Medical negligence is among the most common tort laws worldwide. Historically, it has primarily covered damages such as physical injury, however, over the last few decades, it’s transformed to include a range of other economic and non-economic damages.
With these changes, the National Library of Medicine notes that it’s been “difficult to develop a predictable and coherent set of principles to achieve justice and to minimise negative repercussions to the community at large”.
This is why it’s important to be able to identify possible cases of medical negligence and to know when to contact a professional medical negligence claims lawyer to assist with your case.
Here, we’ll take a look at how to discern potential medical negligence, how it compares to medical malpractice and walk through a few claim examples to give you a better idea of scenarios that may be eligible for compensation.
How to identify medical negligence
In the most straightforward sense, medical negligence happens when a medical professional, such as a doctor or nurse, breaches the standard of care and causes damage — physical or psychological — to a patient.
Medical negligence cases most often result in personal injury that either extends hospitalisation, causes a disablement or, in a worst-case scenario, death.
The National Library of Medicine outlines the likely sequence of events for medical negligence cases:
- There’s an established duty of care. Most often, a client-doctor relationship is enough to prove this.
- There’s a breach in the standard of care — due to poor or absent behaviour, or otherwise a failure to uphold that standard.
- A patient suffered harm or damage as a result of the negligent behaviour of the care provider.
Most commonly, medical negligence cases are the result of medication administration errors — whether by prescribing or administering an incorrect dosage or medicine type, but there are plenty of other examples, too.
What is the duty of care?
Every medical practitioner has a duty to uphold a quality standard of care. Failure to do so could result in physical or psychological damage to patients and, thus, the practitioner can be held liable for negligence.
A breach in the duty of care may mean that a practitioner:
- Failed to refer you to the necessary specialist, and your condition worsened as a result.
- Misdiagnosed your condition, such as failing to recognise symptoms of heart failure.
- Misprescribed medication, either type or dosage.
- Made a mistake during surgery.
- Errors in anaesthesia administration.
- Committed negligence during childbirth or care, resulting in fetal injuries.
Timeline for medical negligence cases in QLD and NSW
Starting from the date of injury, or from when the injury was first apparent, medical negligence claims must be commenced within three years in both Queensland and New South Wales.
Even outside of this window, seeking damages may still be an option. Since some injuries take time to become obvious, you should speak with our medical negligence claims lawyers to determine a course of action and understand all of your options.
Medical negligence vs medical malpractice: Is there a difference?
While medical malpractice does fall under the umbrella of medical negligence, it’s not limited to just these instances.
In short, medical negligence happens when an unintentional action, adverse event or failure to take reasonable care causes damage resulting in economic or non-economic loss. Medical malpractice, on the other hand, is when a healthcare professional — such as a nurse — deliberately ignores the standard of care that they are upheld to or otherwise intentionally causes harm, resulting in damage.
In either of these cases, a patient may be eligible for compensation. For the best path forward backed by sound legal advice, it’s always a good idea to seek legal counsel. Your lawyer will advise you on how best to proceed with your unique case, with the best chance of success.
Examples of medical negligence
In some cases, a direct professional relationship is not a necessary constituent for a successful claim. In the famous Australian case of Lowns v Woods (1996), proximity was evidence enough to pursue compensation for medical negligence.
Here’s what happened:
A person (Woods) was having an epileptic fit within a 300 metre range of a doctor’s house (Lowns). When asked to attend to Woods’ needs, Lowns refused to help. As a result, Woods suffered extensive brain damage and became quadriplegic. Although Lowns and Woods did not have a direct doctor-patient relationship within the bounds of a medical facility, it was determined that there was still a duty of care that existed. Thus, Lowns was held liable for medical negligence.
Recent medical negligence cases
Medical negligence continues to be one of the most brought about claims in Australia. Here are a few recent examples of successful cases with clients of Gerard Malouf and Partners (GMP Law):
A Sydney man receives $450,000 in medical negligence claims
In this case, a man in Sydney was compensated in the amount of $450,000 after sustaining a debilitating nerve injury. Here’s a brief overview of the case:
- Our client sustained an injury to his radial nerve following a CT guided biopsy procedure in 2018.
- His ability to run his business was significantly impacted and he needed assistance from his family.
- He contacted us to see if he had any grounds to make a medical negligence claim and we were able to settle our client’s matter out of court.
