*The contents in this blog relates to legislation in New South Wales.
Medical negligence is a complex area of the law, in which the disciplines of medicine and law overlap.
Each case is unique and turns on its own facts. Often it is challenging to know with certainty at the outset whether there is a viable claim. An experienced medical negligence solicitor can assist you in putting the pieces of the puzzle together to move forward.
Proving medical negligence in medical malpractice
There are very specific elements that need to be proven, to obtain medical negligence compensation:
- That your doctor or allied health treater owed you a duty of care. This is usually not disputed;
- That the treatment provided to you was substandard in some way and that certain precautions should have been taken in your care, which were not; and
- That the substandard treatment caused you to suffer serious injury, loss or damage.
The injury must be sufficiently serious to justify the bringing of a claim, and must meet the threshold of being assessed as at least 15% of a hypothetical “most extreme case”. If your injury is assessed as being less severe than 15% of a hypothetical “most extreme case” you will have no entitlement to compensation for your injury.
Medical negligence compensation – how is medical negligence compensation assessed and calculated?
The types of damages (compensation) you may be entitled to under a medical negligence claim, include:
- For the injury itself and all of the effects of the injury on your life: the pain and suffering it has caused you, any loss of function, decrease of your ability to enjoy life as you used to, the need to undergo further treatment and periods of rehabilitation. This is often referred to as non-economic loss.
- Economic loss, for loss of income suffered by you as a result of your injury and its effects on your ability to work, as well as you loss of income earning capacity into the future.
- Your past and future treatment costs.
- Your requirement for past and future care and domestic assistance whether gratuitously or commercially provided.
Turner Freeman Lawyers are experienced in quantifying your injuries, loss and damages with a view to calculating and maximising your entitlements. This will include having you assessed by medico-legal experts to prove and particularise your injuries and the impacts of your injuries on your functional capacity and day-to-day life.
If you have not suffered an injury due to the medical error, or if the injury is minor, then your injury may not be compensable, as it may not meet the threshold.
The types of injuries which meet the threshold are usually injuries of a serious nature that are permanent and/or leave you with ongoing physical and/or psychiatric impairment/s. The threshold is at least 15% of a hypothetical “most extreme case”. If your injury is assessed as being less severe than 15% of a hypothetical “most extreme case” you will have no entitlement to compensation for your injury.
What evidence do I need for a medical negligence compensation claim?
In order to commence a medical negligence claim for compensation, your lawyer will need to brief a medical expert and obtain a report from them, addressing the specific elements that need to be proven to be successful in your claim for compensation. The expert report must be filed at the time the claim is commenced with the Court (r 31.36, Uniform Civil Procedure Rules, 2005 NSW).
The medical expert acts as an impartial expert witness to assist the Court to understand the unique technical medical issues involved in your claim such as how and why the doctor’s treatment was substandard or negligent, how the substandard treatment caused the harm suffered and what the ongoing injuries and disabilities are.
What types of injuries can I be compensated for?
The types of injury you can be compensated for includes the deterioration or exacerbation of an existing injury, including the injury you were being treated for by your doctor initially.
For example, if your doctor inappropriately delayed investigating and treating cancer, and as a result of the delay, the cancer spread and your prognosis worsened.
What are some examples of medical malpractice or negligence?
Errors in treatment by your nurse, doctor or allied health professional might include:
- not obtaining a proper medical history;
- prescribing incorrect or contraindicated medication;
- not investigating certain symptoms;
- delays in investigating, diagnosing and/or treating you for urgent medical issues such as stroke, cancer, aneurysm, haemorrhage, heart attack;
- delays in transferring you for care and treatment including urgent surgical treatment;
- medical errors causing brain injuries;
- obstetrics errors in the birth process which result in injuries to mother or neonatal injuries such as cerebral palsy or erbs palsy, an injury to the brachial plexus that can happen during childbirth;
- injuries during childbirth such as where the birth is vacuum or forceps assisted;
- dental injuries by your dentist in the course of treating you;
- misdiagnoses;
- making a surgical error during an operation;
- not referring you in a timely way for specialist investigation or intervention and as a result your condition significantly worsens;
- orthopaedic complications caused by errors in treatment;
- nerve injuries caused by a surgical procedure;
- deformities such as double bubble and waterfall deformity, arising from cosmetic surgery such as breast augmentation surgery.
A claim might also include:
- a nervous shock claim, in circumstances where you have witnessed a loved one suffer and/or die as a result of medical malpractice negligence; or
- a dependency claim, for loss of financial and/or other supports by dependents who have been affected by the loss, or incapacity, of a loved one who used to provide for them financially or otherwise.
How do I get started with a medical negligence claim?
A serious and permanent injury can have devastating and wide reaching effects on you, your household and your finances. Making a claim for compensation can help to ease your burdens and address some of the pressures you might be facing in such circumstances. Turner Freeman Lawyers offers free initial consultations in Sydney and throughout Australia, as a leading national plaintiff personal injuries firm. You can take the first step by calling us on (02) 8222 3333.