2019 Guide to Medical Negligence Compensation - Law Partners
 

Medical Negligence, Injury and Rehabilitation | 21 August 2019

What you need to know about medical negligence compensation.

 

What is medical negligence?

Medical negligence (also known as medical malpractice) occurs when a medical professional’s behaviour doesn’t meet the appropriate standard of care, and the patient suffers injury or loss. There must be a duty in the circumstance for the medical professional to take care of the patient, known as “duty of care”. If there’s a breach of this duty, then this is the first step in establishing that there has been medical negligence.

Here are some questions to consider:

  • Did you suffer injury or loss as a result of the treatment?
  • Was the treatment below the standard of care and skill that a reasonable professional would have provided in the same circumstances?
  • Would your injury or loss have been avoided if your care had been appropriate?

If you answer yes to these questions, then it’s possible that medical negligence has occurred.

 

What is medical malpractice? Is it different from medical negligence?

In Australia, medical negligence and medical malpractice are generally considered to be the same thing. Medical malpractice is a term that’s more widely used in the USA.

 

 

What qualifies as medical negligence?

Medical negligence can result from a wide range medical, therapeutic and dental treatments where the failure of an individual or process results in harm to the patient. However, it’s important to understand that a poor clinical outcome does not necessarily mean negligence has occurred. Many clinical procedures carry inherent risks, and as long as these risks have been adequately explained to the patient, then failure of the procedure doesn’t necessarily constitute negligence. What does qualify as medical negligence, however, is a poor clinical outcome that results from a breach of duty of care.

 

How much compensation do you get for medical negligence?

Medical negligence compensation payments range from tens of thousands of dollars to millions of dollars. Depending on the severity of your injuries, the total compensation amount can include:

  • Lost income – the amount of income you’ve lost through time off work
  • Medical expenses – resulting from your injuries
  • Travel expenses – to and from medical appointments and treatment
  • Domestic assistance – the cost of getting help with home duties
  • Pain and suffering – an amount to compensate you for your pain and suffering, based on the extent of your injuries
  • Future losses – for example, your future earnings that you will miss out on as a result of your injuries

 

What do you do if you suspect medical negligence?

Medical negligence claims are complex and can be very difficult to prove, so they’re not something you should attempt to pursue on your own. The first step is to speak to a solicitor and get some advice. Most good personal injury firms will offer an initial consultation for free, but you should choose a firm that offers you a meeting directly with a specialist medical negligence solicitor. During this meeting the solicitor will assess your situation and provide their opinion on whether your claim is likely to succeed. If the solicitor thinks you have a claim, it’s likely he or she will need to consult with a medical expert to confirm the likelihood of success. If the firm does take on your case, they’ll need a report from a medical expert as part of the evidence to support your claim.

  • At this stage it’s very difficult to estimate how much compensation you’re likely to receive, but ask the solicitor to give you a breakdown of the entitlements you may be eligible for
  • Ask them to confirm what sort of fees you’ll need to pay
  • Most firms will offer to take on your claim on a “no win no fee” basis, but look closely at the costs agreement
  • Ask the firm to put a cap on its fees to avoid any nasty surprises at the end of the claim

 

 
The success of your claim and how much compensation you receive will depend very much on the quality of your legal representation and how thoroughly your solicitor prepares your claim, so choose a firm that specialises in personal injury and has a strong track record of success.

 

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Claiming compensation for medical negligence

 

What happens in a medical negligence claim?

Medical law is a complex field so it’s important to get good advice and engage the services of a specialist medical negligence lawyer. Your lawyer will engage one or more medical experts who have experience in the field of medical negligence to carry out assessments, review your medical records and provide a report detailing how your treatment was negligent.

 
Your lawyer will manage this process for you, and if they’ve taken your case on a “no win no fee” basis they will cover the medical experts’ costs, so you shouldn’t have to pay anything out of your own pocket.

 

Building the evidence to support you claim can take some time, especially if your injuries have not yet stabilised. Once your injuries have stabilised your legal team can put together a claim that takes into account all aspects of your injuries and losses.

The next step in the process is mediation – where all parties meet and try to agree on resolution. Many medical negligence claims are resolved at this stage and a settlement (ie a compensation payment to you) is agreed upon. In the minority of cases where a settlement isn’t reached, your lawyer will advise you about taking your claim to court to pursue compensation.

 

How long do medical negligence claims take to settle?

Medical negligence claims often take years to settle. This is because claims can be complex, and it may be necessary to wait for injuries to stabilise before a claim can be made.

However, it’s possible for claims to settle in a shorter timeframe if injuries have stabilised and there is clear evidence of medical negligence, or if your circumstances require a more urgent settlement.

 

How do you prove medical negligence?

To prove medical negligence, you need to prove that the medical practitioner or facility had a duty of care, and that duty was breached. Or, looking at it another way, you need to prove that the treatment was below the standard of care and skill that a reasonable professional would have provided in the same circumstances. You also need to prove that your injury would have been avoided if your care had been appropriate.

