Medical Negligence Solicitors - Australian Lawyers

Our personal injury lawyers are medical negligence experts who deal with compensation claims using a no win no fee arrangement.

You can ask for advice as to whether you may have a claim for compensation, at no cost, and with no obligation by:

• Calling the MedNeg helpline on 1800 633 634. This is a free call.
• Completing the online contact form on this page.

Medical negligence law varies depending on which state or territory the incident took place. There are often different rules, protocols, and practices. There are also differences in time limits. It is therefore important that you receive advice from specialist medical negligence solicitors in your own area. Our lawyers have offices situated in Adelaide, Canberra, Melbourne, Perth, Darwin, and Sydney. Do yourself justice - give us a call. Speak with a team that has a proven track record for success in this area of law. 

Compensation Claim

The purpose of a compensation claim is to seek an award of damages (payment) for injury caused by the negligence of a health care provider. A health care provider can be a doctor, dentist, pharmacist, nurse, midwife, or hospital. Healthcare providers must give treatment that is in accordance with a reasonable standard of care. If your health care provider fails to take reasonable care, then they have breached their duty of care to you.

If you have suffered damage, loss, or injury, that is the result of wrongful treatment or bad clinical advice, then a medical negligence solicitor may be able to claim a compensation payout on your beha

Negligence Law in Australia

In Australia, the law governing medical negligence law is a combination of statute law and common law. Statute law refers to the laws that are passed by parliament. Most States in Australia have Civil Liability legislation which covers the area of medical negligence. 'Common law' (case law) refers to the decisions made by judges in earlier cases.

Time Limits

Legal action for medical negligence must be commenced within time frames set by the law. Upon taking initial instructions a medical negligence lawyer will ascertain whether the time limit has expired for making a claim. Failure to comply with the time constraints imposed by law may mean that the opportunity to claim compensation is lost forever. Some States have a 3 year time limit with extensions of time available for minors and the mentally disabled. In addition the court does have a wide discretion with regards to time limits which may be exercised. It is important that you seek legal advice as to the time limit that applies in your particular situation.

Overview of Medical Negligence

Medical negligence is a general term that describes when a patient is harmed by a medical professional, usually a doctor. Laws vary depending on the State or Territory where the negligence occured but there are some general rules that apply to all cases.

There are several facts that a medical negligence solicitor will seek to establish. These include the following:

1. You need to prove that there was a doctor-patient relationship at the time of the incident. You must have presented yourself to the doctor and the doctor must agree that you are a patient.
2. The doctor must have acted in such a way that a skilled doctor in the same specialty would not have done. You must show what the level of care should have been in your case and that this level of care was not met. This usually involves finding one or more expert witnesses who practice medicine in the field of medicine the doctor is in who can say what the level of care should have been in your case.
3. You must show that the act of negligence resulted in harm to you. This is often called the "causation" aspect of the case and requires expert medical opinion.
4. The injury must have led to specific damages. There must have been some harm as a result of the healthcare provider's actions. Some examples of harm include prolonged physical pain, added medical care, mental anguish, and loss of work or future earning capacity.

There are many categories of medical negligence cases including:

• When the doctor fails to detect the illness. If the doctor missed the diagnosis or if the doctor made a diagnosis unlike the right one, this may be considered medical malpractice if the right diagnosis would have led to a better outcome for the patient.
• When the doctor fails to warn the patient of known risks. This can happen if the doctor fails to warn the patient of a surgical risk and the patient suffers harm. This can also occur if the doctor fails to tell the patient of common side effects of a drug and the patient was harmed by taking the drug.
• If the doctor performs treatment that was not right. If the doctor performs a treatment that no skilled doctor would have done, there may be a case involving the doctor's treatment. The doctor can also choose the right treatment but can do it the wrong way, resulting in harm.

Negligent Acts

There are any number of negligent acts that can result in a medical negligence lawyer taking legal action for malpracice. The most common issues are outlined below:-

• failure to diagnose
• delay in diagnosis
• delay in treatment
• medication errors
• prescription errors
• delayed care
• misdiagnosis
• failure to advise on alternative treatment
• inadequate treatment
• negligent surgery
• inadequate post-operative care
• failure to disclose material risk to patient
• wrong side surgery
• failure to refer patent to a specialist
• equipment failure
• failure to properly interpret test result
• lost medical and pathology records

Duty of Care

Your medical negligence solicitor must show that the doctor's actions did not conform to the level of fair care required by the law.

Civil liability legislation differs between States, but in most States it is the case that a doctor is not negligent if it is proved that they acted in a way that (at the time the service or advice was given) was widely accepted by peer professional opinion as competent professional practice.

