Exploring Medical Negligence: A New Specialization Opportunity
Delve into the world of medical negligence with a professional webinar series presented by experienced attorney Renier Jacobs. Gain insights on the specialized field of law, components of negligence claims, and practical examples related to Covid-19. Learn about who can be sued, recoverability of damages, and the importance of expert opinions in medical negligence cases. Explore this valuable new area of specialization for legal firms looking to differentiate their client offerings.
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Presentation Transcript
Medical Negligence A valuable new area of specialisation for your firm Presented by: Renier Jacobs Christopher Consulting Professional Development Webinar Series
Presenter Renier Jacobs 18+ years experience in medical negligence Qualified attorney Worked at MacRoberts, Friedman and Webber Wentzel Head of Medico-legal division of Christopher Group Presenter Image Professional Development Webinar Series
Introduction Professional Development Webinar Series
Introduction Specialised field of law Gain experience in variety of matters New fee generation opportunity Opportunity to differentiate your client offering Professional Development Webinar Series
Overview Professional Development Webinar Series
Agenda Components Process Covid-19 Practical example Christopher Consulting Questions Professional Development Webinar Series
Components Professional Development Webinar Series
Components Who must be sued? Recoverability Negligence Causation Quantum Professional Development Webinar Series
Who must be sued? Establish who must be sued Private sector Nursing staff: hospitals Doctors: personal capacity Public sector Doctors and nurses: MEC for Health Professional Development Webinar Series
Recoverability Establish recoverability of damages Financial position of defendant? Private hospitals insured State hospitals MEC for Health Private doctors Medical Protection Society ( MPS ) Important for high value matters such as obstetric claims Professional Development Webinar Series
Negligence Instruct expert in the field to comment Medical negligence claim Contract - agreement between client and defendant Delict - Breach of legal duty/duty of care Particulars of Claim to cover both elements Negligence vs unprofessional conduct Reasonable nurse/doctor test Professional Development Webinar Series
Causation Most difficult to prove Complications, pre-existing conditions, post- incident injuries Complete set of medical records Onus of proof balance of probabilities Professional Development Webinar Series
Practical Tip Ask expert whether correct behavior by potential defendant would probably or possibly have caused a different outcome? Only possibility causation Professional Development Webinar Series
Quantum Quantify damages 5 Heads of damages 1. Past hospital and medical expenses 2. Future hospital and medical expenses 3. Past loss of earnings 4. Future loss of earnings 5. General damages Professional Development Webinar Series
Poll Question Doctor X performs surgery on client at a private hospital. Client complains that nurses failed to take steps when he complained after the operation that he could not move his right leg. Client says that when doctor examined him the next day, doctor noticed he could not move his right leg. Doctor assured him it would get better. Doctor only commenced investigations into the client s condition after 3 days. Professional Development Webinar Series
Poll Question What steps should you take? A. Consider suing the MEC for Health B. Considering suing the nurses in their personal capacities C. Consider suing the private hospital and the doctor D. Consider suing the doctor E. Consider suing the private hospital Professional Development Webinar Series
Process Professional Development Webinar Series
Process Experts: Negligence & Causation Public sector: Notice i.t.o Act Medical records Consultation Combined Summons & Particulars of Claim Application for Condonation Settlement: Merits Experts: Quantum High Court Rule 41A Settlement: Quantum Litigation Professional Development Webinar Series
Consultation Chronological account of events Set aside sufficient time Adequate information to assess 5 components Professional Development Webinar Series
Practical Tip Compile a standard questionnaire to be completed during the consultation and remember to consider prescription date Professional Development Webinar Series
Public sector Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 Notice within 6 months After 6 months: Special Plea, request opposition to agree to condonation If refused, Application for Condonation Professional Development Webinar Series
Medical Records Must obtain all records If experienced assess records yourself If not experienced expert opinion Professional Development Webinar Series
Practical Tip The more professional and comprehensive your bundle of records is prepared, the less time the expert has to spend and the less he ll charge Professional Development Webinar Series
Experts: Negligence and Causation Type of matter determines which expert Often easy establish negligence Obstetric claims - Cerebral Palsy: negligence during labour Professional Development Webinar Series
Practical Tip Investigate causation before you investigate negligence Professional Development Webinar Series
Combined Summons & Particulars of Claim Timing is important Sometimes issue summons before expert opinion to interrupt prescription If experienced, prepare Particulars of Claim yourself Due to complexity, advisable to brief counsel Professional Development Webinar Series
