Undergoing medical treatment that doesn’t go as expected can be incredibly stressful, even more so when the outcome is due to negligent care.
At Brave Legal, our medical negligence lawyers assist injured clients to obtain compensation so they can access help, support and focus on what matters. Our personal injury lawyers are committed to providing outstanding legal advice in a compassionate and sensitive way.
What is medical negligence?
Medical negligence occurs when a healthcare professional breaches the standard of care that a reasonably competent professional would provide under similar circumstances, leading to harm or injury to the patient.
To have a successful medical negligence claim, you need to establish that:
- The healthcare professional owed the patient a duty of care when providing their treatment. This is a well-established principle at Australian common law and is often proved (duty of care)
- The healthcare professional breached that duty of care by failing to take reasonable care of the patient and/or the treatment provided was unreasonable (breach of duty of care)
- That this breach of duty by the healthcare professional caused the patient to suffer an injury or loss (causation).
If all these elements are established, the patient would likely be entitled to a claim in compensation (also known as “damages”) for their injuries suffered.
It is important to remember that if something goes wrong or a mistake is made in your treatment, that this may not necessarily meet the legal definition of medical negligence. That’s why we recommend you get in touch with one of our medical negligence lawyers who can provide you with specific advice on your individual circumstances.
What is the significant injury threshold?
To bring a claim which seeks “pain and suffering damages” you must also demonstrate that you meet the significant injury threshold. This requirement states that the injured person must prove that their injury is stable, permanent and meets specific thresholds as set out by law.
A significant injury in Victoria is defined in the Wrongs Act 1958 as either:
- A spinal injury that is assessed at 5% or more whole person impairment;
- A physical injury other than a spinal injury that is assessed at greater than 5% whole person impairment; or
- A psychological injury that is assessed at greater than 10% or more whole person impairment.
If the injured person can show that their injury satisfies the significant injury threshold, they are then entitled to bring a compensation claim for their “pain and suffering damages”.
However, if the injured person is unable to establish that their injury meets the significant injury threshold, they are unable to bring a claim for their pain and suffering damages and their claim may be limited to financial losses.
What are common types of medical negligence claims
Common types of medical negligence claims can include:
- Delayed or misdiagnosis;
- Nervous shock;
- Surgical error;
- Birth injury;
- Wrongful birth; and
- Informed consent/failure to warn.
What is a nervous shock claim?
A nervous shock claim is when a person suffers a recognised psychiatric injury due to witnessing or being involved in a traumatic event caused by medical negligence. This type of claim allows patients or their loved ones to seek compensation for the psychological harm caused by medical care that falls below a reasonable standard, causing injury or death to the patient.
Often, these types of claims are brought by family members of a loved one who has died as a result of negligent medical care.
What is medical negligence vs malpractice?
Medical negligence and medical malpractice are used interchangeably and relate to when a healthcare professional breaches the duty of care owed leading to harm or injury to the patient.
Who is considered a medical practitioner?
In Australia, a medical practitioner is an individual who is registered under the Health Practitioner Regulation National Law to practice in the medical profession. This includes:
- General Practitioners – Doctors who provide comprehensive and ongoing care to patients, handling a wide range of health issues.
- Specialists – Medical practitioners who have completed additional training and certification in a specific area of medicine, such as cardiology, dermatology, surgery, psychiatry, etc.
- Consultants – Experienced doctors who have completed specialist training and provide expert advice and treatment in their field.
- Registrars – Doctors who are undergoing specialist training and work under the supervision of consultants.
- Resident Medical Officers – Doctors who have completed their intern year and continue their training in hospitals under supervision.
- Medical Officers – Doctors employed in various capacities within hospitals and healthcare institutions, not necessarily specialised.
- Medical interns – Newly graduated doctors who are in their first year of practice and are undergoing supervised training in hospitals.
To practice legally in Australia, these medical practitioners must be registered with the Medical Board of Australia and comply with the standards and guidelines set by the Australian Health Practitioner Regulation Agency (AHPRA). This ensures that they maintain the necessary qualifications, skills, and professional conduct required to provide safe and effective healthcare.
