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Can I sue my doctor for negligence? What to do if a medical professional gives inadequate advice

Do you believe you or a loved one has been the victim of medical negligence? If so, it’s time to seek the help of a medical negligence lawyer. Negligence can cover many different scenarios — a misdiagnosis, carelessness in the operating theatre, poor advice for aftercare and so on.

Legal action for medical negligence claims hinge on a standard of care that your medical practitioner is expected to uphold. If they do not fulfill their duty of care (as determined by a group of other professionals who compare how your doctor acted in relation to what information was available and how they would have behaved in the same situation) then you may have a medical negligence case. 

These types of compensation claims require an expert hand to achieve maximum awards or settlements, so you should seek legal advice. At Gerard Malouf & Partners, we work on a no-win, no-fee basis. So you can pursue your case without worrying about costs. 

How do I know if you have a claim for medical negligence? 

If you have come out of a doctor’s care worse than you went in, you may have reason to believe the doctor’s negligence was to blame. This can be bolstered if you receive a diagnosis from another doctor later that points to you possibly being misdiagnosed, or that a new injury or loss arose from a previous doctor’s treatment or hospitalization.

The best way to know if you have a case for medical negligence is to consult with a qualified attorney to find out if you may qualify for medical negligence compensation. Our firm of medical malpractice experts has a strong track record of success in bringing a claim for our clients if a doctor negligently caused them harm.

What is the process for doctor negligence claims? 

A negligence claim may be lodged against a responsible individual, such as a general practitioner, nurse or surgeon, as well as the institution they work for. It is important to name the institution, as they will often be the one paying a successful claim.

We will make it our goal to prove that medical negligence by showing that a practitioner or hospital (or both) failed in their duty of care to you. We will start by reviewing your case and all associated materials, then advise you as to whether you should proceed with your case. From there, we’ll be with you every step of the way as you work toward a settlement for the compensation you deserve. 

What exactly is medical negligence? 

While a doctor is not responsible anytime something goes wrong, they must make every reasonable effort to prevent or limit harm.

The steps for a successful claim include finding and presenting evidence that shows the care you received fell outside the scope of what any reasonable doctor would consider “competent practice,” which is the level of treatment that is considered normal in the medical field. 

Failing to meet competent practice could mean a doctor didn’t bother with performing standard testing before a surgical procedure, or that they ignored a symptom which led to misdiagnosing a serious illness. 

We can help bolster your case by having the expert testimonial of another medical professional in a relevant field, if they find that the doctor who treated you did not uphold the duty of care in a reasonable manner. 

Medical misdiagnosis is becoming a more common complaint, and can have devastating consequences for patients. If a medical professional diagnoses the wrong condition or failed to diagnose your condition altogether, this could be negligence if it is shown they had the information they needed to make a correct diagnosis.

Misdiagnosing a medical condition or a delayed diagnosis due to missed symptoms or failure to order appropriate testing can result in a worse outcome for the patient through delays in treatment, incorrect treatment or no treatment at all.

How long do I have to sue a doctor for negligence? 

For medical negligence claims, there is a three-year post discoverability limitation period, starting from the date of discoverability, which is when the negligence that caused the patient’s injury is discovered by the patient (known as the “date of discoverability”). 

There is also a 12-year long-stop limitation period that ends 12 years after the date it is determined that the negligence actually caused the patient’s injury. In most cases, it is advisable to file a claim as soon as possible after learning about your injury or loss from negligence.

How do I proceed with a medical negligence claim? 

The first thing you should do if you suspect medical negligence is to secure all of the documation you can about your medical history. This includes requesting all of your medical records from doctor offices and hospitals. You can create a file with all of this information. 

Next, create a timeline of your health history starting from your initial complaint that led you to see a medical professional. Detail all of the recommendations, advice, medical treatment, and aftercare provided. Also make a list of people who may be able to testify on your behalf as to your state of health before and after the fact, and what your experiences have been

Once you have this information, you can make an appointment for a consultation to discuss your potentially negligent medical care. Your attorney will go over the case and help you understand if you have a case for a medical malpractice claim, medical negligence claim, personal injury, or pain and suffering compensation. 

How much is a medical negligence compensation claim worth?

Depending on the circumstances of your case, we may pursue a medical negligence compensation package to be determined in court, or seek similar compensation in mediation. 

Judges generally request that victims try to reach a settlement with the defendants in mediation to lighten the load on the courts system, but in many cases the amount offered for settlement is far too low, even if you have a clear cut case.

In the end, however, the settlement amount will depend on what you have lost as a result of negligent medical treatment. Medical negligence is a personal injury claim, and the damages you can include are as follows:

The immediate costs of remedial treatment   

You should be entitled to compensation that specifically covers any initial visits to a hospital and related specialists for treatment as a result of your injuries due to negligence from a medical professional

The ongoing medical costs associated with your condition or injuries

Any medical treatment that must continue for an extended period of time (or which will be lifelong), such as physical therapy or at-home care, should also be included in your claim, to protect and provide for you in the years to come.

Economic damages due to issued work or inability to return to work:

This is one of the biggest areas for compensation. If the medical negligence caused an injury or condition so severe that you could not or cannot work, especially if this inability will be long-lived, you are entitled to compensation for lost wages and superannuation, for both now and into the future (including if you now have a permanent disability that will hinder work or preclude it entirely.)

Non-economic damages for pain and suffering

An additional lump sum for pain and suffering (physical and psychological distress) caused by your injury is also on the table. 

The burden of proof for this additional compensation is high, and you will have to have suffered extreme losses to qualify, such as a whole body disability percentage of 10-15% or more, or demonstrable psychological damage. 

Injuries such as visible burns, loss of an eye, lion, or appendage, loss of reproductive ability or sexual performance, and other types of lasting injuries with a psychological component may apply. 

Does “bad advice” count as medical negligence?

If you have suffered harm because of the advice given by a physician, you may be wondering whether this counts as medical negligence. In such cases, the conduct that caused the damage may have been simply spoken or written instructions, rather than a physical procedure. 

Legally, advice from your physician does count as “health care.” If your health is negatively impacted by incomplete or incorrect instructions from your doctor, you may be able to receive a settlement. The steps for this kind of claim are the same as any medical negligence claim. 

The court must determine whether the care given was out of line with the expectations and norms of health care. This does not just apply to physical procedures carried out by doctors, but also matters such as warnings about risk, and matters of informed consent. 

If a doctor is to be found legally negligent in their care, their actions must fail to meet standards. The risk involved in their treatment of you or the consequences of your following their advice must have been foreseeable and not insignificant. It must also be shown that a “reasonable person” would not have given the same treatment or advice. 

Contact Gerard Malouf & Partners Compensation Lawyers today and determine your best course of action if a doctor has provided negligent treatment or advice, our experts are standing by to help you get the compensation you deserve.

About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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