There’s hardly a worse situation than negligent medical treatment. Hospitals, rehabilitation centres, general practitioners, medical specialists, chiropractors, nurses, aged care providers, and physiotherapists can all be considered healthcare providers. When a healthcare provider’s actions fall below the acceptable standard of care and causes injury to you or someone you love, that’s medical negligence.
Find out more about how medical negligence compensation is calculated and what you can do to ensure you and your family receive the maximum award possible.
Suffering from medical negligence
If you or someone you know has been a victim of medical negligence, you may wonder what compensation you are entitled to. While the answer will vary depending on the situation, the Civil Liability Act allows claims for costs associated with both caring for an injury, and adjusting to life after the incident.
The critical factor to receiving compensation is proving that your personal injury was caused by a health professional’s failure to perform to the standard of care required of them. This is not always easy, so it’s understandable that you might need help. An expert in medical negligence law can help you determine the eligibility of your case.
What is medical negligence?
Doctors, hospitals, nurses and other medical providers all have a duty of care towards each and every patient. If a healthcare provider fails in their duty of care through an act, or failure to act, that results in the patient suffering damages such as aggravation of a pre-existing medical condition, poor health or death, it might be medical negligence. For medical negligence to exist, the healthcare provider must have acted below the acceptable standard of practice, and it should be reasonable to assume that the harm could have been avoided if the medical profession acted correctly.
Some common examples of medical negligence include:
- Missed diagnosis or delayed diagnosis of a medical condition.
- Surgical errors.
- Medication errors.
- Failure to obtain informed consent to a medical procedure.
- Failure to recognise that a patient’s condition requires immediate treatment.
- Failure to communicate effectively with the patient or other health care providers so that appropriate medical treatment can be provided in a timely manner.
Proving a practitioner’s failed duty of care can be challenging. In a medical negligence compensation case, you — the plaintiff — hold the healthcare professional — the defendant — liable for not doing what a reasonable person would have done.
How do I know medical negligence played a part?
Knowing whether a healthcare professional such as a doctor, chiropractor, dentist or physical therapist made an error in your care that resulted in a physical or physiological personal injury is tricky. And, recalling injurious advice or treatment after time has passed can make proper legal action more difficult.
In these devastating situations, your only recourse may be to sue for medical negligence compensation. For that, you’ll need an expert in personal injury law in your state or territory.
It’s important to know that what is considered a reasonable standard of care can vary between states. For instance, the Health Care Liability Act 2001 sets out actions within the duty of care and how much damages may be worth in New South Wales (NSW). Professional medical negligence lawyers know the laws in Queensland, the Civil Liability Act 2003, and the Wrongs Act 1958 govern medical negligence compensation claims in Victoria.
At GMP Law we have specialist medical negligence lawyers that know the ins and outs of the laws and regulations in your state or territory.
How much medical negligence compensation can you claim?
A personal injury lawyer will assess your claim for compensation. So, how do they calculate your award?
Generally, there are four factors of medical negligence compensation.
- The likelihood of harm occurring without care.
- How serious the harm could have been.
- The cost of preventing the harm.
- The social utility of the risk-creating activity.
In cases of medical negligence, the cost of avoiding harm and the social utility of risk do not outweigh the probability of serious harm occurring without reasonable action. In situations where catastrophic injury or death occur, you would be within your right to pursue a significant award.
The key to determining the amount of compensation you can claim include the costs you’ve incurred and are likely to incur, plus the non-economic loss. The assessment of compensation varies by state.
Queensland Assessment of Injury Compensation
The Queensland court calculates your non-economic loss compensation using an injury scale value (ISV) which rates the level of injury and burden between 0 and 100. An ISV of 79 or over is worth $360,530 in 2022-23 according to CTP Insurance Regulator.
Victoria and New South Wales Assessment of Injury Compensation
In other states such as Victoria and NSW, the court will assess damages according to the general law for pain and suffering, considering whole person impairment,
Gerard Malouf & Partners are experts in helping those affected navigate complex medical negligence claims by assessing the various damages, including economic and non-economic loss, to provide you with a compensation estimate.
At GMP Law, we are able to make claims for family members directly affected by the medical negligence, not just claims for the plaintive patient. Examples of situations where family members may have been directly affected by medical negligence include cases where family members have sustained economic loss due to the primary plaintiff’s injury or death.
Medical negligence litigation process in six steps
The process of filing a claim for medical negligence varies from state to state. Typically, the steps are as follows:
- Step 1: Engage an expert medical negligence lawyer in your state or territory. They’ll collect medical records on your behalf and ensure your claim is properly filed.
- Step 2: If required, give notice to the defendant.In Queensland, courts require notice given to the defendant, whereas no notice is demanded in NSW and Victoria.
- Step 3: If required, a claim accompanied by an expert report is crafted and filed. In Queensland under the Personal Injuries Proceedings Act 2002 (QLD) this is a requirement, but isn’t always needed in NSW.
- Step 4: In most states, mediation is required in an effort to resolve the case.
- Step 5: The court hearing on medical negligence may last for several months to years.
- Step 6: A court decision and compensation are decided.
For more information on filing a medical negligence claim in NSW, Queensland, the Australian Capital Territory and Victoria, download our guide.
Should you settle or sue?
An accredited and reputable compensation lawyer will be the best source of advice for your particular case. However, it’s natural to wonder if settling in mediation is better than going to a hearing that can last 8-12 months after mediation. After all, you have a financial and emotional toll to consider.
If you settle, you could receive compensation for the damage caused by substandard medical treatment sooner and with less cost. In NSW, for a claim of less than $100,000, the costs to make your case in court are limited to 20% or $10,000, whichever is greater. You should be cognisant of the costs to obtain expert reports and medical records that can drive up your court fees.
When you’ve incurred considerable economic and non-economic damages, gaining compensation from the practitioner at fault is the best course, especially in cases with medical malpractice.
In some cases, payouts for damages are capped. In Victoria, the cap for non-economic damages was $644,640 under the Wrongs Act, ss 28G, 28H, however this does not include economic damages such as medical expenses. If you are eligible for both economic and non-economic compensation, you may be entitled to much more.
How much does a medical negligence case cost?
When you engage a personal injury lawyer, make certain you understand their fee structure and payment schedule. It’s likely you’ll have to pay something in the way of legal fees, costs and disbursements.
Costs of a medical negligence compensation claim may include:
- Legal fees: what’s owed to the lawyer for their time and expertise.
- Costs including court fees and medical expert reports.
- Disbursements could be courier fees, copying and postage.
GMP Law is a No Win No Fee firm. We cover 100% of all upfront costs incurred from barrister & professional experts, medical reports and court fees, to ensure that you have no expense ahead of winning your case.
How much compensation can I expect?
In terms of net compensation, or the total amount minus fees and disbursements, claimants can still expect a majority of the payout.
For example, your firm spends $16,000 in costs and disbursements and their fees amount to $27,500. Suppose you receive $182,000 from the court for your suffering. Your net compensation would be $138,500 or 76% of the payout.
Claimants with injuries could win between $170,000 and $10 million depending on the case, your needs and the evidence available. We have represented claimants with significant impairment by brain injury or physical immobility, where the loss and damage compensation reached $6 million and higher.
Gerard Malouf & Partners (GMP Law) is the leading Australian no-win, no-fee law firm. We specialise in maximising the compensation results from your legal compensation claim.
Contact GMP Law for compassionate advocacy of your medical negligence compensation case.