This is how we handled it:
- We arranged to meet the client at his home to discuss his claim;
- Opened a file on our client’s behalf;
- Requested all of his clinical notes;
- Drafted a qualifying letter incorporating all of the evidence;
- Qualified one of Australia’s best neurologists and a radiologist to provide an opinion;
- Explored every aspect of our client’s damages and qualified an Occupational Therapist who was asked to comment on past and future need for care and equipment;
- Reached a Forensic Accountant to comment on any loss suffered by his small business, as well as an Occupational Physician to comment on his ability to continue working.
For more information on this particular case, see here.
Case settled against negligent optometry service provider for just under $50,000
For this client, negligent behaviour in the optometry office resulted in a nearly $50,000 settlement. Here’s an overview:
- Our client was given the wrong prescription glasses by her doctor.
- Because she was wearing the wrong glasses for a while, she experienced significant deterioration in her vision.
- Gerard Malouf and Partners (GMP Law) was able to settle the claim against the optometrist for just under $50,000.
Since the Defendant denied liability and the Plaintiff’s injuries got better and healed overtime, it was a little more difficult to prove any wrongdoing, but that didn’t stop us from rightfully pursuing the claim.
We decided that, rather than incurring further costs, we would work towards settling the matter via an informal settlement conference, which was the right decision.
For more information on this particular case, see here.
$180,000 settlement for unnecessary and wrongful insertion of a pacemaker
The wrongful insertion of a pacemaker is a huge mistake to make. For this client, we were able to settle a medical negligence claim for $180,000. Here’s a brief overview:
- Our client experienced pre-syncopal and syncopal episodes, with associated low heart rates, dizziness and loss of consciousness.
- The plaintiff was considered suitable for a pacemaker implantation, yet still experienced syncopal episodes after getting the procedure.
- A settlement of $180,000 was agreed upon to compensate our client for the physical and emotional pain and suffering.
Here’s how we settled this case:
- We received reports from a cardiologist who was critical in the decision to insert the pacemaker. Our medical expert decided that the staff lacked a clear correlation between the arrhythmia and syncope on testing. Most other medical professionals in the same situation would have seen that our client either did not need a pacemaker or that the device was inserted incorrectly.
- We obtained a report from a psychologist who diagnosed our client with a health anxiety disorder.
- A report from an occupational therapist indicated that our client had required significant domestic care and assistance following the implementation of the pacemaker as well as after its removal.
- The case went all the way up to mediation where we argued on behalf of the client. Although the mediation was unsuccessful, negotiations continued between the parties. We reached a settlement sum of $180,000.
For more information on this particular case, see here.
How to prove medical negligence
Proving medical negligence can be difficult. Without demonstrable proof, ambiguous discussion surrounding such cases is seldom effective, according to the National Library of Medicine.
In order to file a claim with a chance of success, you must be able to:
- Establish a duty of care.
- Establish the expected standard of care, and breach of the established duty of care.
- Establish causation.
- Consider any defences.
- Consider all damages and compensation.
Compensation amounts for successful claims vary greatly and are unique to your particular situation and case. Therefore, providing an estimated amount is difficult. To get a better sense of potential compensation, however, please refer to the case studies above involving previous clients of Gerard Malouf and Partners (GMP Law).
Additionally, download our free, comprehensive guide to medical negligence claims and understand the steps you need to take to prove medical negligence, and how to improve your chance of success.
What is causation?
When proving medical negligence, substantiating causation is just as important as proving that there was a duty of care. For a breach of duty to be considered a causation of harm, it must have been a “necessary condition” of that adverse event occurring, according to the Civil Liability Act 2003. In other words, it must be true that, had the mistake or negligent circumstance not have occurred, the person would not have suffered the damages brought forth in their claim.
How GMP Law can help
Our experienced lawyers and comprehensive process will help you build a medical negligence case with the best chance of success. Upon contacting us, here’s what will happen next:
- We’ll meet with you to discuss your unique situation to determine your eligibility and record a statement.
- Then, we’ll design a brief that will get sent to a medical expert, specifying some of the details of your case. At this point in the process, we will request your full medical history, which can help support your claim.
- Next, we’ll consult with you again to fill in any gaps and combine all of your details with the medical expert’s information to start proceedings.
- Finally, we’ll manage your case until either mediation is agreed upon between the two parties or it progresses to high court.
Gerard Malouf and Partners (GMP Law) have managed thousands of cases in Sydney and across Australia. If you’ve suffered damage due to medical negligence or malpractice, contact our professional medical negligence lawyers for a free, no-obligation consultation.
We offer a no-win, no-fee policy so that you don’t have to worry about legal fees until your case has been settled.