How do I know if I have a valid medical malpractice claim?

You may have a valid medical malpractice claim if you can demonstrate that a healthcare provider knowingly deviated from accepted medical standards, resulting in harm. This requires evidence of deliberate wrongdoing or reckless disregard for patient safety, going beyond simple negligence. To establish a valid claim, you need evidence showing: A healthcare provider owed you a duty of care The provider deliberately breached that duty by deviating from accepted medical standards This breach directly caused your injury or harm You suffered quantifiable damages as a result.

What is the most common medical malpractice?

The most common types of medical malpractice occur in high-risk areas such as obstetrics, surgery, and emergency medicine. Birth-related injuries are particularly significant due to the potential for lifelong care needs, while surgical and emergency care errors often arise from time pressures and complex cases. General practitioners also face a high volume of claims, largely due to the difficulty of detecting serious conditions from everyday symptoms.

How long will a medical malpractice case take to resolve?

Medical malpractice case timelines vary significantly based on complexity, severity of injuries, and whether liability is disputed. Simple cases with clear evidence of malpractice may resolve in 12-18 months, while complex cases can take two to four years or more. Factors affecting the timeline include: Medical issue complexity Dispute over liability Injury severity and ongoing treatment needs Court schedules and availability Settlement negotiation progress. GMP Law works diligently to move cases forward efficiently while ensuring thorough preparation for the best possible outcome, offering trusted legal advice for medical malpractice.

What is the difference between an adverse outcome and medical malpractice?

Not every negative medical outcome constitutes malpractice. Medical procedures inherently involve risks, and complications can arise even with proper care. Medical malpractice occurs when adverse outcomes result from deliberate departures from accepted medical standards or reckless disregard for patient safety. Key distinctions: Adverse outcome: Unexpected result despite proper care Medical malpractice: Harm caused by deliberate standard of care violations Assessment criteria: Whether the provider’s actions were reasonable under the circumstances, not just whether the outcome was negative. The critical consideration is whether the healthcare provider knowingly acted against established medical protocols or prioritised other interests above patient welfare.

How are medical malpractice damages calculated?

In medical malpractice cases, damages are calculated based on factors such as the severity of the impact, the claimant’s age, and the specific circumstances of the injury. Damages you may be entitled to include: Pain and suffering: Up to $650,000, depending on the severity of the injury Home care: Potentially millions, depending on the level of care required and any necessary home modifications. Loss of employment income: Compensation for lost wages, salary, or contractor fees could amount to millions, based on the claimant’s past, present, and future earning capacity Loss of superannuation: Claimable at its full value Legal costs: A significant portion of litigation costs may be covered. At GMP Law, we collaborate with medical experts to ensure every aspect of your damages is accurately calculated and effectively presented.

What if my injury was caused by a hospital failure rather than an individual doctor?

Medical malpractice claims can be brought against hospitals, healthcare systems, and individual practitioners. Hospitals have duties to maintain safe facilities, adequate staffing, proper credentialing, and staff supervision. Hospital liability may include: System failures and communication breakdowns Inadequate policies or procedures Poor record-keeping or documentation Insufficient staff training or supervision Unsafe facility conditions. In many cases, both individual practitioners and healthcare facilities may share liability. GMP Law can assess whether your case involves institutional malpractice, individual provider malpractice, or both. Learn more : Hospital negligence

Can family members claim compensation for medical malpractice?

Yes, family members may be entitled to compensation through nervous shock claims when they suffer psychological trauma from witnessing a loved one’s medical malpractice injuries. These claims recognise the significant emotional impact on family members who observe the consequences of medical malpractice. Family member claims may include: Psychological counselling and treatment costs Loss of companionship and relationship impact Emotional distress and mental anguish Impact on family dynamics and lifestyle. Each family situation is unique, and GMP Law can assess whether family members have valid claims alongside the primary malpractice victim.

