Written by: Julie Baqleh
Medical negligence occurs when healthcare providers fail to meet accepted standards of care, resulting in patient harm. While Australia has one of the world’s best healthcare systems, mistakes can happen. And when they do, you have legal rights that deserve protection.
If you’ve suffered harm due to substandard medical care, understanding your legal options is crucial. This comprehensive May 2025 guide explains medical negligence laws in Australia, helping you recognise potential claims and navigate the complex legal process ahead.
What is medical negligence?
Medical negligence is the failure of a healthcare provider to deliver care that meets professional standards, resulting in patient harm. The legal concept requires proving that a medical professional’s actions or inactions fell below what other competent practitioners would have done in similar circumstances.
Although medical negligence is common worldwide, creating clear, consistent rules for fair compensation and reducing broader community impact remains difficult (as described by the National Library of Medicine). That’s why having experienced legal professionals is crucial—they help navigate the complexities and fight for just outcomes.
Key elements of medical negligence
To establish a valid medical negligence claim, four essential elements must be proven: duty of care, breach of standard care, resulting damages, and direct causation.
| Element | Description | Example |
|---|---|---|
| 1. Duty of care | To file a compensation claim, a clear and established patient-practitioner relationship must exist. You can pursue a claim against the healthcare provider who directly treated you (or the hospital through vicarious liability), as this creates a legal duty of care. | Doctor-patient consultation creates a legal obligation. |
| 2. Breach of standard care | Demonstrate that the healthcare provider’s actions deviated from the accepted medical standards. | The surgeon operates on the wrong body part. |
| 3. Resulting damages | Show that you suffered harm, whether physical, psychological, or financial. | The patient suffers permanent injury or disability. |
| 4. Direct causation | Establish that your injuries were directly caused by the healthcare provider’s breach of duty. | The injury wouldn’t have occurred without the negligent act. |
Medical negligence statistics in Australia
According to the Clinical Excellence Commission, a total of 84 sentinel events were reported across all Australian jurisdictions during the 2022–2023 period. This marks an increase from 71 events recorded in 2021–2022. Of the 84 events, NSW reported 24 cases.
These sentinel events included:
- Wrong surgical or invasive procedure performed on the patient, resulting in serious harm or death
- Surgical or invasive procedure performed on the wrong site, leading to serious harm or death
- Medication error, such as incorrect dosage or drug administered, resulting in serious harm or death (51 cases)
- Incorrect placement of an oro- or naso-gastric tube, causing serious harm or death
- Use of physical or mechanical restraint, leading to serious injury or death.
These critical incidents underscore the importance of being informed about your legal rights and available options if you or a loved one has been affected by medical negligence.
Examples of medical negligence
Medical negligence can manifest in various forms, from surgical errors to diagnostic failures. Understanding common scenarios helps patients recognise when they may have grounds for compensation.
Common medical negligence examples
Surgical negligence
- Wrong-site surgery: Operating on the incorrect body part or patient
- Retained surgical instruments: Leaving tools, sponges, or equipment inside patients
- Unnecessary procedures: Performing operations without medical justification
- Post-operative care failures: Inadequate monitoring leading to complications.
Diagnostic errors
- Misdiagnosis: Incorrectly identifying medical conditions
- Delayed diagnosis: Failing to recognise symptoms promptly
- Failure to order tests: Missing obvious diagnostic procedures
- Laboratory errors: Incorrect test results affecting treatment decisions.
Medication mistakes
- Wrong medication: Prescribing incorrect drugs
- Dosage errors: Administering too much or too little medication
- Drug interaction failures: Not checking for dangerous combinations
- Allergy oversights: Ignoring known patient allergies.
Birth injury cases
- Delivery-related injuries: Complications from improper use of forceps or vacuum extraction, potentially causing trauma to the baby or mother
- Oxygen deprivation: Failure to monitor foetal distress
- C-section delays: Not performing emergency surgery when needed
- Pre-natal care failures: Missing crucial developmental issues
Informed consent violations
- Inadequate risk disclosure: Not explaining surgery dangers
- Procedure misrepresentation: Providing false information about treatments
- Alternative option concealment: Not discussing other treatment possibilities
What doesn’t qualify as medical negligence?