Dentists are not considered medical practitioners under the Health Practitioner Regulation National Law. However, a claim for compensation can be made against a dentist where you have suffered permanent injury because of the negligence of a dental practitioner.
Can an allied health practitioner breach duty of care?
Medical negligence claims are not limited to medical practitioners. Health Practitioners who are not registered doctors can also be found liable in negligence. These practitioners include:
- Nurses;
- Chiropractors;
- Psychologists;
- Physiotherapists;
- Dieticians;
- Occupational Therapists;
- Social workers;
- Podiatrists.
Just like medical practitioners, allied health practitioners have a duty of care to provide treatment to their patients that is consistent with the widely accepted practice of their profession. For example, a nurse is expected to provide reasonable care and treatment to their patients to a standard expected of all nurses in Australia.
How do I report medical negligence?
There are three ways to make a complaint about medical treatment in Victoria. These are as follows:
- Making a complaint to the Health Complaints Commissioner – the Health Complaints Commissioner is a free and impartial service, and its purpose is to help resolve complaints about healthcare and the handling of health information in Victoria.
- Making a complaint to the Australian Health Practitioner Regulation Agency (AHPRA) – AHPRA is the regulating body for Australian health practitioners designed to protect the public and set standards and policies that all registered health practitioners must meet.
- Seeking legal advice about bringing a medical negligence claim from a personal injury lawyer specialised in medical law.
How do I claim compensation for medical negligence?
To claim compensation for medical negligence, you will need to speak with a personal injury lawyer specialising medical negligence. Your lawyer will assist you to establish:
- That you were owed a duty of care;
- That duty of care was breached; and
- That breach caused you to suffer an injury or loss.
If all these elements are established, you would likely be entitled to a claim in compensation (also known as damages) for their injuries suffered. In Victoria, compensation is available for financial losses including:
- Past and future medical treatment
- Past and future loss of income
- Past and future care costs
Compensation is also available for pain and suffering damages, and this is often the more substantial part of the claim. However, in Victoria to obtain compensation for pain and suffering damages, the injured person needs to show that their injury is stable, permanent and meets the required thresholds as set out by Victorian law also known as the significant injury threshold.
A significant injury in Victoria is defined in the Wrongs Act 1958 as either:
- A spinal injury that is assessed at 5% or more whole person impairment;
- A physical injury other than a spinal injury that is assessed at greater than 5% whole person impairment; or
- A psychological injury that is assessed at greater than 10% or more whole person impairment.
If the injured person can show that their injury satisfies the significant injury threshold, they are then entitled to bring a compensation claim for their pain and suffering damages.
However, if the injured person is unable to establish that their injury meets the significant injury threshold, they are unable to bring a claim for their pain and suffering damages and their claim may be limited to financial losses.
Why is medical negligence hard to prove?
Injured patients often understand how their injury occurred (for example, when having surgery, or when given the wrong medication), however proving medical negligence requires evidence that is often difficult to obtain. This is why expert advice from a specialised medical negligence lawyer is essential.
Establishing that there was a breach of duty of care and that it has caused a permanent injury often requires expert opinion from an independent qualified medical practitioner.
If you can prove negligence, you are entitled to bring a claim for your out-of-pocket expenses including your loss of income, medical treatment and care costs.
To bring a claim for your pain and suffering damages, there is a further test that the injured person must satisfy, known as a significant injury threshold.
What is causation in medical negligence?
Causation is the link between the breach of duty of care and the injury that the patient has suffered.
In some cases, causation is clear with a direct link established between the negligent treatment and subsequent outcome. In other cases, proving causation is more difficult due to challenges in obtaining evidence. This is often seen in delayed diagnosis of cancer cases where we can see there was a breach (the delay) but it can be difficult to prove that earlier identification might have changed the outcome or avoided the injury (for example, metastases).
How long does a medical negligence claim take in Australia?
