Medical Negligence

Medical Negligence Claims Guide

As patients, we place our trust in medical professionals to look after us properly and give quality care. However, there are times when these professionals have caused their patients to suffer more harm or injury because of negligent medical treatment. Read on to find out what you should know about medical negligence.

What is medical negligence?

Medical negligence (also known as medical malpractice) occurs when a medical professional causes injury or harm to a patient under their care through an act or a failure to act. This act or failure to act, such as their treatment or failure to provide treatment, must be below the acceptable standard of practice in the Australian medical community, and harm must be reasonably foreseeable by the medical professional.

What are some examples of medical negligence?

Some examples of medical negligence include:

  • Performing medical treatment or surgery without reasonable care or skill
    When the medical professional’s treatment causes a patient further injury, when such an injury should not have occurred in the first place
  • Errors in prescriptions or medications
    When the medical professional has given the patient the incorrect prescription or medication
  • Failure to correctly diagnose (misdiagnosis)
    When the medical professional has failed to consider all of a patient’s symptoms or medical history and, as a result, fails to provide a correct diagnosis
  • Providing a correct diagnosis, but in an untimely manner
    When the medical professional has correctly diagnosed the patient’s condition, but the diagnosis did not occur in a timely manner
  • Failure to warn or advise of all associated risks
    When the medical professional has failed to warn the patient of all the risks and, had the patient known of the risks, would not have gone ahead with the treatment and suffered an injury
  • Medical product liability
    When a patient’s medical product or device is faulty


Is medical negligence common in Australia?

Medical negligence is becoming a big concern for Australia. A report by the World Health Organisation (WHO) has found that Australia has one of the highest rates of medical error in the world.

What do I do if medical negligence has happened to me?

If you have suffered an injury or harm due to medical negligence, you may be entitled to make a medical negligence claim (also known as a medical malpractice claim). This claim allows for victims of medical negligence to be compensated for the negligent actions of their medical professionals.

How many medical negligence claims are made in Australia each year?

The number of medical negligence claims made rises each year. A report by the Australian Institute of Health and Welfare showed that there were 14,000 medical negligence claims ongoing in Australia during 2012-13.

Who can a medical negligence claim be brought against?

A medical negligence claim can be brought against an array of medical professionals such as doctors, surgeons, nurses, dentists, pharmacists, midwives, radiologists or even against a hospital or medical institution. These medical professionals and the hospitals they work for are required to have professional indemnity insurance and in the event of a negligence lawsuit, their insurance company will usually pay the patient’s compensation.

How do I establish that medical negligence has occurred?

To establish that there has been medical negligence, the following must be proven:

  • Duty of care: The law has deemed that medical professionals owe their patients a duty of care. Legally, this duty of care requires that the medical professional must exercise reasonable medical care in treating their patients and should use their professional skill and judgement to provide competent medical treatment and advice.
  • Standard of care: In proving that a medical professional’s treatment was negligent, it must be proven that their treatment did not meet the standard of care. What courts consider as the acceptable standard of care is whether the medical professional did or did not reasonably meet the Australian standards of the medical community. This judgement is based on the opinion of a large number of other respected medical professionals in the same field.
  • Causation and Damages: The medical professional’s actions or omissions must have caused the patient to suffer physical or psychological harm, and this harm was reasonably foreseeable by the medical professional. It must also be established that any harm or injury the victim suffered was caused due to the negligent medical treatment and if the medical professional’s negligent treatment had not been performed, the patient’s injuries would have been avoided.

How much compensation will I receive for a successful medical negligence claim?

How much medical negligence compensation you can receive will vary depending on your individual circumstances, and is calculated based on the amount of harm or loss you have suffered rather than on the degree of negligence.

You may receive compensation for:

  • Past and future medical treatment and surgery expenses
  • Cost of care provided by a professional, or by friends and family
  • Loss of past and future earnings
  • Pain, suffering and loss of enjoyment of life
  • Loss of life expectation

What time limits apply to medical negligence claims?

There is a statute of limitations on all personal injury claims, meaning that once the limitation period has expired, a claim can no longer be made. For medical negligence claims, the limitation period is a 3 year post discoverability limitation period. This is a period of 3 years starting from the date of which the negligence that caused the patient’s injury is discovered by the patient (known as the “date of discoverability”)

For disabled persons, there is a suspended limitation period for the duration of the disability. However, if the disabled person had a capable parent or guardian, the 3 year post discoverability limitation period applies.

Do I need legal representation for a medical negligence claim?

Medical negligence is a complex area of law, and a claim may be difficult to establish without a legal professional. For assistance on making a medical negligence claim, contact Schreuders today.

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