Medical negligence does not include every poor or unexpected outcome. For a claim to be valid, there must be a failure to meet an accepted standard of care.
The following situations typically don’t qualify for compensation:
- Known treatment risks that are properly disclosed to the patient
- Unsuccessful treatments despite proper care being provided
- Unknown allergic reactions to medications
- Expected side effects discussed before treatment
- Normal complications that can occur despite best practices
- Natural disease progression despite proper medical care.
However, if you believe a medical practitioner has acted inappropriately or unprofessionally, even if it doesn’t amount to medical negligence, you may still have grounds for a formal complaint. In New South Wales, concerns about a practitioner’s conduct can be reported to the Health Care Complaints Commission (HCCC).
How do I prove medical negligence?
To prove medical negligence, you must show that your healthcare provider’s actions fell below the accepted professional standard of care and directly caused your injury or harm. This typically involves demonstrating that a competent practitioner in the same situation would have acted differently.
Proving negligence can be complex. Hospitals and providers may argue that your injury was the result of an underlying condition rather than substandard care. That’s why working with an experienced medical negligence lawyer is essential. They understand how to gather strong evidence, navigate expert opinions, and build a compelling case.
| Step | Action required | Timeline |
|---|---|---|
| 1. Medical records | Obtain complete treatment documentation | Immediately |
| 2. Second opinion | Get an independent medical assessment | Within weeks |
| 3. Expert witnesses | Secure specialist testimony | 2-6 months |
| 4. Damage documentation | Record all impacts and expenses | Ongoing |
| 5. Legal filing | Submit a formal claim | Within limitation period |
The role of expert testimony
Expert testimony is essential in most medical negligence cases. It helps establish whether the healthcare provider met the appropriate standard of care and whether their actions directly caused the patient’s harm.
Medical experts are typically called upon to answer critical questions such as:
1. What would a reasonable practitioner have done in the same situation?
Experts explain what constitutes accepted medical practice in the given circumstances.
2. Did the provider’s actions fall below that standard?
They assess whether there was a breach of duty by comparing the provider’s actions to professional norms.
3. Did the breach cause the patient harm?
Experts evaluate whether the injury was a direct result of the negligent act or omission (causation).
4. What are the long-term effects on the patient?
They help quantify damages by assessing how the injury impacts the patient’s life, including physical, emotional, and financial consequences.
Importantly, courts consider the facts and decisions based on what was known at the time of the alleged negligence, not with the benefit of hindsight. This is why clear, objective expert analysis is so vital to a successful claim.
Causation: The “but for” test
To establish causation in a medical negligence case, courts apply the “but for” test: but for the healthcare provider’s negligence, would the harm have occurred? If the answer is no, then negligence is considered a necessary condition of the injury, and causation may be proven. This principle is also reflected in the Civil Liability Act 2003 (QLD), which states that for a breach of duty to be a legal cause of harm, it must be a necessary condition of the occurrence. Proving this link between negligence and harm can be complex, especially in cases where other factors are at play. Common challenges include:
| Challenge | Key question |
|---|---|
| Pre-existing medical conditions | Would the harm have occurred anyway due to the underlying health issue? |
| Multiple contributing factors | Was negligence the primary cause, or one of several influences? |
| Complex medical histories | Can the injury be clearly attributed to a specific act or omission? |
| Natural disease progression | Would the outcome have been the same regardless of the care provided? |
For example, in a delayed diagnosis case, the claimant must show that but for the delay, the condition would have been treated in time to prevent or reduce the harm. This is often where expert medical testimony becomes critical, helping to establish whether the breach truly caused the adverse outcome.
Call us for confidential, free legal advice.
Medical negligence compensation: What can you claim
Successful medical negligence claims can result in compensation for both economic and non-economic losses. The amount varies significantly based on injury severity, long-term impacts, and case-specific factors.