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Medical malpractice: What is it and how to prove a claim

Written by: Ray Abbas
Last Updated: August 27, 2025
Read time: 13m

Suffering harm due to medical treatment can be deeply distressing, especially when that harm could have been prevented. For some Australians, the issue isn’t just a medical error, but something more serious: medical malpractice.

Medical malpractice occurs when a healthcare provider knowingly or recklessly deviates from accepted standards of care, resulting in harm to a patient. Unlike accidental negligence , it involves a deliberate breach of professional duty that goes beyond negligence.

As of June 2025, medical errors contribute to an estimated 18,000 unnecessary deaths annually in Australia, with over 50,000 patients disabled as a result of preventable medical harm. Preventable harm affects roughly 6% of patients, and severe cases can exceed $500,000 in compensation or more.

If you or a loved one has been affected by potential malpractice, understanding your legal options is essential. This guide explains how medical malpractice claims work in Australia, including how to recognise malpractice, what evidence is needed, and how compensation is assessed.

What is medical malpractice?

Medical malpractice occurs when healthcare providers knowingly or recklessly breach accepted medical standards, prioritising their own interests over patient safety. This goes beyond ordinary medical negligence, which involves unintentional mistakes.

Medical malpractice vs. Medical negligence

Medical negligence occurs when healthcare providers unintentionally fail to meet accepted standards of care through oversight or error. In contrast, medical malpractice involves intentional wrongdoing or reckless disregard for patient safety.

Key differences include:

Medical negligence	Medical malpractice
Unintentional failure to meet care standards	Deliberate deviation from accepted practices
Errors of omission or commission	Conscious disregard for patient safety
Easier to prove in court	Requires evidence of intent or recklessness
More common in legal claims	Higher burden of proof required

This distinction is significant because proving malpractice requires a higher burden of proof—evidence of intent, recklessness, or willful disregard—going beyond honest mistakes or lapses in judgment. However, when such evidence is clear, malpractice cases often settle more quickly due to the strong basis of the claim.

Both negligence and malpractice claims fall under state-based Civil Liability Acts (such as the Civil Liability Act 2002 in NSW and the Wrongs Act 1958 in VIC) and common law principles outlining healthcare providers’ duty of care.

Types of medical malpractice and examples

Medical malpractice can occur across all healthcare settings and specialties. The most common types involve deliberate departures from standard care protocols, such as surgical errors, misdiagnosis, medication mistakes, failure to obtain informed consent, or inadequate follow-up care.

1. Surgical malpractice

Surgical malpractice represents one of the most visible forms of deliberate medical error:

Wrong-site surgery: Operating on the incorrect body part despite clear protocols
Retained surgical instruments: Knowingly leaving tools inside patients
Unnecessary surgery: Performing surgery for financial gain rather than medical necessity
Technique violations: Deliberately using substandard surgical methods.

Case example

Bile Duct Injury (BDI) during gallbladder surgery occurs in approximately 0.5% of laparoscopic cholecystectomy procedures, a rate two to three times higher than with open surgery. While some injuries may arise despite reasonable care, medical malpractice may be found when surgeons proceed despite recognising anatomical uncertainty or fail to convert to open surgery when clinically indicated. In such cases, the conduct may reflect a conscious disregard for patient safety, crossing the line from negligence to malpractice. BDIs are a leading cause of malpractice claims in Australia due to their potential for severe, long-term complications and the frequent need for major corrective surgery.

2. Misdiagnosis and delayed diagnosis

Failure to correctly diagnose a condition when symptoms are clearly present often involves malpractice, particularly when providers ignore obvious warning signs. Failure to diagnose medical malpractice can also include delays that lead to worsened outcomes. Common examples of delayed diagnosis include:

Cancer misdiagnosis: Dismissing symptomatic presentations without proper investigation
Cardiac event misdiagnosis: Failing to recognise heart attack or stroke symptoms
Infection misdiagnosis: Ignoring signs of sepsis or serious bacterial infections.

