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How to start a medical negligence claim

While medical negligence might not be common in Australia, it does happen. And when it does, knowing how to start a medical negligence claim is important if you have been negatively impacted. Medical negligence is malpractice and happens when a medical professional or healthcare provider is at fault and the result is harming a patient. The harm may include anything from a new injury or a worsening preexisting condition.

At Gerard Malouf & Partners, our competent and compassionate team is trained to help you understand your rights and ensure that you get the medical negligence compensation you are due.

Steps you’ll need to take for starting a medical negligence claim

Those who seek medical attention or receive care from their healthcare professionals are relying on those professionals to use their years of study and experience to address the issue. Sometimes this is caring for a patient who arrived with a medical concern, while other times they are providing preventative care. Either way, you are placing your trust in your doctors and nurses to do what is best for your health. And when they do, the impact can be extremely costly for the victim and their support system if not done right.

If you think that you or someone you know has been affected by medical negligence and are interested in filing a medical negligence claim, it is important to know what qualifies according to the legislation. A medical negligence claim can be made by an individual against a medical practitioner and generally occurs after an accident caused by a healthcare worker’s treatment. Keep in mind that the damage suffered in medical negligence cases can range from physical ailments to those that are strictly psychological.

Before starting a claim, it is important to know that the typical time to make a claim is three years in Queensland, Victoria and most of Western Australia, though there are cases that take longer due to statute of limitations, which can be twelve years from the time of negligence. The three year rule starts from the date on which the cause of action was discoverable by the plaintiff, which is helpful in a case where the injury or harm wasn’t immediately obvious. Here are some of the laws that govern medical negligence claims in Australia:

Now that you know that this process is not something that will take an afternoon, you can begin to accumulate what you need to make the claim.

Gather evidence

As someone who needs to prove medical negligence, you will need to gather evidence that suggests you’re correct. Ultimately, you want to have your medical negligence claim upheld by the courts, if it gets there. First, it’s important to establish that the medical professional had a duty of care, which means that they were responsible for your health at a certain point in time. While the healthcare establishment should keep your medical records, you will thank yourself for getting in the habit of saving your own. Examples of this include:

  • Initial diagnosis.
  • Any written correspondence with your medical practitioner.
  • Written allegations of clinical negligence.
  • The doctor’s corresponding response regarding the negligence.
  • Proof of resulting injuries from medical establishments.
  • Discharge reports.
  • Surgical records.
  • Prescriptions related to the medical negligence case.
  • Lab test results.

If you have your own records and evidence, it will be easier to prove that the medical provider did not live up to the normal standard of care, which resulted in the harm.

Once you have decided you want to file a medical negligence claim, it is a good idea to contact a lawyer to review your evidence and help with the process. Because every case is different, a professional medical negligence lawyer from Gerard Malouf & Partners can assess your particular situation and provide you with the best chance to get the result that you deserve.

Realistic reasons to start a negligence claim

Your medical malpractice lawyer will be able to tell you if you have good grounds to file a negligence claim, but it is helpful to have an idea before going in. Here are some of the most common reasons someone may file a compensation claim.

Medical misdiagnosis

A medical misdiagnosis claim can be filed if you or someone you know received a diagnosis that was later proved to be wrong. In some cases, the medical professional may have failed to diagnose entirely. This is negligence because medical misdiagnosis can result in dangerous delays in medical treatment, incorrect treatment or no treatment at all. An example of this can be seen in our successful case where an 86 year old man received $720,000 in compensation for his lost leg due to medical negligence. To learn more about Gerard Malouf & Partners’ successful cases, check out our online database.

Surgical negligence

In this kind of medical malpractice, harm or injury is caused during the surgery. Surgical negligence can also occur shortly after the medical procedure. Examples of this form of malpractice include:

  • Operating on the wrong location.
  • Leaving surgical equipment inside the patient.
  • Incomplete or incorrect surgical procedure.
  • Infection resulting from the surgery.
  • Potential nerve damage.
  • Unnecessary surgery.

Prescription error

You have serious grounds to file a medical negligence claim if you or someone you love has been prescribed the wrong medication or the wrong amount and it resulted in harm. This is where the pharmacists, the nurses and other medical administrators can be at fault.

Birth injury

A serious medical negligence example is birth injury malpractice. These include physical injuries to the mother, child or both during the birthing process. Birth injury malpractice should be considered if the baby or mother suffers serious harm during delivery. Examples of birth injuries include:

  • A poorly executed C-section.
  • Bad placenta management.
  • Mistakes with the umbilical cord.

The costs involved and potential outcomes

We manage medical negligence claims on a “no win, no fee” basis. This means you can claim compensation for medical negligence without worrying about the financial burden of building a case, gathering evidence and running investigations. At Gerard Malouf & Partners, we take care of all of that for you, so that you can focus on your health and wellness following the malpractice event.

Potential compensation amounts

Those who are looking to file a medical negligence claim should work with a professional who has years of experience and will be able to help you get the compensation you deserve. Ongoing medical expenses are covered by the law, but you may not know that non-economic loss is also covered. This is defined as pain and suffering, loss of amenities, disfigurement or loss of life expectancy.

Note that if you file a medical negligence claim, you are likely seeking compensation from the healthcare provider’s insurance company. Most medical professionals have some kind of medical malpractice insurance so that they do not have to pay these issues out of their own pockets.

If you are a successful plaintiff, you could expect payments to cover the cost of treatment for the injuries or psychological damage that were the reason for the claim and potential payments associated with long-term medical treatments. In addition, you may also be eligible for earnings and superannuation coverage if you were unable to work as a result of the injury caused by the negligence.

To learn more about how to get started with your medical negligence claim, contact Gerard Malouf & Partners today.

Free Resources
Our Guide to Medical Negligence Claims

Download your guide to understand the steps you need to take to prove medical negligence, and what you should do first to improve your chance for success.


Review Our Recent Case Summaries

About Us
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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