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Medical Negligence Claims in NSW

Medical Negligence NSW

CIVIL LIABILITY ACT

Ordinarily, a claim for damages for personal injuries sustained due to the medical treatment you received in NSW will be governed by the Civil Liability Act.

Any such claim is a two stage process. First, the treater/doctor/hospital must be shown to be liable. Only then does the matter proceed to the second stage which is to assess the extent of the injury suffered and assess the quantum of damages.

Liability

Whether there is any liability in a treater/doctor/hospital will depend on whether the treater/doctor/hospital was negligent in failing either to provide appropriate advice or to carry out procedures in a manner that a competent treater/doctor/hospital of similar experience would have adopted.In general terms, negligence arises when a person/organisation owes a duty to take reasonable care for the welfare of another but fails to take that reasonable care in circumstances where it could reasonably be foreseen that the failure to take that reasonable care could result in that other person suffering damage.

In general terms, negligence arises when a person/organisation owes a duty to take reasonable care for the welfare of another but fails to take that reasonable care in circumstances where it could reasonably be foreseen that the failure to take that reasonable care could result in that other person suffering damage.In relation to professionals, negligence will arise if the professional fails to exercise that degree of care and skill which could reasonably have been expected from a professional in the circumstances in which the professional services were provided. It is a requirement for the commencement of legal proceedings in New South Wales in which professional negligence is alleged, that the plaintiff has an expert opinion that the conduct did not meet appropriate professional standards.

In relation to professionals, negligence will arise if the professional fails to exercise that degree of care and skill which could reasonably have been expected from a professional in the circumstances in which the professional services were provided. It is a requirement for the commencement of legal proceedings in New South Wales in which professional negligence is alleged, that the plaintiff has an expert opinion that the conduct did not meet appropriate professional standards.

Time Limits

Any claim for damages for personal injury should be brought within 3 years of a cause of action becoming discoverable. A cause of action becomes discoverable when the injured person knows or ought to know each of the following facts:

a. The fact that the injury concerned has occurred;

b. The fact that the injury was caused by the fault of the defendant;

c. The fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

The 3 years limitation period does not run while a person is under a disability. A person is under a disability while a minor (but not while the minor has a capable parent or guardian) or, subject to some exceptions, is an incapacitated person (a person who is incapable of or substantially impeded in managing his/her affairs in relation to the cause of action by reason of disease, physical or mental impairment, restraint, or warlike operations).

Quantum

Any damages are awarded to compensate for the damage or loss sustained due to the negligence only and not in relation to any underlying or other condition. Any damages will be assessed in accordance with the Civil Liability Act. Damages are awarded under various heads.

1. Damages for Non-Economic Loss

Damages for non-economic loss (which used to be referred to as pain and suffering) are awarded as a percentage of a prescribed amount. At present the prescribed amount exceeds $600,000.00.

Each plaintiff’s pain and suffering is assessed as a proportion of a most extreme case. If the pain and suffering is assessed at 33% of a most extreme case or higher, the plaintiff receives the assessed percentage of the prescribed amount (rounded to the nearest $500). No damages for non-economic loss are payable unless the pain and suffering is at least 15% of a most extreme case. Damages are awarded on a partial percentage basis for assessments between 15% and 32% of a most extreme case.

Full information must be obtained to clarify the full extent of the pain and suffering you have undergone and are likely to suffer in the future. Until these matters are clarified, it is difficult to express an opinion as to a percentage of a most extreme case which a Court would assess.

2. Damages for Economic Loss

Damages under this head are payable in respect of any loss of income suffered to date together with any loss of income or earning capacity likely to be suffered into the future. This can include any past or future loss of superannuation entitlements. The damages may include other financial/commercial loss or damage suffered.

Damages under this head are also payable in respect to medical, hospital or other treatment expenses and related travelling expenses and any other out-of-pocket expenses incurred as a result of the injury.

3. Damages for Gratuitous Care or Services

Damages may be payable under this head if a person requires gratuitous attendant care services or for gratuitous domestic services replacing services which the person provided to their dependants. The gratuitous attendant care services or gratuitous domestic services to dependants must, in either case, be reasonably necessary and be provided for at least 6 hours per week for at least 6 months.

You should keep a complete schedule setting out all the gratuitous attendance care services or assistance that you receive from others because you are unable to perform tasks for yourself due to your injuries and/or disabilities. You should separately keep a complete and detailed schedule setting out all the gratuitous domestic services that are received by your dependants to replace domestic services or assistance which you would ordinarily have provided but are unable to due to your injuries and/or disabilities. The schedule should detail the time involved for the services or assistance provided.

LEGAL COSTS

We will prepare a detailed fee agreement setting out the basis upon which our fees will be calculated and your obligations to pay those fees. Our work will commence only when that fee agreement is signed.

All medical negligence claims that Taylor & Scott act on are conducted on a no-win/no-pay basis meaning you don’t pay Taylor & Scott any costs unless you win your case.

If your claim is successful but you do not obtain a judgment in excess of $100,000.00, the other party/parties will only be obliged to contribute towards your legal costs the sum of $10,000.00 or an amount equivalent to 20% of your damages, whichever is greater, in accordance with section 338 of the Legal Profession Act 2004. Notwithstanding these limitations on the costs which can be recovered from the other party/parties, the costs payable by you to this firm will be calculated in accordance with the Costs Agreement as provided by the Legal Profession Uniform Law. In the event that we assess your matter as being one in which the amount recoverable is not likely to exceed $100,000.00, every effort will be made to minimise your legal costs to the extent that this is possible. You should be aware however that the amount of preparation, time and expense in preparing a matter is not necessarily arithmetically proportionate to the value of the case.

Please note that if you bring proceedings and are unsuccessful, in accordance with our no-win/no-pay fee Agreement, you will not have to pay Taylor & Scott any costs, but you will probably be ordered to pay the other party’s/parties’ legal costs.

FUTURE CONDUCT OF MEDICAL NEGLIGENCE CLAIM

In order for us to assist you, we note that you are to provide a detailed chronology setting out in your own words the facts and circumstances of all treatment you have had.

We also request that you provide a schedule of all expenses you have incurred for treatment.

Here at Taylor & Scott, we will do everything we can to assist you with your claim. If you are unsure of anything written above, please raise the same with us so we can ensure that you understand.

At Taylor & Scott, “We Care For You”.