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When a stroke occurs, every minute counts. The difference between recovery and permanent impairment can often come down to timely, accurate treatment, or the failure of medical professionals to provide it. Stroke-related death, serious injury, or permanent impairment caused by medical negligence can be difficult to identify, especially when the signs of stroke negligence are overlooked.
If you’ve suffered physical or psychological damage due to misdiagnosis, delayed diagnosis, or any form of negligence, you may be entitled to a medical negligence claim and compensation.
In this blog, we’ll explore stroke negligence cases, identify key signs and symptoms of a stroke, and guide you through the process of filing a stroke-related medical negligence claim. Additionally, we’ll highlight how involving a lawyer can significantly improve your chances of a successful outcome.
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A stroke happens when the blood flow to your brain becomes blocked, depriving it of oxygen. This can happen as a result of high blood pressure or a blood clot serious enough to stop the flow of blood to the brain. If left untreated, the lack of blood flow can cause a serious and permanent brain injury.
The Stroke Foundation of Australia identifies these symptoms as potential signs of a stroke:
Because stroke symptoms are also common among other medical conditions, misdiagnosis can—and does—happen. This is particularly true for post-surgical strokes, which may be overlooked in the context of recovery, and recurrent strokes, where vigilance and ongoing care are crucial.
In a 2018 entry in the Medical Journal of Australia, Ian Scott, the Director of Internal Medicine and Clinical Epidemiology at Princess Alexandra Hospital, shared some alarming statistics. He highlighted that Australia sees around 140,000 diagnostic errors each year. Even more concerning, nearly half of all malpractice claims against general practitioners are due to diagnostic mistakes.
Out of these 140,000 errors, about 21,000 lead to serious harm, with 2,000 to 4,000 resulting in death. While this data covers all types of diagnostic errors and is not limited to stroke cases, it underscores a troubling reality: misdiagnosis happens far more often than we might think.
This is why it’s so important to be aware of your rights if you’ve been affected by medical negligence.
Post-surgical strokes represent a significant area of concern in medical negligence cases.Â
A 2024 study by the Critical Care Research Group found that the risk of stroke varies depending on the type of surgery. For adults undergoing non-cardiac, non-neurological surgery, the risk ranges from 0.1% to 0.7%. This increases to 1% to 5% for patients undergoing cardiac surgery, and rises further to between 1% and 10% for neurological surgery. The risk is notably higher in older patients and those with pre-existing cardiovascular conditions. Importantly, strokes that occur after surgery tend to have a much worse prognosis compared to those that occur in the community. The 30-day mortality rate is twice as high, survivors face greater levels of disability, and their overall quality of life is significantly reduced.
These post-surgical strokes often occur due to:
What makes post-surgical strokes particularly concerning from a negligence perspective is that they occur in a controlled medical environment, where continuous monitoring and prompt intervention are expected. In such settings, medical professionals have a clear responsibility to identify high-risk patients and implement appropriate preventative measures. When this duty is neglected, the consequences can be severe, as timely intervention is crucial in minimising the impact of post-surgical strokes.
Accurate initial diagnosis and comprehensive follow-up care are essential to reducing the risk of stroke recurrence and improving long-term outcomes
Healthcare providers have a heightened responsibility to remain vigilant for signs of recurrence in patients who have already experienced a stroke. Failure to implement proper monitoring and prevention strategies after an initial stroke can lead to negligence, particularly when:
According to the Stroke Foundation of Australia, approximately 25% of stroke survivors will experience another stroke within five years. When healthcare professionals neglect their duties in these areas, it can lead to preventable harm, further complications, and a diminished quality of life. If you or a loved one has been affected by such negligence, seeking legal advice can help ensure accountability and secure the compensation you deserve.
A prompt diagnosis and timely treatment are crucial to minimising the physical and psychological impact of a stroke. Without quick intervention, survivors can face a range of temporary or permanent complications, which can drastically alter their lives.
When medical professionals fail to correctly diagnose a stroke, the consequences can be devastating and permanent. These may include:
The severity of these outcomes is directly linked to the timeliness of treatment.
Research from the Royal Melbourne Hospital Stroke Unit indicates that for every 15-minute delay in treatment, there is a measurable decrease in positive outcomes. After 4.5 hours, the effectiveness of standard clot-busting treatments (thrombolytics) diminishes, making early diagnosis absolutely critical.
Diagnosis-related issues form the foundation of many stroke malpractice cases in Australia.Â
Common failures in the diagnostic process include:
Stroke symptoms being incorrectly attributed to migraine, intoxication, vertigo, or psychological issues, particularly in younger patients or those without obvious risk factors.
