*The contents in this blog relates to legislation in South Australia.

A medical negligence case is a claim for compensation arising from injuries suffered in the provision of medical services by a medical practitioner, allied health professional or a hospital. Medical negligence law is both a complex and sophisticated area.

Establishing negligence requires a degree of knowledge and expertise. Therefore, every case must be managed with certain skill.

A person must suffer an injury caused by the negligence. The law is clear that a doctor treating a patient owes a duty of care arising out of that fact alone. The duty in general is to “exercise reasonable professional skill and judgment.” In other words, a health care provider is expected to provide treatment and advice that is competent and professional. If that treatment provider fails to act in accordance with the proper standard of care and if someone has suffered an injury directly as a result of that failure, then a person is entitled to claim compensation for their injuries.

The law is also clear that health providers owe a duty to inform patients of material risks and benefits of treatment. Obtaining a signed consent form, for example, does not of itself prove that the patient provided “fully informed” consent. The risks which are “material” and important will depend on the circumstances of each patient’s case.

In all medical negligence claims, the injured person must be able to prove that:

  1. There was negligent treatment; and
  2. The treatment caused the person to suffer an injury.

The relevant issues may include whether the treatment received fell below a reasonable standard and whether this has caused injury, loss and damage. However, the issues may be considerably more complex than that. To prove a medical negligence claim, it is usually necessary to obtain an independent opinion from medical experts.

In cases where death is caused by medical negligence, dependents of the deceased such as children or spouses can bring a claim for the loss of financial and non-financial benefits which the deceased would have continued providing had they lived.

A defined group of close relatives may also bring what is commonly referred to as a “nervous shock claim” if they have sustained a psychiatric injury as a result of the negligence.

If you think you might have a medical negligence claim, you should contact us to discuss your options. It is important to seek advice as soon as possible because there are strict time limits that apply in South Australia.