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Understanding your claim

How to Make a Medical Negligence Claim in Victoria, Step by Step

The steps in the order they usually happen, from checking your time limit and getting your records to expert opinion, putting the claim to the other side, and court if it does not settle.

General information only — this article is not legal advice.

By , Paralegal · 10 min · How a claim works · Published 24 Sep 2026

To make a medical negligence claim in Victoria you check your time limit, get your medical records, have the care reviewed by an independent medical expert, put the claim in writing to the doctor or hospital, negotiate, and issue proceedings in the County Court or Supreme Court only if the claim does not settle. For most adults the time limit is three years from when the claim became discoverable, with a twelve-year outer limit, under section 27D of the Limitation of Actions Act 1958 (Vic). The expert opinion addresses whether the care fell below the standard and caused your injury. If you are claiming for pain and suffering, an approved medical practitioner usually has to certify that your injury meets the significant injury threshold in Part VBA of the Wrongs Act 1958 (Vic). The other side then has 60 days to accept that certificate or refer it to a Medical Panel. That is the usual sequence, not a statutory one, and a claim can settle at any stage.

This guide is about the process. What you have to prove — a duty of care, a breach of the standard, causation and damage — is covered in How to establish a medical negligence claim. Each step below links to the guide that covers it in more detail, rather than repeating it.

Step What happens The rule that applies
1. Check the dates Work out when you first knew, or ought to have known, that you had a claim Limitation of Actions Act 1958 (Vic) ss 27D, 27E, 27F and 27K
2. Get your medical records Request the complete file from every provider involved in your care Health Records Act 2001 (Vic) for private providers; Freedom of Information Act 1982 (Vic) for public health services
3. Legal review of the records A lawyer reads the file and identifies the questions an expert has to answer No statutory step. This is where the investigation starts
4. Independent expert opinion A specialist in the same field says whether the care fell below the standard, and whether that caused the harm Wrongs Act 1958 (Vic) ss 48, 51 and 59
5. Evidence of your loss Medical, financial and care evidence of what the injury has cost you. For pain and suffering, an impairment assessment and certificate Wrongs Act 1958 (Vic) Part VBA, ss 28LE, 28LF, 28LG and 28LN
6. Put the claim to the other side A written claim, with the evidence, to the practitioner, the hospital or its insurer. Any certificate of assessment is served with it Wrongs Act 1958 (Vic) ss 28LT and 28LV
7. Response and negotiation The other side accepts, disputes or asks for more information, and offers may be exchanged Wrongs Act 1958 (Vic) ss 28LW and 28LWE
8. Issue proceedings if needed A writ is filed in the County Court or the Supreme Court of Victoria County Court Act 1958 (Vic) s 37; Civil Procedure Act 2010 (Vic) ss 41 and 42
9. Mediation, settlement or trial The court may order mediation. Formal offers can carry costs consequences. A child's settlement needs court approval Civil Procedure Act 2010 (Vic) s 66; court rules Orders 15 and 26

Statutory references checked against the authorised versions on legislation.vic.gov.au as at 24 September 2026. Legislation is amended from time to time.

What is the first step in making a medical negligence claim?

Check the dates, before anything else. A claim that is out of time can be barred however strong it is, and every other step takes time to complete.

For an adult, section 27D of the Limitation of Actions Act 1958 (Vic) sets whichever of two periods ends first: three years from the date the claim became discoverable, or twelve years from the act or omission that caused the injury. Under section 27F a claim is discoverable on the first date you knew, or ought to have known, that you were injured, that the injury was caused by the fault of the practitioner or provider, and that it was serious enough to justify bringing a claim. Different periods apply to a person who was under a disability at the time (section 27E), and a court can extend a limitation period where it decides it is just and reasonable to do so (section 27K). An extension is a discretion, not an entitlement.

It helps to write down, while you still remember it clearly, what happened, when, who was involved, and when you first suspected something had gone wrong. That note is not evidence of negligence, but it is often what the dates turn on. The detail is in Time limits for medical negligence claims.

Why do you need your medical records before anything else?

Because the records are the evidence. Whether a warning sign was noted, a test was ordered, or a drug was charted at the right dose is decided on the documents, not on anyone's recollection. No lawyer or expert can form a view without them.

You do not need a lawyer to ask for them, and you do not have to give a reason. Private providers are covered by the Health Records Act 2001 (Vic). Public hospitals and health services are covered by the Freedom of Information Act 1982 (Vic), and many will release a patient's own records informally. What to ask for, what it can cost and what to do if you are refused are set out in How to get your medical records in Victoria.

Requesting records does not pause the limitation period. If time may be short, a lawyer can look at the dates before the file arrives.

Who decides whether the care was negligent?

In the end, a court. In practice, the question is framed long before that by an independent medical expert: a specialist in the same field as the practitioner who treated you, who reads the records and gives an opinion.