Not collecting information about risk factors such as previous transient ischaemic attacks (TIAs), hypertension, or family history of stroke.
Incomplete neurological examinations that miss subtle signs of neurological deficit.
Failure to order timely CT or MRI scans when stroke is a potential diagnosis.
Lack of proper communication during shift changes or between departments, resulting in fragmented care.
The Australian Commission on Safety and Quality in Health Care has identified diagnostic error as a priority area for improvement, with stroke being one of the conditions most frequently affected by these errors.
To prove medical negligence or malpractice, you need to demonstrate the four key elements: duty of care, breach of duty, causation and damages.
Duty of care refers to the legal obligation of healthcare providers to maintain a standard of care that avoids harm to patients. In stroke cases, this duty is typically established once a doctor agrees to treat you or you are admitted to a hospital. Healthcare providers are legally bound to ensure that the care they provide meets established professional standards.
To prove negligence, you must show that the healthcare provider breached their duty of care by failing to meet the required standard.
In stroke cases, this might involve demonstrating that:
Proving causation is one of the most complex aspects of a negligence claim. You must show that the harm you sustained was a direct result of the breach of duty. For example, demonstrating that prompt diagnosis and treatment could have prevented permanent disability or reduced the severity of the stroke’s impact.
Finally, damages assess the extent of the harm or injury suffered. In stroke negligence cases, this includes evaluating the severity of any impairments or disabilities and how much of those can be attributed to the provider’s negligence.
Proving stroke negligence can be particularly difficult, especially for victims who are navigating the process on their own. One of the key challenges is that stroke symptoms often overlap with those of other serious medical conditions, which can complicate both diagnosis and the identification of negligence. In addition, strokes can vary greatly in severity, making it harder to establish clear links between a provider’s actions (or inactions) and the harm caused.
If you decide to pursue legal action, the process for filing a stroke misdiagnosis claim is similar to any other medical negligence claim. Misdiagnosis, delayed diagnosis, or failure to diagnose a stroke, particularly when these lapses result in injury, are considered forms of medical negligence and malpractice.
Given the complexity of stroke cases, it’s crucial to seek advice from a lawyer with experience in medical negligence. They can guide you through the process, ensuring that you gather the necessary evidence, meet procedural requirements, and present a strong case for the compensation you deserve. GMP Law operates on a No Win No Fee basis, so there is no financial risk in exploring your stroke negligence case.
Consider the hypothetical case of Emma, a 38-year-old marketing professional who experienced subtle symptoms of a stroke. This example illustrates the complex process of proving medical negligence.
Emma visited her local emergency department complaining of:
The attending physician conducted a cursory examination and diagnosed her with stress and a migraine. Two weeks later, Emma suffered a major stroke, resulting in permanent left-side paralysis and speech impairment.
To prove medical negligence, her legal team would need to demonstrate:
Expert medical witnesses are the linchpin in stroke negligence cases.
These specialists, typically senior neurologists or stroke specialists, provide independent assessments that:
In Emma’s case, expert witnesses would analyse medical records, diagnostic protocols, and compare the treatment received against established medical standards.
They might highlight specific failures, such as:
Expert evidence serves multiple critical functions in stroke negligence cases:
| Function | Description |
| Experts define what a reasonable medical professional would have done in similar circumstances, drawing on their clinical experience, medical literature, and accepted guidelines. |
| By meticulously reviewing medical records, experts can pinpoint exactly where care deviated from acceptable standards. |
| Perhaps most crucially, experts can explain the relationship between the negligent actions and the patient’s outcome, answering the essential question: “Would better care have resulted in a better outcome?” |
| Medical experts help assess the full extent of injuries, forecast future medical needs, and evaluate permanent impairments. |
For example, a neurologist might testify that a patient presenting with sudden-onset facial drooping and arm weakness should have received an immediate CT scan and neurological consultation. They could then explain how the six-hour delay in diagnosis resulted in the patient missing the window for thrombolytic therapy, directly causing their permanent disabilities.
