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Medical Negligence Claims

The Personal Injury Lawyers are experts in medical negligence & professional malpractice claims

If you have sustained an injury due to the negligence of a medical provider, then you may be entitled to sue for damages for the loss and damage you have sustained as a consequence.

Medical providers owe a Duty of Care to use reasonable care and skill, including a duty to warn of risks

Your medical provider, whether it is a medical practitioner, dentist, orthopaedic surgeon, neurosurgeon, psychiatrist or psychologist, medical specialist, physiotherapist, chiropractor, etc. owes you a duty of care when providing treatment or advice for any injury or medical condition. Their duty of care is to use reasonable care and skill not to expose you to a reasonably forseeable risk of injury when providing you with any medical treatment or advice.

Medical providers who undertake treatments or provide medical advice that gives rise to a risk of injury, also have a duty to warn their patients of the risks involved with that treatment or following that advice, where:

(a)  The information is reasonably required for the patient to make a fully informed decision as to whether they wish to proceed with that treatment given those risks involved;

(b)  The information is such that the medical provider knows or ought to know, that the patient would want to be aware of it, when making their decision to undertake the treatment or follow the advice. 

Breach of Duty of Care by Medical Providers

Like with any personal injury claim, to be entitled to injury compensation for treatment that has been provided to you and which you believe has caused you injury, you need to show that there has been a breach of duty of care, and that breach has caused you to suffer the injury.

As indicated above, a medical professional breaches their duty of care to their patient when they fail to take reasonable care and skill in providing treatment or advice to a patient, thereby exposing them to a reasonably foreseeable risk of injury.  However, a medical provider does not only breach their duty of care by negligently carrying out treatment on a patient or failing to diagnose an injury or medical condition, or prescribing inappropriate treatment and medication, but as indicated above, they can also breach their duty of care in failing to warn of risks involved with treatment or medical advice provided by them.

There are some cases where a patient can undergo treatment by a doctor, causing them to suffer further injury during that treatment, but it will not be considered medical negligence. It does not necessarily flow that because a patient suffers further injury from undergoing treatment, that they automatically have a medical negligence claim.

To succeed on a claim for medical negligence, it has to be shown that there has been some lack of care in the provision of that treatment or failure to provide prior warnings of the nature of the risks involved in undertaking the treatment.  This is because it is accepted that there are certain risks of injury that will always be associated with some medical treatments, and even with due care and skill being applied by the medical provider, complications can occur. This is particularly relevant in cases where further injury can occur during surgery.

Under the provisions of the Civil Liability Act 2003, a professional is not considered to have breached their duty of care if it is established that they have acted in a way that is widely accepted by a significant number of other respected and competent professionals in their field, as competent professional practice (unless the practice is irrational or contrary to a written law).  

Causation of injury - did the malpractice cause your injury?

It is also not enough that you have established there has been a breach of duty by your medical provider in their treatment of you, you also need to show that you have sustained injury as a result of that negligent treatment or advice. You need to prove that it was the actual breach of duty that caused your injury.

In medical negligence cases, this can sometimes be a problem. This is because often further injury is sustained whilst the patient is undergoing treatment for a pre-existing injury that is quite debilitating, and the treatment itself can cause increased symptomatology.  It can sometimes be difficult to differentiate the injury alleged to have been sustained from the pre-existing injury for which treatment was being provided.  This is not only an issue when looking at causation, but when looking at what damages or compensation you should receive for your injuries in a medical negligence claim.

What loss and damage has been sustained from the medical malpractice?

The compensation or damages you are entitled to in a medical negligence claim are regulated by the Civil Liability Act 2003. This legislation provides restriction on certain loss and damage you can claim for generally in a personal injury claim (other than a work injury claim).  The type of loss and damage that you can claim for in a medical negligence claim is as follows:

  • Pain & Suffering and loss of amenities of life;
  • Loss of past and future income arising from your injuries;
  • Loss of past and future superannuation payments;
  • Out of pocket expenses incurred due to your injuries (eg. for medical treatment or medications etc);
  • Future medical and out of pocket expenses you will incur due to your injuries;
  • Care & assistance you require with personal care and domestic duties due to your injuries (thresholds apply);
  • Interest on out of pocket expenses, past lost income and past loss of superannuation.

For more information on the above heads of damage and how compensation and damages in your medical negligence claim are calculated, go to the following link: What Common Law Damages am I entitled to?

When assessing what compensation should be awarded in medical negligence cases, a Court can only award damages for the further injuries sustained as a result of the negligent treatment or advice. However, when considering any pre-existing injury or medical condition for which the negligent treatment was being provided, the Court can take into account any likely improvement in the pre-existing injury or medical condition had the malpractice not occurred and the surgery been successful. For example, where a person has a bad back and undergoes back surgery, but suffers further injury to his back due to the negligence of his surgeon, when awarding damages for the negligence of the surgeon, the court will need to take into account the pre-existing back injury which was likely to cause restriction to the patient in their everyday living activities in any event. 

