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How to sue for medical malpractice

Suing for medical malpractice can seem confusing at first, but it is important to understand your rights as a patient who has received unacceptable medical treatment. 

Medical malpractice occurs when a healthcare professional is negligent and this ultimately results in harm to a patient. This could include anything from a new injury to a preexisting condition getting worse.

At Gerard Malouf & Partners, we have an experienced and compassionate team of medical negligence lawyers that is trained to help you understand your rights and ensure that you get the compensation you are due.

We manage medical negligence claims on a “no win, no fee” basis. That way, you can claim compensation for medical negligence without worrying about the financial burden of building a case, gathering evidence and running investigations on your own. 

Who can be sued for medical malpractice

Medical malpractice is not limited to doctors, as you may think, but also applies also to anyone in the scope of the medical establishment’s employment. This includes nurses, anesthesiologists, healthcare facilities, pharmaceutical companies and other medical staff. 

Elements of a medical malpractice lawsuit

Many people can be unsure if their experience qualifies for a medical malpractice lawsuit and whether or not they have any basis to sue. Understanding basic definitions is an important starting point for anyone who may be embarking on a medical malpractice lawsuit. 

Medical negligence

First, you and your legal team will have to prove that medical negligence has occurred. Medical negligence is the failure to exercise the care that another healthcare provider would prudently exercise. There is no intent of harm; instead, the harm was caused due to carelessness. In the medical field, this is a serious issue and is a form of medical malpractice. 

Medical malpractice

Medical malpractice is when a healthcare provider falls excessively short of their obligations. When a medical professional doesn’t execute their duties correctly, patients can be harmed in the process, making the care provider at fault for the resulting distress or harm. Essentially, a doctor or nurse has a duty to perform their required responsibilities and administer the correct treatments to the best of their ability. When this does not happen, it is known as a breach of duty. 

Duty of care, breach of duty and causation

When evaluating for possible negligence, and therefore malpractice, there are specific elements that must be proved by the plaintiff. The three main components are duty of care, breach of duty and causation. 

The first element, duty of care, means that the healthcare provider had the legal duty to provide and take reasonable care of the patient or plaintiff. If this is found to be true, the next step is to provide evidence that a breach of duty occurred, meaning reasonable care was not taken.

The last element, causation, shows that the medical professional’s lack of care resulted in pain and suffering. 


Pain and suffering are terms used to refer to multiple injuries that a plaintiff may suffer as a result of malpractice. In the Civil Liability Act NSW (CLA) of 2002, there are economic and non-economic losses. Non-economic losses include pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.

Prepare for a case by organising your records

Once medical malpractice has been proven by you and your team, and if it received favorable judgment, you may get the compensation you were seeking for the damages that occurred. 

In order to have the best chance of success, it is important that there is a good paper trail. This means that the plaintiff should try their best to keep a record of all of their medical appointments. In addition, the conversations between you and your doctors can also be valuable in proving causation, which can be one of the most difficult elements of negligence to prove. You may even receive punitive damages in addition to what was originally asked for in compensation. 

Here are some of the records that should be saved along the medical treatment process in case of malpractice:

  • Written correspondence with your doctor about your medical care. 
  • Allegations of negligence. 
  • The doctor’s corresponding response.
  • Proof of resulting injuries. 
  • Discharge reports. 
  • Surgical records. 
  • Initial diagnosis. 
  • Every prescription. 
  • Lab test results. 

Understanding the defense’s strategies 

Your legal team needs to have a holistic approach to pleading with your case. This includes understanding the defense’s strategies for the doctor or medical professional at fault. This can help prepare for the incoming defense. From the rejection of testimony to the possibility of eliminated damages, it can be extremely helpful to prepare for the defense team’s possible case.

Absence of causation 

The absence of causation is one of the main strategies used by the defense as it is very difficult to prove. The CLA changed the landscape for causation — s5D of the CLA deals exclusively with this issue. In comparison with The Health Care Liability Act, the CLA can be a more challenging obstacle for the plaintiff pursuing an action in malpractice.

Be aware that the defense will try to find another reason to blame the pain and suffering on, beside the healthcare professional. This is why it is important to gather airtight evidence and be communicative with your legal counsel. The goal is to prove without a doubt that the doctor is at fault by drawing a direct link between the patient’s condition and the provider’s actions. Records that you saved during the time of the treatment will become necessary in establishing a timeline that is undeniable. 

In addition, the testimony of a medical expert will be necessary to advance your case. This is where the defense might try to reject the testimony by saying that it is unfit. To counter this, find an expert who can explain the way the treatment would normally be given in the medical profession. They should make it clear how the professional accused of negligence fell short of the norm. The right person may also be able to help make the case for how the breach of duty resulted in harm to the victim.


What happens when you can indeed prove medical negligence? Your claim will be handled in either settlement mediation or in court. Sometimes, a judge will want to avoid jamming the courts by asking that both parties settle the issue in mediation if possible. Regardless, there is still the chance that your case will reach the courts. With your legal team and the necessary evidence at your side, you may get compensated. 

The amount of compensation depends on the case itself and each negligence case is different. Here are some possible costs that could be covered retroactively and moving forward:

  • Immediate medical treatment.
  • Loss of wages or superannuation if the incident leaves you unable to work.
  • Past and future care expenses.
  • Ongoing medical costs, such as domestic care to recuperate from long-term injuries.
  • Non-economic (pain and loss) damages for psychological or emotional distress.

You may also be able to receive compensation if you are a close family member of the person who experiences the losses themselves. 

If you are wondering who pays the compensation, it is usually the medical practice’s insurance company that will be issuing the payout. Most of the time, healthcare providers have insurance to protect them against malpractice claims. Because of this, the plaintiff would likely be claiming damages from an insurance company rather than a medical professional directly.

How a medical malpractice lawyer can help

Suing for medical malpractice is not something that you should do yourself. You need a team that understands your particular situation and will handle your case with care and compassion. Leave it up to Gerard Malouf & Partners team of medical negligence lawyers to handle the legal navigation and trust that we will provide you with the legal advice that you deserve. You have enough on your plate, from medical bills to gaining back your health or helping your loved one recover. 

As experts in medical negligence law, we can help you make the right decisions and build up your case. To learn more, 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.


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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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