An experienced personal injury lawyer would be well-equipped to connect you with the right experts for your case, a crucial step in maximising the potential of your claim.
| Case summary | Outcome | Negligence identified |
| Our client was taken to the hospital in an ambulance, where he was diagnosed with heat stroke and sent home. His symptoms persisted, and the following morning, while driving to see his GP with his children in the car, he suffered another stroke. | Successfully secured a settlement of $400,000 against a Sydney hospital. | The hospital staff failed to take an adequate medical history, perform a neurological examination, and investigate the client’s condition, significantly delaying diagnosis and treatment. |
| In July 2019, our client was rushed to the Emergency Department, presenting with hypotension following vomiting and diarrhoea. The medical team identified an upper gastrointestinal bleed resulting in haemorrhagic shock. | Settlement of $1,000,000 for our client, plus $150,000 each for the client’s husband and daughter for their nervous shock claims. | Long delay in addressing unstable blood pressure and treating a bleeding ulcer, resulting in a stroke. The client suffered loss of function in her left upper limb, significant decline in physical and cognitive abilities, and psychological consequences requiring ongoing care. |
| Case | Year | Significance |
| Usama v Western NSW Local Health District | 2023 | This case involves the approval of a settlement for a plaintiff who suffered a severe stroke shortly after giving birth, allegedly due to medical negligence. The plaintiff’s stroke was misdiagnosed as carpal tunnel syndrome, delaying the correct treatment that could have prevented the stroke’s severity.  The case underscores the importance of accurate diagnosis and timely intervention in stroke treatment, and how failure in these areas can significantly impact litigation outcomes. The court has determined that the proposed settlement is in the plaintiff’s best interests, considering her serious injuries, future care needs, and potential reductions in life expectancy. |
| Hobson v Northern Sydney Local Health District | 2017 | This case highlights the significant risks associated with surgery for patients with complex conditions, such as Noonan Syndrome, who require careful intraoperative management to avoid complications like stroke or spinal injury. Â Hobson underwent a two-stage spinal surgery to address severe lordoscoliosis and associated respiratory issues. However, during the second stage in November 2009, complications arose due to hypotension and oxygenation issues while the patient was in a prone position. Despite these complications, the surgery proceeded and Hobson suffered a permanent spinal cord injury, resulting in paraplegia. Â The two doctors involved, an orthopaedic surgeon and an anaesthetist, were found negligent for failing to halt the surgery at an appropriate time when critical signs indicated a worsening condition. The lack of proper spinal cord monitoring and the administration of muscle relaxants further compromised the patient’s safety. Additionally, the surgery continued despite the presence of abnormal vital signs and inadequate ventilation, leading to irreversible damage. Â The case is significant in stroke and negligence cases because it underscores the importance of continuous and accurate monitoring, timely decision-making, and adapting surgical plans to the patient’s evolving condition. Especially when risks such as stroke or spinal injury are heightened during surgery. |
| Bassindale v Western Sydney Area Health Service | 2006 | The plaintiff argued that the hospital staff failed to recognise the risk of a stroke when they proceeded with surgery, despite signs that she might have had a heart attack (myocardial infarction). She claimed that if the staff had identified the heart attack, the surgery would have been delayed, potentially preventing the stroke. Â The court found that the hospital staff were negligent in proceeding with the surgery without properly addressing the heart attack and the associated stroke risk. The plaintiff was allowed to ask specific questions (interrogatories) to determine whether the staff knew or should have known about the heart attack and its potential to lead to a stroke. This confirmed that the staff did not take the necessary precautions. Â The case concluded that if the medical staff had acted on the signs of the heart attack, the stroke could likely have been prevented, and their failure to do so was deemed negligent. |
Compensation for medical negligence claims are calculated on a case-by-case basis, as each person’s situation can vary. The reparations are meant to reimburse a patient for their injury, suffering or loss to get them reoriented and re-established after having received insufficient or negligent medical care or treatment. After a successful claim is made, compensation is paid by the insurer of the medical establishment where the negligence occurred.
When pursuing compensation for stroke misdiagnosis or negligent treatment, various types of damages may be available:
These compensate for the human impact of negligence:
The value of these damages varies significantly based on individual circumstances, the severity of impairment, and the impact on quality of life. In Australia, each state has different approaches to capping non-economic damages, with New South Wales, for example, capping general damages (as of 2024) at $761,500 for the most severe injuries.
These compensate for financial losses:
Unlike non-economic damages, economic damages are not typically capped in Australia and can exceed several million dollars in severe cases, particularly when the patient is young and requires lifelong care.
These cover specific out-of-pocket expenses:
While rare in Australian medical negligence cases, exemplary (or punitive) damages may be awarded in cases of gross negligence or wilful misconduct.
Timing is crucial when considering a medical negligence claim. You should contact a lawyer specialising in medical negligence as soon as possible if:
Even if you’re unsure whether negligence occurred, a specialist lawyer can review your case and advise accordingly.
This can be a strong indicator that standards of care were not met.
These can be red flags that warrant further investigation.
Given the time-critical nature of stroke treatment, delays can be particularly significant.