Restriction on damages awarded where treatment for sterilisation or contraception fails  

Under the Civil Liability Act 2003 there are restrictions on awarding damages in medical negligence cases where treatment for the prevention of having children fails (ie. tubal ligation or visectomy procedure is not effective and a child is conceived following such procedures). A court cannot award any compensation for the normal cost of rearing a child when awarding damages in such cases.

What if I suffer further injury from negligent treatment for injuries already the subject of a personal injury claim

If you suffer further injury due to medical malpractice whilst being treated for injuries from a previous accident for which you have a personal injury claim, then unless the medical negligence causing the further injury is considered to be "gross negligence", you can claim compensation for the further injury sustained from the negligent treatment as part of your original personal injury claim.  There is no need to bring a separate claim for medical negligence in relation to those further injuries. This is because the Courts have decided that when someone suffers injury in an accident, it is reasonably forseeable that they may be subject to negligent treatment for those injuries, causing them further injury, and it is therefore only fair that they should be able to claim compensation within their original personal injury claim for that futher injury sustained - BUT not to the extent where the treatment is grossly negligent.

If the further injury is considered to be the result of "gross negligence" on the part of the medical provider, then compensation cannot be claimed for the further injury caused by the negligent medical treatment, in the original personal injury claim. A separate claim will need to be brought against the grossly negligent medical provider for the further injuries sustained in such case.

What is considered  "Gross negligence" in a case of medical negligence?  

Gross negligence in medical negligence claims encompasses such cases as where a surgeon amputates the wrong limb during an operation, or operates when heavily intoxicated. It is where the actions of the medical provider indicate a complete lack of reasonable care in providing the medical treatment or advice. 

The National Injury Insurance Scheme providing care and support

If you have suffered catastrophic injuries such as severe burns, traumatic brain injury, serious spinal cord injuries, blindness, or multiple amputation injuries from an accident, then under the National Injury Insurance Scheme (NIIS), you could be entitled to government funded care and support. 

The purpose of the scheme is to ensure those who suffer significant and debilitating accident injuries, are provided with the care and support they need to not only improve the quality of their lives but to also help them feel a valued member of the community. The care and support provided under the scheme includes such things as medical and rehabilitation treatment, medications, care and assistance, transportation, modifications to home and vehicle, prosthetics and medical aids, dental etc.

The NIIS is a no fault scheme and available to all ages. And it does not take away any right to claim compensation or damages in cases where injury is caused by the wrongful act or omission of another and there is entitlement to sue, for eg. motor accident CTP claims, work injury claims, public liability claims or medical negligence claims.

Go to our FAQ page, "What is the National Injury Insurance Scheme?" if you would like to know more. 

Are you aware of Ryan's Rule?

Ryan's Rule is named after a 3 year old boy who died in a Queensland Hospital because he did not receive appropriate treatment. The little boy's parents who had been told he was suffering from Mumps, advised hospital staff that something was very wrong with their son and he was in significant pain, but their pleas were not heeded. Ryan passed away within 30 hours of being transfered from Emerald Hospital to Rockhampton Hospital. 

The Coroner's findings were that Ryan had passed away from a serious bacterial infection and that it was likely his death would have been prevented had he been treated with antibiotics and not Panadol as prescribed by treating doctors. Evidence was also given at the Coronial Inquest that junior doctors had raised issue with Ryan's treatment but had been dismissed by the supervising doctor. 

Ryan's Rule was introduced following the tragic death of little Ryan Curtis, in the hope that such a tragedy does not occur again. If you feel that you, your child, relative or someone you care for, are not receiving proper treatment for an injury or medical condition, and you are not being listened to by doctors, then you can invoke Ryan's Rule and seek a second opinion in respect to your diagnosis and treatment. This process is available to any patient, parent, relative or carer where treatment is being provided in a Queensland Health Hospital.

To learn more about Ryan's Rule, go the to the following article on our website: Ryan's Rule.

Contact The Personal Injury Lawyers to see if you have a medical negligence claim to pursue

The law of medical negligence is a very specialised and complex area of law. So complex in fact that only a handful of personal injury law firms will undertake these types of claims and rarely on a No Win No Fee basis.

If you believe that you have sustained injury as a result of negligent medical treatment or advice, you need to contact The Personal Injury Lawyers as soon as possible.  We can advise you as to whether you have a case to pursue and whether it is a case worthwhile pursuing, and if so, we can pursue your medical negligence claim for you, all on a No Win No Fee basis.

If you do have a medical negligence case you would like to discuss with us, you can call The Personal Injury Lawyers on 1300 782 202 to discuss your case with an expert in medical negligence claims, or request a FREE CASE APPRAISAL by clicking on the following link: Request for FREE CASE APPRAISAL and one of our experts will contact you.

Remember, strict time limits do apply to claims for medical malpractice and negligence, so it is important that you make your enquiries as soon as possible so you do not miss out on significant damages.

You can also contact us via our Livechat service on this website. 

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