Medical Negligence: Understanding Your Rights

Medical Negligence: Understanding Your Rights


Medical Negligence: Understanding Your Rights
Medical Negligence Law is designed to protect patients who have been harmed by a medical professional during treatment or medical intervention. These laws provide a framework for patients to seek compensation for their injuries and ongoing medical expenses, as well as holding healthcare providers accountable for their actions.
If a patient believes that they have a medical negligence case, it’s important to seek legal advice as soon as possible, as there are strict time limits for making a claim. With the right legal support from experienced medical negligence lawyers, patients can hold healthcare providers accountable for their actions and receive the compensation they deserve.

Understanding Medical Negligence
Medical negligence is a serious issue that can have devastating consequences for patients. It’s defined as a breach of a duty of care by a health professional that causes harm or injury to a patient. Health professionals are required to provide a reasonable standard of care to their patients, and failure to do so can result in legal action.

There are several factors that must be present for a case of medical negligence to be successful. These include:
– Breach of duty
– Causation
– Damage

It is important to note that NOT every poor medical outcome is the result of medical negligence; sometimes, despite the best efforts of health professionals, patients do not recover as expected. There are also many known complications and risks when a patient receives medical treatment.

Common Examples of Medical Negligence Claims
There are many circumstances that can potentially be eligible for a medical negligence claim. According to the Australian Patients Association, the following could be considered negligence:

– Patient suffered injury as a result of treatment or surgical errors.
– Incorrect diagnosis, or under- or over-diagnosing a patient.
– Overlooking a patient’s symptoms or signs of disease.
– Not validating a patient’s history of their presenting complaint.
– Prescribing the wrong dose or wrong type of medication.
– Failure to order necessary tests or ordering unnecessary tests, or even misinterpreting test results.
– Failure to obtain informed consent from a patient or their legal guardian.
– Inadequately explaining the risks of a medical treatment or procedure to a patient.
– Discharging a patient prematurely.
– Failure to or inadequate follow-up of a patient.

Who Can You Make a Claim Against for Medical Negligence?
There are a variety of medical and healthcare professionals, as well as organisations or companies, that can be subject to a claim. According to the Australian Patients Association, you can make a personal injury claim for medical negligence against:

– Doctors
– Nurses
– Paramedics
– Surgeons
– Operating theatre technicians
– Dentists
– Pharmacists
– Allied health professionals
– Hospitals
– General practice clinics
– Specialist health service clinics

How Hard is it to Prove Medical Negligence?
Being able to prove the requisite causal connection between the breach of duty of care and the harm that was suffered is key to many medical negligence claims.

Breach of Duty of Care
Proving that a breach of duty of care occurred in the first place is difficult as the burden is on you (the patient) to show this has happened. Furthermore, the Peer Professional Opinion defence means that professionals can defend their claim if their conduct has been endorsed by a body (not necessarily a majority) of their peers.

Standard of Care
Essentially, if your doctor or treating medical professional acted in a way that “was widely accepted in Australia by peer professional opinion as competent professional practice” (s 5O, Civil Liability Act 2002 (NSW)), so long as the court doesn’t consider the practice “irrational,” then there is no liability for medical negligence.

Separately, the courts have also considered whether a medical professional’s failure to warn of certain risks qualifies as medical negligence. A person, especially with regards to elective surgery, is entitled to make informed decisions about their own life and therefore must be warned of “material risks” – those which are likely to be of concern to the patient. A failure to warn of a particular risk (where subsequently that particular complication actually occurs) may be grounds for a medical negligence claim.

Causation in Medical Negligence

Even after you have proven negligence, you must still show causation. That is, that but for the negligence the injuries you have suffered would not have occurred. Again, this is not as easy as it seems.

Healthcare practitioners, hospitals, and insurers will often state that your injury is a result of an underlying illness or medical condition – that is, a pre-existing condition. Therefore, it can be tricky to prove that you would have had a better outcome if the doctor had acted differently.

  • A successful medical negligence claim must meet the following two criteria:

– The “but for” test: If the negligent act or omission didn’t occur, then the harm would not have occurred.

– Scope of liability: A breach of the duty is established but should the medical professional be held legally liable for the damage?

This last factor involves looking at the degree of connection between the breach and injury and will often include an evaluation of policy concerns.

Compensation and Damages
Medical negligence can result in significant harm to patients, including physical, emotional, and financial damages. Compensation and damages are available to patients who have suffered harm as a result of medical negligence.

What is the Average Compensation for Medical Negligence in Australia?
The amount of compensation awarded to victims of medical negligence in Australia varies depending on the severity of the injury and the circumstances of the case. Negligence claims are usually calculated based on the following factors:

– The severity of the injury
– The impact of the injury on the patient’s life
– The cost of medical treatment and ongoing care
– Loss of income and future earning capacity
– Pain and suffering

Types of Damages
Should we be able to prove negligence on the part of the sanctuary which resulted in your injuries, you would be eligible to receive an award of damages (compensation). These damages include the following:

  1. Non-Economic Loss

Section 16 of the Civil Liability Act allows for lump-sum compensation for pain and suffering, loss of enjoyment of life, loss of amenities of life, suffered to a person as a result of their injuries. There is a threshold that one’s injuries must be at least 15% of a most extreme case.

  1. Medical and Out-of-Pocket Expenses

This represents compensation for the expenses that you have paid for medical expenses in the past (including put through the public health and Medicare system) and allowance for future medical and related expenses you would incur. This is paid as a lump sum.

  1. Past and Future Loss of Income

This represents lump-sum compensation for past loss of income since the date of your injury and an allowance for future loss of income to normal retirement, plus superannuation. Medical evidence in relation to your long-term prognosis and ability to work and earn will be needed to assess this head of damage.

  1. Domestic Assistance

Under the Act, Section 15B, one is entitled to claim for the cost of services, care and assistance that is provided by others to you that you did not need before the accident. There is also a claim for loss of services representing compensation for the care that is provided to others, i.e., your children that would have been performed by you but for your injury.

Other various compensation include:

– Medications or other treatments
– Hospital charges and fees
– Rehabilitation costs
– Equipment for managing the injury or assistive equipment
– Travel costs
– Physical or psychological pain and suffering
– Disability or physical impairments

Medical negligence claims can be complex and require a detailed understanding of both the legal and medical landscapes. It is crucial to seek expert legal advice to navigate these challenges and ensure you receive the compensation you deserve.

Start Your Medical Negligence Claim Today
Medical negligence law is a complicated area. Melinda Griffiths Lawyers help everyday Australians receive the benefits they are entitled to. We are so sure of our abilities to win your case that we stand firmly by our No Win No Fee Policy. Contact us today or call 0242 262 640 to arrange a consultation.


How Can We Assist You?

Get in touch for a confidential consultation about your legal situation. We will be able to explain the stages of the personal injury compensation process and create a plan to achieve the best outcome for your claim.


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