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Can I sue a hospital for negligence?

You expect a medical institution to give its best effort no matter the circumstance to you or a loved one. In the case where they don’t, we are here to support you and help answer the question: Can I sue a hospital for negligence?

Injuries sustained at a hospital, doctor’s office or any other medical facility as a result of improper treatment or care may be eligible for a hospital negligence claim. However, there are quite a few stipulations at play, so it is important that you understand the kinds of scenarios that fall under the medical negligence umbrella. Here, we will discuss how to identify and file a claim, learn what types of compensation you may be entitled to, and discover how Gerard Malouf & Partners may be able to help.

Filing a medical negligence or medical malpractice claim in Australia can be difficult. The required medical documents can be extremely complex and hard to understand, and proof is held to an incredibly high standard. To increase your chances of a successful claim, it is important to consult a professional medical negligence lawyer.

What is medical negligence and how do you qualify for a claim?

In short, to qualify for a medical negligence proceeding, you or someone you know must have suffered injury or loss at the hands of a medical professional or institution. You must be able to prove that your injury or loss could have otherwise been prevented with the appropriate level of care or attention. The person filing the claim must also be ready and able to prove such damages.

Some common occurrences of medical negligence can happen in cases of:

  • Misdiagnosis or failure to diagnose. 
  • Mistakes made during surgery.
  • Failure to get a patient proper care, i.e., failure to refer them to a specialist.
  • Failure to follow up, resulting in damage.
  • Failure to provide proper treatment.
  • Failure to prescribe medication.
  • Prescription of the wrong medication.


Before looking to file a hospital negligence claim, it is important to understand the difference between negligence and malpractice.
Negligence refers to an unintentional action or severe mistake that leads to serious injury. On the other hand, malpractice is deliberately carried out, sometimes with actual intent to harm. In a case of malpractice, the assigned medical professional knowingly disregards the standard of care that they were trained to abide by, which, in most cases, will have caused the patient damage. Still, malpractice falls under the umbrella of medical negligence and can be claimed as such.

Requirements and best practices for filing a negligence or malpractice claim

Before pursuing a medical negligence claim, it is important to note the time frames for which initiating the claim is still a valid option, by law. This time can differ between states. Throughout Queensland, Victoria and most of Western Australia, that time is within three years of the incident’s occurrence.

Once you have verified your timeline and come to the conclusion that filing a medical negligence claim is still a valid course of action, the next step is to start gathering any and all relevant or necessary evidence to support your claim. This often includes documents, written correspondence and reports like:

  • Initial diagnosis documents.
  • Written correspondence with your medical practitioner, like emails.
  • Written allegations of clinical negligence.
  • The doctor’s response to your allegations of negligence.
  • Documents that show proof of resulting injuries caused by medical establishments.
  • Discharge reports.
  • Surgical records.
  • Prescriptions related to the medical negligence case.
  • Lab test results.


Once you have gathered some or all of these documents and have sufficient evidence, you should consider contacting a medical negligence lawyer to review and organise the assets. This is considered a best practice and may significantly increase your odds of success.

In Australia, it is not uncommon for medical negligence and medical malpractice claims to take up to two years to close. From the moment of initial damage to the settlement of the claim — if it goes all the way to a court hearing and before a judge — these types of cases can take a long time. However, there are some options available throughout the process that may help to shorten that timeline, or to help you settle sooner. Of course, these options will depend on your intended course of action and desired result.

Gerard Malouf & Partners’ accredited medical negligence lawyers will act in your best interest throughout the entirety of the claims process. We will help you to better understand all of your available options to the fullest extent. Ahead of a claim being presented before a judge, alternate options for settling out of court might include negotiation or mediation. The difference between the negotiation and mediation processes is the addition of a neutral third party. For negotiation, conflicting parties work on a deal with each other, directly. And for mediation, there is a neutral third-party representative present to help parties work out an appropriate resolution.

Seeking legal advice and discussing available options with your lawyer can help you make an informed decision and determine your best course of action in pursuing a negligence claim. The extensive and complicated process of filing for medical negligence is due to the high standard to which evidence is held. Lawyers require more time to gather and arrange strong evidence in order to build a solid case. The court also needs time to carry out its due processes.

Types of compensation that you can claim for medical negligence

In many facilities throughout Australia, hospitals are staffed with both permanent employees and independent contractor practitioners, called visiting medical professionals. Depending on the practitioner who provided your care, you may not be able to sue the hospital directly. This can add an additional layer of complexity to an already complicated process, so it is best to reach out for professional legal advice.

Looking at the numbers: Payouts for successful medical negligence claims can vary greatly. The majority of successful medical negligence claim payouts are for less than $100,000, while some cases can see amounts up to $500,000 or more. A greater return usually signifies a more complex and severe case. Less severe cases may only see payouts into the thousands.

In the case of a successful claim, the owed amount is most commonly paid out by the at-fault medical professional’s insurer, or the insurer of the at-fault facility.

According to the Australian Health Complaints Commissioner, successful medical negligence claims may allow you to be compensated for special damages of a quantifiable nature, including:

  • Medical and hospital charges.
  • Rehabilitation costs.
  • Special equipment.
  • Travel and accommodation expenses.
  • Loss of income.
  • Legal costs.


You may also be eligible for
general damages on issues regarded as non-economic losses, such as:

  • Pain and suffering.
  • Disfigurement, loss of limbs, organs or senses.
  • Loss of future earning capacity.
  • Loss of enjoyment of life, i.e., through loss of capacity to engage in work, sports or hobbies.
  • Negatively impacted relationships or other activities.

Gerard Malouf & Partners has you covered

The process for gathering sufficient evidence and filing a medical negligence or medical malpractice claim is extensive and complicated. Contacting an accredited medical negligence lawyer to discuss your options and plan out an appropriate course of action in the pursuit of your claim can help smooth the process. Amid an already stressful situation, accredited layers can help alleviate some of that undue stress by guiding you through the claims process and providing support at every turn. Assistance from a lawyer may dramatically increase your chances of success, too.

Corresponding with any involved medical professionals and facilities can be a convoluted and tiresome process when pursuing a claim. Gathering information is integral to your case, making the correspondence one of the most important parts of the process. That said, correspondence is best done with the support of an accredited medical negligence lawyer. With the lawyer’s support, you can better ensure the accuracy and honesty of any information provided by the at-fault practitioner or facility.

Gerard Malouf & Partners’ No Win, No Fee policy ensures that you will not have to pay any relevant lawyer fees unless we win your case. You can rest a bit easier knowing that we will do everything we can to sway the outcome of a claim in your favour.

For any questions regarding negligence, malpractice, claims, compensation or processes, or to learn more about how to get started with your medical negligence claim, contact Gerard Malouf & Partners today.

© 2022 
Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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