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Medical Negligence Claims – Your Guide.

Making a medical negligence claim or suing a hospital might seem like a daunting prospect. But when you’re injured or ill because of medical negligence, it can have a big impact on your life and your family, and it can create enormous financial stress. A medical negligence claim could be a real lifeline for you, and allow you to get the support, treatment, and financial relief you need to recover.

Medical negligence settlements can be significant, and the good news is, with the right help it can be much easier to claim than you might think. In this article, we break down the medical negligence claims process and share tips from our specialist medical negligence lawyers on how you can claim everything you’re entitled to without having to pay any up-front costs.

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What you need to know about medical negligence claims.

Our clients generally come to us in one of the following three situations:

There are inherent risks with some procedures and not all mistakes are classified as medical negligence. So it can be hard to know if you’ve suffered from medical negligence or not. This guide is a good starting point to understand your situation and what to do next.

To claim medical negligence, you need to have a medical negligence lawyer with the right experience representing you. In this guide we cover all the basic information you need to know to take the next step and choose the right lawyer for your claim.

Just because one lawyer won’t take on your claim doesn’t mean you don’t have a case. Medical negligence cases can be hard to prove, so a good lawyer will generally only take on cases where they feel they have relevant experience. Read on to learn more about your options if you’ve been told you don’t have a claim.

What’s a medical negligence claim?

A medical negligence claim is a claim for compensation made against a medical professional. Medical negligence (also known as medical malpractice) is when a medical professional’s behaviour doesn’t meet the appropriate standard of care, and the patient suffers injury or loss. Medical professionals owe you a duty of care, and if you’re injured when this duty is breached, you may be entitled to claim medical negligence compensation.

What’s an example of a medical negligence claim?

Here’s an example of a medical negligence claim, that involved a delayed diagnosis of Appendicitis, and resulted in a payout of $750,000.

Our client went to her doctor with abdominal pain and was incorrectly diagnosed as having an ovarian cyst. She was admitted to hospital and discharged 24 hours later, still without a correct diagnosis. Seven days after her initial examination, she was eventually diagnosed with a ruptured appendix, which should have been diagnosed and treated much sooner. As a result, our client suffered long-term physical and psychological issues, which wouldn’t have happened if the diagnosis had been made sooner.

Woman suffering from a psychological injury sustained in the workplace.

Who can make medical negligence claims?

Anyone who has suffered injury, illness, or any losses as a result of medical negligence in Australia can make a medical negligence claim.

It’s possible you can claim medical negligence compensation if you answer ‘yes’ to these three questions:

What’s the first step with a medical negligence claim?

Medical negligence claims are complex and take specialised knowledge to prove. You shouldn’t try to pursue a medical negligence claim on your own, but it’s relatively easy to find out if you have a strong claim. According to our specialist medical negligence lawyers, starting with the right legal advice is critical.

You should speak to a medical negligence lawyer and get some advice, but it’s important to speak to the right lawyer. Some personal injury lawyers take on a range of claims such as work injury claims and car accident claims as well as medical negligence claims. Medical negligence is a very specialised area of personal injury law that requires the ability to work closely with medical specialists and build a strong case for your claim.

To make sure you’re getting the best possible legal advice, speak to a lawyer who only does medical negligence claims, and has a strong track record of success in making claims similar to yours.

At Law Partners, we have a team of specialist medical negligence lawyers and a network of medico-legal experts we work with to build strong medical negligence claims.

What’s the medical negligence claim process?

Here’s an overview of three main stages of a successful medical negligence claim.

1- Medical assessment.

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.

At Law Partners, we manage and fund this process for you, so you don’t have to pay anything out of your own pocket. Be wary of lawyers who ask you to pay these costs up front.

2- Building the case for your claim.

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

3- Mediation.

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

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

You must lodge your ‘initiating claim’ within three years from the date of injury or diagnosis. However, this period can be extended for children and people with disabilities.

If you’ve exceeded a time limit, time extensions might still be available to you. You can call 13 15 15 to speak with one of our specialist medical negligence lawyers who will give you free legal advice on your situation.

How long do medical negligence claims take to settle?

Medical negligence claims in Australia can 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. Agreeing on an early settlement before your injuries have stabilised could mean you miss out on a significant amount you’re entitled to, so it’s important not to rush into accepting a settlement offer. We can give you legal advice if you’ve received an early offer.

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

How do I 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.

At Law Partners, we work with a network of medico-legal experts to build strong medical negligence claims, and we win over 99% of our cases.

How do I choose the best lawyer for my medical negligence claim?

A medical negligence lawyer will generally give you an initial consultation for free, but you should make sure your appointment is with the lawyer who will be handling your claim if it goes ahead. During this meeting, the lawyer will assess your situation and provide their opinion on whether your negligence claim is likely to succeed.

At Law Partners, if it looks likely you have a medical negligence claim, we’ll generally consult with one or more medical experts to confirm the likelihood of success. This is important because if we take on your case, we’ll need one or more reports from medical experts as part of the evidence to support your medical negligence claim. We fund these reports for you, so there are no up-front costs for you to pay.

