A second opinion on a medical negligence claim is a fresh review of the same evidence by a different firm. It is not an appeal, and nobody overturns the first firm's decision. You do not need that firm's permission, and you do not have to tell it you are asking someone else.
What the second firm is deciding is whether it will act. That turns on its own view of the evidence and its own cost of getting to an answer, which is why two firms can reach different decisions on the same facts.
The review starts with documents. Take the letter declining your claim, any medical records already obtained, any expert report obtained for you, and the dates of the treatment involved. If the first firm still holds them, you are generally entitled to have them delivered to you on request once the retainer ends, subject to any lien it holds for unpaid costs.
| A second review is | A second review is not |
|---|---|
| A fresh assessment of the same records and reports by a different firm | An appeal against the first firm's decision |
| A decision about whether the new firm will act | A finding that the first firm was wrong |
| Made on the new firm's own judgment and its own cost of investigating | A complaint about the first firm or its advice |
| Something you can ask for without permission or notice | Something the first firm has to agree to |
| Bounded by what the evidence shows | A way to get a different answer out of the same expert opinion |
If an independent expert has already reviewed the care and concluded it was reasonable, that is the row that matters most. A further opinion is much less likely to change the position.
This page is about the mechanics. If you have just been turned away and want the whole picture, start at Your medical negligence claim was rejected. What now? The separate question of why a firm declines a claim it thinks has merit is covered in Why do law firms decline medical negligence claims?, Is your claim too small for a lawyer to take? and Another lawyer rejected your medical negligence claim.
What does a second review actually involve?
It is a review of evidence, not a review of the first firm. Nobody sits in judgment on the earlier decision, and there is no body you appeal it to.
In practice the work runs in four steps:
- reading the letter declining the claim, to see how far the first assessment actually got;
- reading whatever records and reports already exist;
- working out what is missing, and whether getting it is justified; and
- forming a view on the four elements of a claim — duty, breach, causation and harm.
The first step matters more than people expect. A file closed before any independent expert was briefed has not really tested the merits. A file closed after an expert reviewed the care and found it reasonable has. From the outside, those two letters can read almost identically.
What the review is measured against does not change between firms. The legal test is the one set out in How to establish a medical negligence claim. What changes is the evidence available, and what it costs a particular firm to get the rest of it.
What should you take to a second review?
Take whatever you have. Gaps are normal, and nobody expects you to arrive with a complete file.
- The letter declining your claim, and any earlier letters that explain the reasoning.
- The costs agreement you signed, if there was one.
- Any medical records already obtained, in whatever form you hold them.
- Any expert report obtained for you, including an incomplete or summary version.
- The dates and places of the treatment, and the names of the hospitals, clinics and practices involved.
- Anything you wrote at the time — a diary, a complaint, messages, photographs.
- Any complaint you made to the Health Complaints Commissioner or AHPRA, and the response you received.
Dates do more work here than anything else on that list. They decide which providers to write to for records. They also decide the limitation question, which has to be looked at before anything else.
You do not need to work out which legal reason applied to the earlier decision. Identifying that is part of the review, not a precondition for it.
What are you entitled to get back from the firm that declined you?
Your documents, on request, once the retainer has ended — subject to any lien the firm holds for unpaid costs.
Two rules in the Australian Solicitors' Conduct Rules govern this. They apply to Victorian solicitors through the Legal Profession Uniform Law Application Act 2014 (Vic), so they bind every solicitor practising in Victoria.
- Rule 14 deals with your documents at the end of a retainer. On completion of the work, or when the retainer ends for any other reason, the solicitor must deliver your documents to you, or as you direct, on request. That duty is subject to a valid lien.
- Rule 15 deals with the lien where documents are essential to proceedings already on foot. Even then, the firm is required to release them to your new solicitor against an undertaking or reasonable security for the unpaid costs, rather than simply holding on to them.
Both rules are described here in substance rather than quoted. Check the wording against the rules themselves before relying on it in correspondence.
| Document | Generally yours | Why |
|---|---|---|
| The letter declining your claim | Yes | Correspondence sent to you |
| Medical records the firm obtained | Yes | Obtained on your instructions, usually at your expense |
| An expert report obtained for you | Yes | Obtained on your instructions, usually at your expense |
| Letters to and from a hospital, doctor or insurer | Yes | Part of your file |
| Anything filed in a court or tribunal | Yes | Part of your file |
| Documents you supplied yourself | Yes | They were yours to begin with |
| The firm's internal file notes, research and drafts | Not necessarily | The regulator's guidance says a firm may retain its internal working documents |
Ask in writing, and keep a copy. Say that the retainer has ended, ask for the file to be delivered to you or to the new firm, and give a date by which you would like it. Naming the new firm usually speeds it up, because firms transfer files to each other routinely.
Can a firm keep your file until you pay it?
It can, where costs are actually owed. The Victorian Legal Services Board and Commissioner puts it plainly: "if you have not paid your legal costs, they can withhold releasing or transferring your documents (this is known in legal terms as exercising a lien over client documents) until you do so."
