Making a Medical Negligence Claim
This form of negligence, also known as medical malpractice or health law, involves an injury occurring as a direct result of an act or omission by a medical facility or health professional for failing to provide sufficient care or skill in the management and treatment of the patient. This is in circumstances where the injury could or should have been foreseen by a medical or health professional. The patient or their family may be able to make a claim for medical negligence compensation.
Medical negligence claims include claims may be made for:
- failure to warn,
- lack of informed consent.
This is usually when a health professional has not fully explained the risks of a procedure or medication, which the patient may have refused.
Medical negligence claims are complicated and require careful consideration of complex medical and legal issues, and there are also strict time limits to adhere to.
Medical facilities and health professionals may include:
- Doctors
- General Practitioners (GP's)
- Private surgeons
- Nurses
- Dentists
- Midwives
- Pharmacists
- Allied healthcare professionals
- Hospitals
What Happens to the Hospital or Medical Practitioner
When You Decide to Take Legal Action
When you seek legal assistance to make a claim for financial loss and/or treatment regarding medical malpractice, in most cases it is the insurance company of the medical practitioner or business that will compensate you as per their policy.
All medical practitioners are required by law to have professional indemnity insurance (PII). This means that in the event of an accident or injury where a medical practitioner is at fault, it is the professional indemnity insurance company who pays the compensation amount to the injured person.
Types of Medical Negligence
Negligent medical treatment can occur in many different contexts and can include:
- failure to diagnose a condition (or excessive delay in making that diagnosis)
- failure to or delay in providing the appropriate treatment for the condition or refer a patient to a specialist
- failure to perform a procedure with reasonable care and skill
- failure to advise of the risks associated with a procedure
- failure to report correctly or follow up on test results
- failure to provide adequate post-operative care
Common Areas of Medical Malpractice
Our medical negligence lawyers work in areas such as:
- obstetrics,
- neurology,
- paediatrics,
- gynaecology,
- emergency medicine,
- general surgery,
- orthopaedics,
- and more.
Other common medical negligence claims include:
- antenatal testing failures,
failure to recommend testing or errors in reading tests for conditions including genetic disorders eg. downs’ syndrome
- pregnancy and labour management,
failure to monitor and treat conditions during pregnancy or respond to foetal distress resulting in injury to the child such as cerebral palsy and/or brachial plexus palsy
- surgical errors,
such as laparscopic surgery gone wrong and left untreated
- damage to major structures,
such as the femoral nerve
Requirements for Medical Negligence Claims in QLD
The law relating to medical negligence or malpractice varies between states and territories within Australia.
In general, two requirements must be established in order to claim for medical negligence compensation:
- there was negligent medical treatment
- the patient suffered physical, psychological or financial harm by this medical treatment that would not have otherwise occurred
Therefore, you cannot claim medical malpractice, if you have not suffered harm or injury as a result of your medical treatment, irrespective of whether the medical treatment was negligent.
In addition, medical negligence laws in some states and territories have strict thresholds that determine how severe or significant an injury must be, before a person is entitled to claim for medical negligence.
Queensland does not have strict thresholds. However, for financial reasons, there should be a fairly significant and/or permanent injury in order for your claim to be financially viable to make a claim for medical negligence.
Proving Medical Malpractice
The law recognises that medical practitioners are forced to make difficult decisions under extreme pressures in situations where it is not always possible to make the correct decision. However, negligent medical treatment goes beyond being a simple reasonable mistake or error.
To establish a medical negligence claim, it is necessary to demonstrate that the treatment provided by a medical practitioner fell below the standard of treatment that is reasonably expected from such a professional in those circumstances at the relevant time, in Australia.
Therefore, a medical practitioner is not negligent if it is established that at the time the medical service or advice was provided, they acted in a widely acceptable manner in the opinion of a significant number of respected medical practitioners, in that field of medical practice.
Claiming Compensation for Medical Negligence
In the event that you have suffered an injury as a result of negligent medical treatment, your medical negligence claim can include compensation for the following items:
- any past and future medical expenses, such as future surgical costs, ongoing physiotherapy and equipment expenses,
- any past and future loss of earnings since contracting the condition,
- nursing provided by anyone or sometimes without charge by family or friends,
- any past and future expenses for help at home, such as costs of modifying vehicles and the house,
- pain and suffering and loss of enjoyment of life,
- costs associated with a Trustee managing your money.
Injury compensation amounts are calculated regarding the harm and/or loss suffered, not in relation to the degree of negligence by the medical facility or medical practitioner.
In Queensland, the assessment of damages, that is, harm and/or loss suffered, related to personal injury is governed by the Civil Liability Act 2003.
Time Limits for Medical Negligence Claims
Time limits apply for making a claim for medical negligence. If you believe you have suffered an injury as a result of medical negligence, please seek legal advice as soon as possible.
Under Queensland law, a medical negligence claim must start within 3 years from when the negligent medical treatment occurred.
It is possible for a claim to be made outside the prescribed time limits, whereby the injury or harm did not become immediately apparent. However, it is important that you obtain legal advice from a medical negligence lawyer to safeguard your interests in relation to these time limits.
If you think you have a claim for medical negligence compensation contact Shine Lawyers on 13 11 99 for an obligation free, first consultation about a claim.
We Offer A No Win, No Fee Arrangement
Medical negligence litigation can be expensive, that's why Shine Lawyers will only charge fees for medical negligence claims if the outcome is successful. In other words, no win – no fee.
Many firms will not cover the cost of outlays and those that do often ask clients to take out loans with external companies for outlays which charge credit card rate interest. This is important for you to consider when choosing a lawyer. We cover the cost of the outlays for you throughout the course of your claim and only recover the bank interest we have incurred on your behalf. Which means you don’t have any nasty surprises at the end of your claim.
To take the worry and stress out of your medical negligence claim, we offer an obligation free first consultation. If it is more convenient for you, we can also arrange one of our medical negligence experts to visit you at home or elsewhere to discuss your claim.
Our medical law team are a specialised department solely dedicated to medical negligence claims.
To learn more about making a medical negligence claim, contact Shine Lawyers on 13 11 99.
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