Medical Negligence Triage Service; What can I use in court or for the other side?

Hi,

I hope that your May has been pleasant! Here at MAG ours has been nothing short of insane! We’ve been so busy especially with all the changes that have been implemented recently, but we’re falling into a comfortable rhythm and are taking on every challenge thrown our way head on!

First of all, I just wanted to share the statistics for our Medical Negligence Triage Service from April 2024.

In April there were 59 Medical Negligence Triage Cases lodged through our service! Out of those 59 cases, fifteen of them requested Free Preliminary Opinions, sixteen of them proceeded to teleconferences, two of them proceeded to a full report whilst forty-five of those requests are still currently in progress.

Fivr out of the Fifteen Free Preliminary Opinions requested received a “negligence not probable” response from the specialist and did not proceed any further.

We are happy to have been able to provide the plaintiffs with the closure they need as well as helping them avoid the emotional and financial burden of proceeding straight to a report, only to receive an unfavourable/unsupportive opinion

This month’s topic is Medical Negligence Triage Service; What Can I Use in Court or For the Other Side.

I recently had a lawyer ask if they could get the specialist’s verbal comment from a free preliminary opinion in writing to take to court. ?

While our Triage Service, and more specifically our Free Preliminary Opinion offering is beneficial to your client’s claim by taking out much of the risk of not knowing whether to proceed with the claim due to not being sure about the outcome in respect to liability and whether the expert opinion you request will be favourable to your client’s claim. It, by nature is a courtesy service provided to you by our MAG Medical Negligence Team and our panel of expert specialists out of the goodness of our hearts. ?

It's a very brief opinion based on a brief summary of the claim for the purpose of establishing liability and is in no way an official expert opinion that can hold up in court. ?

While we recommend Free Preliminary opinions as they are a great way of helping yourself and your client decide whether it’s worth it to proceed, it ultimately holds no weight in court due to its briefness and the fact that the specialist has not had the chance to review the full brief of medical records and supporting documents and take that information into account when forming their opinion. Nor have they had the chance to answer any of your questions regarding liability and damages which help the specialist to strongly support your client’s case with not only their expert opinion, but sound reasoning and explanations to back up their answers to your questions. ?

How to get the most out of your medical negligence claim by using our Medical Negligence Triage Service is to really keep an open mind and decide whether the case is worth triaging, or if you’re confident in the outcome of the expert opinion being favourable, forgoing the triage process and heading straight to a report.

Things to keep in mind when deciding whether the triage process would benefit your client’s claim.?

• Deadlines & Statutes of limitations:?Are you on a tight deadline or is your statute of limitation for the claim fast approaching? While our team strives to provide you with fast results and great customer service, the triage service can slightly lengthen the medicolegal process if you decide to proceed with all service offerings. If you’re needing to present something to meet a court deadline and believe a free preliminary opinion will be suitable, unfortunately it is not substantial enough to hold up in court. We have a wide and varied panel of specialists, but sometimes they take leave and will be unable to assist when you’ve requested them. As long as you provide us with ample time to assist you, we’re more than happy to work with you to find you the right doctor at the right time.
• Purpose of the Triage Service:?Keep in mind the purpose of the Triage Service, are you wanting free preliminary advice regarding liability to decide whether your client’s case is worth proceeding with? Then the Triage Service is for you! Are you wanting a free opinion relating to damages? Then unfortunately the Triage Service cannot assist you and you would need to request a formal medicolegal report.?The Triage Service can be beneficial if you’ve received further information after a successful Liability report and you’re wanting to understand that the specialist’s supplementary opinion would be favourable and supportive to your client’s claim. We arrange teleconferences that allow you to speak to the specialist after they’ve reviewed the new material and leave from the discussion confident in your decision to proceed.
• Triage Service Limitations:?As the Free Preliminary Opinion offering is only a courtesy service the informal preliminary opinion insubstantial in a court setting due to it only being based on a brief summary of the case and not the full brief of documents, but also as the specialist who has provided their opinion out of their good of their heart has not consented to it being used as anything other than guidance. The specialist can only work with the information they’ve been given. If new information is provided to them between steps in the triage process this may alter their opinion. It can be difficult to include every single relevant detail in a 3-page chronology, however it’s crucial that as much relevant information as possible is provided to ensure that the specialist gets a true understanding of your client’s claim and is able to provide an informed preliminary opinion that should not change drastically once provided with the full brief of documents.

