Making a medical negligence claim after 3 years

When someone needs to go to the hospital, the only thing on your mind is hoping they get better. Medical professionals are in the unique position where they’re called on to always get things right, care for the patient diligently and do everything in their power to help your loved one survive.  

The reality of this situation is that this doesn’t always happen. Like all positions, there are medical situations where mistakes occur and in this profession, people get hurt because of it. 

If you or someone you know has fallen victim to medical negligence, there are legal actions you can take to rectify the shortcomings in treatment or care. While there is a statute of limitations regarding when you can make a claim, we will go over the steps you need to take when making a medical negligence claim after three years. 

What is medical negligence?

A patient usually approaches a doctor based on their reputation for successful surgeries or medical practice. In the medical professions, physicians must take a medical oath to conduct themselves ethically at all times, no matter the situation, and they must use all of the modern technology they have available to assist the patient. 

It is not possible to expect a doctor to always be in the position to save someone’s life; there are certain situations where that is simply not possible no matter what technology is available. Doctors should always seek consent from the patient before any investigative or operational procedure is completed as well — except in the case of an emergency. Breaching this consent boundary is known as tortious liability, or a civil wrong against a contractual obligation. A patient must give the doctor consent before performing any procedures and by not honoring this agreement, the doctor is working against judicial law. 

These examples fall under the three points of a doctor’s duty to the patient:

1. Duty of care in deciding whether to undertake a case. 
2. Duty of care in deciding what treatment to give. 
3. Duty of care in the administration of that treatment.

Any actions taken against these points may lead to legal action in response to negligence by the doctor. Several types of medical negligence could occur:

• Active negligence
• Collateral negligence
• Comparative negligence
• Concurrent negligence
• Continued negligence
• Criminal negligence
• Gross negligence
• Hazardous negligence
• Active and passive negligence
• Willful or reckless negligence
• Negligence per se

Deciphering which among these has been committed is up to your medical negligence lawyer to help determine. In a claim like this, your lawyer may also be referred to a clinical negligence solicitor or a medical negligence solicitor. This is a lawyer who specialises in the medical negligence field and who will therefore be an expert on how to proceed. They know how sensitive this type of claim is because of the pain and suffering you or your loved one may be experiencing. 

Claim eligibility

While there are statutes of limitations for filing a medical negligence claim, grief and mourning don’t always fit within these limits. Medical negligence claims are not simple or linear. They depend heavily on what you knew, or should have known, and when. It is because of these facts that it is hard to put a number on how long someone has to file such a claim. 

Once you find out about the medical negligence, typically you will only have three years to make a claim. However, you (or your lawyer) can apply for an extension within the terms of the “long stop” limitation period if located in New South Wales where you will have up to 12 years after the actual date of the injury regardless of when you learned of who was at fault. 

To qualify for the long stop time limit you must bring forth the following:

• The length of when you found out about the negligence and the reason you did not file within three years.
• The extent and length of the patient’s injuries or loss.
• Any conduct of the medical professional or hospital that may have delayed taking action.
• Steps the patient took to seek legal advice and gather evidence.
• When the injury and cause of the fault were discovered.

As long as you or your loved one is taking steps to prove there is medical malpractice happening but you cannot prove who was at fault, you can still bring the personal injury claim to the court and make a claim. It is only after you have discovered who was at fault that you must bring the compensation claim to court within the three-year limitation period.

Once you do discover a fault, there are steps the court will take to determine if you have a case or not. The facts you must bring forth should include evidence of the following:

• Duty – The doctor owed the patient a level of medical care.
• Breach -The doctor made a decision that opposed a “reasonable person’s” choice in a similar situation. 
• Causation – The defendant caused the injury because of something they did, and the patient can prove it. 
• Damages – The negligence inflicted upon the patient, as expressed in a monetary amount. 

To win a negligence claim, all of these expectations should be met. When a patient is in the hands of medical staff they should be able to trust that they are conducting business safely and reasonably. 

How long does the claim take?

Because the medical profession is often a busy and chaotic one, it will typically take your lawyer up to 12 months to track down and get the information they need to prove your claim. This involves interviewing the medical practitioners who worked on your case to obtain professional and expert evidence for your case. They will go over the typical procedures of the medical treatment offered to the patient, discern if there may have been a misdiagnosis, collect notes and so forth.

From there, it will take around 6 to 12 months to compile the evidence to support your claim. A medical negligence claim will take between two to three-and-a-half years to resolve before you will see any compensation. 

The reason the claim will take so long to resolve is that your medical negligence solicitor will need to seek advice from a medical professional and their perspective on the case. Even if your lawyer is an expert in this field of legal pursuit, each case is different and should be treated with sensitivity. 

While your lawyer is collecting the information they need, the hospital or their legal representative will be doing the same. They may ask the patient to undergo medical examinations while they collect their medical expert advice.

Once both parties have collected sufficient evidence there will likely be a settlement conference to see if the claim can come to a resolution right away. If not, the claim will be elevated to a court or even up to the Supreme Court where you will likely have to wait up to a year for a hearing date. 

A lawyer can help

Navigating the murky waters of a medical negligence claim — especially when three years have passed since the injury — can be daunting. Gerard Malouf & Partners are the medical negligence lawyers you are looking for. Contact us for no-obligation legal advice about your medical negligence claim.