Types of compensation available
| Type | Inclusions |
|---|---|
| Economic damages |
|
| Non-economic damages |
|
What is the average payout for medical negligence in Australia?
Medical negligence compensation in Australia varies widely, depending on the severity of the injury and the long-term impact on the patient. According to 2022–23 data from the Australian Government Actuary, most medical negligence claims settle for under $100,000. However, in more serious cases involving permanent or catastrophic harm, payouts can exceed $1 million.
As of May 2025, our recent medical negligence cases have secured compensation ranging from $180,000 to $700,000, varying depending on the severity of the injury and its impact on the client’s life.
Jurisdiction differences by state
While medical negligence laws in Australia are largely consistent across states, there are some notable differences.
| State | Legislation | Key features |
|---|---|---|
| NSW | Civil Liability Act 2002 |
|
| QLD | Civil Liability Act 2003 |
|
| VIC | Victoria’s Wrongs Act 1958 |
|
Medical negligence compensation: Real payout examples
Recent medical negligence cases in Australia
To help you understand how medical negligence cases play out in real life, let’s look at some recent cases we’ve handled at GMP Law. These past successful cases demonstrate the range of medical negligence situations and potential compensation outcomes as well as how proper legal representation can achieve justice for negligence victims.
$450,000 compensation for nerve injury
| Case summary | Case details |
|---|---|
| Compensation awarded | $450,000 |
| Client background | Our client was a Sydney man with a debilitating nerve injury from a CT-guided biopsy in 2018. |
| Impact of injury | The nerve injury severely affected his ability to run his business and he now required family assistance to support his day-to-day. |
| Claim process | Successfully settled out of court. |
| Our approach |
|
| Outcome | Thorough preparation led to a successful resolution for the client. |
$50,000 settlement against a negligent optometry provider
| Case summary | Case details |
|---|---|
| Compensation awarded | $50,000 |
| Client background | The client suffered due to negligent behaviour in an optometry office. |
| Nature of negligence | The client was provided with the wrong prescription glasses, which led to significant deterioration in her vision over time. |
| Claim process | Successfully settled the claim against the optometrist. |
| Defendant’s position | Denied liability; client’s injuries improved over time. |
| Our approach |
|
| Outcome | Efficient resolution of the matter. |
$180,000 settlement for unnecessary pacemaker insertion
| Case summary | Case details |
|---|---|
| Compensation awarded | $180,000 |
| Client background | The client experienced pre-syncopal and syncopal episodes, including low heart rates and dizziness. |
| Nature of negligence | Wrongful insertion of a pacemaker; continued episodes post-procedure. |
| Claim process | Settlement reached to compensate for physical and emotional pain. |
| Reports |
|
| Client impact |
|
| Our approach |
|
| Outcome | Secured a settlement of $180,000. |
$3,750,000 settlement for birth injury resulting in severe disability
| Case summary | Case details |
|---|---|
| Compensation awarded | $3,750,000 |
| Client background | Our client was a mother who regularly attended antenatal care throughout her pregnancy in 1999. Despite a known history of complex deliveries and epilepsy, she was induced past term under inappropriate clinical conditions. |
| Nature of negligence | The child suffered intrapartum and neonatal asphyxia due to mismanaged labour and delayed resuscitation. Inappropriate delivery manoeuvres during shoulder dystocia contributed to the harm. |
| Claim process | Successfully settled with a $3.75 million compensation package to support the child’s extensive care needs. |
| Reports | Engaged leading specialists in obstetrics, paediatrics, and neonatal care, who concluded that the delivery techniques used were inappropriate and that there was a critical delay in initiating proper resuscitation. |
| Client impact | The child was diagnosed with Ataxic Cerebral Palsy and Hypoxic Ischaemic Encephalopathy, resulting in permanent intellectual and cognitive disabilities. The child now requires lifelong, around-the-clock care. |
| Our approach |
|
| Outcome | Secured a significant settlement to ensure lifelong care for the child. The resolution acknowledged the failings in obstetric care and provided vital support for the client’s family. |
Call us for confidential, free legal advice.
