By Sally Gleeson and Alicia Wong -
Snapshot
- It is a challenge to run medical negligence matters where the likely award of damages is limited in value, as the plaintiff is required to prove the case but is limited in what they spend on the evidence required due to the cost recovery prohibitions imposed by the law.
- To minimise costs and facilitate early resolution of cases, it is recommended that practitioners perform a proper matter investigation, obtain considered expert evidence and explore early settlement options.
Medical negligence case is a claim for compensation arising out of injuries suffered in the provision of medical services by a medical practitioner, allied health professional or hospital. Medical negligence law is both complex and sophisticated. Establishing negligence can be akin to finding a needle in a haystack and, therefore, every case must be managed with certain skill.
In each case, expert evidence must accompany the pleadings at the time of filing the documents (Uniform Civil Procedure Rules 2005 (NSW) r 31.36). Unlike a typical personal injury matter, in medical negligence you run a risk by proffering res ipsa loquitur for the purpose of proving negligence on elements of alleged negligence in the case, because questions in medicine can be obscure and therefore necessitate expert analysis. In matters of large value, spending money on both liability and quantum evidence is justified in circumstances where most of the plaintiff’s costs can be recovered from the defendant. A challenge arises in cases that are moderate or modest in value, because the plaintiff is still required to prove the case but is limited in what they spend on the evidence required due to the cost recovery prohibitions imposed by law. So how does a lawyer successfully manage smaller cases when the legal issues remain the same, irrespective of the assessment of damages?
