Medical Negligence Claims

Medical Negligence Claims

If you are injured as a result of treatment, or the lack of treatment provided by a medical doctor or other health care provider, it may be possible to make a claim and recover compensation.  The claim would be based on the failure to take reasonable care to prevent the foreseeable risk of harm.

Call Us Today on 13 43 63!

No Win No Fee logo   No Win No Fee. No up-front costs Obligation free consultation logo Obligation free consultation 

Home and hospital visits logo   Home & hospital visits available   Free case assessment logo Free case assessment. Back in 24 hours

Frequently Asked Questions

  • Medical Negligence 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, it may be possible to make a claim and recover compensation. The claim would be based on the failure to take reasonable care to prevent the foreseeable risk of harm.

  • Can I claim for medical negligence?

    Yes. You are entitled to make a claim of this kind if you can show legal fault or negligence.

    This is often established under the law in Queensland by showing negligence, but there are other reasons for attributing legal blame. These can include breach of a contract to offer a reasonably safe service or product, or breach of either Federal of State law which requires that services be provided with due care and skill, namely, using an acceptable level of skill or technical knowledge.

    You can make a claim if you can show that:

    • the doctor or other health care provider owed a duty of care – usually this duty is shown to arise by virtue of the doctor/patient relationship. The same can be said of the duty owed by other health care providers such as nurses, dentists, midwives, chiropractors and physiotherapists to their patients. In some circumstances, the duty may arise between a doctor and the partner of a patient, for instance a doctor may have a duty of care to a patient's later sexual partners which can be met by providing a proper diagnosis and advice to the patient
    • the doctor or other health care provider breached that duty of care
    • the claimant has suffered injury or incurred financial loss
    • the injury or loss was caused by the breach of duty of care
    • the injury or loss was foreseeable as a result of the breach of duty of care.
  • If you have suffered injuries from medical negligence and if you wish to find out if your claim is worthwhile to pursue, the short answer is yes. In reality and from our experience from seeing first hand the bad outcomes that people achieve without lawyers, the answer is absolutely yes.

    How can a lawyer help me with my claim?

    A good lawyer will focus on whether he or she can justify their involvement in the case so that you can be confident that the benefits of using a lawyer will outweigh or far outweigh the legal costs.

  • Who will pay my medical negligence claim?

    Most health care practitioners or their employers take out insurance to cover themselves against claims for injuries caused. This insurance is not always comprehensive, but usually clinicians or practices will arrange cover as a typical part of their due diligence and their costs of running a clinical practice. Usually it is called professional indemnity insurance and it provides protection in the form of insurance cover for a health care practitioner if things go wrong and harm is caused to another.

  • Types of injuries covered

    Although there may be some overlap between categories, claims generally tend to involve an act by the medical practitioner or health professional, or a failure to properly act. For instance:

    • An operation on the wrong body part
    • Errors in surgery resulting in organ damage
    • Prescription of the wrong medication, or the wrong dosage of medication
    • Faulty medical equipment
    • Failing to make a diagnosis
    • Failing to make an appropriate referral for further treatment
    • Failing to consider or report correctly on test results
    • Failure to warn of a material risk that eventuates
    • Delay in making a correct diagnosis.

    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 which 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.

  • 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.

  • Can I claim for any other compensation?

    When your injury or injuries are stable you can also claim compensation ("a damages claim") to compensate you 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
  • How long will my claim take and what will it cost?

    If we advise you that you have reasonable prospects of success and that the claim is economically worthwhile to purse, we will send you a proper written advice and a 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 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 are always doing 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.

    Turner Freeman Lawyers costs

    Our final costs are usually lower than our competitors from our past experience.

    This is because our No Win No Fee service means we do not require you to pay the expenses of the matter even if your case loses – for instance for obtaining medical reports or the charges of other experts.

    All firms who offer a No Win No Fee service must ensure that their final fees do not exceed what the client recovers. The guarantee applies to any settlement or judgment. Under the guarantee, statutory refunds and expenses are deducted, and from the net remaining the lawyer's fees can never be more than half. The lawyer's fees are capped. This is especially important for small claims, but it must be remembered that this guarantee does not work as a 'percentage' or 'cut' of any settlement or judgment. It is a cap. If your case settles for $800,000 after refunds and expenses, and your legal fees with us under our rates scale are $60,000, we do not apply the cap. The cap would result in legal fees being $400,000. In these circumstances and naturally, we would charge $60,000.

    The cap applies even if your case does not settle and it proceeds to trial, which is highly unlikely. In our experience 98% to 99% of cases we run are capable of resolution or settlement prior to trial.

  • Will my case go to court or will it settle?

    In our experience over the past 60 years, very few cases end up in court. It is only something like 1% to 2% of all 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 we aim to achieve as it keeps the legal costs down and maximises your 'in hand' outcome.

    Regrettably, not all cases settle and 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.

  • Time limits to claim for medical negligence

    Yes. Before you can start a claim in Court there is a 'pre-Court' procedure that needs to 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 only if 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.

  • Our No Win No Fee policy

    After we have investigated your claim at no obligation to you, we will then 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 and only 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.

    If your case goes to court and you lose, while you would not have to pay us anything, it is likely that the court would order to pay the other side's legal costs which could be a substantial sum.