*The contents in this blog relates to legislation in New South Wales.
Medical negligence is incompetent or unreasonable treatment by a medical professional that causes injury (or materially contributes to a patient’s injuries).
Medical negligence can take a number of forms including:
- Failure to refer a patient to a specialist in a timely manner, resulting in the deterioration of the patient’s condition;
- Failure to timely diagnose and treat a patient, resulting in deterioration of the patient’s condition;
- Failed surgeries or surgical errors;
- Failure to undertake critical and timely investigations of a patient such as imaging or blood tests, resulting in underlying conditions going undiagnosed and untreated and a patient’s condition worsening.
A defence can be raised by a medical professional that he or she acted in accordance with the standard widely accepted in Australia, by peer professional opinion, as competent professional practice at the time of treating the patient. This is outlined at section 50(1) of the Civil Liability Act (2002), NSW. The fact that there are differing opinions widely accepted in Australia concerning a medical treatment, does not prevent any one or more of those opinions being relied upon (subsection 5O(3)) and the peer professional opinion does not have to be universally accepted to be considered “widely accepted” (5O(4)).
To prove medical negligence in Australia, there are a number of elements that must be proven on the “balance of probabilities”.
A plaintiff need not prove a matter to a strict scientific standard of 100% certainty, rather that more likely than not (51% or higher probability) the medical professional was negligent and that negligence caused harm to the plaintiff patient.
Breach of duty
The standard of care required of medical practitioner such as a GP or surgeon will be slightly different based on the particular circumstances and context in which the treatment was given, but will be judged against the standard that was to be reasonably expected of an ordinary skilled and competent medical practitioner exercising reasonable care of the kind required in the circumstances.
How this plays out in the context of medical negligence claims is complex and technical and can be the subject of multiple expert opinions. This reflects the differing approaches, practises and techniques that can exist within specialist medical fields and be considered competent and reasonable.
Compensation is largely assessed based on the severity of the injury and the harm caused to the plaintiff as a result of the negligence, and it can be difficult task to untangle the injury (or that part of the injury) that was caused by the alleged negligence as opposed to the underlying injury that the injured person would otherwise have had irrespective of any inappropriate treatment.
This can also therefore be technical and complex to prove, particularly for example in cases involving orthopaedic surgeries and follow up care for complex breaks and fractures of bone.
That an injured person in those circumstances would have returned to his or her normal pre-injury condition and functioning, is not a given, as the following case example shows.
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We have specialist medical negligence lawyers throughout NSW 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.
Civil Liability Act, 2002, NSW.