How to File a Medical Negligence Claim in the High Court
Patients who have been the subject of an alleged botched medical procedure may consider bringing a claim for medical negligence against their healthcare provider (i.e. their doctor, clinic or hospital).
If the claim is for an amount up to $250,000, it will be heard in the State Courts. The procedure for filing a medical negligence claim in the State Courts can be found at Appendix D, Annex A of the State Courts Practice Directions.
If however the claim is for an amount more than $250,000, it will have to be brought in the General Division of the High Court. The procedure for filing a medical negligence claim in the General Division of the High Court can be found at Appendix J of the Supreme Court Practice Directions.
Here is a summary of the 3 parts in the procedure.
Part 1: Pre-Action Specific Discovery of Documents
Before the medical negligence claim is heard in court, the patient has to obtain information and medical records relevant to the case from the healthcare provider he is suing. This will allow the patient to review the evidence that will be examined during trial and decide whether he has a viable claim against the healthcare provider.
To obtain such information, the patient has to send his healthcare provider a Letter of Request for Medical Report and Other Related Medical Reports, following the format of Form 1 of Appendix J. This letter should briefly state why he intends to sue and what information he needs from the healthcare provider.
Such information can include:
- The patient’s symptoms
- The diagnosis
- The treatments that were prescribed
- Whether any alternative to the prescribed treatments were discussed and disclosed to the patient
If the patient wants to see his medical records, the Letter of Request will have to clearly include a request for copies of these records. The patient will also have to sign a Consent Form to authorise the healthcare provider to release his records to him. The Consent Form has to follow the format in Form 2 of Appendix J.
The healthcare provider will be required to inform the patient of the cost of obtaining the medical records within 7 days of receiving the patient’s request for them, and provide the records to him within 6 weeks of the patient making payment.
Part 2: Start of Lawsuit and Pre-Trial Proceedings
The patient will be required to file and serve his Statement of Claim (i.e. a statement of the relevant facts in his claim) together with the documents he will be relying on in his claim. These documents can include his medical reports.
If the healthcare provider wishes to contest the claim, it will enter an appearance. It may then file and serve a Reply to the patient’s Statement of Claim.
2 weeks after the close of pleadings (i.e. the deadline for filing and serving statements), the parties will be required to file a List of Undisputed Facts and Issues. This list sets out the facts and issues that are undisputed by the parties, so that they will not have to spend time arguing over them in court.
1 week later (i.e. 3 weeks after the close of pleadings), a first case conference before a judge (JCC) will be held. During this first JCC, parties will explore the possibility of resolving the case through alternative methods of dispute resolution, such as mediation.
Another 2 JCCs will be held before the claim goes to trial. The parties’ medical assessor, if one has been appointed, may be able to attend these JCCs.
Part 3: Medical Assessors
The medical assessor is a qualified medical professional appointed assist the judge on technical aspects of the case. The medical assessor may also participate in the trial as an expert witness if required. However, he cannot rule on the outcome of the case on the judge’s behalf.
The judge has the discretion to appoint the medical assessor. Alternatively, either party can also apply to the court to appoint the medical assessor. To do so, that party will have to file and serve on the parties an Application for Appointment of Assessor, following the format of Form 3 of Appendix J.
If the medical assessor is appointed through an application by one of the parties, his remuneration will be split equally by both parties. However after the conclusion of the case, the court has the discretion to decide who will bear the medical assessor’s fees, and in what proportions.
Penalties for Parties Who Do Not Follow the Procedure
Parties who do not follow the current procedure for filing medical negligence claims in the General Division of the High Court may be penalised when the court decides how much costs and interest to award to the winning party.
For example, where non-compliance with the procedure has led to the parties incurring unnecessary costs, the court may:
- Reduce costs to be awarded the non-complying party (or even not grant any costs at all), if this party had won the lawsuit
- Order the non-complying party to pay all or part of the costs of the other parties
- Order the non-complying party to pay the other parties’ costs (whether all or part thereof) on an indemnity basis
The court may also reward the winning party with more interest if it had complied with the procedure.
As the procedure requires patients to file and serve medical documents in support of their claims together with the Statement of Claim, patients will necessarily have to obtain these documents before starting a lawsuit against their healthcare providers.
By doing so, patients will be able to review the evidence for and against their case and better decide whether it would be worth suing their healthcare provider in the first place, instead of relying on their “gut feel”.
If you require professional opinion on your medical negligence claim, or assistance in filing your medical negligence claim in the General Division of the High Court, feel free to get in touch with one of our trusted medical negligence lawyers. Rest assured that they will keep the details of your matter private and confidential.
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