If you’ve received medical care and you suffered an injury or harm because of the treatment, then you may be entitled to make a medical negligence claim. Because medical negligence litigation requires specific legal knowledge and expertise, it’s a good idea to get a medical negligence lawyer to help you. This guide will talk you through what medical negligence claims are, how they work and when it’s worth speaking to a legal professional.
What is medical negligence?
Medical negligence, sometimes referred to as medical malpractice, occurs when the treatment you receive from a medical professional fails to meet the appropriate standard of care, and as a result, you suffer injury or loss. Put simply, a medical professional has a “duty of care” when they treat you. If they breach this duty, you could be entitled to financial compensation.
Medical professionals can include doctors, surgeons, general practitioners, dentists and health service providers such as hospitals, clinics and medical centres.
Who can make medical negligence claims?
Not sure if you qualify for a medical negligence claim? Ask yourself if:
- You have suffered an injury or loss as a result of the medical treatment you received.
- You received treatment that was below the standard of care another medical professional would have provided in the same situation.
- Your injury could have been avoided were you given the appropriate care.
If you think the answers to these questions are yes, then you might be able to make a medical negligence claim. Still not sure? Then it’s worth speaking to one of our claim advisors who can assess what you may be entitled to.
What qualifies as medical negligence in Australia?
Medical negligence is when a medical professional such as a doctor fails to uphold their “duty of care”. This can include:
- Medication Errors. This might include being prescribed the wrong medication or one that leads to another complication such as an overdose, birth defect or stroke. It can also include prescription errors. To make the claim, you need to show that the medication error was due to negligent treatment from your medical provider.
- Duty of Care Claims. If you believe your medical practitioner has failed to uphold their duty of care when examining, diagnosing, advising or performing surgery on you, you can make a duty of care claim. To qualify as medical negligence, you need to prove that your medical practitioner was negligent and that this was directly related to your injuries or illness.
- Stillbirth Claims. If your baby was stillborn and you believe it was due to negligent care, you can make a claim for pain and suffering and be compensated for psychological injuries.
- Misdiagnosis Claims. You might qualify for a misdiagnosis claim if a medical professional makes an incorrect prognosis. However, you also need to prove that the misdiagnosis was the result of medical negligence and that another doctor would not have made the same mistake.
- Plastic Surgery Compensation. If you’ve had plastic surgery, whether it was medically necessary or for cosmetic reasons, and something goes wrong, you might be able to seek compensation. Because it’s still such an unregulated area, proving that the surgeon breached their duty of care can be difficult.
- Informed Consent. Before you agree to undergo medical treatment, the medical professional needs to warn you about the risks and get your informed consent. If they don’t do this or fail to properly disclose all the dangers involved, this can qualify as medical negligence and you could be entitled to compensation.
This is not an extensive list and you might still qualify for a medical negligence claim even if your injury or loss isn’t related to one of these claims.
How much money do you get for medical negligence?
It depends entirely on your specific circumstances. However, according to the AGA (Australian Government Actuary), most medical negligence claims are settled for less than $100,000, though enough serious incidents occur over a year that claims of $500,000 and more account for around 65% of all medical indemnity claims.
Nevertheless, it all depends on what happened to you and the seriousness of your injuries. Your compensation can include:
- Lost income. This can cover the amount of time you’ve had to take off work, including future lost income.
- Medical expenses. This can cover injuries that resulted from medical negligence.
- Travel expenses. You can also get reimbursed for the travel expenses you’ve incurred as a result of getting to and from medical appointments and procedures.
- Domestic and care assistance. This can pay for the help you’ve needed to get because of the incident, such as home care or your partner taking time off work to take care of you.
- Pain and suffering. This is a type of non-economic loss that can compensate you for the physical and psychological toll that the injury has had on you.
What to do if you suspect medical negligence
If you think you’ve suffered an injury or loss due to a medical practitioner’s negligence, then it’s worth speaking to a legal professional. Medical negligence claims can be complicated and tend to be more difficult to prove than other types of injuries, such as workers compensation claims or motor vehicle claims. Here are some practical steps to follow if you believe you’re entitled to make a claim.
- Receive an initial consultation with a medical negligence lawyer. We can help put you in touch with a no win, no fee medical negligence lawyers that specialises in your claim. A medical negligence lawyer will be able to assess your situation and let you know if they believe you have a valid claim worth pursuing. If they do, you can then decide whether or not you want them to take your claim on.