Never accept a settlement without independent legal advice.
Most medical negligence lawyers (including GMP Law) offer initial consultations at no cost, allowing you to understand your options without financial commitment.
Remember that strict time limits apply to medical negligence claims in Australia:
| Step | Details | Timeframe |
|
This phase involves gathering medical records, obtaining expert opinions, and determining the viability of a claim. | Three to six months |
|
Comprehensive medical reports and expert witness statements are compiled to establish negligence and causation. | Six to 12 months |
|
Most cases are resolved through negotiation rather than proceeding to court, with settlement discussions often beginning after evidence is exchanged. | 12 to 24 months |
|
If settlement cannot be reached, formal court proceedings may be necessary, though many cases settle during this process before reaching trial. | 12 to 18 months |
| Total timeframe | Two to four years from initial claim to resolution | |
Proving medical negligence in a stroke claim can be challenging due to the difficulty in gathering sufficient evidence. The nature of healthcare interactions often means there may be limited documentation or firsthand accounts, making it difficult to build a strong case. A specialist medical negligence solicitor helps overcome this by leveraging their knowledge of medical practices, securing key evidence, and working with expert witnesses to strengthen your case. Additionally, a solicitor will guide you through the complexities of calculating comprehensive damages, ensuring both immediate and future needs are addressed. They are also experienced in navigating the defence strategies of healthcare providers and insurers, who often have significant resources. Beyond the legal expertise, a solicitor provides essential emotional support during what can be a stressful process, giving you peace of mind while you focus on recovery. Reach out to GMP Law to schedule a free consultation today.
Yes, you can sue a doctor for failing to diagnose a stroke. But, to succeed, you must prove that the doctor’s actions or inactions fell below the accepted standard of care and directly led to harm. This often requires demonstrating that a competent doctor would have identified the stroke, and that earlier intervention could have prevented or reduced the damage.
If a stroke is misdiagnosed, it can lead to delayed treatment, worsening of the condition, and potentially permanent brain damage. The patient may not receive the necessary interventions in time, which could increase the risk of long-term disability or even death. Misdiagnosis can also result in inappropriate treatment, which may worsen the patient’s condition.
Medical negligence in stroke cases can include:
These actions can result in worsened outcomes for the patient, including long-term disability or death.
To prove stroke misdiagnosis, you need to demonstrate:
These elements help establish that the misdiagnosis directly led to harm or adverse outcomes.
A stroke misdiagnosis occurs when a healthcare provider fails to correctly identify a stroke, leading to delayed or incorrect treatment. Medical malpractice, on the other hand, involves a broader range of negligence where a healthcare provider’s actions (or lack thereof) fall below the accepted standard of care, causing harm to the patient. While a misdiagnosis can be a form of malpractice, not all medical malpractice involves misdiagnosis. Medical malpractice can also include errors in treatment, medication, or aftercare, whereas misdiagnosis specifically refers to the failure to identify the condition accurately.
Recent advancements in stroke treatment, especially thrombectomy, are having a significant impact on negligence claims. While traditional treatment focused on clot-busting medications, thrombectomy enables direct mechanical removal of blood clots. A skilled neurologist can now extract a clot within a six-hour window, drastically reducing the risk of permanent brain damage. This innovation has raised legal standards, requiring hospitals and medical professionals to:
Additionally, the growing use of AI-driven diagnostic tools is improving the accuracy of stroke risk detection, which may further elevate care standards. This could lead to stricter negligence assessments and heightened accountability for healthcare providers.
Changes in medical guidelines can have a significant impact on stroke negligence cases, as they often establish the standard of care that healthcare professionals are expected to meet. When guidelines are updated, they reflect the latest research, advancements in treatment, and best practices for managing stroke patients. If a healthcare provider fails to adhere to these updated guidelines, it may be seen as evidence of negligence, especially if the change in protocol would have likely prevented or mitigated the patient’s harm. For example, new recommendations on the use of thrombectomy or the timing of clot-busting treatments can alter how stroke cases are handled, and failure to implement these updated practices could result in a breach of duty of care. Both medical professionals and legal teams must stay current with evolving guidelines to ensure the best outcomes in both patient care and legal claims.
With 35 years of experience, we have successfully represented clients in personal injury cases across Australia, including:
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:
GMP Law are the only Australian firm that stands behind our service with a written cost reduction promise, offering you complete peace of mind with your claim. We are committed to delivering expert legal guidance with empathy and care, and will work tirelessly to achieve the best possible outcome for our clients.
In the spirit of reconciliation GMP Law acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respects to their Elders past, present, and emerging, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.
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