*The contents in this blog relates to legislation in New South Wales.
If it can be established that you have been injured as a result of incompetent or unreasonable treatment or advice by a medical practitioner, then you may be eligible to make a claim for compensation.
Your entitlement to compensation will depend upon the extent of the damage that you have suffered, and your losses under the various “heads of damage.” These include:
- General damages for pain and suffering, emotional distress, and loss of enjoyment of life
- Past and future expenses for medication, medical treatment, rehabilitation, equipment or housing modifications
- Past and future care, including gratuitous domestic and/or personal care provided by your loved ones, or commercial care
- Past and future income loss
The law in NSW currently stipulates that damages may not be awarded unless you are considered to have suffered a permanent impairment of at least 15% of a most extreme case. Your physical and psychiatric injuries caused by the negligence, the extent to which they have and will likely continue to affect your daily activities and life is all taken into consideration.
Currently, the maximum amount that may be awarded for non-economic loss (pain and suffering) is $693,500 (100%).
Damages for non-economic loss are determined using a table. Between 15% and 32% of a most extreme case (where most people are determined to be) a sliding scale is used. This means you do not get that percentage of the maximum. Where the proportion of a most extreme case is greater than 33%, the amount payable will be the same proportion of the maximum amount.
There are many other factors that must also be considered when assessing your entitlement to compensation. Some of these factors include whether you suffered from any other physical or psychological illnesses prior to your injury, your current diagnosis and prognosis as a result of the alleged negligent act, whether your medical condition has stabilised, your fitness and capacity for work, whether any further medical treatment is indicated and the cost of same, whether you have suffered any residual disability and whether you have required assistance from others in undertaking your usual daily activities, to name a few.
We must reduce damages claimed for the future (such as your future treatment expenses and future loss of income) to calculate the present day value. This is because if you are successful, your compensation will be paid in one lump sum to compensate you for the remainder of your life.
Finally, it is also important to consider any potential repayments to third parties upon the successful resolution of your compensation claim. These include any treatment services paid for by third parties like Medicare or a private health insurer, for your injuries as a result of the medical negligence. Upon the successful resolution of your claim, the benefits must be repaid out of any monies received.
In addition, if you receive compensation for your loss of income, payments made to you by Centrelink from the date of your injury may be recoverable by Centrelink.
Centrelink may also apply a preclusion period during which you cannot receive benefits in the future. We cannot advise you how much these repayments would be as the relevant third party determines this based on the total amount of any settlement after any successful finalisation of your case.
Get in touch with us
If you or anyone you know has suffered harm as a result of medical negligence and you would like to investigate a potential claim for compensation, please contact our medical negligence team on 13 43 63.
At Turner Freeman, we have specialist medical negligence lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our medical negligence lawyers are located across NSW including in our offices in Parramatta, Sydney, Wollongong, Newcastle and Toronto.