Real case

In 2021, GMP Law secured a $300,000 settlement for a client whose bowel cancer was misdiagnosed as diverticulitis in 2019, despite persistent red-flag symptoms. The provider failed to order a colonoscopy, and expert evidence confirmed this was a clear breach of duty that went beyond simple oversight and likely cost the client a chance at early, potentially curative treatment.

3. Medication errors

Medication-related malpractice involves conscious decisions that put patients at risk:

Prescription errors: Knowingly prescribing inappropriate medications
Contraindication oversight: Ignoring dangerous drug interactions
Monitoring failures: Deliberately avoiding necessary patient monitoring.

Notable case

The 2008 death of Vanessa Anderson, a teenager who was given the wrong medication after treatment for a head injury, exposed serious communication breakdowns in hospital care. A coronial inquest found multiple failures, including a doctor misreading her chart, that directly contributed to the fatal error. The case prompted major reforms in the New South Wales healthcare system, leading to improved medication safety protocols and clearer communication standards. It remains a powerful example of how a single case can drive systemic change in patient safety.

Learn more: Can you sue a doctor for giving wrong medication?

4. Birth injuries and obstetric malpractice

Obstetric malpractice can result in devastating birth injuries with lifelong consequences:

Failure to monitor fetal distress: Ignoring clear signs of fetal compromise
Delayed cesarean decisions: Prioritising convenience over patient safety
Improper use of delivery tools: Using forceps or vacuum extractors inappropriately.

Settlement example

In 2019, the Western Australia District Court awarded $2.19 million to a family after their child suffered brain injuries at birth. Forceps were used despite clear contraindications, specifically, a narrow maternal pelvis and the baby’s position requiring theatre-based specialist care. The court found that this inappropriate intervention directly contributed to the child’s lifelong cognitive and developmental impairments.

5. Anaesthesia malpractice

Anesthesia errors account for approximately 2% of all medical malpractice claims:

Dosage errors: Deliberately administering incorrect anaesthesia levels
Monitoring failures: Consciously avoiding proper vital sign monitoring
Awareness incidents: Failing to ensure adequate anaesthesia depth.

Case effects

Patients who experience intraoperative awareness often describe the ordeal as deeply traumatising. The combination of pain, anxiety, and the inability to move due to muscle paralysis can lead to lasting psychological effects, including post-traumatic stress disorder (PTSD). Because of this, many patients require ongoing psychiatric support to manage the emotional and mental toll of an anaesthesia error.

6. Informed consent and medical malpractice

Healthcare providers must ensure patients fully understand treatment risks and alternatives. Malpractice occurs when providers deliberately withhold information or misrepresent risks.

Informed consent violations include:

Inadequate risk disclosure: Deliberately hiding significant procedural risks
Alternative treatment concealment: Failing to discuss safer treatment options
Comprehension barriers: Not ensuring that patients with language or cognitive difficulties understand procedures.

Landmark case

In the pivotal 1992 High Court decision, Rogers v Whitaker, Dr. Rogers was found liable for failing to disclose a rare but serious risk of sympathetic ophthalmia before performing eye surgery on Mrs. Whitaker, who subsequently became blind in both eyes. The Court ruled that even low-probability risks must be disclosed if a reasonable patient would consider them significant when making treatment decisions. This case established the modern standard for informed consent in Australian medical law, emphasising the healthcare provider’s duty to fully inform patients of all material risks.

The medical malpractice claims process

If you’re considering a medical malpractice claim, it helps to understand what’s involved. These cases require strong evidence and input from medical experts.

Here’s a simple breakdown of the typical stages in the legal process:

1. Free initial consultation

We offer a no-obligation case review to assess the strength of your claim and estimate potential compensation.

2. Investigation and evidence gathering

Our team gathers detailed medical records, interviews witnesses, consults independent experts, and reviews hospital policies to build a strong foundation for your case.

