Medical treatment of any kind can create a great deal of anxiety. Depending upon the type of treatment or surgery needed, a patient might find themselves in the position of trusting a relative stranger with their health needs. And, while we like to believe that doctors are skilled beyond the point of making diagnostic or surgical errors, we know this is not always true.

There are some significant areas of concern that a patient has to take into consideration when embarking on a medical negligence claim. The claim will require expert medical evidence of negligence connected to the doctor’s error. In addition, the injured party will need to be prepared for ongoing inquiry into their past and present medical conditions. Lastly, this type of claim cannot be pursued without the professional advice of an attorney who specialises in medical negligence law.

The first consideration is whether or not there is a basis for a claim. To determine this, we must look at the doctor/ patient relationship. When such a relationship exists, certain duties are called into play.

A doctor is held to a standard of care when treating all patients. If the standard of care is violated a doctor can be held liable for medical negligence. The standard includes the following factors;

  • Reasonable care in diagnosing and treating
  • Use of proper and appropriate medical skills
  • Providing accurate and necessary information regarding risks and outcomes

But before a patient can claim that a standard of care has been breached, the patient must prove that the physician; owed them a duty of care, breached the duty of care and caused resulting harm. Insurance companies are very skilled at reviewing these three components of any medical malpractice claim.

There are several defences a health care professional or their insurance company will use to thwart a medical negligence claim. These include;

  • The existence of the harm claimed was pre-existing and resulted from an unrelated injury or procedure
  • The treatment given was consistent with all standard medical practices
  • There was no breach of care, rather the outcome was the result of the assumed risks
  • All measures taken during the care of the patient were well within the standard guidelines for the treatment or surgery procured.

In addition, it must be remembered that insurance companies have vast resources and, often, will fight a long and hard battle against medical negligence claims using their own medical experts to refute the breach of care and resulting harm.

As such, proof of medical negligence can be one of the most difficult and expensive types of evidence for a plaintiff to procure. The cost can be prohibitive for smaller claims. Therefore, it is imperative that the case be initially reviewed in a manner that allows for all of the relevant facts and information to be shared with a medical expert who can generate an initial evaluation of possible negligence. It is vital for your claim to present with solid facts that will be difficult to refute.

This type of evidence can be presented to the defendant and their insurer as part of a settlement offer. The stronger the evidence of a breach of care and resulting harm, the greater the chances the claim can be resolved without going to court. A settlement demand can easily include a monetary compensation that will allow for the injured party to be reimbursed for outstanding medical costs, loss of income and pain and suffering. Using this form of negotiating can result in a favourable outcome for both parties.

However, in the event that a settlement cannot be reached it is important to keep in mind the various restrictions regarding recovering the cost of procuring medical reviews and evidence to support your claim. Per the current law, for a medical negligence claim of under $100,000.00 a party can only recover up to $10,000.00 in costs or 20% of the damages whichever is greater. Some disbursements can be recovered too, however it must be shown that the cost were reasonable and necessary. Hence, it is important to keep careful track of the cost of procuring medical and other evidence to support your claim.

In the event that you find yourself in need of assistance regarding your rights as a casual worker, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.

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