Posted on 16 Jun. 2010
Queensland's medical negligence laws favour defendants over victims by failing to make a defendant explain the reason for their denial of liability before the mediation process begins, according to national law firm Slater and Gordon. Slater and Gordon, Medical Law lawyer, Margaret Brain said changes needed to be made to the Personal Injuries Proceedings Act in Queensland (PIPA) in Queensland so there was greater requirements placed on defendants.
"Currently you must follow a process under the PIPA which places far more requirements on the claimant – the victim of medical negligence - than it does the defendant," Ms Brain said.
"For example, the claimant must provide a written report from a medical specialist giving reasons as to the failure in the standard of care; the reasons for the claim and the injuries that have resulted.
"The defendant does not have to respond to any of the above and can simply deny any liability - which is what happens in the majority of cases." Ms Brain said when a defendant denies liability they should also be required to provide evidence supporting their denial of liability.
"The system needs to be improved," Mr Brain said.
"At the moment you have a situation where a defendant denies liability and does not have to provide any reasons why. Then when the cases progresses through the formal mediation process, we have had numerous instances where the defendant does not deny liability and the time and the costs spent preparing the case for the victim is wasted.
"Considering that PIPA was designed to provide a speedy and cost effective way of achieving early settlements, these tactics by defendants appear to run contrary to this purpose.
"If defendants were required to support their denial of liability earlier on then claims could be resolved faster and those struggling as a result of their injuries would be able to access their compensation and get on with their lives even faster."
Ms Brain said that in most of her cases, even where fault appears to be clear cut and well supported by medical evidence, the defendants were denying liability and the plaintiff had to wait until the settlement conference to find out if whether this position would remain.
"In a recent case the mediation was adjourned for some months while the defendant tried to find some evidence to support their denial of liability. If the defendant was required to produce a supportive report early
in the process then a lot of time, money and work would not have been wasted. For my client it was a particularly painful and frustrating process."