3. Expert medical assessment

Specialists in the appropriate medical field evaluate whether the standard of care was breached and whether that breach directly caused your injury.

4. Claim filing and negotiation

We formally file your claim and negotiate with insurance companies on your behalf, aiming for a fair and timely resolution.

5. Resolution or litigation

Many cases are resolved through settlement, especially when strong evidence is present. However, if necessary, we’re fully prepared to take your case to court. In our experience, well-supported malpractice claims often settle faster than general negligence cases due to clearer proof of wrongdoing.

Call us for confidential, free legal advice.

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Essential elements for a medical malpractice case

If you’re thinking about filing a medical malpractice claim, it’s important to understand what the law requires. To succeed, you’ll need to show four key elements: duty of care, breach of duty, causation, and damages.

Medical malpractice doesn’t require deliberate wrongdoing. If a healthcare provider fails to meet accepted standards, even unintentionally, and you’ve been harmed as a result, you may still have a case.

Element	Description	Standard of proof	Key evidence required
1. Duty of care	Healthcare providers owed the patient a professional duty of care, which is usually clear in established doctor-patient relationships.	Usually straightforward	Patient-provider relationship
2. Breach of duty	The provider failed to meet accepted care standards. This is judged by comparing their actions to what reasonable professionals would have done in similar circumstances.	Expert testimony required	Medical records, expert opinions, and policy violations
3. Causation	The provider’s breach directly caused patient harm. This requires proving that injury would not have occurred “but for” the provider’s actions	“But for” test	Medical evidence linking breach to harm
4. Damages	The provider’s breach directly caused patient harm. This requires proving that injury would not have occurred “but for” the provider’s actions.	Quantifiable losses	Medical bills, lost income, pain and suffering, and ongoing care costs.

Time limits for medical malpractice claims

Medical malpractice compensation claims must be made within legally defined timeframes. Missing these deadlines can mean losing your right to compensation.

Here’s what you need to know about limitation periods:

Standard limitation	3 years from when the injury became known (date of discoverability)
Children’s claims	The limitation period begins when they turn 18
Cognitive impairment	Special provisions may extend timeframes
Court extensions	Available in exceptional circumstances at judicial discretion

Important: The “date of discoverability: means when you first become aware of the injury and its connection to medical treatment, not necessarily when the malpractice occurred.

Medical practice compensation and damages

Compensation in medical malpractice court cases is designed to help restore you, financially and personally, to the position you were in before the injury. Australian courts may award damages across several key categories: economic damages, non-economic damages, and special damages.

Damage type	Inclusions
Economic damages	Medical expenses: Immediate treatment costs and ongoing care requirements Lost income: Past and future earning capacity reduction Superannuation losses: Full value of lost retirement contributions Care costs: Professional and family care assistance needs
Non-economic damages	Pain and suffering: Up to $650,000 depending on injury severity Loss of amenity: Compensation for reduced quality of life Relationship impact: Effects on family and personal relationships
Special damages	Home modifications: Accessibility improvements and equipment Legal costs: A significant portion of litigation expenses Travel expenses: Medical appointment and treatment travel

Find out how much you can claim today.

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How damages are assessed

The amount of compensation awarded in a medical malpractice case depends on the type and extent of harm suffered. Courts consider both financial losses and the personal impact of the injury.

Below is a breakdown of common damage types, typical compensation ranges, and how each is assessed:

Damage type	Typical damages range	Calculation method
Pain and suffering	$50,000 to $650,000	Injury severity and impact assessment
Lost income	Variable (can exceed $1M)	Earning capacity analysis
Medical costs	Variable (potentially millions)	Actuarial life care planning
Home care	$100,000 to $2M+	Professional care cost assessment

Settlement example: Recent GMP Law cases have achieved settlements ranging from $300,000 for delayed cancer diagnosis to $1 million for a malpractice incident that led to the amputation of our client’s leg.

