Medical Negligence

There is a three year limitation of action period in which to pursue a claim. There are some special circumstances where this time limit can be extended.

Please note the limitation period and, if you wish to proceed with a claim, please ensure that unequivocal instructions are provided to proceed. You should then maintain regular contact with Clark Toop & Taylor Lawyers to ensure that the appropriate steps are taken on your behalf.

The second important matter to note is that there are different thresholds and procedures which govern your rights:

1. To pursue compensation for pain and suffering and loss of enjoyment of life; and
2. To pursue compensation for economic loss/"out of pocket" expenses.

A. PAIN AND SUFFERING AND LOSS OF ENJOYMENT OF LIFE

To successfully proceed with a claim for pain and suffering/loss of enjoyment of life, it will be necessary for you, to establish:-

• That your injuries were due to the negligence of the other party; and
• For the Defendant to either concede or for you to establish that you have an impairment greater than 5% for physical injuries or greater than 10% for primary psychological injuries under the American Medical Association Guides to Impairment (4th Edition). [AMA GUIDES]

The onus of proof is on you as the Plaintiff to establish that there has been a breach of duty of care owed to you by the Defendant(s) * which has caused the injuries from which you now suffer and which will form the basis of your claim. *(Negligence)

Before we get to even argue the question of negligence, it is necessary for you to satisfy the 'gateway requirements' under the AMA Guides. Thus, your injury is required to be:-

• Substantially stabilised.
• A permanent impairment within the meaning set out in the Guides.

Initially, application is made to the Defendant(s) to either waive the AMA criteria or to accept our Certificate of Assessment. If the Defendant(s) do not accept that you reach the necessary criteria, it will be necessary for your matter to be referred to a Medical Panel which has been set up by the Government. Any assessment of the medical panel, in normal circumstances, will be binding and non-appealable.

B. ECONOMIC LOSS/”OUT OF POCKET” EXPENSES

In order to proceed with a claim for your economic loss/'out of pocket' expenses, you do not need to satisfy the AMA criteria/gateway. Thus, in order to be able to proceed with a claim for these losses, it is only necessary for you to establish negligence on behalf of the Defendant(s). There are however, statutory restrictions in respect to the nature of, amount of and calculation of the compensation which can be recovered on your behalf. Again, it is necessary for us to specifically discuss the particular circumstances of your case.