Find out how much you can claim today.
Challenges in medical negligence cases
Victims of medical negligence often face several challenges when seeking justice:
1. Complexity of professional negligence
Courts rely heavily on expert opinions to determine if negligence occurred.
Becoming qualified in medicine requires years of rigorous training. Judges, lacking medical expertise, must rely on a panel of industry specialists to determine whether negligence occurred. Given that many illnesses and injuries have multiple treatment options, experts often disagree on the best course of action. This complexity can make medical negligence claims less predictable than other types of public liability cases.
2. Inherent risks in medical treatments
Unsuccessful treatments don’t always equate to negligence.
If you go to the supermarket or visit your local council, you don’t expect a life-changing injury or illness to occur because of an accident or negligence. However, medical treatments always carry some element of risk, and patients are—or should be—informed of this before agreeing to a procedure.
3. Proving causation
Establishing a direct link between the negligent act and the harm suffered can be difficult. A doctor may have made mistakes or even been negligent, but the judge may rule that these actions were not ultimately what caused your injuries.
4. Speculative elements
Judges must make assumptions about patient decisions and potential health outcomes.
For example, when a patient isn’t adequately informed of the risks of surgery, would they have still agreed to the treatment if they’d been properly warned?
5. Financial viability
Cases can take years to resolve, accumulating significant costs.
You should discuss your claim with experienced medical negligence lawyers to ensure the compensation you may be eligible to receive is worth pursuing.
Lawyers specialising in medical negligence
Choosing the right medical negligence lawyers is critical to the success of your claim. These cases are legally and medically complex, requiring lawyers with deep knowledge of healthcare standards, legal precedent, and the intricacies of personal injury law.
What to look for in medical negligence lawyers
When selecting a lawyer to handle your case, look for the following key qualities that demonstrate true specialisation in medical negligence claims:
- Specialised experience in handling medical negligence cases
- A strong track record of successful settlements and court verdicts
- In-depth medical knowledge and familiarity with healthcare procedures
- Professional networks with independent medical experts and specialists
- The resources and capability to manage lengthy or complex litigation.
Questions to ask potential lawyers
Before hiring a lawyer, ask these essential questions to determine if they are the right fit for your situation and claim:
- How many medical negligence cases have you handled?
- What’s your success rate in similar cases?
- Do you work on a No Win No Fee basis?
- How will you approach my specific case?
- What is the likely timeframe for resolution?
No Win No Fee medical negligence claims
Many firms, including GMP Law, offer No Win No Fee arrangements for medical negligence claims. This means you can pursue justice without the burden of legal fees unless your claim is successful.
Under a No Win No Fee agreement, you can expect:
- No upfront legal costs to begin your claim
- Legal fees only apply if compensation is awarded
- Reduced financial risk while you recover
- Equal access to legal representation, regardless of your financial position.
Steps to take if you suspect medical negligence
Acting quickly after suspected medical negligence is important to preserve evidence and ensure you meet legal deadlines. Follow these steps to protect your legal rights and maximise your claim’s chances of success:
Immediate actions required
1.Seek medical attention
- Get emergency treatment if injuries are serious
- Obtain a second opinion from an independent healthcare provider
- Document all symptoms and ongoing health issues
- Follow treatment recommendations to minimise harm
2.Preserve evidence
- Request medical records from all treating facilities
- Photograph injuries and document progression
- Keep all receipts for medical expenses and treatments
- Maintain a detailed diary of symptoms and impacts
3.Legal consultation
- Contact a specialist lawyer within weeks of the incident
- Gather all documentation before your initial meetings
- Understand limitation periods in your state
- Your lawyer will assist you in creating a timeline and case summary.
Medical negligence time limits by state
| State/Territory | Time limit to claim |
|---|---|
| NSW | Three years from the date of negligence |
| VIC | Three years from discoverability |
| QLD | Three years from the date of negligence |
| WA | Three years from discoverability |
| SA | Three years from discoverability |
| TAS | Three years from discoverability |
| ACT | Three years from discoverability |
| NT | Three years from act or omission |