Relevant information that will help the specialist provide an informed and accurate free preliminary opinion are dates of any consultations or procedures surrounding and including the alleged negligent incident/treatment. Valuable information regarding your client’s name, age, gender, smoking status, current list of medications, pre-existing health conditions and weight if possible. Radiological scans or images of the injury in addition to the 3-page chronology if applicable (i.e. orthopaedic, hand & plastic, scarring, neurological injuries). Provides clear instructions as to where you believe there has been negligence so that the specialist can get an understanding of where you are coming from in relation to a legal standpoint. Unfortunately, in the past I’ve seen vital information left out during the early stages of the triage process, only for the specialist to discover the information later and it alters their opinion.?

I’ve invited Special Counsel Mr Naill Connolly to discuss the Medical Negligence Triage Service, and what can you use in court or for the other side from his perspective:

In NSW Uniform Civil Procedure Rule 31.36 specifies that when commencing a professional negligence claim (other than a claim against a legal practitioner) an expert report that supports breach of duty, damage alleged, and causation must be filed with the Statement of Claim. While a ‘supportive’ report may be something less than a report discharging the plaintiff’s legal onus in the proceedings, generally that is the intention when requesting an independent expert opinion that comprehensively deals with the issues in the matter. A free preliminary opinion (wonderfully) gives a legal practitioner early insight into whether it is in their client’s interest to commence a claim.?

What can’t you make use of in court proceedings??If there has been a serious adverse incident in hospital and an internal investigation report/root cause analysis/serious adverse event (SAER) review has been prepared that report cannot be used in evidence or be provided to experts (Sections 21O, 21P Health Administration Act 1982). Reports provided to family – and to a legal representative can however provide great insight into the cause of a catastrophe in medical care and can help frame questions to an expert for comment.?

Documents produced on subpoena and discovered in proceedings may not, without leave of the Court, be used for any purpose other than that for which the documents were given/produced (unless received into evidence). Litigants, their legal advisors and third parties like experts who receive the documents, provide an implied undertaking not to do that. This is known as a Harman undertaking – derived from the English case of Harman v Secretary of State for Home Department [1983] 1 AC 280. The High Court in Hearne v Street (2008) 235 CLR 15 expressed the obligation to be a substantive and implied obligation.

Spotlight on our Medical Negligence Specialists

Dr Naser Albarbari? is qualified in both General Dentistry and Oral and Maxillofacial Surgery. Performs a wide range of Oral and Maxillofacial Surgical procedures including bone grafting, wisdom teeth and dental implants. An expert in Dento-Legal matters including Workers Compensation and dental negligence litigation. Consultant to the Medical Panel of Victoria International Examiner in both Oral and Maxillofacial Surgery and Dentistry.

A/Prof Stephen Shumack OAM?? has been a principal at Central Sydney Dermatology for the last 30 years. He is a general Dermatologist with an interest in skin cancer diagnosis and treatment, and the treatment of psoriasis. He has published widely on the treatment and diagnosis of skin cancer and melanoma, and also tele dermatology. He received the Medal of the Order of Australia in 2011 for services to Dermatology and the Community.

Ms Jacinta Sherlock seeks to redefine what it means to be a dietitian and a helping human and this is evident through their holistic approach to food and eating with over eight years of experience in the public mental health sector. Their superpower lies in their trauma-informed approach to dietetic practice, interwoven with their training in acceptance and commitment therapy (ACT), and their commitment to dismantling oppressive systems through their work on collaborative leadership and unified power.

Please do not hesitate to contact me with any queries, questions or concerns?via my direct line or email address.

Kind regards

Taylah McGregor

Medical Negligence Lead & NSW Business Development

Direct Line: (02) 9056 4471

Medical Negligence Bookings & Queries: (02) 8090 7616

[email protected]

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