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Home | Compensation Law | Medical Negligence Claims

Medical Negligence Claims in Queensland

If you believe that your treating doctor or hospital has failed you and you have suffered an injury due to their breach of duty of care, you may have a claim for damages or compensation. This is sometimes called medical malpractice, or more commonly in Australia, medical negligence. This will also apply to any failure to diagnose, a delay in diagnosis of a condition, or the misdiagnosis of a medical condition.

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I believe I have a medical negligence claim. What can I do next?

Call 13 43 63 to speak with one of our medical negligence lawyers in Queensland or contact us online.

Our offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.

FAQ

What is a medical negligence claim?

Medical negligence / medical malpractice claim

If a person is injured as a result of treatment, or the lack of treatment provided by a medical doctor or other health care provider, you can make a claim for damages or compensation.

For any claim involving medical negligence to succeed, you must be able to prove, on the balance of probabilities [or 51% or better] that the doctor or hospital owed you a duty of care, the duty of care was breached, and you have suffered injury, loss and damage due to the breach of duty.

Can I make a medical negligence claim?

Can I claim for medical negligence?

If you can prove or show that the doctor or hospital failed you, and you have suffered an injury directly as a consequence of their failure, you can make a claim for damages or compensation.

Examples of medical negligence claims:-

  1. Delay in diagnosis;
  2. Failure to diagnose a medical condition in a timely manner;
  3. Failing to refer a patient to a specialist in a timely manner for further investigation;
  4. Performing surgery negligently causing additional or further damage;
  5. Causing or making an existing medical condition more severe;
  6. Misinterpreting or failing to correctly report on test results;
  7. Failing to provide appropriate follow up care, treatment or advice following surgery.

How can a lawyer help me with my claim?

How can a lawyer help me with my claim?

Good medical negligence compensation lawyers will focus on whether they can justify their involvement in the case so that you can be confident that the benefits of using a specialist medical lawyer will outweigh or far outweigh the legal costs.

Who will pay if I make a medical negligence claim?

Who will pay my medical negligence claim?

If you bring a medical negligence claim against a doctor, allied health care provider or hospital, it is most likely that the claim will be covered by the insurance policy that was previously taken out by the doctor, allied health provider or hospital. Very rarely would a claim for medical negligence not be covered by insurance.

What types of claims are covered?

Types of claims covered

Examples of medical negligence claims:-

  1. Delay in diagnosis;
  2. Failure to diagnose a medical condition in a timely manner;
  3. Failing to refer a patient to a specialist in a timely manner for further investigation;
  4. Performing surgery negligently causing additional or further damage;
  5. Causing or making an existing medical condition more severe;
  6. Misinterpreting or failing to correctly report on test results;
  7. Failing to provide appropriate follow up care, treatment or advice following surgery.

To recover compensation for injury or loss, the injured person must show the fault of the medical doctor or other health care provider caused his or her injury. Some injuries and illnesses are caused by pure accidents that could not have been prevented by the other party taking proper care. Likewise, some clear medical errors can not be shown to have caused injury or loss and so no claim is possible. But there are many circumstances where the law will hold a party responsible for injuries caused by neglect.

How do we prove fault?

Proving fault

This of course depends on the type of medical error that is alleged and how it occurred.

The health professional will not be legally responsible for treatment that was provided which can be shown to have been widely accepted as being competent professional practice in Australia at the time the service was provided. Therefore it is necessary to obtain appropriately qualified expert medical evidence which compares the treatment provided with competent professional practice.

The position is slightly different for a case that involves the failure to give proper advice and information about material risks. Although the courts ultimately determine the issue of the scope and duty to give adequate advice, expert evidence again is crucial in working out what advice and information should have been given in the particular circumstances.

Breach of duty of care

In many cases, the challenge of showing that a health care professional breached the duty of care is surprisingly easy to deal with. Further expert evidence is then needed however to demonstrate that the breach caused the injury or loss. Linking the breach and the injury or loss can become difficult. This is especially so where what has to be worked out is the likely course of events had one or a number of things not gone wrong.

