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What amounts to negligence in a medical or health setting?

A claim in negligence is available to one who sustains an injury when the standard of care provided falls below an acceptable standard.

Examples include:

  • failing to conduct surgery with appropriate care and skill
  • misdiagnosis
  • failing to diagnose in a timely manner 
  • prescribing the wrong type or dose of a drug
  • providing unsuitable or inadequate post-operative care
  • incorrectly reporting on test results.

How to prove negligence?

To sustain a claim in negligence involves proving the following:

  1. that a duty of care was owed by the health professional – this is not generally controversial as the doctor-patient relationship is a well-established category of relationships in which a duty of care has long been recognised to exist.
  2. that the duty of care has been breached – this requires expert evidence that the health professional did not act with the reasonable skill and care expected of a professional of their standing.
  3. that the breach of duty of care has caused or contributed materially to harm or damage

What types of damage or injury can be compensated?

Damages – or compensation – is payable for such things as pain and suffering, provision of care and support in activities of daily living., loss of income in the past and the future and medical expenses

Are there time limits for making a claim?

Generally, a medical negligence claim needs to be commenced within three years of the date of injury. There are exceptions to this general rule. 

Are all claims worth litigating?

No. Smaller claims are generally not worth litigating.

 

A person claiming negligence needs to be able to demonstrate that their pain and suffering is more than 15% of a most extreme case to get any damages for pain and suffering.

 

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 compensation is not forthcoming despite a successful claim – for example, 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) or a regulatory body established to investigate complaints against particular groups of health professionals.

It is also possible to make a complaint or notification to the Australian Health Practitioner Regulation Authority (AHPRA) about the conduct 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.

In the eyes of the law, a person cannot consent to treatment unless they have been adequately informed about the risks. This is what is meant by the phrase “informed consent”. Cases that involve this issue are often referred to as “failure to warn” cases because there has been a failure to warn a patient of material risks with the treatment given.

Guidelines for practitioners

The National Boards for almost all health practitioners publish a Code of Conduct that indicates the standards expected generally in the profession including the expectations regarding informed consent. For instance, the amount of information expected to be given to patients by doctors is not only prescribed by the Medical Board of Australia’s code of conduct  but also by reference to the National Health and Medical Research Council’s:

  • General guidelines for medical practitioners on providing information to patients and
  • Communicating with patients: advice for medical practitioners

What do I need to prove?

To successfully bring a claim against a health practitioner in this area, you must establish that:

  1. The health professional failed to warn you of a risk associated with the proposed treatment
  2. The risk was material (a reasonable person in the same circumstances would be likely to attach significance to the risk).
  3. Had you been warned, you would not have proceeded with the treatment. This will be affected by whether the treatment was elective or necessary and if there were any alternative treatments available.
  4. You proceeded with the treatment; the risk occurred and caused you injury

Lack of informed consent is particularly common in claims arising out of negligent surgery.

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