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:
"... there was a failure to meet an appropriate
standard of care in providing medical services; and
the reasons justifying this opinion; and
that as a result of the failure, the claimant suffered
(Section 9A(9) of PIPA).
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
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
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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