Medical Negligence A valuable new area of
Description: Medical Negligence A valuable new area of specialisation for your firm Presented by: Renier Jacobs Christopher Consulting Presenter Renier Jacobs 18 years experience in medical negligence Qualified attorney Worked at MacRoberts, Friedman
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slide1. Medical Negligence A valuable new area of specialisation for your firm Presented by: Renier Jacobs Christopher Consulting<br>
slide2. 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<br>
slide3. Introduction<br>
slide4. Introduction Specialised field of law
Gain experience in variety of matters
New fee generation opportunity
Opportunity to differentiate your client offering<br>
slide5. Overview<br>
slide6. Agenda Components
Process
Covid-19
Practical example
Christopher Consulting
Questions<br>
slide7. Components<br>
slide8. Components Who must be sued?
Recoverability
Negligence
Causation
Quantum<br>
slide9. 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<br>
slide10. 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<br>
slide11. 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<br>
slide12. Causation Most difficult to prove
Complications, pre-existing conditions, post-incident injuries
Complete set of medical records
Onus of proof – balance of probabilities<br>
slide13. Practical Tip Ask expert whether correct behavior by potential defendant would probably or possibly have caused a different outcome? Only possibility ≠ causation<br>
slide14. Quantum Quantify damages
5 Heads of damages
Past hospital and medical expenses
Future hospital and medical expenses
Past loss of earnings
Future loss of earnings
General damages<br>
slide15. 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.<br>
slide16. Poll Question What steps should you take?
Consider suing the MEC for Health
Considering suing the nurses in their personal capacities
Consider suing the private hospital and the doctor
Consider suing the doctor
Consider suing the private hospital<br>
slide17. Process<br>
slide18. Process<br>
slide19. Consultation Chronological account of events
Set aside sufficient time
Adequate information to assess 5 components<br>
slide20. Practical Tip Compile a standard questionnaire to be completed during the consultation and remember to consider prescription date<br>
slide21. 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<br>
slide22. Medical Records Must obtain all records
If experienced – assess records yourself
If not experienced – expert opinion<br>
slide23. 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<br>
slide24. Experts: Negligence and Causation Type of matter determines which expert
Often easy establish negligence
Obstetric claims - Cerebral Palsy: negligence during labour<br>
slide25. Practical Tip Investigate causation before you investigate negligence<br>
slide26. 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<br>
slide27. 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<br>
slide28. 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<br>
slide29. 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<br>
slide30. 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!<br>
slide31. 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<br>
slide32. 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<br>
slide33. 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?<br>
slide34. HC Rule 41A: Mediation Not to be discussed in detail in this presentation
Rule compels parties to consider mediation
Saves time and money<br>
slide35. 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.<br>
slide36. Poll Question Was this the correct approach to take in this particular matter?
Yes?
No?<br>
slide37. Covid-19<br>
slide38. 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<br>
slide39. Practical example<br>
slide40. 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?<br>
slide41. Practical example<br>
slide42. Christopher Consulting<br>
slide43. 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<br>
slide44. 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<br>
slide45. What to do when receive a medical negligence matter?<br>
slide46. Process<br>
slide47. Process<br>
slide48. Process<br>
slide49. Process<br>
slide50. Process<br>
slide51. Process<br>
slide52. Process<br>
slide53. Christopher Consulting Obtain records
Time-consuming
Burden on administrative staff
We have contacts nationwide
Obtain medical records on your behalf
Small fee<br>
slide54. Christopher Consulting Appoint experts, counsel, and the like
National database of experts
We pay experts and related cost directly, removing burden on your cash flow
We work closely with you and advise you throughout
You obtain experience<br>
slide55. Christopher Consulting Creation of trusts
Brain-injury matters
Specialists who create and manage trust
Ensures adequate application of monetary awards<br>
slide56. Christopher Consulting Take all the risk
Once we accept, we take all the risk
Should matter become unsuccessful, we bear loss
Risk free-litigation
Unique product!<br>
slide57. Christopher Consulting Bonus fee
Upon successful conclusion of the matter, you receive –
A percentage of the capital amount of the claim, plus
Your taxed or agreed party and party costs
No concern about cash flow<br>
slide58. Christopher Consulting Panel attorneys
If you’re not interested in conducting the litigation, we will instruct one of our panel attorneys
You still receive the initial fee<br>
slide59. Questions?<br>
slide60. Thank You!<br>
slide2. 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<br>
slide3. Introduction<br>
slide4. Introduction Specialised field of law
Gain experience in variety of matters
New fee generation opportunity
Opportunity to differentiate your client offering<br>
slide5. Overview<br>
slide6. Agenda Components
Process
Covid-19
Practical example
Christopher Consulting
Questions<br>
slide7. Components<br>
slide8. Components Who must be sued?