Sometimes a delay in making a correct diagnosis or to provide appropriate treatment is shown by expert evidence to be likely to have led to the same treatment and expected outcome anyway. Or, where there is a failure to consider test results, the claimant has to show:

  • what further investigations would have been recommended by the doctor;
  • what advice would have been given about the need or urgency of those further investigations;
  • whether the claimant would have followed the recommendations of the doctor and undergone those further investigations;
  • what the outcome of those further investigations would have been;
  • when those investigations would have happened;
  • what treatment or management was likely to then have been instigated; and
  • what difference if any that would have made to the outcome.

These matters must all be investigated with utmost attention. Once again, proper preparation and expert evidence are important.

What other compensation can I claim?

Can I claim for any other compensation?

When your injury or injuries are stable you can also claim compensation payments for:

  • pain and suffering
  • loss of enjoyment of your life, for example giving up sports or activities
  • income you have lost
  • income you will lose or may lose in the future
  • superannuation you have already lost, will lose or may lose in the future
  • future treatment and rehabilitation expenses
  • care in the form of nursing, home modifications and help around the home or garden.

Superannuation & Total and Permanent Disability Claims

Did you know that if you have sustained an injury and you had superannuation at the time of your injury, you may be able to make a lump sum claim on your superannuation policy for additional benefits. Speak to our superannuation and TPD lawyers on 13 43 63 to see if you are eligible to claim.

If I go ahead with a claim, how long will it take and how much will it cost?

How long will my claim take and what will it cost?

If our medical negligence lawyers advise that you have reasonable prospects of success and the claim is economically worthwhile to purse, we will send you a proper written advice and proposal. Our proposal will set out, in plain English, a realistic estimate of how long we believe your case will take to resolve and the likely cost.

Generally speaking, most negligence claims are able to be resolved within 6 to 18 months from when the claim starts. If the case goes to trial (which is highly unlikely) this can add a further 6 to 12 months to the time estimate.

If your case has to go to court, it will cost more than if it settles at an early stage. The more work which is done results in higher fees; however, we always do whatever we can to keep costs as low as possible. All of this is explained in our written advice along with realistic and reliable fee estimates.

Will my case go to court or will it settle?

Will my case go to court or will it settle?

In our experience over the past 60 years, very few negligence cases end up in court. Only 1% to 2% of our cases proceed to trial or end up in a court room. This is very small number, which is good for everyone, especially our clients.

Very few medical negligence claims require court supervision and the vast majority of these claims are capable of early resolution. This is what our medical negligence lawyers aim to achieve as it keeps the legal costs down and maximises your 'in hand' outcome.

Regrettably, not all medical negligence cases settle, but we have a significant amount of court room and trial experience so in the highly unlikely event that your case does go to court, we have the skill, experience and expertise to take the matter all the way if necessary.

Are there are strict time limits to make a medical negligence claim?

Time limits to claim for medical negligence

Before you can start a claim in Court there is a 'pre-Court' procedure that needs to be followed.

Like all insurance matters, an initial 'Notice of Claim' form must be given to the at fault party(s). This must be done within nine (9) months of the medical event causing injury or within one (1) month of retaining the services of a solicitor, whichever is sooner. The initial Notice can be given after this time but there must be a compelling reason, or excuse, for the late delivery of the claim.

It is then necessary to provide a further, more detailed Notice of Claim to a doctor. This more detailed Notice must be accompanied by an expert report which shows a breach of the duty of care and that the breach caused injury or loss. This second Notice must be given within 12 months of the initial Notice.

Regardless of whether the pre-Court procedure has been complied with or not, proceedings must be issued in Court within three (3) years of the breach of the duty of care causing injury or loss.

It is therefore very important that you seek legal advice as soon as possible to protect these time limits and your legal right to bring a claim.

Will Turner Freeman act for me on a No Win – No Fee basis and what does No Win – No Fee mean?

Our No Win No Fee policy

After we have investigated your medical negligence claim at no obligation to you, we will make a decision about whether we would be prepared to act for you on a No Win – No Fee basis. At that time, we will provide you with a proper written advice regarding your prospects of success and whether we are prepared to act for you on a No Win – No Fee basis.

Under our usual terms and conditions, No Win – No Fee simply means that we if take your case on, we will only be paid a reasonable fee for the legal work we have done for you at the end of the claim if you win.

In the highly unlikely event that your claim goes to trial, and in the even more unlikely event that your case goes all the way to trial and you lose, we will not seek to charge you anything for all of the work we have done for you.

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