To provide this proof, you’ll need to have a thorough assessment conducted by a medical expert that concludes the practitioner was negligent.

 
Medical law is a complex field, however a specialist medical negligence lawyer will engage the relevant medical experts on your behalf to prepare your evidence and manage your claim.

 

How do you sue for medical negligence?

Most medical negligence claims settle by way of mediation, where all parties agree on a settlement. However, if mediation fails, then your claim may need to proceed to a hearing in order to claim compensation for medical negligence. Before you decide whether you wish to pursue legal action, it’s important to get legal advice from a specialist medical negligence lawyer to understand what are the chances of your claim succeeding.

 
Pursuing legal action can be risky and potentially costly, however a “no win no fee” medical negligence law firm may take on your case and fund it for you if they’re confident of succeeding.

 

How long do I have to make a medical negligence claim?

In NSW you must lodge your “initiating claim” within three years from the date of injury or diagnosis. However, long-stop periods and considerations can be given to children and people with disabilities. If you’ve exceeded a time limitation, time extensions might be available, so you should speak with a specialist medical negligence lawyer who can provide you with advice on your situation.

 

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Misdiagnosis

 

What is misdiagnosis?

Misdiagnosis generally falls into four categories:

  • Making the wrong diagnosis – a typical example is when a patient who presents with chest pain is diagnosed with a relatively minor condition such as gastro-oesophageal reflux disease (GERD), when in fact the patient’s symptoms are caused by a more serious condition such as a heart attack or a pulmonary embolism and no steps are taken to diagnose or treat those conditions.
  • Missed diagnosis typically occurs when the patient is certified as fit, when in fact he or she suffers from a medical condition that could have been diagnosed at the time of certification.
  • Delayed diagnosis usually occurs when the medical practitioner fails to obtain a proper history or refer the patient for appropriate investigations to rule out a particular condition.
  • Failure to diagnose a related or unrelated disease occurs when the medical practitioner diagnoses and treats only one condition, when the patient’s symptoms are caused by more than one condition. This leaves the undiagnosed condition untreated and allows it to progress further and affect the patient’s prognosis.

Can I get compensation for misdiagnosis?

If you’ve been misdiagnosed and you can prove medical negligence on the part of the doctor or medical facility, then you can make a claim for compensation.

The area of misdiagnosis and delayed diagnosis of an injury, illness or a medical condition forms a large part of medical negligence claims in Australia against general practitioners, specialists, hospitals and hospital emergency departments. It usually involves actions or inactions that lead to delays in administration of appropriate and timely treatment, or administration of incorrect treatment or no treatment at all.

 
Proving medical negligence is not straightforward, so if you believe you have a claim you should contact a specialist medical negligence lawyer.

 

Can I sue my doctor for misdiagnosis?

If misdiagnosis or a delayed diagnosis by a doctor leads to medical complications or worsening of a condition, and it can be shown that the doctor breached his or her duty of care, then you may be able to make a claim for medical negligence compensation. It’s important to understand that making a claim for compensation doesn’t necessarily mean that you have to pursue court action against your doctor. Most compensation claims are settled by way of mediation, where all parties agree on a fair compensation settlement. However, if agreement can’t be made by way of mediation, then you may need to take the doctor to court in order to receive compensation for your injuries and losses.

Is misdiagnosis considered malpractice?

The term malpractice is generally used in the American legal system, but in Australia we generally refer to medical negligence. Misdiagnosis, or delayed diagnosis, is considered a form of medical negligence in Australia if it results from the breach of a medical practitioner’s duty of care.

 

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Hospital negligence

 

How long do I have to sue the hospital for negligence?

In NSW you must lodge your “initiating claim” within three years from the date of injury or diagnosis. However, long-stop periods and considerations are given to children and people with disabilities. If you’ve exceeded a time limitation, time extensions might be available, so you should speak with a specialist medical negligence lawyer who can assess your situation.

How do I file a lawsuit against a hospital?

If mistakes made by a hospital lead to medical complications or worsening of a condition, and it can be shown that the hospital breached its duty of care, then you may be able to make a claim for medical negligence compensation. It’s important to understand that making a claim for compensation doesn’t necessarily mean that you have to pursue court action against the hospital. Most compensation claims are settled by way of mediation, where all parties agree on a fair compensation settlement. However, if agreement can’t be made by way of mediation, then you may need to take the hospital to court in order to receive compensation for your losses.

 
To file a lawsuit against a hospital you’ll need to engage a specislist medical negligence lawyer, who will work with medical experts to build the evidence and run the case on your behalf. If you have a strong claim, most good personal injury firms will offer to run your case on a “no win no fee basis”, so you’ll only need to pay the solicitor after you win your case.

 

What is an example of negligence in nursing?

Negligence in nursing occurs when a nurse fails to adequately complete his or her clinical tasks, resulting in harm to the patient. Examples of negligence in nursing include:

  • Failing to properly monitor vital signs
  • Administering the wrong medication
  • Failing to administer medication

 

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Other examples of medical negligence

 

What is negligence during an operation?

