Filing For a Medical Negligence Claim: A Guide to Your Rights and Responsibilities

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Medical negligence is surprisingly common in Australia. According to the World Health Organisation,

  • 18,000 people may die every year in hospitals through preventable medical negligence,
  • 50,000 people suffer from permanent injury annually and
  • 80,000 patients per year are hospitalised due to medication errors.

Yet these claims can be difficult to file and even more difficult to prevail with. If you think you have been a victim of medical negligence, you should act quickly to get good legal advice.

What is Medical Negligence?

At the outset, it is important to realise that not all unfortunate medical outcomes are the result of medical negligence. An injured person must be able to show four things:

  • the medical professional or hospital had a duty to take care of him or her;
  • the professional failed to do this;
  • the individual suffered serious harm, and finally
  • that the harm suffered was caused by the failure.

The first element of the claim is generally not the most difficult. The law casts a wide net of responsibility that includes doctors, hospitals, nurses, therapists, osteopaths, pharmacists, mental health care teams, laboratory services, dentists, opticians, ambulance service, health visitors, and midwives who are generally considered to have a duty of care to patients. This would not necessarily be so with respect to family members of patients who grieve for their loved one’s death or injury, however, or with respect to hospital visitors.

Failures may similarly include many different kinds of shortcoming:

  • Failure or delay in diagnosis of a condition;
  • Making a mistake during a procedure or operation;
  • Giving the wrong drug;
  • Failure to obtain consent to treatment;
  • Neglecting to warn about the risks of a particular treatment;
  • Failing to provide the appropriate treatment for the condition; and
  • Failing to refer to a specialist for diagnosis or treatment.

What makes the second element of a medical negligence argument challenging, is that it requires evidence from other medical experts about what the reasonable standard of care is. Not all mistakes are evidence of negligence. Not all doctors have the same degree of skill, and the less skilled ones are not necessarily negligent if their abilities fall within a reasonable normal range. Medical professionals tend to be very reluctant to give evidence of another professional’s failure to meet reasonable standards of care.

How much and what kind of harm the patient must show varies from state to state. In New South Wales, individuals must generally show that they have become permanently disabled because of the error.

Finally, of course, it is necessary to show that the injury was caused by the professional’s failure, that it would not have occurred but for that failure. Direct causation may also be phenomenally difficult to prove, especially with people who are ill and may have multiple health conditions. If a patient dies after amputation of the wrong limb, for example, it would still be necessary to show that the mistaken amputation, rather than the underlying disease, caused the death.

Practical Problems

If you believe that you have a medical negligence claim, you should contact one of our experienced medical negligence lawyers as soon as possible. There are strict time limits within which you must bring legal action. These vary from state to state. It is also important to avoid statements to insurance companies representing the subject of the complaint until you are adequately represented.

In NSW, an attorney may not begin court proceedings without filing an expert medical-legal report that supports an injured person’s claim that the treatment received did not meet the reasonable standard of care. This will require the production and thorough examination of medical records as well as research to locate an independent doctor who will support the plaintiff’s claim, all of which can be quite time-consuming.

Limits on Medical Negligence Awards

You should also be aware that in NSW the amount of any possible recovery is restricted. The Civil Liability Act:

  • limits claims for “general damages for pain and suffering” to no more than $350,000;
  • provides that no interest is recoverable for non-economic loss;
  • precludes victims from making claims with respect to exemplary or punitive damages;
  • caps claims for recovery of loss of salary and earning capacity;
  • discounts by five percent claims for future damages, such as the cost for future medical care and equipment expenses;
  • restricts claims for the cost of future domestic care; and
  • prohibits an award of damages when the permanent impairment is less than 15 percent.

Almost all medical negligence cases in Australia are brought on a “no win/no fee” basis. This means that claimants need not fear legal fees other than disbursement expenses, such as medical reports, experts, and court fees for an unsuccessful claim. Unsuccessful claimants may, however, find themselves responsible for a percentage of the medical professional’s legal costs.

This arrangement also means that your attorney has a particular incentive to evaluate your case carefully before beginning legal action.

Statistically, only a very small percentage of claims ever actually reach trial.  It is far more likely for claims to settle informally on the basis of negotiations that will take place throughout the duration of the legal proceedings.

Other Sources of Recovery

In addition to damages or an award from legal action, many people are eligible to receive payments for a disability from a superannuation fund, or through personal insurance including permanent disablement insurance.  These are avenues injured people should certainly explore in addition to any medical negligence claim.

If you believe you have been a victim of medical negligence, it is of the utmost importance that you act promptly. Schedule a consultation with our experienced personal injury lawyers to help you evaluate your situation and to pursue every possible resource to help you with your care and recovery.

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