The expert is usually asked two separate questions. The first is about the standard of care. Section 59 of the Wrongs Act 1958 (Vic) says a professional is not negligent if they acted in a way that was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice, unless the court considers that opinion unreasonable. The second is causation: whether the failure caused the harm you suffered, which section 51 of the same Act governs. A claim can fail on either question, and causation is often the harder one.

More than one expert is often needed, because the specialist who can speak to the standard of care may not be the right person to speak to causation or to your condition now. Expert fees are usually the main cost of investigating a claim, and they are covered in What does it cost to investigate a medical negligence claim?

If the expert opinion does not support the claim, this is usually where it stops. That is not a finding by a court, and it is not the same as being told your experience did not matter. It means the evidence needed to take the claim further is not there.

What is the significant injury threshold, and when does it apply?

It applies only to damages for non-economic loss, meaning pain and suffering and loss of enjoyment of life. Section 28LE of the Wrongs Act 1958 (Vic) says you cannot recover those damages in a court unless you have suffered a significant injury. It does not stop a claim for economic loss, such as lost earnings, medical expenses or the cost of care.

As at 24 September 2026, the threshold level in section 28LB is impairment of more than 5 per cent of the whole person for most physical injuries, 5 per cent or more for a spinal injury, and 10 per cent or more for a psychiatric injury. Section 28LF also treats some injuries as significant without an assessment, including loss of a foetus and psychiatric injury arising from the loss of a child around birth.

The threshold has its own procedure, and it sits inside the claim process:

  1. An approved medical practitioner assesses your degree of impairment (section 28LG).
  2. The practitioner gives you a certificate of assessment. It states whether the threshold is met but not the specific percentage (section 28LN).
  3. You serve a copy of the certificate on the other side, with any prescribed information (section 28LT).
  4. The other side has 60 days to accept the assessment, say it will refer it to a Medical Panel, ask for further information, or say it is not the proper respondent (section 28LW). If it does not respond in writing within the 60 days, it is deemed to have accepted the assessment.
  5. If a medical question is referred, the Medical Panel's determination must be accepted by a court in any proceeding on the claim (section 28LZH), and there is no appeal on the merits (section 28LZI).

Serving the certificate also suspends the limitation period until three months after the respondent accepts the assessment, is deemed to accept it, or the Medical Panel process concludes (section 28LV). That suspension is one reason the certificate is often obtained early. As an alternative, you can ask the other side in writing to waive the assessment, and it must respond within 60 days (section 28LO). What the threshold means for smaller claims is explained in Is my medical negligence claim too small?

How is the claim put to the doctor or hospital?

In writing, with the evidence. Once there is expert support and a picture of your loss, the claim is set out in a letter or formal notice to the practitioner, the private hospital or the public health service, and usually to its insurer. For care in the Victorian public system, the Victorian Managed Insurance Authority provides medical indemnity cover for public health services, their employees and contracted practitioners treating public patients. That tells you who is likely to respond. It does not decide who is legally responsible.

Victoria has no compulsory pre-litigation protocol for medical negligence claims. The Civil Procedure Act 2010 (Vic) originally contained pre-litigation requirements in Chapter 3, but that Chapter was repealed by the Civil Procedure and Legal Profession Amendment Act 2011. So there is no statutory form for the letter and no fixed waiting period before proceedings can be issued. What the law does require is the Part VBA procedure above, where you are claiming for pain and suffering.

Clever Legal puts claims to the other side through a formally documented settlement offer called the Clever Notice, priced as a fixed fee. How it works, and what it costs, is explained in What is the Clever Notice?

What happens during negotiation?

The other side investigates. It will usually obtain your records, may obtain its own expert opinion, and responds by accepting liability, denying it, or making an offer. A statement by a respondent that it is the proper respondent to your claim is not an admission of liability (section 28LWD of the Wrongs Act 1958 (Vic)).

Negotiation can take the form of letters, offers and counter-offers, or a meeting. No law fixes how long the other side may take to respond to a letter of claim, outside the time limits in Part VBA. If negotiation stalls and the limitation period is getting close, proceedings may be issued to protect your position while talks continue.

When does a claim go to court, and which court?

A claim goes to court when it does not settle, or when proceedings have to be issued to stop the limitation period running out. Issuing proceedings is not the same as going to trial. It means filing a writ and a statement of claim.

Two Victorian courts have specialist lists that manage medical negligence claims:

  • The County Court of Victoria. Section 37 of the County Court Act 1958 (Vic) gives it jurisdiction over civil proceedings regardless of the relief sought, unless another Act excludes it. Its Common Law Division has a Medical List, with its own practice note setting the standard timetable for medical negligence matters.
  • The Supreme Court of Victoria. Its Personal Injuries List manages medical negligence claims among other personal injury proceedings, under Practice Note SC CL 3. Its standard timetable includes a date by which the matter is to be mediated.

