Medical negligence case highlights complexity of awarding damages

Date: Jul 08, 2015


A medical negligence claim can take months or even years to reach a successful conclusion, and even then calculating damages can be a considerable challenge.

For example, the NSW Supreme Court is currently deciding on compensation for a woman whose husband died in 2011 after a medical practitioner failed to arrange a liver transplant in a timely fashion.

The judge ruled the deceased was a viable candidate and the surgery would have saved his life had the operation gone ahead. Therefore, the doctor involved was ruled negligent.

However, the issue of damages continues to be a matter of dispute due to a number of unique qualities to the case. Firstly, the deceased’s wife is a doctor who worked full-time while her husband was a stay-at-home dad to their two children.

Nevertheless, the woman is claiming for loss of earnings on the basis that she had planned to make her husband the manager of her medical practice. She argued that this would have been a full-time job at a rate of nearly $61,000 a year.

The woman also sought damages for the loss of care functions her husband had provided for the children.

Medical negligence damages

One of the main areas of contention between the two parties was whether or not the deceased’s wages would have contributed a net gain to the household. The defence argued the man would have consumed more than he provided during his lifetime.

When deciding what damages to award, the costs of supporting the deceased would typically be subtracted from the estimates of how much he would earn. Therefore, if his lifetime wages were lower than his expenses, the wife would not receive loss of earnings damages.

While the plaintiff claimed her husband was frugal and had inexpensive tastes, the judge used standard calculations to assess his consumption. This amounted to 24 per cent of household income while there were two child dependents, 28.1 per cent with one dependent and 34.4 per cent thereafter.

Another issue was whether or not the deceased could have performed a full-time job and acted as the permanent carer for the children. The judge decided this was possible as his wife would have been his employer, and thus some leniency in working hours could be expected.

A final decision on the woman’s compensation is yet to be made, however this case clearly outlines the complications that can arise when embarking on a medical negligence claim.

If you feel you may be entitled to compensation, please contact Gerard Malouf & Partners for more information on how to proceed.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.