Negligence during an operation occurs when medical treatment falls below the requisite standard of care, and a surgical error was a preventable complication or there were errors or outcomes beyond the known inherent risks of the surgery.

The fact that a surgical error has occurred doesn’t necessarily mean that a surgeon or specialist was negligent. However, in most surgical error cases, it’s relatively straightforward to establish whether negligence has occurred.

Surgical errors and mistakes can lead to a variety of different consequences, leaving the patient with longstanding disabilities that arise from:

  • Injury or damage to nerves or vascular structures.
  • Anaesthetic complications.
  • Bowel and bladder perforations.
  • Injury and damage to surrounding tissue and organs.
  • Performance of incisions at the wrong locations.
  • Carrying out the wrong procedure and operating on the wrong body part or patient.
  • Leaving surgical equipment inside the patient.

 

What is “failure to warn” and “informed consent”?

Before a patient agrees to undergo medical treatment or a surgical or cosmetic procedure, the medical practitioner must warn the patient about the risks to ensure that the patient has given his or her informed consent. The law imposes this duty on medical practitioners in addition to the medical practitioner’s duty to exercise reasonable skill and care in providing or administering medical treatment.

Informed consent may require the medical practitioner to provide advice and disclose information about his or her experience and ability to perform a particular surgical procedure. It may also require advice on the detriments of not undergoing a particular treatment, the seriousness or nature of a particular injury or condition and any implications of not having prompt and timely treatment.

Can you sue your plastic or cosmetic surgeon?

To determine whether you can sue your plastic or cosmetic surgeon, you need to first determine whether the surgeon breached their duty of care.

Cosmetic surgery has become increasingly common in Australia, whether it’s done for cosmetic reasons to improve your appearance or as part of treatment for an injury or illness. It’s also one of the most unregulated areas of treatment, as thousands of Australians every year go under the knife in the hands of so-called “cosmetic” surgeons who often don’t have specialised plastic surgery training equivalent to that of qualified plastic surgeons.

Having said that, even procedures performed by highly qualified plastic and reconstructive surgeons often result in poor surgical outcomes and the need to undergo further corrective surgery, usually as a result of:

  • Inexperience of the operating surgeon in performing the procedure
  • Poor or insufficient preoperative and postoperative planning and communication
  • Improper surgical technique

 

 
If your cosmetic or plastic surgery has gone wrong, a specialist medical negligence solicitor will be able to review your situation and advise you on the likelihood of success if you sue your surgeon.

 

Keep in mind that you don’t need to go to court in order to receive compensation – most medical negligence claims are resolved through mediation.

What is a nervous shock claim?

Medical negligence nervous shock claims are made by close family members of the victim of medical negligence who was either killed, injured or put in peril as a result of the negligence of a medical practitioner.

Members of the family who may be entitled to make a nervous shock claim include:

  • A parent of the victim or other person with parental responsibility for the victim
  • The spouse or partner of the victim
  • A child or stepchild of the victim or any other person for whom the victim has parental responsibility
  • A brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim

These claims usually arise when the close family member suffers a recognisable psychiatric or psychological injury or illness, such as depression, anxiety or post-traumatic stress disorder.

Can you claim compensation for birth injuries or defects?

If the birth injuries or defects could have been prevented by the treating medical practitioner by exercising reasonable skill and care, then you may be able to claim compensation for medical negligence.

Birth defects usually affect the baby from the outset and are not usually caused by outside factors. This includes Down Syndrome and other issues stemming from the baby’s genes.

 
However, birth defects can also be caused by factors like the pregnant mother taking incorrectly prescribed medication, including certain antidepressant drugs and birth control medications. In these cases, the birth defects could have been prevented by the treating medical practitioner by exercising reasonable skill and care.

 

When unpreventable birth defects are diagnosed early, and the parents are not financially prepared to care for a child who requires extensive medical care and assistance, they often consider terminating the pregnancy, if they receive appropriate advice from their treating medical practitioner. If this advice is not provided it may give rise to a claim for medical negligence. This can result from simple mistakes like the medical practitioner not viewing imaging or radiology reports properly.

Unlike birth defects, birth injuries are usually caused by outside factors, like acts or omissions by the medical practitioners, and are usually completely preventable. Birth injuries are caused by a variety of factors including inattentiveness, unavailability and inexperience of medical practitioners.

Can you get compensation for dental negligence?

Dental and orthodontic practitioners and surgeons owe the same duty of care as any other medical professional and must exercise reasonable skill and care in providing treatment and advice to their patients. If they fail in their duty of care and this result in injury, then the patient may be able to claim compensation.

Claims for negligent dental or orthodontic treatment can be based on a range of issues and arise out of treatments and conditions such as:

  • Dental extractions
  • Endodontic procedures
  • Dental implants
  • Substandard crown and bridge treatment
  • Management of periodontal disease
  • Orthodontics
  • Dental anaesthesia complications
  • Dental injections
  • Adverse drug reactions
  • TMJ and orthognathic surgeries
  • Oral cancer

 

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