Recoverability
Negligence
Causation
Quantum<br>
slide9. 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<br>
slide10. 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<br>
slide11. 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<br>
slide12. Causation Most difficult to prove
Complications, pre-existing conditions, post-incident injuries
Complete set of medical records
Onus of proof – balance of probabilities<br>
slide13. Practical Tip Ask expert whether correct behavior by potential defendant would probably or possibly have caused a different outcome? Only possibility ≠ causation<br>
slide14. Quantum Quantify damages
5 Heads of damages
Past hospital and medical expenses
Future hospital and medical expenses
Past loss of earnings
Future loss of earnings
General damages<br>
slide15. 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.<br>
slide16. Poll Question What steps should you take?
Consider suing the MEC for Health
Considering suing the nurses in their personal capacities
Consider suing the private hospital and the doctor
Consider suing the doctor
Consider suing the private hospital<br>
slide17. Process<br>
slide18. Process<br>
slide19. Consultation Chronological account of events
Set aside sufficient time
Adequate information to assess 5 components<br>
slide20. Practical Tip Compile a standard questionnaire to be completed during the consultation and remember to consider prescription date<br>
slide21. 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<br>
slide22. Medical Records Must obtain all records
If experienced – assess records yourself
If not experienced – expert opinion<br>
slide23. 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<br>
slide24. Experts: Negligence and Causation Type of matter determines which expert
Often easy establish negligence
Obstetric claims - Cerebral Palsy: negligence during labour<br>
slide25. Practical Tip Investigate causation before you investigate negligence<br>
slide26. 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<br>
slide27. 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<br>
slide28. 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<br>
slide29. 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<br>
slide30. 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!<br>
slide31. 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<br>
slide32. 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<br>
slide33. 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?<br>
slide34. HC Rule 41A: Mediation Not to be discussed in detail in this presentation
Rule compels parties to consider mediation
Saves time and money<br>
slide35. 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.<br>
slide36. Poll Question Was this the correct approach to take in this particular matter?
Yes?
No?<br>
slide37. Covid-19<br>
slide38. 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<br>
slide39. Practical example<br>
slide40. 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?<br>
slide41. Practical example<br>
slide42. Christopher Consulting<br>
slide43. 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<br>
slide44. 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<br>
slide45. What to do when receive a medical negligence matter?<br>
slide46. Process<br>
slide47. Process<br>
slide48. Process<br>
slide49. Process<br>
slide50. Process<br>
slide51. Process<br>
slide52. Process<br>
slide53. Christopher Consulting Obtain records
Time-consuming
Burden on administrative staff
We have contacts nationwide
Obtain medical records on your behalf
Small fee<br>
slide54. Christopher Consulting Appoint experts, counsel, and the like
National database of experts
We pay experts and related cost directly, removing burden on your cash flow
We work closely with you and advise you throughout
You obtain experience<br>
slide55. Christopher Consulting Creation of trusts
Brain-injury matters
Specialists who create and manage trust
Ensures adequate application of monetary awards<br>
slide56. Christopher Consulting Take all the risk
Once we accept, we take all the risk
Should matter become unsuccessful, we bear loss
Risk free-litigation
Unique product!<br>
slide57. Christopher Consulting Bonus fee
Upon successful conclusion of the matter, you receive –
A percentage of the capital amount of the claim, plus
Your taxed or agreed party and party costs
No concern about cash flow<br>
slide58. Christopher Consulting Panel attorneys
If you’re not interested in conducting the litigation, we will instruct one of our panel attorneys
You still receive the initial fee<br>
slide59. Questions?<br>
slide60. Thank You!<br>