Overview
If you have seen a doctor or hospital and something has gone wrong and no one has been able to explain it to you properly, then it is possible you may have a claim for compensation, or damages, against the doctor or hospital, called a Common Law Claim.
The fault, or negligence, may have been caused by a person who is not a doctor at a hospital, for example a nurse or a person conducting medical investigations or administering a test or procedure.
Financial compensation can include medical and like expenses both past and future, loss of income also past and future, the cost of care both in the home and professional services and also financial compensation for pain and suffering.
It is important to understand that compensation is only payable where there has been some fault or what is called negligence, or breach of duty, on the part of the hospital, its employees or doctors. It is important to understand that in many cases, however, where things go wrong, it is considered part of the expected risks of medical treatment, medical procedures and surgery and all due care and skill has been exercised by the doctors and hospital employees.
Sometimes a claim can arise where there has been a failure to properly advise of the risks of a procedure or treatment, even if those risks were expected, and sometimes even by a failure to obtain proper consent for the procedure and the risks. A claim can arise even where the treatment or procedure has been carried out correctly but there has been a failure to warn or advise or obtain consent in relation to expected risks.
Our Process
We are happy to talk to you about a potential claim and assess whether it is worth investigating. There is no charge for this under our “no win, no fee” policy.
If we consider the claim is worth investigating, then again we will do so under this policy but arrangements will need to be made to fund disbursements. Options include funding disbursements by the client or using external providers such as a commercial disbursement funder or a not for profit agency such as Law Aid. We can discuss what is the best option for your circumstances.
We need to obtain clinical notes from relevant medical practitioners and hospitals and then obtain an advice from a barrister about your potential claim. This advice is also obtained on a “no win, no fee” basis.
If the advice is that you have a potential claim, then independent medico-legal opinions need to be obtained from expert medical practitioners on the issues involved in your case.
In addition, even if you establish liability or negligence, you are not able to pursue a claim for pain and suffering damages/compensation unless you meet an impairment threshold specified by State Government legislation of 5% for spinal injuries, greater than 5% for other injuries and 10% for psychological injuries.
If you don’t meet this threshold, you can still pursue a claim for financial losses, eg. loss of income, medical and like and care expenses.
Why Choose Us?
Our accredited specialist of over 20 years, Nick Lyons, has investigated and conducted many successful medical negligence claims and has obtained awards of financial compensation up to three million dollars ($3,000,000.00) in some cases of catastrophic injury.
Our People
Nicholas Lyons
Medical Negligence FAQs
How do I know if I have a case?
Sometimes it is very difficult, if not impossible, to know at the outset if you have a case and detailed investigation needs to be undertaken, including obtaining complete medical and clinical records, obtaining advice from an expert barrister and opinions from independent medico-legal practitioners.
Will it cost me any money if I haven’t got a case?
You will not have to pay any professional costs to either our firm or to any of the barristers we use if you don’t have a case. If you elect to fund disbursements yourself, or through a commercial disbursement funding provider, then you will be responsible for the cost of disbursements such as medical and clinical note fees and the cost of the independent medical opinions, which can be expensive. We don’t however request those, unless we believe you have a good case. If your disbursements are funded by Law Aid, then no repayment is required.
How long will my case take?
Medical negligence/malpractice cases are often difficult to establish and even in successful cases can take between 2 – 3 years before a result can be achieved given the amount of evidence that needs to be obtained. We can give you a better idea of how long your case will take after we have conducted preliminary investigations.
Will I have to go to Court?
In most cases the investigation and obtaining of expert legal and medical opinion is done before the commencement of any legal proceedings and you will know if you have a good case or not before any proceedings are commenced. In some cases, we can attempt to negotiate with the insurance company for the doctor or hospital, particularly if you have a good case. However, in many cases there are no offers made by the insurer and legal proceedings do have to be commenced. Only a small percentage of cases in which legal proceedings are commenced actually proceed to a full hearing at Court. The vast majority of cases settle by negotiation at settlement conferences, called Mediations.
How much will my legal fees be if I am successful?
It is difficult to advise of the cost of a case at the beginning when it is not known how much investigation will have to be undertaken, how long a case may last and whether legal proceedings will be commenced or not. Typically however, legal costs for which you are liable can be between fifty to one hundred thousand ($50,000.00 to $100,000.00). Importantly, when an offer is made in your case, or there is a settlement conference scheduled, we will have your file costed and provide you with full advice in writing before the settlement conference or before you are asked to decide about a settlement offer, so you know how much you have to pay and how much you have to receive.
Is financial compensation taxable?
No. Compensation, whether that be for pain and suffering, medical and like expenses, care costs and even loss of earnings and loss of earning capacity, are not taxable.
Will I have to repay any money from my award of compensation?
In most cases, yes. Government entities, such as Centrelink, Medicare and the NDIS, if they have contributed to your financial support with the cost of medical treatment and care, are entitled to reimbursement from your award of damages if your case is successful. Private companies, such as health funds are also entitled to reimbursement for money they have paid for the treatment for the injuries claimed in your case.
How long do I have to bring my claim?
You only have three (3) years from the date the injury occurred, but extensions of time can be obtained in a number of circumstances. In addition, if you are not aware of the injury or the negligence which caused the injury until later, then in some cases the three (3) year time limit does not commence to run until you are aware of the injury, the negligence or an important element of the claim.