You will need $20,000.00 to get into the game
The rules that govern claims for damages for medical negligence are contained in the Personal Injuries Proceedings Act 2002 (PIPA) and have been described as the hurdles, fences and gates that a litigant has to work their way through before they can commence a claim.
Whether it is worthwhile commencing a claim for damages for medical negligence involves a consideration of the following issues:-
- Whether you can establish liability on the part of the doctor or medical institution that you allege was negligent;
- The quantum of your claim; and
- The likely legal costs of bringing a claim.
With medical negligence claims the procedure involves the following steps:-
- Delivering a Section 9A Notice to the doctor or medical organisation detailing your personal particulars and why you say the doctor or organization is negligent.
- The doctor or organisation is then required to provide a copy of their records.
- The litigant is then required to brief an independent medical expert for the purpose of obtaining a medical report which expresses an opinion as to whether the services provided by the doctor/medical organisation have failed to meet an appropriate standard of care. The medical report is also required to detail the reasons justifying the doctor’s opinion.
If a report can be obtained that expresses the opinion needed, then a PIPA Part 1 Notice of Claim setting out the individual’s details, the event complained of and the grounds of negligence and PIPA Part 2 Notice of Claim setting out income details and the quantum of the claim can be delivered to the doctor and/or medical organisation.
To get to the stage of obtaining the necessary medical report has, in the writer’s experience, cost between $10,000.00 and $20,000.00. Even in circumstances where the event (eg death following medical treatment) clearly indicates that there has been a failure to meet the appropriate standard, the medical negligence insurer may require an independent report. Whether this is reasonable and appropriate conduct for a model litigant (as state government entities should espouse to be) is sometimes questionable.
If you are able to get to the stage of issuing the PIPA Part 1 and Part 2 Notice, the process then involves the doctor/medical organisation having a period of six months to investigate the claim (liability and quantum) before the parties are required to attend at a compulsory conference for the purpose of attempting to settle the claim.
The costs of getting to the point of holding a compulsory conference, in the writer’s experience, are not less than $45,000.00 (for your solicitor, barrister and medical experts).
As the provisions of the Personal Injuries Proceedings Act 2002 do not permit a litigant to recover any worthwhile costs unless they have a substantial claim (more than $78,400.00), it is vital that the quantum of the claim is accurately assessed before embarking on a claim.
With respect to the issue of quantum, the amount that a litigant will recover for pain, suffering and loss of amenities will be determined by the Injury Scale Value that is allocated for the injury in accordance with the Civil Liability Regulations 2014. As the awards for pain and suffering have been reduced considerably by the Civil Liability Regulations 2014, unless there is a claim for past loss of income and future loss of income and/or past home help and/or future home help (paid for on a commercial basis), the quantum of the claim may not justify the spending of $20,000.00 to obtain a report that a doctor and/or medical organisation was negligent.