New Process for Medical Negligence Claims in South Australia

Partner Mal Byrne explains the new protocol in Medical Negligence claims following the introduction of the Supreme Court Fast Track Rules 2014. 

Prior to 1 October 2014, the Supreme and District Court rules were uniform in their application to personal injury claims. Claims relating to motor vehicle accidents, public liability claims or medical negligence claims were all addressed in the same way.  The Court has now enacted new and specific pre-action protocols for medical negligence claims. These pre-action protocols set out steps that the parties are required to complete before Court proceedings can begin. These new protocols are important due to the complexity of medical negligence claims.

Requirements prior to 1 October 2014:

Prior to 1 October 2014 the medical negligence pre-action requirements were much less onerous. The plaintiff was required to serve a fully formulated settlement proposal on the defendant for the defendant’s consideration and allow the defendant 60 days to consider and respond to that proposal before filing Court proceedings.  Those requirements still apply to motor vehicle accidents and public liability claims. The protocol in medical negligence disputes are now different.

Medical Negligence pre-action protocol:

The first stage of the pre action protocol is that the plaintiff or person suing must send the potential defendant or the defendants’ insurer written notice of the potential claim as soon as reasonably practicable after the claimant becomes aware that the defendant has been adversely affected by an act or admission by the defendant and there is a reasonable prospect that the potential defendant acted negligently.  There is a list of 11 particulars or pieces of information that the letter must include.  The focus is on liability, that is to say, the information and expert opinion on which the plaintiff bases his or her claim that the defendant was negligent.  The letters do not need to include a formulated claim or offer of settlement. The point at which the plaintiff will be expected now to give the defendant notice of the claim is the point at which the plaintiff obtains an expert opinion critical of the standard of care provided by the defendant and linking the failure of care of the defendant with the loss that the claimant has suffered, as that is the usual point during the progress of the claim when the plaintiff is fully aware that s/he has a “winnable” claim.

The letter does not need to include a formulated claim or offer of settlement. Under the new protocols, giving the defendant notice of claim is required when the plaintiff obtains an expert opinion critical of the standard of care provided by the defendant and linking the failure of care of the defendant with the loss that the claimant has suffered. This means defendants are now generally given notice at a much earlier stage in proceedings.

Upon receiving the notice from the claimant, the defendant has 28 days to provide an interim response and 60 days to provide a full response. Importantly, the defendant must indicate whether or not he or she accepts liability for what happened.  If liability is denied, the defendant must set out the basis for that denial and also provide copies of any expert reports that the defendant has obtained in the interim. The defendant must also make a suggestion on how the claim is to be advanced. This will include whether or not the matter can go to alternative dispute resolution or conversely inviting the plaintiff to issue Court proceedings.

Following this, the plaintiff needs to provide a full letter of claim which in affect is a letter equivalent to the current Rule 33(2) formulation letter that plaintiff’s lawyers used to provide and then give the defendants 60 days notice to respond.  This would include a fully formulated settlement proposal attaching any medical reports and other documentation setting out the plaintiff’s loss.  It must also include a cost estimate of the lawyers’ costs thus far and an estimate of future costs and it must propose an alternative dispute resolution process and time table if the offer is not accepted.

Within 30 days of receiving the letter of claim, the defendant must provide a letter of response responding to all of the material in the formulated claim attaching its own cost estimate, making a counteroffer if necessary and responding to the proposed alternative dispute resolution process and time table if the counteroffer is not accepted.

If the parties agree on proceeding to alternate dispute resolution, they have 60 days to convene the mediation.  If they cannot agree on the terms of the alternate dispute resolution, they must attend a pre-action meeting with the Court within 30 days after the date of the letter of response.  It is only if the parties do not resolve the dispute at the alternative dispute resolution stage or pre-action meeting that the plaintiff then has leave to file Court proceedings.  Any failure to comply with the pre-court protocols may end in the offending party having to pay the costs of the other party.  The Court also has to order the costs be payable forthwith unless doing so would stall the legal action overall.

Why are these changes in place?

The Court is doing this to save time.  By forcing parties to deal with the issue of liability and causation well in advance of Court proceedings being issued and often in advance of the plaintiff’s injuries being stabilised. By the Court forcing the parties to assemble their evidence on liability at an early stage and to exchange that evidence at an early stage ensures that both parties can fully assess their respective risks before going to Court.

These are good reasons for introducing the new protocol.  Medical negligence claims are difficult.  What it will do will be to encourage and in effect force parties and their lawyers to get the work done at an early stage and to get together at an early stage to see if they can resolve the claim once each side has their own expert evidence.  In the past, many Court proceedings have been instituted before parties even have their expert evidence and the Court list has been clogged in effect with medical negligence claims that have barely progressed past the preliminary stage.

What the new rules will ensure is that when parties get to Court in medical negligence matters, they will have obtained their expert evidence and explored settlement of the claim to the best of their abilities.  That can only be a good thing for both the parties and the Court process.

For advice about your medical negligence claim, contact your nearest TGB office or register online for a free initial interview.