Medical Negligence Claims - Settlement or Court?

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In Australia, most medical negligence claims settle-out-of court. A small majority do proceed to a full hearing. Each claim should be thoroughly investigated before legal action is commenced. Offers of settlement should be considered at every opportunity.

If you need an expert medical lawyer to handle your claim on a No Win No Fee basis, contact our service for obligation-free advice.

Litigate or settle out of court

Litigation is a process for resolving disputes. The function of courts and tribunals is to decide disputes about legal rights according to law. Medical litigation can be costly, and quite often, the losing side is ordered to pay the legal costs of both parties. A case should never be litigated unless there a reasonable prospects of success in the claim.

It is well known that the majority (over 90%) of matters in which litigation is commenced, settle before the trial/hearing. It is important to actively seek opportunities to settle at every stage. This does not mean that settlement is to be reached at any cost.

Part of the role of the medical negligence lawyer is to advise the client on the proposed terms of any settlement, compared to the outcome which might be achieved in court. The acceptance of any settlement is, of course, a matter for the client to decide but this decision should be made with knowledge of all relevant information and possibilities.

Alternative Dispute Resolution

Many courts have introduced processes to encourage early settlement and to resolve disputes by methods which are alternatives to a court hearing. A medical negligence lawyer's objective is to act in the client's interest. In terms of solving disputes, this means achieving the best result for the client in a reasonable time, at a reasonable cost.

Advice about appropriate options to resolve a dispute can only be given after thorough preparation. After receiving instructions, all the relevant information needs to be assembled, whether supporting the claim or not. Only when all the information has been obtained can the facts be analysed and advice given.

When advising about the resolution of disputes, litigation is not the only option in resolving a dispute. There is a range of processes available. Whatever the process chosen, thorough preparation is the key to achieving a successful outcome. Whether the dispute is negotiated, mediated or litigated, the preparation required is similar.


Negotiation may be described as informal discussion by the parties to reach agreement. Negotiation may take place before or after the commencement of litigation. Over 90% of cases in which litigation is commenced are settled prior to final determination. Many of these are settled by negotiations between the parties either in a formal setting such as a pre-trial conference or informally by telephone or in face to face negotiations.


Mediation is a structured negotiation process in which a mediator, who is independent of the parties and neutral, assists the parties to reach an agreement. Mediation has considerable potential for resolving medical negligence claims out of court. It is a confidential process and is much cheaper and quicker than going through a court trial. If however your case does not settle out of court your solicitor will advise you about your options to take the matter to a court hearing.

Settlement is final

Whatever method is used to resolve your case, it must be remembered that once a personal injury settlement has been finalised the terms become binding between the parties. That is, at the conclusion of your medical negligence claim, you cannot go back for more money, even if your symptoms worsen. Your medical negligence lawyer will be able to advise you whether you should litigate or negotiate with a view to settling your case out of court.

Medical Litigation

Medical negligence litigation can be costly. Hearings can last days or weeks. Medical experts will be called to give evidence and their fees can be considerable. Similarly, there are barrister's costs (fees for advising and appearing at court) to consider. Whilst most solicitors operate on a No Win No Fee basis, there is a risk that you will be liable to pay the defendant's legal costs if you lose your case.

The decision to take a case to trial should not be made unless your case has been throroughly investigated, appropriate medical evidence has been obtained, counsel's opinion sought where necessary, the prospects of success have been determined and attempts to negotiate a suitable settlement have been made.

A medical negligence solicitor needs to assess all the above factors and provide you with their opinion on the likelihood of success in your claim. This does not only mean assessing your chances of proving negligence in your case, but also making an assessment of your likely damages award to ensure that you end up with adequate compensation in your pocket at the end of the day. For best results, you should retain a specialist medical negligence solicitor to handle your case right from the very start.




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