Written by: David Cossalter If you or a loved one has suffered due to medical negligence, you’re likely experiencing a whirlwind of emotions – confusion, anger, and perhaps even betrayal. It’s a challenging time, and amidst the pain and uncertainty, you may be wondering about your legal options. One of the most pressing questions is often, “How long do you have to claim for medical negligence?”
We understand that thinking about legal action might feel overwhelming, but knowing your rights and the time limits involved is important. Our May 2025 guide aims to provide you with clear, compassionate information about medical negligence claims in Australia, focusing on the critical timeframes you need to be aware of.
What is a medical negligence claim?
A medical negligence claim is a legal action taken when a healthcare professional fails to provide the standard of care expected in their role, resulting in harm to a patient.
In other words, medical negligence occurs if a doctor, nurse, or other medical provider makes a mistake. This mistake is not intentional, but happens through carelessness or omission. If that mistake causes injury or worsens a patient’s condition, the patient may have grounds for a medical negligence claim.
Medical professionals have a legal duty of care to their patients, which includes:
- Deciding whether to accept or refer a case appropriately
- Choosing and recommending the correct treatment
- Administering that treatment with reasonable skill and attention
Any failure in these responsibilities can lead to legal action for negligence.
While not every medical error qualifies as negligence, if the care fell below what would reasonably be expected from a competent professional in similar circumstances, legal action may be justified.
We all place our trust in healthcare professionals, expecting them to provide competent and careful treatment. Most of the time, they do.
However, sometimes things go wrong.
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Medical negligence claims vs medical malpractice claims
Are medical negligence and medical malpractice the same thing? Not quite. While closely related, they differ in intent and legal handling.
Medical negligence occurs when a healthcare professional unintentionally fails to provide the appropriate standard of care, leading to harm. This might include errors like misdiagnosing a condition, failing to follow up on test results, or making a surgical mistake due to oversight or carelessness. The harm wasn’t intended, but the provider didn’t meet the expected duty of care.
Medical malpractice, on the other hand, goes a step further. It involves a breach of duty where the provider knowingly disregards established medical protocols or behaves recklessly, sometimes even with an awareness of the potential consequences. For instance, continuing a risky treatment without patient consent or ignoring critical symptoms might fall under malpractice.
The distinction matters because malpractice claims often carry a higher burden of proof, meaning intent or gross deviation from care standards must usually be demonstrated. Negligence cases focus more on whether a reasonably competent provider would have acted differently under the same circumstances.
Most common medical negligence claims
Common claims typically involve errors in diagnosis, treatment, medication, or patient consent that lead to avoidable harm.
| Type of medical negligence | Brief explanation |
|---|---|
| Misdiagnosis or delayed diagnosis | Failing to identify a condition correctly or in time, leading to delayed or inappropriate treatment |
| Surgical errors | Mistakes during surgery, such as operating on the wrong site, leaving instruments inside the body, or causing unintended damage |
| Medication mistakes | Prescribing the wrong medicine, incorrect dosage, or failing to check for harmful interactions or allergies |
| Birth injuries | Harm to a baby or mother due to improper care during pregnancy, labour, or delivery (e.g., oxygen deprivation, misuse of forceps) |
| Anaesthesia errors | Administering too much or too little anaesthetic, or failing to monitor a patient properly during sedation |
| Failure to obtain informed consent | Not fully informing the patient of risks, alternatives, or consequences before a procedure or course of treatment |
Types of negligence
Negligence can take many forms, reflecting how a healthcare provider’s actions or failure to act may breach their duty of care and result in harm to a patient.