Choosing the right medical negligence lawyer will have a big impact on the result of your claim, and how much compensation you receive. At Law Partners, we take a more personal approach; we take time to get to know you and uncover issues that are not always obvious at first but can have a big impact on your settlement. We pride ourselves in winning more compensation for our clients and we win over 99% of our cases.

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Suing a hospital for negligence.

Can I sue a hospital for negligence in Australia?

Yes – you can sue a hospital for negligence if you can show that the hospital breached its duty of care to you, and you suffered injury or loss. But depending on the circumstances, it’s possible that the hospital may not have been directly liable, and its staff were. It’s also possible that a breach of duty by a doctor in a hospital could result in a medical negligence claim against both the doctor and the hospital.

How do you sue a hospital for negligence?

In most cases you don’t need to sue the hospital for negligence – you can simply make a claim against the hospital’s medical negligence insurer. Based on our experience, if we build a strong claim for you and the insurer accepts it, then it’s likely that your claim will be settled by way of mediation, where all parties agree on a settlement payment to you. However, if mediation fails, then we may need to take your claim to a hearing to claim compensation for medical negligence.

So, on the question of how to sue a hospital in Australia – it’s vital that you have an experienced, specialist medical negligence lawyer putting together your claim for you and giving you expert advice on how to proceed with your claim.

Pursuing legal action can be risky and potentially costly. However, with one of our no win, no fee medical negligence lawyers managing your claim, you get peace of mind that you only have to pay if your case is successful.

What is negligence during an operation?

Negligence during an operation is when a surgical error causes injury or loss that could have been prevented if the treatment had met the expected standard of care. Or, looking at it another way, it’s when there were errors or outcomes that fall outside the known inherent risks of the surgery.

Many cases that involve suing hospitals for negligence in Australia result from negligence during an operation.

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

Negligence during an operation can lead to a range of consequences, leaving the patient with disabilities from:

What is an example of negligence in nursing?

Negligence in nursing is another situation that can lead to suing a hospital for negligence. It occurs when a nurse fails to adequately complete their clinical tasks, resulting in harm to the patient.

Examples of negligence in nursing include:

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

Before a patient agrees to undergo medical treatment or a surgical or cosmetic procedure, by law, the medical practitioner must warn the patient about any risks. This is to ensure that the patient has given their ‘informed consent’ for the procedure, fully understanding the risks involved.

As part of the informed consent process, the medical practitioner may be required to provide information about:

Failure to warn and informed consent are the basis for a significant number of people suing a hospital for negligence in Australia.

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Other examples of medical negligence claims.

Medical negligence claims can result from a range of situations – here are some common examples:

Medical misdiagnosis occurs when a medical professional diagnoses the wrong condition or fails to diagnose a patient’s condition altogether.

Misdiagnosis generally leads to complications for the patient in one of three ways:

  • Delays in treatment
  • Incorrect treatment
  • No treatment at all

The area of misdiagnosis and delayed diagnosis of an injury, illness, or medical condition forms a large part of medical negligence claims in Australia against general practitioners, specialists, hospitals, and hospital emergency departments.

Cosmetic surgery has become increasingly common in Australia, whether it’s done for cosmetic reasons to improve your appearance or as part of the 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 the specialised training that qualified plastic surgeons have.

But even procedures performed by highly qualified plastic and reconstructive surgeons can result in poor surgical outcomes and the need to undergo further corrective surgery.

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.

If a birth injury or defect could have been prevented by the treating medical practitioner by exercising reasonable skill and care, then it may qualify for a medical negligence claim.

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 results in injury, then the patient may be able to claim compensation.

How do no win no fee medical negligence claims work?

A no win no fee medical negligence lawyer offers to run your case for you and only get paid when you win. If you choose the right lawyer, it’s an excellent option that allows you to pursue your medical negligence claim without any risk, but it’s important to check the lawyer’s costs agreement to fully understand what’s covered.

With some no win no fee lawyers you can still end up having to pay thousands of dollars in disbursements if your case is unsuccessful. This is because their no win no fee agreements cover their professional fees but not the costs they incur. At Law Partners, our no win no fee, no disbursements guarantee covers all our costs and disbursements as well as our professional fees, so you can pursue your claim with peace of mind.

Suing a hospital for negligence seems like a big decision. Should I do it?

Remember that when you claim compensation, you’re seeking a settlement from the insurer of the hospital or specialist to compensate you for your losses. It’s a settlement you’re entitled to claim if you’ve been harmed through negligence.

If you’re having trouble deciding, you’re welcome to simply call one of our medical negligence lawyers and have a confidential conversation. There’s no pressure or obligation to proceed with a claim if you’re not ready, and we’ll always be here if you need us.

Gillian Potts bio pic

Gillian Potts

Special Counsel

An accredited specialist in personal injury law with expertise across medical negligence, public liability and motor accident compensation claims, in a career spanning the best part of two decades.

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