Medical Negligence

Dealing with an injury caused by a medical practitioner who had been responsible for your health and safety can be difficult, especially when considering that the injury could have been prevented by an exercise of due care and diligence.

If you are considering bringing a medical negligence case against a medical practitioner, then there are certain things to take into consideration:

Time Limits (the limitation period)

In NSW, the law allows a person three years, from the time that the damage or injury was discovered, to make a medical negligence claim against a medical practitioner. In limited cases, the courts may allow a longer time period to bring a claim before the court.

Who can a claim be brought against?

A medical negligence claim may be brought against any medical practitioner or allied healthcare provider or professional who causes damage or injury to a person.  This may include:

  • Physiotherapists
  • Chiropractors
  • Doctors
  • Nurses
  • Dentists
  • Surgeons
  • Anaesthetists
  • Midwives

Determining Medical Negligence

A compensation claim for medical negligence may follow where a person has experienced pain and suffering through malpractice (a failure to take reasonable care) caused by a medical practitioner.  For example:

  • Medical treatment does not meet accepted standards of practice.
  • Misdiagnosis, a failure to diagnose, or a failure to diagnose within critical time.
  • A failure to provide a referral to a specialist has exacerbated a condition.
  • Scans, x-rays or test results have been misinterpreted.
  • Risks associated with the treatment have not been explained or fully explained.
  • Post operative care or follow up attention or advice is unsatisfactory.
  • Consent has not been given to perform a procedure.

Succeeding in court

To succeed, it must be determined that:

  • the medical practitioner has breached a duty of care owed to the patient; and
  • that as a result of that breach, the patient has suffered damage (physical or psychological) or injury; and
  • the breach of the duty of care owed to the patient has caused foreseeable damage or injury, that was avoidable.

In making this determination, the court will consider:

  • WHAT the industry standard of the duty of care owed to the patient is. 
  • HOW the medical practitioner in question has deviated from the required standard of care, causing an injury that could have been prevented through better practise.

The court will rely on an independent witness to provide this information. 

Ideally, the matter will be resolved through negotiating directly with the medical professional’s insurer, or with the medical professional, without proceeding to court.

Compensation entitlements for a successful claim

Compensation for medical negligence in NSW is primarily legislated for in the Civil Liability Act 2002. The Act provides that compensation can be recovered for different ‘heads of damage’ such as economic loss that may limit or impede a person’s earing capacity (including superannuation), non-economic loss encompassing pain and suffering, continuing medical expenses, and / or other expenses such as the provision of domestic care.

A plaintiff may also be able to recover legal costs following a successful outcome in court.

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