Your Medical Negligence Claim Was Rejected. What Now?

8 min · Medical negligence · Published 12 Sep 2026

A law firm saying no is a decision about whether that firm will act on your claim. It is not a finding that your treatment was reasonable. Firms decline medical negligence claims for three quite different reasons, and the letter you were sent usually hints at which one applies to you.

Merit means someone reviewed the care and concluded it met the standard, or that the harm would have happened anyway. Economics means nobody reached a view on the care at all, because the cost of records and independent expert opinion was judged too high against the likely value of the claim. Time means the limitation period has run, or is close to running.

Only the first of those is about your treatment. And whichever one you got, the limitation clock kept running while you waited for the answer. Working out which reason applies, and how much time is left, is the most useful thing you can do now.

What the letter said	Which reason that is	What it actually tells you
"Not commercially viable", or the claim is too small	Economics	A statement about the cost of proving the claim. Nobody has necessarily formed a view on whether the treatment fell short
"Costs would be disproportionate to the likely damages"	Economics	The same point in costs language
"We are not in a position to fund the investigation"	Economics	The same point again, said from the firm's side of the table
"We obtained an opinion", or an expert reviewed the treatment	Merit	Someone independent did look. Ask which specialty, which records they were given, and what question they were asked
"Causation cannot be established"	Merit	The care may still be open to criticism, but the harm is said to have followed anyway. This is the hardest of the three to move
"Statute-barred", or anything about dates and the limitation period	Time	A statement about when a claim could be started, not about whether the care was negligent. A court can extend in limited circumstances
Nothing specific — "we are unable to assist you"	Unstated	The most common letter of all. It tells you only that the retainer ended. Write back and ask whether an independent expert opinion was obtained

Most letters use more than one of these phrases. The line that matters is whether an independent expert opinion was obtained, because that is what separates a view about your care from a view about the cost of proving it.

Was it merit, economics or time?

Start from what a rejection is not. Victoria has no certificate of merit, no mandatory pre-court notice and no compulsory pre-filing medical assessment. Queensland requires steps of that kind under the Personal Injuries Proceedings Act 2002 (Qld). Victoria does not. So no independent body has assessed your claim and no register records that it was refused.

What sits behind the letter is a duty on the lawyer rather than on you. A practice must not act on a damages claim unless a lawyer reasonably believes, on provable facts and a reasonably arguable view of the law, that the claim has reasonable prospects of success, and a firm that gets that wrong can be exposed to a costs order personally. That duty is about the firm's own risk. It does not bind you, and it is not a finding about your care. Why law firms decline medical negligence claims takes that duty apart in full.

A merit rejection means someone looked

In a properly investigated claim that means an independent specialist in the same field read your records and answered two questions. Did the treatment fall below the standard a reasonable practitioner would have met, and did that failure cause the harm you are left with. If the answer to either was no, a second firm reading the same report will usually land in the same place.

It is still worth asking what the expert was given. An opinion written on a partial record, or answering a narrower question than the one that matters to you, is not the last word on your treatment.

An economic rejection means nobody got that far

Records have to be collected and paid for, and an independent expert has to be paid to read them, before anyone knows whether a claim is viable. A formal Freedom of Information request to a Victorian public hospital costs $34.50 as at 1 July 2026, and a private provider may charge 20 cents a page to copy your file. Those are the small costs.

The expert opinion is the substantial one. There is no published fee schedule for privately briefed medical negligence experts in Victoria. The closest official Victorian benchmark is WorkSafe's independent medical examination schedule, which from 1 July 2026 allows a specialist $2,118.94 including GST for a standard examination and report and $2,589.82 for a complex one. That is a statutory no-fault scheme rather than a negligence claim, so read it as a benchmark and not as a quote. A claim often needs more than one opinion, because breach, causation and the value of the loss can each call for a different specialty.

A firm billing by the hour has to decide whether the likely value of the claim can carry that spending. No win, no fee does not remove the cost. It changes who carries it and when. The Victorian Legal Services Board and Commissioner puts the point plainly: disbursements may be payable whether you win or lose, and a losing party usually pays the other side's costs as well. Where an uplift fee applies under a conditional costs agreement it is capped at 25% of the legal costs, and that cap does not cover disbursements.

What each step of an investigation actually costs is set out in what it costs to investigate a medical negligence claim. The value question sitting behind a letter that calls your claim too small is covered in is your claim too small for a lawyer to take?

A time rejection is about dates, not treatment

A firm that declines because the period has expired is telling you something about the calendar. It may still be worth understanding, because the date the period starts from is often later than people assume, and a court can extend.

Did the limitation clock stop when the firm said no?

No. Nothing in the Limitation of Actions Act 1958 (Vic) pauses a limitation period because a law firm declined to act. There is no provision for it, and the months you spent waiting for an answer are not added back. This is the practical danger in a rejection: people read it as the end of the matter and look again years later.

The Health Complaints Commissioner sets out the Victorian position. A legally competent adult must commence proceedings within three years from the date they became aware of the loss or harm they have suffered, and no claim can be brought 12 years or more after the injury occurred regardless of when the injury was discovered. Longer periods can apply to children and to people with a disability.

Awareness is not the same as the date of the treatment. The period runs from when you knew that the injury had happened, that it was caused by the other party's conduct, and that it was serious enough to justify bringing a claim. A suspicion is not knowledge. In Waldron v O'Callaghan [2024] VSCA 196 the Court of Appeal accepted that knowledge arrived in 2020, the year solicitors passed on a medico-legal opinion, for treatment given between 2005 and 2012. An expert opinion obtained now can itself be the moment that matters.

