Medical Negligence FAQ

Here are some commonly asked questions to assist your understanding of the medical negligence claim process.

Q: How much will this cost?

A: Our policy for most cases is no win, no fee. This means that we are confident about winning your case for you, as we only charge you for a successful outcome. If you are awarded compensation, you will be charged for our costs of investigations and legal fees, which will be a portion of your award.

Q: How will compensation be paid? In instalments or in a lump sum?

A: Compensation will be in a lump sum, that will be tax free.

Q: I really don’t want to go to court. Can I still make a claim?

A: Most malpractice cases go to court. This is because it is more difficult to settle a malpractice claim outside of court since the legal representation of the defence is so strong.

Q: Do I need insurance myself to make a claim?

A: You do not need private insurance to make a Medical Negligence Claim. However, if your private insurance company or Medicare has been paying your medical bills, you must repay them out of the settlement you receive. In the same way, if you have been receiving Centrelink payments while disabled, you will need to repay those payments out of your settlement compensation.

What our clients say

21/11/2011 |

LC, Canberra

Joshua Dale -

Testimonials

Hi Joshua I am still in disbelief [regarding my award of compensation]. Wow! Thank you so much for your assistance, hard work and unders...

Recent Successes

28/11/2011 |

Workers Compensation paybacks in Medical Negligence matters.

Jodie Baker -

Recent Success

We have a client who sustained an injury in the course of his employment and was paid compensation pursuant to the Workers Compensation Act ...

We have a client who sustained an injury in the course of his employment and was paid compensation pursuant to the Workers Compensation Act 1987 (NSW) ("the Act"). The client required surgery to treat the injury and as a consequence of the negligence of the treating doctor, suffered an additional injury.

In the course of the proceedings for damages against the doctor, the client sought a declaration from the workers compensation insurer that payments made to him pursuant to the Act were not repayable pursuant to Section 151Z.

The workers compensation insurer advised us that they considered they had a right of recovery for all weekly compensation benefits and medical expenses paid pursuant to Section 151Z (1) (d) of the Act and would be pursuing recovery of these.

In reply we wrote to the insurer and advised there have been a series of Court of Appeal decisions which have found that in this situation Section 151Z (1) (d) does not operate to allow the workers compensation insurer to recover the payments it has made.

In Hood Constructions Pty Limited v Nicholas [1987] NSWLR 60 the court stated that the injury caused by the medical treatment was not "an injury for which compensation is payable" within the meaning of Section 151Z, notwithstanding the fact that the surgery was undertaken to remedy an injury sustained in the court of employment. The court went on to find that the worker's damages against the doctor were to be reduced to take into account the compensation payments already received.

This was confirmed in the matter of Rooty Hill Medical Centre Pty Limited v Gunther [2002] NSWCA 60. The court of appeal confirmed that Section 151Z of the Workers Compensation Act did not apply and the plaintiff’s damages had to be reduced to give effect to the overriding intention of parliament that a worker should not be entitled to both compensation and damages.

The workers compensation insurer then conceded that Section 151Z did not apply in this case and they would not be pursuing any recovery from our client. This was important as we were then able to advise our client on his likely damages if he was successful in the claim.

Q: My doctor says there is nothing wrong, but I told him there was. Can I still make a claim?

A: If you believe your doctor is not correct in his assessment, you should seek a second opinion. If the original healthcare provider was indeed guilty of causing you injury, your medical negligence settlement should pay for all medical fees.

Q: Is there a time limit for a medical malpractice suit?

A: The statues of limitations range from state to state between one and seven years. However, this time limit is flexible if you did not learn about the negligence until after the official time limit, or if you were a minor at the time you received the injury. In Queensland, most medical negligence cases must begin in court within three years of the injury.

If you have been injured or suffered illness as a result of medical negligence / medical malpractice, we can help. To get in touch with one of our medical negligence specialists call our freecall number 1300 168 821.