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The process of commencing your medical negligence claim
What is the court process in Medical Negligence Claims / Medical Malpractice Claims?
Your lawyer will commence your claim in Court by way of Statement of Claim. A Statement of Claim is a document that sets out the nature of your claim.
Your lawyer will also file a Statement of Particulars which sets out the injuries and disabilities sustained as well as your claim for medical expenses, domestic care and assistance, economic and non-economic loss.
Once filed, your lawyer will formally serve the filed documents on the defendant. The court will also set down a timetable for evidence.
The value of your claim will determine whether your claim is filed in the District Court of NSW or the Supreme Court of NSW.
- District Court claims must be worth $750,000 or less
- Supreme Court claims must be worth more than $750,000
Particulars
The defendant will request particulars o your claim. “Particulars” are simply questions about the occurrence, nature, and extent of the alleged injuries.
Your lawyer will prepare a response to the particulars on your behalf and will most likely finalise the answer to particulars with you in conference.
Do I need to attend the defendant’s medical appointments?
Yes, upon receiving the plaintiff’s evidence, the defendant will arrange their own medical examinations to assess your injuries and the negligence of the defendant.
You will need to attend at least one but possibly more medical examination arranged by the defendant.
The defendant will then serve their reports on your lawyer. Depending on what is contained in the defendant’s reports, your lawyer may seek supplementary reports from their medical experts to address any new issues raised in the defendant medical reports.
When the service of medical and expert evidence is complete each party will have a good understanding of the other sides case.
Your lawyer will discuss the strengths, weaknesses, and prospects of success with you once service of medical evidence is complete. The parties can then attempt to resolve the matter by way of alternate dispute resolution processes.
Read more about resolving your medical negligence claim here.
Going to court
If you have attended an informal settlement conference or mediation and your claim has not settled the Court will set your matter down for a hearing date. Your lawyers will retain legal Counsel to assist and your matter will be heard before a Judge. The Judge will then hand down a written judgement in your claim.
