Medical Negligence

Time Limits for Medical Negligence Claims

All patients have the right to place their trust in their medical professionals to provide them with quality care. However, in practice, it is not uncommon to see medical professionals who have caused their patients to suffer injury because of something that they negligently did or failed to do. If a patient has suffered an injury as a result of negligent medical treatment, they may be eligible to bring forth a medical negligence claim and receive compensation for their injuries. However, these claims are subject to strict time limits and many patients often lose the chance receive compensation because their claims were not made within a timely manner. Read on to find out more about the time limits for medical negligence claims.

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 omission, and this act or omission (such as their treatment or a failure to provide treatment) falls below the acceptable standard of practice of the Australian medical community.

What is a Medical Negligence Claim?

A medical negligence claim allows for victims of medical negligence to be compensated for the negligent actions of their medical professionals. If you have suffered an injury due to medical negligence, you may be eligible for medical negligence compensation.

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

What is required to make a Medical Negligence Compensation claim?

When lodging a Medical Negligence Compensation claim, 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 must 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 the treatment did not meet the standard of care. What courts consider as 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 the patient’s injury would not have occurred even if there was no negligence.

What time limits apply for a medical negligence compensation claim?

There is a statute of limitations on all personal injury claims, as per the Limitations Act 1969. This means that once a limitation period has expired, a claim can no longer be made.

For medical negligence claims, the limitation period is whichever of the following periods is the first to expire:

  • 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”)
  • 12 year long-stop limitation period: This is a period of 12 years starting from the time the negligence actually caused the patient’s injury

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, then the 3 year post discoverability limitation period applies.

Are there any extensions to these time limits?

Yes, there may be special circumstances where an extension to the 12 year long-stop limitation period can be granted. When deciding whether the patient can receive an extension, the courts will consider the following:

  • The length of the delay in bringing forth a claim
  • The reasons for the delay in bringing forth a claim
  • The nature and extent of the patient’s injury
  • Whether the medical professional induced the patient to delay bringing forth a claim
  • If the patient obtained or tried to obtain medical, legal or other expert advice

However, it is solely at the court’s discretion as to whether an extension should be granted. Patients should not rely upon obtaining an extension, as they are not easily granted.
For more information on medical negligence compensation claims, contact Schreuder Partners today.

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