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Medical Negligence FAQs

Medical Negligence FAQs

What is a medical negligence claim?

A medical negligence claim is a claim for compensation for injury and damage caused by the negligence of a doctor, hospital, or other health care professional.

What kind of incidents might give rise to a medical negligence claim?

Medical negligence claims generally fall into one of two categories:

  • A claim that the treatment you received was below acceptable standards; or
  • A claim that the health care professional failed to adequately inform you of the risks associated with the treatment they proposed and those risks materialised.

Examples of some of the actions which can give rise to medical negligence claims based on the provision of substandard care are where a doctor or other health care professional:

  • fails to conduct surgery with appropriate care and skill
  • misdiagnoses or fails to diagnose in a timely manner  a condition or disease
  • provides the wrong type or dose of drug
  • provides unsuitable or inadequate post-operative care
  • incorrectly reports or fails to act on test results.

Cases alleging a failure adequately inform are discussed separately below.

What exactly constitutes negligence?

Negligence is a defined legal concept. To prove negligence at law you must be able to prove:

(i)     The health care professional owed you a duty of care. This is usually not controversial in medical negligence cases as the doctor-patient relationship is among an established category of situations in which a duty of care has long been recognised to exist.

(ii)    The health care professional breached their duty of care. Establishing breach of duty requires evidence that the health care professional did not act with the reasonable skill and care to be expected of a professional of their standing. Establishing such proof is reliant upon being able to obtain supportive expert opinion that treatment or advice breached accepted clinical practice.

(iii)   That the alleged negligence has caused you harm. It is necessary to be able to show that the health care professional’s actions are directly responsible for the injury you have sustained, that is, ‘but for’ the negligence the injury would not have occurred.

(iv)   The harm or ‘damage’ that you have suffered. Damages or compensation may be payable for such things as pain and suffering, medical expenses, and loss of income.

When can I make a claim based on a healthcare professional’s failure to adequately inform?

‘Failure to warn’ cases allege that injury has arisen due to the healthcare professional’s failure to warn the patient of the risks associated with the treatment they have performed. These types of cases do not allege that the treatment received was in any way below acceptable standards of care but, rather, that had you been warned of the material risks of the treatment you would not have undergone the treatment. Such cases are notoriously difficult as you must prove:

  • That the healthcare professional failed to warn you of a ‘material’ risk. A risk is considered material if a reasonable person in the same circumstances as yourself, if warned of the risk, would be likely to attach significance to it or if the medical practitioner should reasonably be aware that, if warned of the risk, you would be likely to attach significance to.
  • You underwent the treatment and the risk eventuated, causing you injury. 
  • If warned of the risk, you would not have undergone the treatment and would therefore not have been injured.

How soon do I have to make a claim?

In general, a claim for medical negligence must be commenced within three years of the cause of action becoming discoverable by you. A cause of action will be discoverable on the first date you know, or ought to know, each of the following:

  1. You have been injured;
  2. Your injury was caused by the fault of the defendant; and
  3. The injury is sufficiently serious enough to warrant the bringing of an action.

What losses can be compensated?

The purpose of the law of negligence is to put a person who has suffered injury as a result of someone else’s negligence back in the position they would have been, but for the negligence. The only means the law has for doing this is financial compensation.  

Damages or compensation may be payable for such things as:

  • pain and suffering
  • loss of earnings, both past and future
  • medical and treatment expenses, both past and future
  • costs of care provided on a gratuitous basis
  • cost of future care

Are all claims worth litigating?

No. The Civil Liability Act 2002 (NSW) effectively prevents smaller claims from proceeding. The legislation stipulates that where a person’s claim for pain and suffering is less than 15% of a most extreme case, that person is not entitled to any damages for their pain and suffering. Even where this threshold is reached, at 15% the amount to be awarded for pain and suffering is only $5,500 and damages are also capped so the maximum amount payable for pain and suffering is $561,500. The effect of this restriction is that unless there is a substantial other component to the harm that you have suffered as a result of the negligence, for example considerable lost wages, many smaller claims are simply not economically viable.

Catherine Henry Lawyers can advise you further on this aspect of your claim at the outset to aid you in the decision as to whether to pursue a claim for medical negligence.

Is compensation ever difficult to recover?

Yes. There are circumstances where, despite a successful claim, compensation is not forthcoming  –  for example, where the doctor’s indemnity insurer has exercised its discretion not to fund the claim.

These instances may include:

  • where the doctor had an inappropriate relationship with the patient
  • when a doctor dies before the action is finalised
  • if a doctor has been declared bankrupt.

In such cases, unless the doctor personally has sufficient assets, you may not recover the money you are owed.

Are there other ways I can complain about the service I received from a healthcare professional?

Yes. You may make a complaint to the Health Care Complaints Commission (HCCC). The HCCC is an independent statutory body which receives and investigates complaints concerning health care providers. The Commission may be able to help you conciliate your complaint with the health care provider concerned, however, the Commission is not empowered to order compensation to be paid to you. More information about how to make a complaint to the HCCC can be obtained on their website at: www.hccc.nsw.gov.au

In addition, you may make a complaint or notification to the Australian Health Practitioner Regulation Authority (AHPRA) concerning the conduct, health or performance of a health practitioner or concerning the health of a student health practitioner. More information on the complaints process via AHPRA can be obtained on their website at: www.ahpra.gov.au.

How can we help?

Our medical negligence team is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over 20 years. We have successfully pursued hundreds of claims against health care providers, and litigated some of the highest profile cases in Australia. Our team can assist you by providing expert advice and legal support regarding your options. Contact us today.

 

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