Nervous shock claims

In addition to compensation for the directly injured patient, family members may also be entitled to damages if they suffer psychological harm, known as nervous shock, after witnessing or becoming aware of a loved one’s injury caused by medical malpractice. These claims typically arise when a relative is present during a traumatic event, such as a birth injury or sudden death due to a medical error, and later develops conditions like PTSD, anxiety, or depression.

Courts assess nervous shock claims based on the severity of the psychological injury, the claimant’s proximity to the event, and their relationship to the patient. Compensation can include damages for pain and suffering, treatment costs, and loss of income if the trauma affects the person’s ability to work.

High-risk medical specialties

Some areas of medicine carry a greater risk of error, not necessarily due to negligence, but because of the complexity, urgency, or sheer volume of care involved. Knowing which medical specialties are most often involved in malpractice claims can help you if you’re trying to make sense of the risks involved in your care.

These high-risk specialties often see more claims and, in some cases, higher compensation due to the seriousness of outcomes:

High-risk areas include:

Obstetrics and gynaecology: Birth-related claims often involve significant damages due to lifetime care needs
Surgery: Particularly orthopedic, cardiac, and neurosurgery
Emergency medicine: Where time pressure and limited patient information create challenging conditions
Anaesthesiology: Due to the high-risk nature of the specialty
General practice: Due to the volume of patients seen and the challenge of identifying serious conditions from common symptoms

Proving medical malpractice: What evidence you need

To succeed in a medical malpractice claim, you’ll need strong evidence showing that the care you received fell below accepted medical standards and that this failure caused you harm.

Expert medical testimony

One of the most important parts of your case is expert evidence. Independent medical specialists must review your treatment and provide a professional opinion on whether the care met accepted standards.

These experts must:

Be qualified in the same field as the healthcare provider involved
Evaluate whether the standard of care was breached
Explain how the breach caused or contributed to your injury

Their testimony forms a critical foundation for proving both negligence and causation in your claim.

What makes an expert witness credible?

Holds qualifications in the relevant medical specialty
Has current, hands-on experience in their field
Provides objective, evidence-based opinions
Bases their conclusions on up-to-date medical standards and practices

Critical types of evidence in medical malpractice cases

Gathering the right evidence is essential to building a strong malpractice case. This includes detailed medical documentation, firsthand accounts, and proof of proper procedures or any deviations from them.

Below are the key types of evidence that can support your claim:

Medical records	Complete treatment histories Contemporaneous notes (Records made at the time of treatment hold particular value in assessing the quality of care) Laboratory results, imaging studies, and diagnostic information Medication administration records Evidence of record tampering (strengthens malpractice claims)
Witness testimony	Healthcare provider observations of treatment Family member accounts of patient condition changes Patient firsthand experience descriptions
Consent documentation	Signed consent forms showing disclosed risks Records of consent conversations Hospital policy compliance evidence
Supporting evidence	Photographic or video documentation of injuries Hospital policies and staff training records Provider communication records Statistical data on procedure outcomes

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Next steps with GMP Law

At GMP Law, we offer No Win, No Fee representation, so you won’t pay legal fees unless your claim is successful. If you believe you’ve been affected by medical negligence, acting early can make a real difference.

Here’s how to get started:

FAQs

How do I know if I have a valid medical malpractice claim?
You may have a valid medical malpractice claim if you can demonstrate that a healthcare provider knowingly deviated from accepted medical standards, resulting in harm. This requires evidence of deliberate wrongdoing or reckless disregard for patient safety, going beyond simple negligence.

To establish a valid claim, you need evidence showing:
1. A healthcare provider owed you a duty of care
2. The provider deliberately breached that duty by deviating from accepted medical standards
3. This breach directly caused your injury or harm
4. You suffered quantifiable damages as a result.
What is the most common medical malpractice?
The most common types of medical malpractice occur in high-risk areas such as obstetrics, surgery, and emergency medicine.