Most people turned away at the assessment stage owe nothing. No proceeding was issued and no bill was rendered, and under a no win, no fee agreement there is usually nothing to pay when the firm decides not to continue. Where nothing is owed, no lien arises and the file should simply be sent.
Where money is owed and the documents are needed for a case already running, the file can still move. The regulator's guidance says this: "If you have changed lawyers and your documents are vital to your defence or current court proceedings your new lawyer may arrange reasonable security for the unpaid costs in return for your legal file." That security may be a written agreement, signed by you, to pay the costs after the case finishes.
If you think the bill itself is wrong, that is a separate dispute with its own routes. The regulator notes that you can pay the bill to get the file and still complain about the costs afterwards.
Should you tell the new firm you were turned away?
Yes. It helps, and withholding it mostly costs you time.
The earlier letter tells a new firm what has already been considered, which records were obtained, and whether an independent expert was ever briefed. That last point is the most useful single fact you can hand over. It changes how the review is approached more than anything else you can say.
It also stops you paying twice. Records already obtained do not need to be requested again, and a report already prepared does not need to be commissioned again.
Does the time limit keep running while you look for a second opinion?
Yes. Nothing in the Limitation of Actions Act 1958 (Vic) stops time running while a law firm considers your claim, and the months spent waiting for a decision are not added back.
That is the practical risk of a rejection. People treat the letter as the end of the matter, put it in a drawer, and look again a year later. Check the limitation position before anything else — Does a rejected claim affect your time limit? sets out the periods that apply and what a court can do once one has passed.
When is a second opinion unlikely to change the position?
A second firm should tell you when a further look is not worth your time. Several situations make that likely.
- An independent expert has already reviewed the care and considered it reasonable. That is a conclusion about merit, reached on the same records another expert would read. A further opinion is much less likely to disturb it.
- The problem is causation rather than care. Where the harm would probably have followed anyway, the standard of care becomes beside the point.
- The twelve-year long stop has passed and there is nothing in the history to support an extension.
- The records no longer exist. Providers must keep health information for a minimum period, and older records may have been lawfully destroyed.
None of that is a reason to avoid asking. It is a reason to expect a straight answer, including a second no. A firm that repeats work already done, to reach the answer already given, has not helped you.
How long does a second review take?
It depends almost entirely on what already exists, rather than on the review itself.
If you hold the records and any report, a firm can form a view on the documents in front of it. If records still have to be obtained, the statutory timelines set the pace. A private provider has a maximum of 45 days to respond under the Health Records Act 2001 (Vic). A formal Freedom of Information request to a public health service has 30 days, extending to 45 where someone else must be consulted. An independent expert opinion adds further time after that, and is not something to rush.
How to get your medical records in Victoria sets out what to ask for and from whom. What does it cost to investigate a medical negligence claim? covers what those steps cost.
If you would like a second review, start a free assessment. Send the letter declining your claim and whatever records you already hold. If you do not have them, say so, and you will be told what to request and from whom. You will be told plainly whether there is a reasonable next step, including when there is not.
Common questions
Is a second opinion an appeal against the first firm's decision?
No. It is a fresh review of the same evidence by a different firm, and nothing the second firm does overturns the first firm's decision. That firm decided it would not act. A different firm decides the same question for itself, on its own view of the evidence and its own cost of investigating. You do not need permission to ask, and you do not have to tell the first firm you have.
What do you need to give a second firm?
The letter declining your claim is the most useful single document, because it shows how far the first assessment got. Take any medical records already obtained, any expert report obtained for you, the dates and places of the treatment involved, and the costs agreement if you signed one. Gaps are normal and are not a reason to wait.
Can the first firm refuse to hand over your file?
Once the retainer has ended, a Victorian solicitor must deliver your documents to you on request, subject to any lien for unpaid costs. Most people declined at the assessment stage owe nothing, so no lien arises. Where costs are owed and the documents are needed for court proceedings already on foot, the incoming firm can offer an undertaking or reasonable security to have the file released.
Does telling a new firm you were turned away hurt your chances?
No. It helps. The earlier letter tells the new firm what has already been considered, what records exist, and whether an independent expert was ever briefed. That last point changes how the review is approached more than anything else you can tell them. Withholding it mostly costs you time, because the work gets repeated.
Does looking for a second opinion pause the time limit?
No. Nothing in the Limitation of Actions Act 1958 (Vic) stops time running while a law firm considers your claim, and the months spent waiting for a decision are not added back. In Victoria the general period is three years from the date the claim was discoverable, with a long stop of twelve years from the act or omission. A court may extend time where it is just and reasonable, but that is a discretion rather than a right.
Sources
- Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 — rules 14 and 15
- Victorian Legal Services Board and Commissioner — Rules and compliance
- Legal Profession Uniform Law Application Act 2014 (Vic)
- Victorian Legal Services Board and Commissioner — Disputing your bill
- Victorian Legal Services Board and Commissioner — Working with your lawyer
- Limitation of Actions Act 1958 (Vic)
- Health Records Act 2001 (Vic)
- Health Complaints Commissioner Victoria — Medical negligence fact sheet