A court may also extend the period where it is just and reasonable to do so. In Goodridge & Anor v Baker [2023] VSC 331 the Supreme Court allowed a claim about antenatal care and a 1996 birth to proceed on a writ filed in 2022, 26 years later and outside the 12-year long-stop. The delay was found understandable, the injury was very significant, the plaintiffs had moved quickly once they were advised, and the antenatal records that had gone missing were the doctor's own responsibility to keep. An extension is a discretion decided on the facts of the individual case, so it is not something to plan around.

Working out which dates apply to you is technical. Does a rejected claim affect your time limit? deals with the position after a firm has declined, and time limits for medical negligence claims goes through the questions worth asking.

What should you take to a second opinion?

You do not need to work out the legal answer before you ask someone to look. You do need the documents that show how far the first assessment actually got.

The rejection letter itself, and any earlier letters from the same firm. This is the single most useful document you hold.
Any medical records already obtained, in whatever order they arrived. You do not need to sort or summarise them.
Any expert report obtained for you, together with the letter of instruction that went with it if you have a copy.
Your dates. When the treatment happened, when you first suspected something had gone wrong, and when anyone told you so.
Anything sent to or received from the hospital, Ahpra or the Health Complaints Commissioner.

If you do not have your records yet, how to get your medical records in Victoria sets out which law applies to which provider, how long it takes and what it can cost. What the evidence has to establish is covered in how to establish a medical negligence claim. What a second review involves, and how long it takes, is set out in getting a second opinion on a medical negligence claim.

Can you get your file from the firm that declined you?

Generally yes, and you do not have to explain why you want it. Under the solicitors' conduct rules that apply in Victoria through the Legal Profession Uniform Law Application Act 2014 (Vic), a solicitor must deliver the client's documents to the client, or as the client directs, once the retainer ends. That is subject to a valid lien over the file for unpaid costs.

A lien is not the end of the matter. Where the documents are needed for proceedings that are already on foot, the firm is still expected to release them to a new solicitor against an undertaking or reasonable security for the outstanding costs. The Victorian Legal Services Board and Commissioner describes the same practical position in its guidance on disputing a bill.

What you are entitled to is your own documents: correspondence, records obtained on your behalf, court documents and expert reports obtained for you. It does not extend to the firm's internal working notes. Ask in writing, name the documents you want, and say where to send them.

Is a complaint to Ahpra or the Health Complaints Commissioner a substitute?

No. They answer a different question, and neither is a compensation process.

Ahpra and the National Boards act on a practitioner's registration — a caution, conditions, suspension or cancellation. Ahpra says it cannot arrange compensation, an apology, an explanation or the return of your records, and directs people who want those things to the health complaints body in their state or territory.

In Victoria that body is the Health Complaints Commissioner, a free and independent complaints and conciliation service. Its own fact sheet says that claims for damages arising out of medical negligence take place in the courts, while the Commissioner can assist parties to reach a resolution that includes a financial payment, through its complaints resolution and conciliation process. That outcome is agreed between the parties rather than ordered by a court. The Commissioner also does not give legal advice on a prospective claim.

Do not assume a complaint protects your position on time. Nothing in the limitation rules says that making one extends the period for starting a court claim.

What happens if you have the claim looked at again?

You are free to ask another firm to look at the same facts, and you do not need permission from the first one. Being upfront about the earlier rejection helps rather than hurts, because it shows what has already been considered and avoids repeating work you have waited through once.

Clever Legal was built for the claims a traditional cost structure cannot reach. Technology does the heavy work of organising records and building the chronology. The lawyers read the evidence and make every legal decision. Reducing the cost of reaching an informed view means some claims can be assessed that do not fit the economics of an hourly-billing firm.

That is a statement about what can be looked at, not about what will be accepted. Some claims are declined because the care was reasonable, or because the harm would have followed regardless, and a further opinion does not change that. If that is where the evidence lands, you will be told so plainly.

If a firm has declined your claim, start a free assessment and send the rejection letter with anything else you hold. The wider question of why cost decides which claims a firm will take on is covered in another lawyer rejected my medical negligence claim: should I get a second opinion?

Common questions

Does a rejection mean you do not have a medical negligence claim?

No. It means one firm decided not to act. Victoria has no certificate of merit and no official body that rules on whether a medical negligence claim is good, so the letter is that firm's commercial and evidentiary judgment and nothing more. What matters is which of the three reasons you were given. If no independent expert opinion was ever obtained, the merits of your treatment have not been tested at all.

Does the time limit stop running after a law firm rejects your claim?

No. Nothing in the Limitation of Actions Act 1958 (Vic) pauses a limitation period because a firm declined to act, and the months you spent waiting for the answer are not added back. In Victoria a legally competent adult must generally commence proceedings within three years of becoming aware of the loss or harm, and no claim can be brought 12 years or more after the injury occurred regardless of when it was discovered. A court can extend that period in limited circumstances, but an extension is a discretion and not something to plan around.

How can you tell whether you were declined on merit or on cost?

Read the letter for whether an independent expert was involved. Wording about an opinion, a specialist review or causation points to merit. Wording about commercial viability, proportionate costs or the size of the claim points to economics. Many letters say only that the firm is unable to assist, and in that case you can write back and ask whether an expert opinion was obtained and what records it was based on.

Are you entitled to your file from the firm that declined you?

Generally yes. When a retainer ends, a solicitor must deliver your documents to you or as you direct, subject to a valid lien over the file for unpaid costs. Where the documents are needed for proceedings already on foot, the firm is still expected to release them to a new solicitor against an undertaking or reasonable security. Your documents means correspondence, records obtained on your behalf, court documents and expert reports obtained for you, rather than the firm's internal working notes.