A writ is valid for service for one year after it is filed, and the court can extend that (rule 5.12 of the rules of both courts). When the first substantive document is filed, you generally have to certify personally that you have read and understood the overarching obligations in the Civil Procedure Act 2010 (Vic) (section 41), and your lawyer must certify that each claim has a proper basis (section 42). Filing fees are set out in the costs guide.

Once proceedings are on foot, both sides exchange documents and expert reports. The defendant can ask you to attend a medical examination by its own expert, and the court can stay the proceeding if you unreasonably refuse (rule 33.04 of the County Court Civil Procedure Rules 2018). Issuing proceedings also brings a costs risk that investigating a claim does not: if you lose, you may be ordered to pay part of the other side's legal costs.

How does a medical negligence claim end?

By settlement, by a decision after a trial, or by the claim being discontinued. A claim can settle at any point, including before proceedings are issued.

Everyone involved in a civil proceeding has to use reasonable endeavours to resolve the dispute by agreement, including by mediation where appropriate (section 22 of the Civil Procedure Act 2010 (Vic)). The court can order a proceeding to mediation without the parties' consent, at any stage (section 66).

Either side can serve a formal offer of compromise under Order 26 of the court's rules. An offer must stay open for at least 14 days. If you make an offer in a personal injury claim, it is not accepted, and you then obtain a judgment no less favourable than your offer, the court will ordinarily order the defendant to pay your costs on an indemnity basis (rule 26.08). A refused offer from the defendant can have costs consequences for you in the same way.

If the claim is brought on behalf of a child or a person under a disability, a settlement in a proceeding is not valid without the court's approval (rule 15.08).

How long does a medical negligence claim take?

There is no fixed timetable, and nobody can tell you at the outset how long yours will take. Some intervals are set by law, such as the 60 days a respondent has to answer a certificate of assessment. Others depend on things outside anyone's control: how long records take to arrive, when a suitable expert is available, whether your injury has stabilised enough to be assessed, and how the other side responds. A claim that settles after the written claim is put will usually be shorter than one that goes through proceedings, but that is a description of the process, not a forecast for any particular claim.

Where do you start?

With the dates and the records. You do not need to know whether your claim meets every element before you ask, and you do not need an expert report to begin. Working that out is what an investigation is for.

Clever Legal uses technology to organise medical records, and our lawyers review the evidence and make every legal decision. If you think something went wrong with your care, start a free assessment. You will be told plainly where your claim stands and what the next step would be, with no obligation and no guaranteed outcome. If another firm has already declined your claim, Your claim was rejected: what happens next is the place to start.

Common questions

What are the steps to make a medical negligence claim in Victoria?

The usual sequence is to check your time limit, obtain your medical records, have a lawyer review them, obtain independent expert opinion on the standard of care and causation, gather evidence of your loss, and put the claim in writing to the practitioner or hospital and its insurer. If you are claiming for pain and suffering, a certificate of assessment is usually served under Part VBA of the Wrongs Act 1958 (Vic). If the claim does not settle by negotiation, proceedings can be issued in the County Court or the Supreme Court, where it may resolve at mediation, by settlement or after a trial.

How do I start a medical negligence claim in Victoria?

Start by writing down what happened and when, and by requesting your medical records from every provider involved. You do not need a lawyer to request your records and you do not have to give a reason. Then have the dates checked, because for most adults the limitation period is three years from when the claim became discoverable, with a twelve-year outer limit under section 27D of the Limitation of Actions Act 1958 (Vic). You do not need an expert report before you ask a lawyer to look at your situation.

Do you have to go to court to make a medical negligence claim?

Not necessarily. A claim can settle at any stage, including before proceedings are issued, and Victoria has no compulsory pre-litigation protocol that forces a claim into court. Proceedings are sometimes issued to protect a limitation period rather than because a trial is expected. Once a proceeding is on foot, the court can order mediation, and the parties must use reasonable endeavours to resolve the dispute by agreement under the Civil Procedure Act 2010 (Vic). Whether your claim needs to go further depends on the evidence and on how the other side responds.

What is a certificate of assessment in a medical negligence claim?

It is the document an approved medical practitioner gives you after assessing your degree of impairment under Part VBA of the Wrongs Act 1958 (Vic). It states whether your injury meets the significant injury threshold, but not the specific percentage. You need a significant injury to recover damages for pain and suffering. Once you serve the certificate, the other side has 60 days to accept it or refer a medical question to a Medical Panel, and if it does not respond in writing in that time it is deemed to have accepted the assessment.

How long does a medical negligence claim take in Victoria?

There is no fixed timetable, and no one can tell you at the outset how long a particular claim will take. Some intervals are set by law, such as the 60 days a respondent has to answer a certificate of assessment. Others depend on how long records take to arrive, when an expert is available, whether the injury has stabilised, and how the other side responds. A claim that settles after the written claim is put is usually shorter than one that goes through court proceedings.

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