| Type of negligence | Brief explanation |
|---|---|
| Active negligence | Direct actions by a medical professional that cause harm (e.g., administering the wrong medication) |
| Passive negligence | Failure to act when action was needed (e.g., not responding to a patient’s worsening symptoms) |
| Collateral negligence | Harm caused by someone under a professional’s supervision (e.g., a nurse acting under a doctor’s orders) |
| Comparative negligence | A legal concept where both the patient and provider share some fault. In this instance, compensation may be reduced accordingly |
| Concurrent negligence | When more than one party is negligent at the same time, contributing to the harm |
| Continued negligence | Ongoing failure to provide proper care even after an initial mistake is recognised |
| Criminal negligence* | Extreme disregard for patient safety that crosses into criminal behaviour (e.g., willful neglect or gross errors) |
| Gross negligence | Severe lack of care showing reckless disregard for the patient’s safety or wellbeing |
| Hazardous negligence | Negligent acts involving dangerous procedures or substances, increasing the risk of harm |
| Willful or reckless negligence | Knowingly ignoring known risks or acting with extreme carelessness |
| Negligence per se | Negligence established automatically due to violation of a law or regulation meant to protect patients. |
Disclaimer: Some of the types of negligence listed above, marked with an asterisk (*), may fall outside the scope of typical personal injury or medical negligence claims. For example, cases involving criminal negligence may be handled by criminal law specialists rather than personal injury lawyers. Always consult with a qualified legal professional to determine the appropriate legal pathway for your specific situation.
If you’ve experienced any form of medical harm, know that you’re not alone, and that legal options are available.
A qualified medical negligence lawyer can help you understand what type of negligence may have occurred and guide you through the appropriate legal process. Whether your case involves a common oversight or a more complex legal issue, the right support can make all the difference in seeking justice and compensation.
Who can make a medical negligence claim?
Anyone who has suffered harm due to substandard medical care may be eligible to make a claim.
This typically includes patients directly affected, but in some cases, family members may also have the right to pursue a claim.
A medical negligence claim can be brought by individuals who have experienced physical, psychological, or financial harm as a result of a healthcare provider’s failure to meet the expected standard of care.
If the patient has died or is unable to make the claim themselves (e.g., due to incapacity), certain family members or legal representatives may claim on their behalf.
Who is eligible?
You may be eligible to make a medical negligence claim if you’ve been directly harmed by substandard medical care, or if you’re legally permitted to act on behalf of someone who has.
This includes adult patients, parents of injured children, legal representatives for incapacitated individuals, and certain family members of a deceased patient. The specific eligibility depends on your relationship to the injured party and the nature of the harm.
| Eligible person | Reason for eligibility |
|---|---|
| Adult patient | Directly suffered due to negligent medical treatment |
| Parent or guardian | Can bring a claim on behalf of a child under the age of 18 |
| Legal representative | Can act on behalf of a mentally incapacitated adult or on behalf of a deceased individual |
| Dependent family member | May claim for wrongful death, loss of financial support, or psychiatric injury (nervous shock). |
Note: Time limits for bringing a claim can vary depending on the situation. For example, in most cases, adults have three years from the date of injury or discovery. For children, the time limit usually starts from their 18th birthday. Individuals who lack mental capacity may not be subject to standard time limits until (or unless) capacity is regained.
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Claims for medical negligence by family members
Family members may be eligible to bring a claim if the injured person has passed away or is unable to pursue the claim themselves.
These claims often relate to financial dependency, emotional loss, or direct psychological harm from witnessing the incident.
| Claim type | What it covers |
|---|---|
| Dependency claim | Loss of income, services, or financial support from the deceased |
| Bereavement payment | A statutory payment available to certain close relatives (varies by jurisdiction) |
| Funeral expenses | Reasonable costs associated with burial or cremation |
| Nervous shock claim | Psychiatric injury suffered from witnessing a traumatic event involving a loved one. |
Nervous shock claims
In cases of nervous shock or psychiatric injury, eligibility can vary significantly depending on the state or territory. In most cases, close family members who witness a traumatic event or its immediate aftermath may be eligible, but the exact criteria differ:
| State | Eligibility for nervous shock |
|---|---|
| New South Wales | Under the Civil Liability Act 2002, you must be a close family member, have witnessed the event or its aftermath, and suffer a recognised psychiatric illness (not just grief or distress) |
| Victoria | The Wrongs Act 1958 refers to this as “pure mental harm.” You may be eligible even if you’re not related to the victim, provided you witnessed the incident or its immediate aftermath |
| Queensland | The Civil Liability Act 2003 allows claims for “pure psychiatric injury” if you directly experienced or witnessed a traumatic event involving a loved one. |
To qualify in any state, you typically must demonstrate a diagnosed psychiatric condition, such as PTSD, anxiety disorder, or major depressive disorder. Mere emotional upset or grief is not sufficient.
