By and large, we think of medical negligence claims as being to compensate someone for a physical injury suffered during a medical procedure.
Physical injuries certainly form the majority of all medical negligence claims. However, you are also entitled to claim for psychological harm which arises either as a consequence of physical injuries or due to injuries suffered by a loved one.
Medical negligence matters often involve an element of a breach of trust or a traumatic event. It is understandable that a person would suffer psychologically as a result of medical negligence. The psychological impacts of negligent medical treatment can resolve over a period of time or they can be life-long. Psychological harm following a physical injury can be claimed as part of a medical negligence claim. This is known in legal terms as ‘consequential mental harm’.
The law also recognises that medical negligence impacts not just the person who is the subject of the negligent treatment. If you are a close family member of an injured person or you witness someone being injured and you suffer a psychiatric injury as a result of someone else’s personal injury, you can bring your own claim. These claims are known as ‘pure mental harm’ claims. You must establish that you have suffered a recognised psychiatric injury, which is done by obtaining expert evidence from a psychiatrist.
You can read more about the evidence needed to prove consequential mental harm or pure mental harm here.
In medical negligence claims, you can claim for pain and suffering, out of pocket costs such as treatment or travel expenses, domestic care and assistance requirements and your inability to work. Courts have historically found it easier to assess non-economic loss for physical injuries. This is because the nature of the injury is easier to perceive than psychological harm.
Non-economic is a Court’s way of compensating you for experiencing an injury through no fault of your own and as a result of someone else’s negligence. It is a method of compensating the intangible aspects of personal injuries that cannot easily be calculated; things such as the reduction in your quality of life and inability to engage in social activities. In assessing and awarding non-economic loss damages, a Court will take into account the nature and severity of your injuries, your level of disability and the impact your injury has on your day to day life. A Court will also take into consideration your life expectancy because it is relevant to how long you will suffer the impacts of your injury.
The amount of compensation you are entitled to in a claim for mental harm depends upon the strength of the expert evidence obtained on your behalf. It is important to get the right expert evidence which demonstrates a clear link between your psychological condition and the negligent treatment, whether it be treatment to yourself or someone else.
Get in touch with us
Medical negligence claims are difficult and rely upon supportive expert evidence in order to be successful. 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 Sydney, Parramatta, Wollongong, Newcastle and Toronto.
If you or someone you know has suffered as a result of medical negligence, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.