- Work with your lawyer to gather evidence. Your lawyer will then get to work gathering evidence to prove your claim. The most important piece of evidence is a medical report from a medical expert supporting your negligence claim. They may require other evidence including health records.
How does the claims process work?
Once the medical negligence lawyer has decided they believe you have a valid claim, they will usually consult several qualified medical experts and get written reports to support your allegation of medical negligence.
Put simply, they need to show that your doctor, surgeon, nurse, GP or dentist failed to meet their duty of care when they treated you. For example, if you were injured during a hip replacement procedure that went wrong, then they need to get evidence from medical experts that show how the surgeon failed to meet the appropriate standard of care.
Since the lawyers we work with operate on a no win, no fee basis, they’ll be able to pay for the medical reports. Some cases can take a while to build, partly due to their complexity and if you haven’t fully recovered yet. Once all the evidence has been collected and the claim submitted to the medical practitioner’s insurer, both parties will usually come to a settlement agreement. In the rare cases where this doesn’t happen, you can take your claim to court.
How long do medical negligence claims take to settle?
It’s impossible to say without having specific details. In the most straightforward cases when the other parties admit to breaching their duty of care and being negligent, it may be resolved in around 12 months. However, more serious injuries usually require your injuries to stabilise so that your losses and future needs can be calculated, which can take a number of years.
How do you prove medical negligence?
To prove medical negligence, your lawyer needs to show that:
- A medical professional owed you a duty of care. You or your lawyer need to show that your doctor, surgeon, GP or other medical professional was under an obligation to provide reasonable care while treating you. For example, they need to show that you were their patient.
- A breach of duty occurred. You need to show that a medical professional or institution acted in a way that failed to meet their duty of care obligation. In other words, your lawyer needs to prove that your treatment was below the standard of care that you deserved. This is something that independent medical experts can determine. Your lawyer can contact them for you.
- This breach of duty caused your injuries. In legal terms, this is referred to as causation. It essentially means that the medical professional’s negligence caused or contributed to your injuries.
How long do I have to make a medical negligence claim?
In NSW you need to lodge a medical negligence claim within
- Three years from the date you discovered that medical negligence occurred (the date of discoverability); or
- 12 years from the date of medical negligence.
Whichever date expires first is the date that is used. Your claim is ‘discoverable’ when you:
- Learn you were injured
- Learn that the injury was the fault of the defendant
- Learn that the injury was serious enough to warrant you bringing a claim
What is a misdiagnosis?
A misdiagnosis is when a medical professional offers a prognosis based on specific symptoms but that prognosis is incorrect. It’s a common medical negligence claim and can include:
- Wrong diagnosis. This is when you’re diagnosed with the wrong illness. For example, if you’re diagnosed with acid indigestion but your symptoms were actually caused by a heart attack.
- Missed diagnosis. This is when you’re incorrectly told you don’t have anything wrong with you. For example, you have diabetes but the doctor certifies you as fit. It can also include when a medical practitioner diagnoses and treats a specific condition but fails to see that there are other undiagnosed conditions.
- Delayed diagnosis. This is when the medical practitioner fails to take the appropriate steps in order to rule out a specific condition. For example, they don’t refer you to see a cardiologist to determine whether you have had a heart attack or suffer from a heart condition.
Keep in mind that these examples are just an indication of what can be included as misdiagnosis but your lawyer still needs to prove that this was due to a breach in duty of care.
Do I need a lawyer when making a medical misdiagnosis claim?
No, but it’s a good idea to get one as medical misdiagnosis is complicated. Part of the reason for this is that medicine itself is a complex practice so medical practitioners aren’t expected to be perfect. Sometimes the treatment you receive isn’t successful, but that doesn’t mean your doctor, surgeon or practice has been negligent. You need to prove that they’ve breached their duty of care and that another medical professional could have done a better job, which can be difficult to do without years of experience.
It’s worth getting help from someone who understands the complexities of medical negligence claims. What’s My Claim Worth can put you in touch with lawyers who specialise in the injury you’ve suffered so that you can get the help you need and get the compensation you deserve.
Can I sue my doctor for misdiagnosis?
Yes, but you often won’t need to. First, you can make a medical negligence claim against your doctor — this is different from suing them. Most medical negligence claims are settled through mediation. This is when you and the insurer (representing your doctor) agree to a settlement. Your lawyer can help you dispute the settlement claim if you’re not happy with the amount being offered. You only need to consider court action if the two parties can’t agree to a settlement.
