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Claims involving healthcare practitioners and facilities can result from circumstances as diverse as a doctor-patient conversation to post-surgical complications. In many jurisdictions, unmeritorious medical negligence claims prove to be a costly headache for both practitioners and insurers alike.

However, the pre-court protocol in Queensland governing personal injury claims resulting from a “medical incident” contains an evidentiary hurdle that operates to filter out claims that cannot be substantiated.

The Gatekeeper

For any personal injury claim based on a medical incident, section 9A(9)(d) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) states that the claimant’s Part 1 Notice of Claim (NOC) cannot be compliant with PIPA unless it is accompanied by a written report from a medical specialist competent to assess the medical incident alleged to have given rise to the personal injury and stating in the medical specialist’s opinion:

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

“Medical incident” is defined in PIPA to mean an accident or other act, omission or circumstances involving a doctor happening during the provision of medical services.

This means that any potential claimant must supply credible expert evidence from a relevant medical specialist at the time a claim is sought to be commenced.

Plaintiff lawyers’ concerns

We understand the principal contention of plaintiff lawyers to be that the specialist report requirement in PIPA can restrict access to justice for patients who have sustained personal injury as the result of negligent medical treatment because:

  • Queensland-based medical specialists are often reluctant to provide adverse opinions of their peers
  • a claimant may be forced to seek a medical opinion from an interstate practitioner, and
  • there can be significant costs to the potential claimant or plaintiff firm to obtain such an opinion.

These arguments were revisited recently in response to a report released by the Grattan Institute on hospital complications, All complications should count: Using our data to make hospitals safer. The Grattan report states that one in nine Australian hospital patients experience a complication and that this figure increases to one in four for those who stay overnight.

Plaintiff lawyers have spoken in industry publications about whether the Grattan report reflects the pool of potential negligence claims that may be brought against medical practitioners but, as in the case of potential Queensland claims, may be prohibitive to investigate due to the specialist report provision in PIPA.

In our view, this type of speculative commentary is unwarranted, simplistic and does not represent the reality of medical complications. In this regard, we note the following points about the Grattan report:

  • the reported complications include priority and non-priority complications alike
  • the definition of a “complication” includes circumstances where an additional diagnosis has been made that was not present upon a patient’s admission to hospital
  • complications in the report include more mundane diagnoses that do not alter the course of treatment or delay discharge
  • the intention of the report is to focus on the potential to reduce all clinical complicationsregardless of severity or probabilitythrough improving inter-institutional information sharing, and
  • the report is not intended to, nor does it, equate complications to actual or potential medical negligence.

The complication statistics referenced in the report cannot offer any insight into the potential for compensable claims. If anything, the statistics illustrate the effectiveness of PIPA in ensuring that only genuine, compensable claims arising from medical incidents can be prosecuted by claimants.

It is also very relevant that PIPA permits a potential medical negligence claimant to access records (pursuant to s 9A(8)) held by the subject medical practitioner or facility before seeking a specialist report and determining whether a claim should be pursued. Accordingly, a claimant, plaintiff solicitors and any specialist engaged to comment is armed with the relevant treatment records that will form the basis for any subsequent negligence claim.

In our experience, we have successfully stopped potential claims at the specialist report hurdle in circumstances where a potential claimant has provided a report from a medical specialist that is not competent to comment on the circumstances of the treatment provided and/or the report is deficient and cannot satisfy the requirements of section 9A(9)(d) set outabove (despite a claimant often submitting multiple reports in an attempt to clear the evidentiary hurdle).

Accordingly, we view the failure by claimants to satisfy the gatekeeping threshold as arising from the potential claim clearly lacking sufficient evidence to establish negligence, as opposed to the lack of a suitable expert to comment on the subject treatment.

We consider this point is more relevant than ever given the proliferation in recent years of dedicated expert evidence service providers, particularly those with a medico-legal focus.

Is it fair that the specialist report requirements apply to medical negligence claims only? It has been suggested that the provisions are unfairly onerous and result in the existence of a “privileged class” of negligence claims.

We consider the legislative distinction between general injury claims and those arising from a medical incident is warranted given the laypersons optimistic expectations for treatment outcomes, combined with a lack of understanding of the realities of medical practice, which undoubtedly leads to an increase in complaints and claims.

It is also worth recalling that the s 9A threshold for medical incident claims (and broader tort reform) was enacted to combat increasing numbers of medical negligence claims (including unwarranted and genuine claims) and rising indemnity premiums.

Further, by definition the provision does not apply to claims that may arise from treatment provided by allied health professionals, other healthcare providers and the burgeoning beauty therapy industry. Accordingly, the provision only applies to a narrow section of what might be considered the broader claim category of “medical negligence”.

Whilst valid claims of any type in any jurisdiction may not be pursued by potential claimants for various reasons, we reject the assertion that the specialist report provisions in PIPA create an unfair hurdle and decrease access to justice for potential claimants in Queensland.

We consider the requirements strike a reasonable balance between preventing an unmanageable number of unmeritorious and/or non-compensable claims, whilst permitting valid personal injury claims arising from medical incidents and achieving public policy aims.

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