Each medical negligence claim is different, and the type of injury, form of negligence and complexity of the matter can contribute towards how long it takes to obtain a resolution. However, on average, a medical negligence claim takes approximately two years.
The first 12 – 15 months of a claim is typically investigating the claim, which includes obtaining medical records, briefing medical experts, arranging injury assessments and preparing Court documents. The timing for this stage is often variable as it involves waiting for third parties such as treatment providers and independent experts to provide information or reports to us.
Once the investigation stage is over and Court proceedings commence, a Court timetable with various interlocutory steps, including a Mediation date and trial date, is provided to both parties. Often, from the date of filing Court proceedings to a Mediation is 10 months.
What is the average payout for medical negligence in Australia?
The average payout for medical negligence varies between each State and Territory, as each has different legislations and laws relating to medical negligence claims.
In Victoria, if an injured person can show that their injuries occurred due to medical negligence, they would be entitled to two different types of damages.
The first are called special damages. These refer to financial losses and out of pocket expenses that the injured person has incurred or lost because of their injury and will be unique to each claim. Typically they include any past or future loss of income, medical treatment and care costs.
The second type of damages is called general damages otherwise known as pain and suffering damages. In Victoria, to be entitled to bring a claim for pain and suffering damages, the injured person needs to show that their injury meets a significant injury threshold.
In Victoria, the maximum pain and suffering damages that someone can be awarded in the 2023/2024 financial year was approximately $713,780.00.
How do you fight an incorrect diagnosis?
Fighting an incorrect diagnosis can be a challenging process, but there are several steps you can take to address the issue and seek a resolution.
- Seek a second opinion. By consulting another medical professional for an independent assessment of your condition, a different perspective might confirm or consider a differential diagnosis.
- Gather medical records. This includes test results, imaging studies, and consultation notes, to ensure you have comprehensive information.
- Discuss with your doctor. Share your concerns with your doctor, being specific about the symptoms or reasons you believe the diagnosis is incorrect and ask for further explanations or additional tests if necessary.
- Additional testing. Request further testing or referrals to specialists if you believe the diagnosis is incorrect, as additional testing can provide more information and potentially lead to a more accurate diagnosis.
- Take notes. Document your symptoms, treatments received, and their outcomes in detail, as this can be valuable in demonstrating that the initial diagnosis and treatment plan were ineffective.
- Seek specialist advice. Speak with a specialist with experience in your particular symptoms or condition, as they often have more in-depth knowledge and can provide a more accurate diagnosis.
- Speak to a lawyer. If you have suffered harm due to an incorrect diagnosis, consider consulting a medical negligence lawyer to discuss your legal options, as they can advise you on whether you have a case for compensation.
Can you sue a doctor for negligence in Australia?
In Australia, you can sue both private doctors, allied health staff, dentists and public and private hospitals or health services including their staff for medical negligence. If you are suing a private doctor, they will typically be covered by professional indemnity insurance, and your lawyer will be liaising with their insurer.
For claims against public hospitals or health services, your lawyer will be liaising with the insurer of the relevant government body or the state’s health department. In a claim, the doctor or hospital becomes known as the Respondent or Defendant. It is important to understand who specifically is responsible for your injury, particularly if you have been treated by multiple doctors over the same period.
If you believe you have suffered an injury because of doctor negligence, we recommend getting in touch with one of our medical negligence lawyers who advise you about your specific circumstances, including who is the proper Defendant in your claim.
What are your costs to represent me?
We act on a no-win-no-fee basis, which means that we will not charge you our professional fees unless you obtain a successful outcome. A successful outcome includes an informal settlement, settlement at mediation or a successful judgment in court.
If we are successful in obtaining compensation for you, we will ensure you receive the majority of your settlement funds, including reducing our fees if necessary.
We understand that recovering from an injury is already stressful, and dealing with the legal system can feel overwhelming. The Brave Legal Medical Negligence team is here to offer you compassionate advice and unwavering support.
For a confidential discussion about your injury, please contact Brave Legal on 03 9070 9816.