What is medical negligence?

  • Medical negligence refers to a circumstance where the standard of care that can be reasonably expected of a medical practitioner has not been met.
  • In order to be defined as medical negligence, the patient must have suffered physical, psychological or financial harm as a direct consequence of the medical practitioner’s failure to meet the expected standard of care.
  • There is a duty of all healthcare providers to take care of their patient, known as “duty of care.” If duty of care has been breached, the patient may be entitled to compensation by making a medical negligence claim.

What is causation?

  • Causation refers to the element of medical negligence whereby the harm to the patient is found to have been caused by the medical practitioner’s failure to meet acceptable standards of care.
  • In a court of law, causation must be proven on a ‘balance of probabilities’ meaning that it is most likely the case that the harm to the patient was caused by the wrongdoing of the medical practitioner.

What are some examples of medical negligence?

  • Failure to correctly diagnose a patient’s condition
  • 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 choice of medication
  • Misinterpreting laboratory results
  • Failure to order necessary tests or ordering unnecessary tests
  • Failure to obtain informed consent
  • Inadequately explaining the risks of a medical treatment or procedure
  • Physically harming a patient by making surgical errors
  • Discharging a patient prematurely
  • Inadequate follow-up of a patient

Who can I lodge a medical negligence claim against?

  • Some people assume a medical negligence claim can only be lodged against a doctor but, in reality, you are able to lodge a negligence claim against any provider of your healthcare. This may include, but is not limited to,
    • Nurses
    • Paramedics
    • Operating theatre technicians
    • Dentists
    • Pharmacists
    • Allied health professionals (see APA’s specific document on allied health)
    • Hospitals
    • General practice clinics
    • Specialist health service clinics
  • The most common cases of medical negligence in Australia involve:
    • Cosmetic surgery
      • See APA’s cosmetic surgery document to learn about the difference between cosmetic surgeons and plastic surgeon
    • Obstetrics and gynaecology
      • See APA’s gynaecologist complaints document to learn more about negligence in this medical field in Australia
    • Paediatrics
    • Emergency medicine
    • Orthopaedics
    • Misdiagnosis or delayed diagnosis
    • Medications and their adverse effects

What can I be compensated for?

If medical negligence is proven in the court of law, a patient can seek compensation for both special damages and general damages in regards to their loss of injury.

  • Special damages refer to quantifiable economic losses from the date of injury such as:
    • Medical treatment costs such as medications
    • Hospital charges
    • Rehabilitation costs
    • Special equipment
    • Travel costs
    • Loss of income
    • Legal costs
  • General damages refer non-economic losses which can only be estimated and include:
    • Physical pain and suffering
    • Psychological pain and suffering
    • Disfigurement or chronic disability such as loss of limbs, organs or senses
    • Reduced quality of life
    • Loss of future earning capacity

How long do I have to claim compensation?

  • Most jurisdictions require a legally competent adult to start proceedings within three years from the date they first experienced the loss or harm for which they are seeking compensation.
  • There are some exceptions in which case an extension may be allowed, such as if the patient has a disability or is a child, but the time limits are generally very strict.

What is the process of a medical negligence claim?

  • Medical negligence is a very complex field of law and it is therefore recommended that all patients who are considering making a claim firstly get advice from a lawyer who specialises in medical negligence.
  • The lawyer will consult with one or more medical experts who will carry out assessments on various aspects of your health, review your medical records, and compile a report detailing how your medical care has been negligent.
  • Jurisdictions will differ somewhat in the extent of harm or injury that can qualify seeking a medical negligence claim. For example, in Victoria, the patient must prove they have a “significant injury” as determined by an approved medical examiner which is defined as a whole-person impairment of:
    • More than 5% for physical injuries, excluding spinal injuries
    • More than 10% for psychiatric injuries
    • At least 5% for spinal injuries
  • The process of obtaining all the necessary information to make a report for a medical negligence claim can take a long time because it requires expert medical opinions, various assessments, and stabilisation of injuries.
  • Once the report is finalised, the next step is mediation whereby all parties meet and attempt to resolve the medical negligence claim by reaching a settlement. A settlement refers to all parties agreeing on an amount of money that the patient can claim due to medical negligence. The majority of cases reach a settlement.
  • If a settlement cannot be reached, the case might proceed to a hearing in the law court. This can be a lengthy, costly, and psychologically taxing process for the patient so it is important to seek legal advice about the likelihood of your claim being successful from an expert in the field of medical negligence. It will ultimately be the decision of the judge/ jury about whether your claim is successful.

How long does a claim take to be processed?

  • In Australia, medical negligence claims can take many years to be processed and for a decision to finally be made because of how complex medical law can be.

What is the average payout for a medical negligence claim?

  • In Australia, the average payout for a medical negligence claim is $650, 000 AUS. However, this is only a estimation and the value of payouts for medical negligence claims can range from tens of thousands to millions of dollars depending on the severity of the harm and suffering caused.

Can I claim medical negligence on the behalf of someone else?

  • Yes, anyone is technically able to lodge a medical negligence claim on behalf of someone else but in most cases this is relevant for a parent, guardian or carer.*
  • A carer is defined as somebody who provides ongoing assistance to a person with carrying out normal daily activities who cannot do so independently due to a disability or chronic illness.
  • For a non-relative lodging a claim on behalf of someone else, they must declare that they have no vested interests in making the claim, such as a financial incentive.