The claimant's specialist report – your first line of defence

It might not feel like it for your average medical practitioner, but medical negligence claims are not always easy for claimants to establish at the pre-litigation stage. In Queensland the Personal Injuries Proceedings Act (PIPA) makes a claimant clear an evidentiary hurdle at an early stage. Respondents ought not let a claimant off lightly when it comes to clearing that bar.

To be able to deliver a Part 1 Notice Of Claim under PIPA a claimant must first deliver a medical specialist's report in which the specialist provides his or her opinion that:

1. "... there was a failure to meet an appropriate standard of care in providing medical services; and
2. the reasons justifying this opinion; and
3. that as a result of the failure, the claimant suffered personal injury..."

A medical negligence claim cannot proceed without this initial expert report and that expert report(s) must relate to a breach by each respondent specifically. It is therefore in a respondent's interests to ensure that the report is absolutely compliant with the PIPA requirements.

The best time for disposing of a claim is when it has barely begun and legal costs for all parties are minimal. Disposing of a claim at such an early stage also minimises the toll on the personal and professional lives of the health staff involved. The notion that near enough is good enough as is so often the case with PIPA requirements ought not prevail with the section 9A expert reports.

Section 9A(9) PIPA compliance checklist (to be used by respondent health practitioners)

• Has the claimant provided a part 1 notice of claim within 12 months of the respondent hospital/health practitioner providing disclosure?
• Has the claimant provided with their part 1 notice of claim a written report from a specialist?
• Is the person who provided the report a medical specialist in the relevant field?
• Does the report state that there was a failure to meet an appropriate standard of care and provide reasons (if there is more than one respondent, are these allegations directed against both parties or against one only)?
• Does the report state as a result of the failure, the claimant suffered personal injuries (if the claimant failed to suffer injury, the notice of claim is non compliant)?

If the answer is no to any of the above requirements, a potential objection exists.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.