There are some exceptions to this rule. For example, peer professional opinion cannot be relied on if the court considers that the opinion is irrational. The fact that there are differing peer professional opinions widely accepted in Australia about a matter does not prevent any one or more (or all) of those opinions to be relied on. Also, peer professional opinion does not have to be universally accepted to be considered widely accepted.

The court will rule what is the standard of care and what is competent professional practice, after hearing all the evidence (including the opinion(s) of independent medical experts).

Examples of care which may be considered negligent (depending on the context of the case) by a clinical negligence lawyer under current law involve failure to:

• diagnose a condition
• provide the appropriate treatment for the condition
• refer to a specialist
• diagnose in a reasonable time frame
• advise of risks associated with treatment
• perform surgery with fair care and skill
• report correctly on test results
• provide adequate post-operative care

Causation

Establishing a breach of the duty of care is a major point in a compensation claim however the hardest part of winning the case relates to a legal concept known as 'causation'. Many claims fail at the causation hurdle.

Causation relates to the need to show that a breach of the duty of care was behind the patient's current condition. There are many cases where a breach in duty of care has been proved but, the patient is in no worse condition than they would have been had there been no breach of the duty of care. For example, there have been cases where treatment has been carried out on a terminally ill patient in the hope of reversing the illness which failed due to negligence. In order to claim damages, a medical negligence solicitor needs to show on the balance of probabilities that care would have succeeded had it been done diligently and that the patient would have improved which is very hard bearing in mind that the patient was already very ill when the failed negligent care started.

Compensation Awards

Compensation awards for medical negligence are for putting the victim back to the same position that they would have been had the injury not occurred. Clearly, this is not a realistic proposal as a financial benefit can never adequately pay for the pain and distress of physical injury or death.

Solicitors for both sides each put forward their own estimates of the value of the injury based on specific calculations and with the knowledge of similar injuries in previously decided cases. Most cases are finalised without the need to go to a full hearing. This usually occurs through negotiation or mediation by solicitors. If a case does go to a hearing in court, the judge must decide the amount of the payout based on the lawyer's representations and consideration of previously decided cases.

Compensation may include elements of wages losses, loss of earning potential, physical care, medical treatment, pain and suffering.

Damages may be paid as a lump sum at the end of the case. But, in some jurisdictions, there are cases where ongoing monthly or annual payments may be awarded for a certain period or for the lifetime of the claimant. This is known as a periodical payments.

Lump sum compensation payments are also referred to as having 2 components- special damages and general damages.

Special Damages

Special Damages are for losses and expenditure that can be calculated accurately often by reference to existing documentation such as receipts or records. Most expenses or losses that have been reasonably incurred and arise directly from the accident can be claimed. Losses are often valued with the help of independent experts who prepare recommendations and costings. Items which are claimable by a medical negligence compensation solicitor may include;

• loss of Income
• gratuitous assistance / free domestic care
• out-of-pocket expenses
• medical expenses
• lost wages
• travelling expenses
• special aids
• home alterations
• general expenses
• cost of paid care

General Damages

General Damages are for items which have no distinct monetary value and which cannot be precisely calculated.This part of an award includes compensation for "pain and suffering" for the injury and for long term disability and "loss of amenity" damages which are intended to compensate for being unable to pursue the lifestyle enjoyed prior to the accident or the lifestyle that could have been expected if the accident had not occurred. Damages are also payable for disadvantage on the open labour market where the injury may restrict opportunity or for loss of job satisfaction where specific employment can longer be pursued as a result of the injury.

• pain & suffering
• loss of amenable employment
• loss of lifestyle
• loss of consortium
• loss of physical capacity
• loss of mental capacity
• disadvantage on the job market

Wrongful Death

Where death arises from medical negligence, whether it be surgical mistakes, a healthcare provider's incompentence or hospital error, it may be possible to start a wrongful death compensation claim. If you believe that a loved one passed away because of medical negligence you may be able to claim compensation. To make a wrongful death claim, you must be in a position of legal entitlement which is determined by family relationship or a proven dependant of the deceased person. Time limits also apply in wrongful death cases.

How our Medical Negligence Solicitors can help you

Our medical negligence solicitors in Australia have offices in  Adelaide,  Canberra, Melbourne, Perth, Darwin, and Sydney. They are legal experts in winning fair compensation on a no win no fee basis. You will only pay our lawyers professional fees if the claim is won and you are awarded compensation. If the claim is lost, our negligence lawyers will not ask for their professional fees, however losing a case may result in legal fees payable to the wining side.

Our lawyer's terms will be in writing. This is known as a Costs Agreement. Initial advice on compensation claims is offered at no cost. To get started, contact our helpline on 1800 633 644 or fill in the online form.

The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here