During a medical professional’s work week, they are often active 12-13 hours a day, including doubles and sometimes overtime to account for the influx of patients and staffing needs. During that time, there may be an instance where a medical professional makes the wrong call, nurses forget to check up on a critical patient or something goes wrong during the surgery, leaving the patient in worse condition than when they came in.
It’s important to discern when the mistake is considered medical negligence, making the patient eligible for compensation.
Let’s explore what medical negligence is, how much an average payout is and the steps involved in making a negligence claim.
What is medical negligence in Australia?
In most other professions, it’s okay to make mistakes at work; it’s part of being a human. However, when someone chooses to enter the medical field, the margin of error must be much smaller because people’s lives and well-being are at stake.
While under the care of a medical professional, you’re owed a certain standard of care. Think of negligence as a way of finding fault within a legal case. If you were involved in a car crash where the driver ran a red light, the at-fault driver would be considered negligent of driving laws.
Medical negligence sets an expectation that any reasonably competent and skilled caregiver within the same medical community would provide an equal level of care. If anyone within the medical profession — including dentists, physicians, pediatricians, nurses and surgeons — breaches this duty of care, then they would be liable for negligence.
Medical negligence vs. medical malpractice
You may hear these terms interchangeably, but medical negligence is a legal element of a larger medical malpractice injury claim. The differences will depend on the professional’s intent or awareness.
For medical negligence, a medical professional accidentally causes harm to the patient. Imagine a surgeon is working on a routine procedure and accidentally nicks a blood vessel; this would be considered medical negligence.
A case is considered medical malpractice when a medical technician knows the risks involved in a decision and fails to follow proper guidelines or protocols that result in a patient’s injury. One example of medical malpractice could involve a professional failing to educate a patient on the risks involved in a procedure before moving forward.
Deciding between these two is the responsibility of your medical malpractice lawyer. They will consider if there were policies in place that could have prevented the injury and if those policies were ignored. They might also talk to a third-party professional within the same industry to see if this mistake could have happened to anyone in the same situation following the same steps that lead to the mistake.
The amount of medical negligence compensation you can expect
Your medical negligence compensation amount will vary greatly depending on your level of injury. If you are unable to return to work and have severe trauma from the incident, then your compensation payout will likely be greater than in a situation where the recovery time is short. The courts will consider:
- Level of permanent disability.
- Ability to return to work.
- Economic loss.
- Wrongful death.
- Non-economic loss.
- Medical expenses past and in the future.
- Medical treatment.
- Pain and suffering.
If you have a total whole-person impairment of 5% or more, the insurer will award you compensation. To get non-economic coverage for a psychological or trauma-related injury, you must prove 10% or more impairment.
Average medical negligence payouts: NSW
The average payout in NSW differs every year. Our client won as much as $200,000 in a medical negligence case in Sydney, but that’s not necessarily the highest payout you could win. Cases involved misdiagnosis and treatment failure, with averages of over $230,000 to compensate for the seriousness of the general damages.
Average medical negligence payouts: Victoria
Negligence payout averages are not available for public view in Victoria, but the state follows similar guidelines around compensation to NSW. Payouts can range between $50,000 to hundreds of thousands depending on the case and needs of the victim.
Average medical negligence payouts: Queensland
If you’ve been injured while under medical care in Queensland, your payout typically falls between $40,000 to a couple of hundred thousand, depending on the extent of the damages. Queensland medical facilities often require a nondisclosure agreement before moving on from a negligence or malpractice case.
Maximum payouts for medical negligence
While most medical negligence claims in Australia settle for less than $100,000, there are cases when the plaintiffs have earnt much more than that.
Here are a couple of real-life case studies representing payout potential for medical negligence in Australia:
Mother breaks confidentiality clause on $10m payout
Hospitals that settle clinical negligence claims out of court usually require plaintiffs to sign a contract that prevents them from discussing the terms of the settlement. Nevertheless, the mother of a man who was left in a “minimally conscious state” following treatment at two Queensland hospitals has revealed her son was awarded $10 million in compensation.
Daphnejean Finnegan announced the payout to the public, despite a confidentiality clause in the settlement agreement, reported the Morning Bulletin.
“God knows how many compensation claims go through that the public never hears about. I am going to talk no matter what they put [in the contract],” she said.
While the details of the case were not published, an Ombudsman’s report into the incident found that Ms Finnegan’s son — Jamie-Thomas Carmelo Manuele — received “inadequate” care, resulting in a delayed diagnosis.
Multimillion-dollar medical negligence claims
Mr. Manuele’s personal injury claim appears to be the biggest confirmed settlement to date, but Australian hospitals have made several large compensation payments in recent years.
In 2012, a boy’s whose botched surgery resulted in “cerebral palsy, spastic quadriplegia and respiratory problems”, received a $9 million payout, according to a report by The West. The previous year, in 2011, the Courier-Mail reported that a young boy from Brisbane was awarded $6.44 million after developing cerebral palsy when he suffered a serious brain injury at birth.
The case surpassed the previous record of $5.5 million, which was set in 2006 when a Toowoomba boy also developed cerebral palsy after complications during his delivery. Another boy, whose brain was starved of oxygen for more than an hour during birth, received over $3.7 million in 2013.
The most extreme examples of medical negligence often have a devastating effect on the plaintiff and their family, with some patients losing their earning capacity and requiring lifelong care.
Personal injury lawyer support
The law professionals at Gerard Malouf & Partners (GMP Law) care about your well-being and safety. If you’ve been wrongly injured while in the care of a medical facility, you should get in contact with a personal injury law solicitor right away. We can go over the details of your case and help you earn compensation.
Contact GMP Law’s compensation and medical negligence lawyers for information on how to make a compensation claim.