Because eligibility and legal thresholds vary by jurisdiction, it’s essential to seek legal advice specific to your location and situation.
How to prove a claim of medical negligence
To prove medical negligence, you must show that a healthcare provider breached their duty of care and that this directly caused you harm. This requires strong evidence that the care you received fell below acceptable medical standards and led to your injury or worsening condition.
At a deeper level, a successful medical negligence claim must usually establish four elements:
- Duty of care: The medical professional had a legal obligation to care for you
- Breach of duty: They failed to meet the standard expected of them
- Causation: Their failure directly caused harm
- Damages: You suffered physical, emotional, or financial loss as a result.
Lawyers rely on medical records, statements, timelines, and expert opinions to build a compelling case that proves all four elements.
Key steps to gather evidence
Gathering the right evidence is critical to proving a claim of medical negligence. The stronger and more organised your evidence, the higher the chance of a successful outcome.
Here are your steps to collect strong evidence:
| 1. Request and review medical records | Obtain all relevant hospital, GP, and specialist records that detail your diagnosis, treatment, and any follow-up care |
| 2. Keep a detailed journal | Record your experience, including symptoms, what was said or done by medical staff, and the impact on your life |
| 3. Document all financial losses | Keep receipts, invoices, and wage records to show how the negligence has affected you financially |
| 4. Collect photographic evidence | This includes photos of injuries, scarring, or equipment (if applicable), which may be used to support your claim. |
The role of expert witnesses
Once you engage a medical negligence lawyer, one of the first steps they’ll take is to strengthen your claim with independent expert testimony. Expert witnesses play a vital role in medical negligence cases. They assess whether the care you received met the expected medical standards and whether any failure directly caused your injury.
Their opinions often carry the most weight in court proceedings or settlement negotiations, as they provide objective insight grounded in medical expertise.
These experts are typically senior consultants or specialists in the relevant field of medicine, such as obstetrics, surgery, or oncology. Importantly, their role is not to support either side, but to provide a fair, unbiased opinion based on professional standards and evidence.
Their function is varied in medical negligence cases.
| Function | Varied |
|---|---|
| Clarify medical standards | Explain what a competent healthcare provider would have done in the same situation |
| Identify breaches in care | Pinpoint actions or omissions that deviated from accepted medical practice |
| Establish causation | Show how the breach directly led to the patient’s harm |
| Review medical records and diagnostics | Analyse whether test results, timelines, and treatments were handled properly. |
Example scenarios where experts may be used include:
- Assessing whether a delay in diagnosis led to a worse outcome
- Determining if incorrect medication caused adverse effects
- Evaluating if a surgical error deviated from standard protocols
- Reviewing whether informed consent was properly obtained.
Expert witnesses must be impartial and qualified in the same area of practice as the medical professional in question.
Time limits: How long after medical negligence can you claim?
In Australia, you generally have up to three years from the date you discover the negligence to make a medical negligence claim. This is known as the statute of limitations. It exists to ensure claims are brought forward while evidence is still reliable and witnesses’ memories remain intact.
While these time limits might feel restrictive, especially when you’re still recovering from harm, the law does allow for some flexibility in specific situations, such as for children, people with disabilities, or those with delayed diagnoses.
