finish 15 to 24 months post injury. About 80% to 90% of cases are settled by way of negotiation with the insurer.
What legal costs do I have to pay?
The legal costs consist of two components:
- The Professional Costs for the work we do in running your case. The insurer has to pay a proportion of those costs if you win your case. You do not have to pay our professional costs until you receive compensation from your case. If you don’t receive compensation, we don’t seek the payment of our costs – this is referred to as a conditional cost agreement or a no win no fee agreement.
- In the event your case goes to court and you lose the case, the court would order you to pay a proportion of the insurer’s legal costs. We provide advice to you in relation to whether you should take your case to court.
- Disbursements – This refers to money spent on obtaining the evidence, for example medical records and reports, engineer’s reports, accountant’s reports and also expenses incurred in photocopying/printing/phone. If you can pay the disbursements as they are incurred, particularly for medical reports you will avoid incurring overdraft interest. If you win your case the insurer will have to reimburse you for a percentage of the disbursements incurred. Unless you elect to pay the disbursements as they are incurred, the disbursements also do not become payable until you receive compensation.
