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How do I prove medical negligence has occurred?

When problems arise due to medical negligence, they can have a significant impact on an individual’s quality of life and also affect their family and friends. Particularly severe incidents could result in the patient being unable to return to the workplace for long periods of time or – in worst-case scenarios – ever again. Incidents such as these are also likely to create substantial emotional strain and financial issues.

If you or a loved one have suffered because a medical professional failed to provide adequate care, you deserve reprieve. A successful medical negligence claim can lead to compensation payments that ease this pressure, helping you to recover without the additional burden of worrying about money.

What is medical negligence?

Negligence is the failure to exercise the care that another in the same position would prudently exercise. The harm caused by negligence is considered to be due to carelessness, rather than a specific intent or determination to cause harm. Notably, the concept of negligence isn’t limited to the medical field and can be committed in any number of situations. For example, a driver of public transport could cause an accident through negligence. The harm caused to persons involved in the accident could be charged under the law, assuming it can be proven that most other drivers in the same circumstance would have been more prudent and avoided an accident.

In the medical profession, meanwhile, negligence is a form of medical malpractice. Malpractice is a term reserved for professionals who fall grossly short of their obligations — and harm others in the process. Australian medical practitioners are expected to show a duty of care towards people they treat. Negligent behavior can include most anything that falls short of this social contract.

There are a number of errors that can be considered instances of medical negligence, including a failure to:

  • Warn a patient of surgery dangers
  • Correctly diagnose an injury or sickness
  • Provide sufficient post-operative care
  • Refer you to a specialist quickly enough
  • Carry out medical procedures with adequate care and skill
  • Experts offering the wrong medication
  • Run diagnostic tests for a serious ailment
  • Appropriately use anesthetics


The above are just some of the potential incidents that could make you eligible for a medical negligence claim or malpractice compensation claim.

What evidence do you need to prove negligence?

Demonstrating that a doctor fell short of their duty of care can be a challenging process. While most doctors try their best to correctly diagnose conditions and provide timely medical treatment, they can’t always be right. In every state, protections are in place to shield practitioners from some litigation. These give practitioners peace of mind on the job and protect hospitals that are doing their best with limited resources. However, these laws also set the bar for receiving compensation incredibly high.

Overall, to win a favorable judgment, you must be able to prove four elements:


It must be clearly shown the defendant had a duty or an obligation. In a medical malpractice situation, the attending medical professionals have a moral duty of care that is a part of their profession.


It must be proven that the defendant fell short of the expectations of their duty.
Causation: A causal link must be made between the harm suffered and the breach of duty.


The damages being sought must be directly related to the harm caused.

Each of the above elements is essential to a case — if anyone is missing, your chances at making a successful claim are limited. For example, if you’re neglected by a medical professional but the mistreatment doesn’t cause injury, you won’t be eligible to make a claim. Likewise, if your condition worsens but no breach of duty of care occurred then, making a claim will not be worthwhile. Importantly, however, at no point must a plaintiff prove that a doctor or nurse acted with the intention of causing harm — simply showing that their carelessness caused harm and fell short of the duty of care is sufficient.

Perhaps the most challenging of these elements is to prove is causation. Drawing a direct link between the condition of you or a loved one and the treatment (or lack thereof) you received requires an extensive amount of evidence that may not exist. For example, if a doctor gives a misdiagnosis for a serious illness like cancer, you would only be eligible for damages if you can prove that the delay in treatment worsened your condition.

For your best chance at a successful claim, it’s important to keep a record of all of your medical appointments and, if possible, the conversations between you and your doctors. This information can be used to establish a clear timeline of the treatment you’ve received and how it lines up with the state of your condition. This information can be especially useful if a doctor gave you a misdiagnosis or if a hospital system was incapable of booking you an appointment for an extended period of time. Both could be an example of negligence, depending on the circumstances.

Most likely, you’ll also need the testimony of a medical expert to advance your case. If effective, an expert can explain the norms of their profession and make clear how the professional accused of negligence fell short of this standard. Additionally, an expert may be able to help make the case for why this breach of duty of care correlated to the victim’s plight.

The medical negligence claims process

Your road to compensation will begin with making a claim against the responsible party. This can include both individuals responsible for your care — such as a general practitioner, orthopeudist, neurosurgeon, gynaecologicist, physiotherapist or chiropractor — and the hospital system they work for. In most cases, your best choice of action is to include the hospital in your claim, as they are the most likely to have a professional indemnity insurance plan that can cover any damages.

Your claim will be handled in either settlement mediation or in court — with mediation more likely to come first. In many cases, a judge will actual tell both parties to try to settle the matter in mediation before returning to court. While a settlement does give the hospital and their insurer the opportunity to offer a slightly smaller payout, a successful settlement does give you the opportunity to avoid the lengthy ordeal of a full trial and could ultimately save you money. Additionally, a settlement offer guarantees that you will be compensated for the mistreatment you experienced — something a civil trial ultimately cannot. As a result, the vast majority of medical negligence cases end in the settlement phase.

If however, your case does go to trial, you and your legal team will have the opportunity to present your case to a judge, who will ultimately decide if compensation is warranted. For every step of the claims process, the expertise of an experienced personal injury and medical negligence solicitor can be invaluable.

How much compensation can I expect?

Each medical negligence case is different, which makes estimating a potential payout difficult. However, you could receive money to cover a range of costs, including:

Immediate medical treatment:

Examples of this include the cost of additional appointments with either general practitioners or specialists to correct the damage caused by the negligence.

Loss of wages or superannuation:

Many illnesses and injuries that are worsened by medical negligence can result in missed or limited time at work. You could be eligible for compensation that covers this financial burden.

Past and future care expenses:

This category includes any extended treatment or care you may need such as physical therapy, an in-home health aide or hospice.
Compensation for pain and suffering: In some cases of especially gross negligence, a lump sum payment for mental anguish is possible.


In general, if you’re looking to claim uneconomic costs such as pain and suffering, the injury you sustained must have resulted in a permanent impairment of at least 15 percent. This will be decided by the courts.

Ultimately, despite the challenges of pursuing a claim, the compensation can often be crucial for households struggling to pay bills while a family member is on the road to recovery.

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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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