Public sector: Application for condonation If receive a Special Plea for non-compliance and condonation not agreed to, an Application for Condonation should be brought as soon as possible A merits trial cannot proceed unless opposition or court has granted condonation Professional Development Webinar Series
Settlement: Merits Attempt to facilitate early settlement Different approach: public and private Public sector difficult to settle before trial date Prudent to secure merit trial date Private sector Easier to settle merits before trial Dates to be confirmed at Rule 37 Conference Professional Development Webinar Series
Experts: Quantum Sometimes advisable to instruct quantum experts before merits Low-value claim: few experts needed, quantum experts can be instructed before merits High-value claim: wait until settlement of merits before instructing Professional Development Webinar Series
Practical Tips No expert summaries are prepared for quantum experts, their medico-legal reports as served and filed as is, but scrutinize first for privileged documents Use experts in good standing with court and whose opinion the opposition value Leave no stone unturned to ensure your client s future medical expenses have been covered! Professional Development Webinar Series
Settlement: Quantum Medico-legal reports served and filed as soon as possible Opposition Agree on your report, appoint own experts; or Agree to instruct a joint quantum expert Settle quantum as soon as possible Consider roundtable discussion Professional Development Webinar Series
Litigation duration 3 5 years Normally no co-operation form opposition, unless you have a trial date Trial date to be obtained as soon as possible Trial rolls clogged-up Western Cape - up to 2 years Professional Development Webinar Series
Litigation duration Remember: Low-value matter, settle quicker, fewer experts, fewer costs, but minimal fee OR High-value matter, more time to settle, a lot of experts, burdened cashflow, but higher fee? Professional Development Webinar Series
HC Rule 41A: Mediation Not to be discussed in detail in this presentation Rule compels parties to consider mediation Saves time and money Professional Development Webinar Series
Poll Question 68-year-old client consults you with complaint that her GP injured her during her annual follow- up visit, affecting her mobility. You believe that matter should be investigated by obtaining all relevant medical records, and instructing a liability expert. Professional Development Webinar Series
Poll Question Was this the correct approach to take in this particular matter? Yes? No? Professional Development Webinar Series
Covid-19 Professional Development Webinar Series
Covid-19 Huge burden on health care system Surge in negligence matters expected Already matters in private and public due to pandemic Perfect opportunity to launch new service Professional Development Webinar Series
Practical example Professional Development Webinar Series
Practical example Scenario: A client consults you regarding her son suffering from cerebral palsy. She delivered her baby at a State hospital after prolonged labour 2 years ago What are the steps you should follow? Professional Development Webinar Series
Practical example Medical records Prepare bundle Establish causation Confirm negligence Notice Consultation Application Condonatio n Expert summaries Rule 37 Conference Merits trial date Issue summons Special Plea Settle on merits Quantum trial date Quantum experts Calculate claims Interim payment Create Trust File medico- legal reports Settle quantum Rule 41A Professional Development Webinar Series
Christopher Consulting Professional Development Webinar Series
Christopher Consulting Not a law firm Ease burden of attorneys and victims Provides specialised medico-legal expertise and case funding Finance litigation Unique Risk-free funding Professional Development Webinar Series
Christopher Consulting Extensive expertise and experience to assess the likelihood of success Assess medical negligence claims quickly Commence litigation process as early as possible Assess medical records ourselves Prepare Particulars of Claim Professional Development Webinar Series
What to do when receive a medical negligence matter? Professional Development Webinar Series
Process If satisfied and interested, we contract with client Obtain detailed, chronological report We pay you a non- refundable fee You provide us with all the information We assess if there is a claim You consult with client Professional Development Webinar Series
Process If satisfied and interested, we contract with client Obtain detailed, chronological report We pay you a non- refundable fee You provide us with all the information We assess if there is a claim You consult with client Professional Development Webinar Series
Process If satisfied and interested, we contract with client Obtain detailed, chronological report We pay you a non- refundable fee You provide us with all the information We assess if there is a claim You consult with client Professional Development Webinar Series
Process If satisfied and interested, we contract with client Obtain detailed, chronological report We pay you a non- refundable fee You provide us with all the information We assess if there is a claim You consult with client Professional Development Webinar Series
Process If satisfied and interested, we contract with client Obtain detailed, chronological report We pay you a non- refundable fee You provide us with all the information We assess if there is a claim You consult with client Professional Development Webinar Series
