Medical negligence NSW: How to qualify for a claim and how much compensation to expect

PUBLISHED 14 Aug 2017

The Australian health care system is one of the world’s leading ones, with hospitals and GP offices reliably providing treatments for the most complex issues. Medical negligence is not a very common occurrence in this system, but when it does happen, the results can be devastating. When a doctor, nurse or other health care professional fails to perform their duties up to an acceptable standard and a patient is injured, the physical and psychological damage can linger for years.

Fortunately, there are forms of recourse for people who have suffered from medical negligence. Health care organisations in Australia carry a special kind of professional indemnity insurance to ensure people receive compensation for extra medical costs incurred by care providers’ mistakes, as well as payments for pain and suffering in especially serious cases with lasting effects.

In New South Wales, this process is governed by the Health Care Liability Act 2001, a law passed to set reasonable rules defining medical negligence and setting limits on how much compensation a person can receive. The awarding of damages is governed by amendments within the subsequent Civil Liability Act 2002. If you or a loved one has been the victim of a medical mistake in NSW, it’s important to learn how this regulation applies to your situation as you seek out the compensation you deserve.

When can a person make a medical negligence claim in NSW?

A medical negligence claim is made by an individual against a medical practitioner after an incident has caused harm in the course of treatment. The law states that the damage suffered can be physical or psychological in nature, and the treatments that may qualify for such a claim include advice, goods and services alongside direct medical intervention. 

The typical time limit to make your claim is three years in NSW, though some cases may be subject to longer statutes of limitations. When in doubt about whether your experience qualifies you to make a claim, you should reach out to an expert solicitor for free advice as soon as possible and determine your next steps following their advice.

Research published in the Annals of Medicine and Surgery explained that the concept of medical negligence in Australia, in general (and NSW in particular), has evolved over the past few decades. The original application of negligence laws involved physical injuries that might be reasonably foreseen, but the addition of economic losses and psychological issues has introduced new wrinkles – so what does that mean for your ability to make a claim?

To have your medical negligence claim upheld by the courts, you will have to establish that the doctor had a duty of care in your situation, determine what the normal standard of care is for someone in your situation and then show how the person breached that bond of trust, causing damage that could have been foreseen and prevented, but wasn’t.

Going back through the annals of upheld medical negligence cases, you will find a variety of causes and effects, each bringing a different settlement. For example, complications during surgery that cause permanent injuries may lead to hundreds of thousands of dollars in compensation, while family members may be eligible for even greater compensations in cases where a negligently performed medical procedure leads to death.

Mistaken or delayed diagnoses are also potential causes for medical negligence claims. A doctor who fails to provide essential diagnostic information in a timely manner, leading to ongoing pain and suffering, may have committed misconduct, leaving you the option of a claim.

All corners of the medical system are eligible for negligence claims, from GPs to cosmetic surgeons, dentists to nursing home doctors. If a person has suffered a preventable injury as a result of a medical mistake, there may be a claim to pursue.

The process can be long, with the Australian Government Actuary pointing out that years can elapse between an injury and the legal proceedings, with the courts then taking several more years to reach their final decision. Despite this fact, there are approximately 2,000 claims made across the country each year, with the associated pay-outs differing significantly based on the severity of the harm suffered.

What is the potential compensation that comes with a medical negligence claim?

There are several categories of compensation that may be the subject of a medical negligence claim. For example, ongoing medical expenses are covered by the law, as is non-economic loss, defined as pain and suffering, loss of amenities, disfigurement or loss of life expectation. Plaintiffs who succeed in their cases may also have their legal costs covered by the care providers’ professional indemnity insurance.

By the AGA’s numbers, most medical negligence claims are settled for less than $100,000, but enough serious incidents occur in a given year that claims of $500,000 and more account for approximately 65% of funds paid to claimants.

An Illawarra Mercury report from late 2019 examined one district that paid out over $23 million over the course of just two years, with 103 total finalised claims during that time. The district paid heavily for obstetric and neonatal problems, with other issues experienced including treatment failure and diagnosis issues. The average payout for claims in the district was $230,000 over the two years, demonstrating the seriousness of the incidents recorded.

The total sums awarded to successful plaintiffs cover the cost of treatment for the injuries or psychological damage, as well as the potential payments associated with long-term medical treatments. Furthermore, there is the opportunity to receive pain and suffering non-economic losses for your distress. If you are unable to work as a result of the negligent injury, you may also be eligible for earnings and superannuation coverage.

Linking the injury you have suffered with negligent treatment is a major part of securing such a pay-out. The more information you can provide on the case, the better. While it is sometimes possible to resolve a case through negotiation with the responsible insurer, it’s possible for a case to go all the way to the Supreme Court, which would naturally add months to the case.

Why should you have expert representation on your side for your medical negligence claim?

The complexity, the length and the high stakes associated with medical negligence claims all mean you should not take on this process alone. To give yourself a better chance at receiving compensation for all you have experienced, you should have high-quality legal advice and direction from an experienced solicitor, such as one of the personal compensation experts at Gerard Malouf & Partners.We back up our expertise with a no-win-no-fee guarantee. This means you don’t have to pay upfront to secure our services in your case. In addition to our advice and experience, we provide the kind of dedicated support you deserve while seeking a just settlement. By guiding your case every step of the way, we ease the potentially difficult process of receiving medical negligence compensation.

You can get in touch with our team on 1800 004 878 to book a free appointment or email your inquiry. In the highly specialised world of medical negligence, the type of support we provide may make a significant difference in your case’s outcome.

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