For Patients

People make mistakes no matter what job they do, including doctors. Compensation is not meant to punish your doctor. Instead, it’s aim is to put you in the same position that you would have been in had you not been injured. It is compulsory for all doctors to have medical indemnity insurance. As such nearly all compensation will be paid by your doctor’s insurer and not your doctor directly.

Your story is the foundation of your claim. What you say happened is crucial to identifying if anything went wrong with your treatment. In most cases, it will also be necessary to obtain an expert report from an independent expert, who will review all relevant medical records, to confirm that the treatment you received fell below a reasonable standard, and that the failings in your care caused your injury.

There are different time limits in each State and Territory for starting a claim. If you let us know where your treatment was provided, we will advise you about the time limits that will apply to your claim. Please note that if the relevant time limits are missed, you may be prevented from ever starting a claim. For this reason, it is important that you seek legal advice as soon as possible.

Every claim is an individual one and the value of your claim will be based on how your injury impacts you, whether your injury has stabilised i.e. you are not going to improve but likewise you are not going to get worse, what treatment you have required and will require, whether you can work and whether you can perform the day-to-day tasks that you were performing prior to your injury. ‘Damages’ or ‘compensation’ are words used to describe the sum of money which attempts to put you in the same position that you would have been in if you had not been injured. Until we know all of these things about you, we cannot calculate how much compensation you will get.

Before you start settlement negotiations, your injury must be stable and stationary. This means that your injury is not going to get better or worse – it is expected to stay the same. Many injuries are stable and stationary within 12 months. However, some serious injuries, especially those involving children, may take longer to stabilise. During this time, we will get your claim ready for settlement negotiations and the first settlement conference is generally held within 12-18 months of you starting the claim. If you are not offered enough compensation, we will have to push forward and file a claim in Court, and it will take longer to finalise your claim.

We will only charge you for the work that we do, and our aim is to move through the phases as quickly as possible because generally, the longer the case takes, the more the costs increase. The work that is involved because of your unique circumstances will dictate how much your claim will cost you. However, in most cases, in addition to the compensation you receive, the insurer will also make a contribution towards your legal bill so that you only pay the difference.

In our experience, less than 1% of claims go to Court. This is because during your claim, there will be several opportunities to negotiate a settlement with the other side. It is only if one or more parties are being unreasonable during settlement negotiations that it may be necessary to go to Court. If that happens, don’t be too concerned – Wendy and Sarah’s trial experience means you will be in good hands – we can guide you through the process and we will be by your side every step of the way.

Medical negligence claims are complex and there are several benefits to engaging a lawyer with expertise in this area of law. Wendy and Sarah have spent years finessing their legal skills in this area. They will come up with the best strategy to suit the circumstances of your claim. They know what evidence you need and which experts to get it from. They will be upfront about your prospects of success. Most importantly, they will give you the strength and courage to take action.

Firstly, you should focus on your health and recovery. Because your claim is personal to you, we will need to obtain information and documents from you so that we know how you have been impacted. We will ask you to check documents that we have prepared to ensure that we are telling your story correctly. You may need to attend some medical examinations which we will organise for you. And you will be involved in any settlement negotiations – whilst we will be there to guide you and support you, it is important that you are the decision-maker.

Firstly, do you have a superannuation policy or do you have several? Secondly, do you have insurance cover (they usually do) under those policies? The policy will tell you the terms for eligibility. Usually, these are age, work status and health status. You must not be able to return to work again in a job that you are reasonably suited to by way of your education, training or experience.

If you return to your previous position in the same capacity, your income protection payments will cease. However, if you can only return on lesser hours, you may be able to claim for partial payments.

Claims are more commonly rejected if a lawyer is not involved. This is because the forms for completion are complicated and the amount of evidence required can be burdensome to obtain. In addition, the funds often use delaying tactics in the hope you will go away! We know how to put the correct evidence together to ensure the process goes as smoothly as possible.

For an income protection claim, these are usually resolved within 3 months. For a TPD claim, these can usually be resolved within around 9 months.

The amount of TPD cover is different for everyone. Firstly, check any paperwork you have from your superannuation fund. An annual statement will probably tell you how much cover you hold. If you don’t have that information, we can liaise directly with your fund to find out. Income protection payments are usually fixed at around 75% of your base salary and the policy will tell you for how long the payments will be made.

Whilst a TPD payout is not considered taxable income, if you take the lump sum out of your superannuation fund before you turn 60, you will likely be taxed at your marginal tax rate or 22%, whichever is lower. You should always seek tax advice before you decide whether to take the money out of the fund. We can help you work out if tax has already been withheld on any income protection payments made to you.

If your TPD lump sum remains in your superannuation fund, your Centrelink payments are not affected until you reach Pension age. Beyond that, the size of your superannuation fund at retirement may impact your Aged Pension entitlements.

Unfortunately, this is more common if you have lodged your own claim. The funds will try and bombard you with requests for information and documentation, but we can work through those requests to secure the right evidence and draft submissions for a review.

Most policies do not include a time frame for making a claim but they may include wait periods to be eligible.