State-by-state time limits
Although the general rule is three years from the date you discovered the negligence, different states in Australia apply this rule under their own legislation, and some include longer ‘long-stop’ time limits.
| State/Territory | Governing legislation | Time limit to claim |
|---|---|---|
| NSW | Limitation Act 1969 | 3 years from the date of discoverability; 12-year long-stop from the date of the act or omission |
| VIC | Limitation of Actions Act 1958 | 3 years from discoverability; 12-year long-stop from the act/omission |
| QLD | Limitation of Actions Act 1974 | 3 years from the date of negligence; extensions possible for latent injuries |
| WA | Limitation Act 2005 | 3 years from discoverability; 12-year long-stop from the negligent act |
| SA | Limitation of Actions Act 1936 | 3 years from discoverability; 12-year long-stop generally applies |
| TAS | Limitation Act 1974 | 3 years from discoverability; long-stop not always applied but possible |
| ACT | Limitation Act 1985 | 3 years from discoverability; 12-year long-stop from date of incident |
| NT | Limitation Act 1981 | 3 years from act or omission; 10-year long-stop may apply in some cases |
Discoverability: The date when the claimant knew (or should have known) that the harm suffered was due to negligence.
Special circumstances and exceptions
Certain circumstances can delay or extend the time limit for making a medical negligence claim, helping to ensure fairness in cases where strict time limits would cause injustice.
| Exception type | How it affects the time limit |
|---|---|
| Minors | The time limit typically starts when the individual turns 18 |
| Persons with a disability | If a person has a mental disability or lacks capacity, the limitation period may be paused |
| Latent injuries | Where harm wasn’t immediately apparent, time starts from the date of diagnosis or awareness |
| Fraud or deceit | If the provider concealed the negligence, the period may be extended beyond standard limits. |
These exceptions reflect a broader principle in Australian law: the need to balance procedural fairness with access to justice. Courts may extend time limits if failing to do so would unfairly prevent a person from seeking compensation for harm that could not reasonably have been discovered earlier.
However, even with exceptions, long-stop limits often still apply, meaning some claims may be permanently barred after a certain number of years (e.g., 12 years), regardless of when the negligence was discovered, a crucial factor for those with delayed symptoms.
Can I apply for medical negligence after 20 years?
In most cases, no. Medical negligence claims made after 20 years will be barred by long-stop time limits, which are typically 12 years (or 10 years in the Northern Territory) from the date of the negligent act, regardless of when the harm was discovered.
While there are exceptions, such as for minors, people with disabilities, latent injuries, or fraud, these rarely override the long-stop limit once it has passed.
In all cases, early legal advice is essential, especially where significant time has passed.
How to apply for a long-stop time limit
In exceptional circumstances, it may be possible to seek an extension of the three-year limitation period. This is possible under the ‘long stop’ limitation period, allowing up to 12 years from the date of injury, regardless of when you learned about the fault.
This is at the court’s discretion and is not granted lightly.
To be successful, one typically needs to demonstrate that:
- There is a reasonable explanation for the delay
- The case has merit
- The defendant would not suffer undue prejudice if the extension were granted.
To qualify for the long stop time limit, you must provide:
- The length of time since you discovered the negligence and the reasons for not filing within three years
- The extent and duration of your injuries or loss
- Any actions by the medical professional or hospital that may have delayed your response
- Your steps taken to seek legal advice and gather evidence
- When you discovered the injury and its cause.
Quinn v State of Queensland
The case of Quinn v State of Queensland demonstrates how courts may approach applications for extensions.
In this case:
- The applicant, Ms Quinn, underwent several surgical procedures between November 2011 and March 2012 to resection her colon due to bowel cancer
- She suffered severe post-surgical complications including significant blood loss, lower back pain, and probable infertility
- After discussing her medical situation with a new doctor and the Health Quality and Complaint Commission (now disbanded and replaced by the Health Ombudsman), she sought legal advice in July 2013
- Due to an unexplained delay by the applicant’s solicitors in forwarding her medical records, expert reports confirming medical negligence weren’t obtained until after the expiration of the limitation period.
The key issue for the Court was whether Ms Quinn was aware of significant facts affecting her ability to file a lawsuit before receiving the expert report. The state argued that Ms Quinn had all the necessary information to initiate proceedings prior to the report and claimed that her failure to act was due to the negligence of her former solicitors. Despite these arguments, the District Court of Queensland allowed the application for an extension of the statutory limitation period.