Birth-related injuries are particularly significant due to the potential for lifelong care needs, while surgical and emergency care errors often arise from time pressures and complex cases. General practitioners also face a high volume of claims, largely due to the difficulty of detecting serious conditions from everyday symptoms.
How long will a medical malpractice case take to resolve?
Medical malpractice case timelines vary significantly based on complexity, severity of injuries, and whether liability is disputed. Simple cases with clear evidence of malpractice may resolve in 12-18 months, while complex cases can take two to four years or more.

Factors affecting the timeline include:
- Medical issue complexity
- Dispute over liability
- Injury severity and ongoing treatment needs
- Court schedules and availability
- Settlement negotiation progress.
GMP Law works diligently to move cases forward efficiently while ensuring thorough preparation for the best possible outcome, offering trusted legal advice for medical malpractice.
What is the difference between an adverse outcome and medical malpractice?
Not every negative medical outcome constitutes malpractice. Medical procedures inherently involve risks, and complications can arise even with proper care. Medical malpractice occurs when adverse outcomes result from deliberate departures from accepted medical standards or reckless disregard for patient safety.

Key distinctions:
- Adverse outcome: Unexpected result despite proper care
- Medical malpractice: Harm caused by deliberate standard of care violations
- Assessment criteria: Whether the provider’s actions were reasonable under the circumstances, not just whether the outcome was negative.
The critical consideration is whether the healthcare provider knowingly acted against established medical protocols or prioritised other interests above patient welfare.
How are medical malpractice damages calculated?
In medical malpractice cases, damages are calculated based on factors such as the severity of the impact, the claimant’s age, and the specific circumstances of the injury.

Damages you may be entitled to include:
- Pain and suffering: Up to $650,000, depending on the severity of the injury
- Home care: Potentially millions, depending on the level of care required and any necessary home modifications.
- Loss of employment income: Compensation for lost wages, salary, or contractor fees could amount to millions, based on the claimant’s past, present, and future earning capacity
- Loss of superannuation: Claimable at its full value
- Legal costs: A significant portion of litigation costs may be covered.
At GMP Law, we collaborate with medical experts to ensure every aspect of your damages is accurately calculated and effectively presented.
What if my injury was caused by a hospital failure rather than an individual doctor?
Medical malpractice claims can be brought against hospitals, healthcare systems, and individual practitioners. Hospitals have duties to maintain safe facilities, adequate staffing, proper credentialing, and staff supervision.

Hospital liability may include:
- System failures and communication breakdowns
- Inadequate policies or procedures
- Poor record-keeping or documentation
- Insufficient staff training or supervision
- Unsafe facility conditions.
In many cases, both individual practitioners and healthcare facilities may share liability. GMP Law can assess whether your case involves institutional malpractice, individual provider malpractice, or both.

Learn more: Hospital negligence
Can family members claim compensation for medical malpractice?
Yes, family members may be entitled to compensation through nervous shock claims when they suffer psychological trauma from witnessing a loved one’s medical malpractice injuries. These claims recognise the significant emotional impact on family members who observe the consequences of medical malpractice.

Family member claims may include:
- Psychological counselling and treatment costs
- Loss of companionship and relationship impact
- Emotional distress and mental anguish
- Impact on family dynamics and lifestyle.
Each family situation is unique, and GMP Law can assess whether family members have valid claims alongside the primary malpractice victim.

About the Author

Ray Abbas

Partner

With both District and Supreme Court victories, Ray Abbas is an accredited specialist in Medical Negligence and Motor Vehicle Accident (MVA) claims. He has 24+ years' experience in personal injury law and can expertly unravel complex cases to secure maximum compensation for his clients.

Learn more about Ray Abbas

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With 35 years of experience, we have successfully represented clients in personal injury cases across Australia, including:

35,000 victories and counting
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The team at GMP® recognise the physical, emotional, and financial toll that injuries have on individuals and their families.

Our commitment to our clients includes:

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