At MIGA we constantly strive to provide outstanding advice, service and support to our doctors.  This is crucial in the circumstance where the doctor is the subject of a claim for compensation.

When this occurs doctors usually are moving into a totally unknown environment, so it is vital that the MIGA claim solicitors are there with you every step of the way.

Steps in a claim 
Where claims are the subject of proceedings and litigated in a court, MIGA will engage one of its external lawyers (at a private law firm) to represent you.  Our external lawyers are experts in the field of medical liability and understand the importance of providing superior legal support and advice.

It is very common for a doctor to ask at the point of notification of the claim, what will ultimately happen.  Unfortunately that is a really difficult question to answer.

Generally however there are key pivotal steps:

  • Doctor contacts MIGA’s claim solicitor and notifies the matter
  • Where proceedings have been served MIGA instructs its external lawyer
  • Doctor, MIGA’s claim solicitor and the external lawyer meet to talk about the claim.  Where a Statement of Claim has been served (this document articulates the patient’s allegations) the external lawyer takes the doctor’s instructions on how to respond to those allegations
  • The doctor and patient, via their appointed lawyers, gather evidence to support their respective assertions.
    From the doctor’s perspective we speak to independent experts and strive to secure reports to:
    – Support the doctor’s management
    – Show that the doctor’s management was not causative of the alleged injury
    – Identify and objectively assess the nature of the alleged injury and the impact of it on the patient and make an assessment of the value of the claim.

There is no automatic assumption a matter will proceed to trial.  There are many steps to take between notification and trial.

Path to resolution 
More often and nationally, the courts are requiring parties to a claim for compensation to enter into alternative dispute resolution to see if the claim can resolve.  Generally MIGA is comfortable with this and so are its members.  Trials can be time-consuming, gruelling and expensive so, logically, if a negotiated resolution can be achieved this has benefits.

Alternative dispute resolution can be via informal settlement conference, or more often, (particularly for significant files) by mediation.

Mediations involve the appointment of a mediator agreed by the parties to the claim.  The mediator is provided with the pivotal information about the claim and each party to the claim prepares and exchanges their “Position Paper” which sets out in summary form their arguments.

Cases generally fall into three categories:

  • Indefensible
  • Defensible
  • Arguable.

Some of the processes at mediation vary from State to State however the purpose is the same i.e. to negotiate and discuss the issues to see if agreement on resolution can be reached.

The participants in the mediation are usually:

  • The patient, a support person for them and their lawyer and barrister (if a barrister has been engaged)
  • The claims manager at MIGA, the external lawyer instructed by MIGA to represent the doctor and a barrister (if a barrister has been engaged).

Generally the doctor does not attend the mediation.

From a timing perspective mediations can be held as soon as possible once the parties have gathered their evidence.

Alternative dispute resolution is not appropriate for all matters.  It does however hold some attraction for the “right matter” in that it provides:

  • Certainty of outcome
  • Avoids time and stress of a trial for the doctor (including the necessary intensive and time-consuming preparation work)
  • Resolution is confidential and away from the eyes of the media.

The end game 
At MIGA, we work with our external lawyers and the doctor to get the best result, always listening to the doctor and taking legal advice.

Actual claim for compensation numbers have been steady for the last few years although in the last 12 months we have noticed an increase.  Hopefully that is not a sign of things to come but regardless we are always here and by your side.

Other resources

  1. Personal support when you have a claim

    Did you know MIGA’s Practitioners’ Support Service provides both peer and professional support to help you deal with the personal and emotional issues that can arise during a claim? Read on to find out more.

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