In most cases healthcare professionals in Victoria treat their patients with care and compassion however there are times when things go wrong at which time you may need to take advice from a Melbourne medical negligence solicitor.

If you have suffered personal injury or loss due to erroneous treatment our legal team offers advice at no cost and without further obligation to use our services.

Call 1800 633 634 for help. Our lawyers will help seek justice and win you maximum compensation.

In order to win compensation in a medical negligence claim it is necessary to show that the healthcare professional owed a duty of care to the patient which will automatically exist in most doctor patient relationships. Thereafter it is necessary for the lawyer to prove that the duty of care was breached and that injury or loss arose directly as a result of that breach. This sounds like an easy set of parameters to satisfy however there are many possible defences to a medical negligence case which is why it is essential to be represented by an experienced Melbourne medical negligence solicitor.

Types of Claims handled by our lawyers

Patients injured by a health care provider should seriously consider taking legal action. A “health care provider” can be almost anyone who provides medical care- hospitals, doctors, surgeons, nurses, dentists, physiotherapists, chiropractors, osteopaths, midwives, psychologists, paramedics and others.

Examples of medical negligence claims that can be brought against health care providers include:

Cancer Misdiagnosis

• Failure to diagnose cancers such as breast cancer, throat cancer, melanoma, ovarian cancer, prostate cancer, bowel cancer.

Emergency Department Negligence

• Hospital negligence involving incorrect triaging and misdiagnosis of a condition requiring emergency treatment.
• Failure to diagnose and timely treat heart attack, intracranial aneurysms, brain hemorrhage, and stroke.
• A busy emergency department may fail to run blood tests and order radiological scans such as x-rays or CT scan, that are required under expected standards of care. That failure to diagnose could mean an illness will go undetected and untreated.

Surgical Negligence

• Sometimes a surgeon will cut into a nearby artery or organ by mistake.
• Failure to remove surgical instruments and swabs during surgery which can cause ongoing pain for many years up until removal.
• There have been cases of surgeons operating on the wrong site, for example amputating the wrong limb or removing the wrong breast.

Obstetric and Gynaecological Negligence

• Antenatal misdiagnosis and failure to treat pregnancy complications.
• Ruptured uterus during labour.
• Child birth cases and complications of labour: mismanaged labour leading to fetal hypoxia, cerebral palsy, erb’s palsy.

Medication Errors

• When a patient receives a full dose instead of a timed-release dose, or when 10 mg becomes 100 mg, or when a full-strength medication is given rather than the required diluted mixture.
• A doctor or pharmacist fails to notice an allergy notification. Such errors can be deadly.

General Practitioner Negligence

• Failure to respond to a patient's complaints; failure to consider a patient's family medical history; failure to order necessary tests; misinterpretation of test results; failure to refer to a specialist.
• Lack of informed consent/failure to warn of material risks.

Product Liability

• Medical device errors and faulty products.

Wrongful Death

• Death that is the result of a hospital or doctor error, including failure to diagnose a life-threatening condition; death due to anaesthesia negligence and medication errors.

Standard of Care in Victoria

Medical Negligence claims in Victoria are governed by the Wrongs Act 1958 and the common law.

Section 58 of the Wrongs Act states that in a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is to be determined by reference to -

1. what could reasonably be expected of a person possessing that skill; and
2. the relevant circumstances at the date of the negligence and not later.

Section 59 states that a professional is not negligent in providing professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances. However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable. If, a court determines peer professional opinion to be unreasonable, it must specify the reasons for that determination.

If you can prove that there was a breach in the standard of care, and that this breach resulted in foreseeable damage (such as an injury, disability, death), then you could be entitled to an award of compensation for medical negligence.

Compensation available in Victoria

If negligence can be proven, the plaintiff is entitled to claim compensation for their injuries, disabilities and loss. The majority of medical negligence claims settle out of court through negotiation or mediation. Where there are facts in dispute or where a settlement figure cannot be agreed to, litigation may be the last resort. Compensation can be claimed for:

• Loss of income.
• Out-of-pocket expenses for health care, medication and other aids.
• Cost of attendant care.
• Damages for loss of capacity to provide care for others.
• Non-economic loss (also known as general damages eg for pain and suffering and loss of enjoyment of life). Non-economic loss is indexed and capped. In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.

Time Limits in Victoria for medical negligence

Under the Limitation of Actions Act 1958, a claimant generally has three years from the date they became aware of the negligence and the injury it caused to bring a claim. In some cases, the three-year period may start from the date of the negligent act itself if the claimant was aware of the injury and its connection to the negligence at that time.

There are however a number of exceptions. For example, different rules apply to children under the age 18.

If the claimant is mentally incapacitated and unable to bring a claim because of their incapacity, the limitation period may be extended. The time limit starts from when the incapacity ends, allowing the claimant to pursue the claim.

Judges also have a general discretion- in certain circumstances, a court may grant an extension of time if the claimant can demonstrate that it was not reasonably possible to bring the claim within the standard limitation period due to exceptional circumstances.

As the law on time limits is rather complex, the best thing to do is speak to a solicitor who can advise you as to whether there is still time to sue in your case.

No Win No Fee Medical Negligence Lawyers

One of the most important items that a lawyer has to consider relates to financing a potential claim. Our Melbourne medical negligence lawyers operate the no win no fee scheme otherwise known as a conditional fee agreement. No legal charge is payable unless the legal case is won and the client obtains an award of compensation. In the event that the legal claim is lost there is no charge made to the client.

To receive free legal assistance, simply fill in the contact form on this webpage or ring our helpline to speak to our legal team.