This case demonstrates that courts may consider various factors when deciding whether to grant an extension, including the complexity of the medical issues involved and the steps taken by the applicant to investigate their claim.
It’s important to note, however, that relying on an extension is risky. If possible, it’s always preferable to commence proceedings within the standard limitation period.
How to file a medical negligence claim: Step-by-step
Filing a medical negligence claim involves gathering evidence, seeking expert advice, and following a structured legal process. It can be complex, but with the right support, you can navigate it effectively and assert your legal rights.
Before anything, prioritise your health and wellbeing, then take the steps below to build a strong case.
Stages of the claims process
Here’s a step-by-step breakdown of how a typical medical negligence claim unfolds:
| Stage | What happens |
|---|---|
| 1. Seek medical care | Focus on recovery and obtain appropriate treatment for ongoing health concerns. Your well-being is the top priority before starting any legal process |
| 2. Document your experience | Start recording everything. Maintain a detailed journal of your symptoms, treatments, timelines, and conversations with medical staff |
| 3. Obtain your medical records | Request copies promptly. These records will help establish what went wrong and are essential for building your case |
| 4. Seek a second opinion | Consult an independent medical professional. They can help validate your concerns and provide expert insight into the care you received |
| 5. Consult a medical negligence lawyer | Get legal advice early. An experienced medical negligence lawyer can evaluate your case and explain your legal rights and options. GMP Law offers free initial consultations |
| 6. Prepare and file the claim | With legal support, gather all evidence and file the claim. Your lawyer will assist in preparing documentation and liaising with insurers or the healthcare provider. |
What documents do I need?
You’ll need thorough documentation to support your medical negligence claim. Keeping organised, clear records is key.
| Document | Purpose |
|---|---|
| Medical records | Essential for proving what treatment you received and identifying where things went wrong |
| Symptom and treatment journal | Provides a personal account of how the negligence affected your health over time |
| Correspondence with providers | Emails, letters, or messages that reflect the communication and decisions made during treatment |
| Second opinion report | An independent medical evaluation helps validate your concerns |
| Legal correspondence | Records of advice from lawyers, claim notices, and responses from healthcare providers or insurers |
| Receipts and expense records | Evidence of financial losses related to your treatment or corrective care |
How long does a medical negligence claim take?
A medical negligence claim can take anywhere from 12 months to a few years, depending on its complexity, the availability of evidence, and whether it settles out of court or proceeds to trial.
Acting promptly improves your chances of a smoother, faster resolution while preserving critical evidence and strengthening your legal position.
Factors affecting claim duration
Multiple elements can influence how long your claim will take, from legal time limits and evidence gathering to the skill of your legal representation.
| Factor | Impact on duration |
|---|---|
| Timely action | Acting quickly helps preserve evidence, ensures witness recollections remain accurate, and avoids exceeding the legal limitation period |
| Complexity of the case | Cases involving rare conditions, multiple practitioners, or disputed diagnoses tend to take longer due to the need for thorough expert review |
| Expert medical evidence | Obtaining and assessing expert opinions is essential but can be time-consuming. Strong expert input is crucial for establishing negligence and causation |
| Negotiation and settlement | Many cases resolve through mediation or negotiation. Skilled lawyers can speed up the process by avoiding drawn-out court hearings |
| Litigation process | If settlement isn’t possible, a full court case can extend the claim’s duration significantly, often over 1–2 years, depending on court schedules |
| Emotional factors | Legal action also serves emotional needs. Seeking closure or justice may influence the client’s readiness to settle or continue with litigation. |
In summary, while medical negligence claims are inherently complex, prompt action, expert legal and medical support, and a focus on negotiated settlements can help reduce the overall time involved.
What is a No Win No Fee medical negligence claim?
A No Win No Fee medical negligence claim means you don’t pay legal fees unless your case is successful.
