Questions About Medical Negligence Claims
What do medical negligence claims cover?
What are some examples of medical negligence?
How do I know if I am entitled to claim for medical negligence/malpractice claims?
How is medical negligence proved?
What compensation are you entitled to claim for medical negligence?
What time limits apply for a medical negligence compensation claim?
Do I need legal advice from a medical negligence lawyer?
Shine Lawyers offer a no win-no fee arrangement for medical negligence claims
Making a Medical Negligence Claim
Medical facilities (public and private hospitals) and/or medical practitioners (such as a doctor, dentist, pharmacist, nurse, midwife, or hospital) have a common law duty to take reasonable care for the safety and well being of their patients. Breaches of that duty may give rise to medical negligence claims.
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 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 made for failure to warn or lack of informed consent, where a medical practitioner 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. In order to safeguard your interests it is critical for you to obtain advice about your situation immediately. A medical negligence compensation specialist, will be able to provide legal support and advice on your injury and which medical negligence injury compensation scheme applies to you, plus your eligibility for a medical negligence compensation claim and the compensation benefits available.
What do medical negligence claims cover?
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 on test results
• failure to provide adequate post-operative care
What are some examples of medical negligence?
Shine Lawyers’ medical negligence specialists litigate in medical practice areas such as obstetrics, neurology, paediatrics, gynaecology, emergency medicine, general surgery, orthopaedics, cosmetic surgery, 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 (for example, 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
How do I know if I am entitled to claim for medical negligence/malpractice claims?
The law relating to medical negligence varies between states and territories within Australia. However, in general terms two requirements must be established in order to claim for medical negligence compensation;
1. there was negligent medical treatment
2. they suffered physical, psychological or financial harm by this treatment that would not have otherwise occurred
Therefore, you cannot bring a medical negligence compensation claim if you have not suffered harm or injury as a result of that treatment, irrespective of whether the 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.
In Western Australia, for practical purposes there must ordinarily be a fairly significant permanent injury in order for it to be financially viable to bring a claim.
How is medical negligence proved?
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.
In order 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 an widely acceptable manner in the opinion of a significant number of respected medical practitioners in that field of medical practice.
What compensation are you entitled to claim for medical negligence?
In the event that you have suffered an injury as a result of negligent medical treatment medical you are entitled to claim medical negligence compensation for;
• any past and future medical expenses (such as future surgical costs, ongoing physiotherapy)
• any past and future loss of earnings since contracting the condition
• home help and nursing provided by anyone or sometimes without charge by family or friends
• pain and suffering and loss of enjoyment of life
Injury compensation amounts are calculated on the basis of the harm and loss suffered not in relation to the degree of negligence by the medical facility or medical practitioner.
In Western Australia the assessment of damages related to personal injury is governed by the Civil Liability Act 2002. A medical negligence lawyer from Shine Lawyers can help ensure that your rights are protected.
What time limits apply for a medical negligence compensation claim?
Time limits apply for making a claim in medical negligence. If you believe you have suffered an injury as a result of medical negligence, please seek legal advice as soon as practical.
Under Western Australian legislation, a medical negligence claim must be commenced within strict time limits:
• If the negligent act or omission that caused your injury occurred prior to 15 November 2005 your claim must be brought in the courts within 6 years of that negligent act or omission.
• If you were injured on or after 15 November 2005, you have 3 years to lodge your claim from when you first became aware of your injury or harm occurring year after negligent medical treatment. It is possible for a claim to be brought outside the prescribed time limits, including if the injury or harm did not become immediately apparent.
Different time limits may apply to claims arising from birth injuries or for children, or for claims against a public hospital. It is important that you obtain legal advice from a medical negligence lawyer to safeguard your interests in relation to the common law damages time limit.
Do I need legal advice from a medical negligence lawyer?
A claim for damages (also called a Common Law claim) is usually the only way that substantial compensation can be obtained for the full effects of your injury. To get the best advice for your medical negligence claim, please seek independent legal advice at the earliest opportunity following your negligent medical treatment.
If you engage a medical negligence lawyer as soon as practical after you have received the negligent medical treatment/advice, you will be well prepared to deal with many of the challenges that may emerge in the course of your claim. Early investigation and information gathering is critical to the success of your claim. The quality of the evidence may affect the compensation amount.
Making a claim for medical negligence requires great care in order to ensure that you receive your maximum entitlement. At Shine Lawyers, we have extensive experience in preparing and successfully pursuing claims for medical negligence. If your injury has been caused through the negligence of another person, contact us for an obligation free consultation about a claim.
Shine Lawyers offer a no win-no fee arrangement for medical negligence claims
Because medical negligence litigation can be expensive, Shine Lawyers will only charge fees for medical negligence claims if the outcome is successful. In other words, no win – no charge. You may be required to make a contribution towards the cost of medical reports.
Shine Lawyers also offer obligation free legal advice from one of our health law lawyers on a confidential basis. They belong to a specialised department dedicated to medical negligence claims with experience and knowledge in health law, law reform, and education.
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