This arrangement, also known as a Conditional Fee Agreement (CFA), provides access to justice for individuals who may not afford legal costs upfront. If your claim is successful, legal fees are usually deducted from the compensation awarded. If not, you typically won’t owe your solicitor anything (though it’s essential to check the exact terms).
| Key feature | Explanation |
|---|---|
| No upfront legal fees | You don’t have to pay out-of-pocket to start your claim |
| Only pay if you win | Legal fees are contingent on a successful outcome |
| Encourages strong cases | Lawyers take on cases they believe have a reasonable chance of success. |
What compensation can you claim for?
This includes both financial losses and the pain or disruption to your life caused by the incident. Claims are assessed based on tangible and intangible damages.
Types of damages
Compensation is usually broken down into two main categories: general and special damages.
| Type of damage | What it covers |
|---|---|
| General damages | Pain, suffering, loss of enjoyment of life, and long-term impact on your wellbeing |
| Wage loss | Lost earnings due to time off work and future reduction in earnings due to ongoing injury or disability |
| Special damages | Out-of-pocket expenses such as medical bills, travel costs, and care |
| Future losses | Ongoing treatment, rehabilitation, and loss of future earnings |
| Care and support | Compensation for paid or unpaid care provided by family or professionals |
| Loss of consortium | In some cases, impact on relationships and companionship may also be compensated |
Example payouts
These real-world examples illustrate how compensation in medical negligence cases reflects both the physical and emotional impact on the individual.
| Injury | Description | Compensation |
|---|---|---|
| Infection and nerve damage due to IV cannula error | Our client attended hospital for severe abdominal pain. During her admission, an IV cannula was incorrectly inserted and not replaced, despite repeated complaints. She later developed an infection and thrombosis in her cephalic vein, requiring ICU treatment. The incident left her with ongoing arm pain, swelling, median nerve damage, and reduced hand dexterity. | $160,000 |
| Failure to diagnose colon cancer | A patient presented with symptoms of colon cancer, but the hospital failed to perform the necessary investigations. As a result, the diagnosis was missed and treatment opportunities were lost. The claim was brought by the deceased patient’s daughter and grandchildren, who were awarded compensation for the avoidable outcome. | $300,000 |
| Nerve injury during varicose vein surgery | Our client underwent elective surgery for varicose veins. During the procedure, her common peroneal nerve was severely damaged. Despite corrective surgery, she was left with chronic pain, limited mobility, and psychiatric conditions, including Major Depressive Disorder. She required a walking stick and a mobility scooter for a period of time. | $500,000 |
| Cerebral palsy from negligent pregnancy care | Due to negligent management of pregnancy and labour, a newborn suffered brain damage resulting in cerebral palsy. The child requires lifelong care, assistive equipment, and specialised therapies. The substantial compensation reflects the severe and permanent impact on the child’s quality of life. | $10,000,000 |
Disclaimer: These payouts are case-specific. Actual amounts depend on the severity of harm, long-term needs, and financial losses proven during the claim.
Case studies: Real medical negligence claims
To better demonstrate how medical negligence claims work in practice, we’ll explore two recent cases handled by the medical negligence team at GMP Law.
Case study 1: Delayed diagnosis of cancer and development of steroid dependency
| The case | Our client underwent radiological investigations a year apart, and on both occasions, the attending radiologists failed to identify suspicious features. As a consequence, our client’s cancer was allowed to continue advancing without diagnosis or treatment for a further six months. Due to this delay, our client:
|
| Legal challenges | We faced several challenges in this case:
The defendants denied liability. They asserted:
|
| The importance of legal action | Taking legal action in this case was important for:
|
Case study 2: Surgical error during hysterectomy
| The case | Our client elected to have a hysterectomy due to ongoing symptoms. During the keyhole surgery, it was discovered that she had large uterine fibroids and adhesions, making the surgery more complex. More than a week after surgery, our client became seriously unwell and was diagnosed with damage to her ureter, the structure that carries urine from the kidneys to the bladder. |
| Legal challenges | This case presented several challenges:
|
| The importance of legal action | Taking legal action in this case was important for:
|
