Have you had a negative experience with a medical professional? Did you suffer an injury due to something your medical professional did or failed to do? While we all have the right to trust in medical professionals to look after us properly, unfortunately there may be times where they cause more harm than good.
If you feel you have been injured as a result of negligent medical treatment, you may be eligible to claim medical negligence compensation. Read on to find out more about medical negligence and the 5 ways to prove medical negligence has happened to you.
What is Medical Negligence?
Medical negligence (also known as medical malpractice) occurs when a medical professional, such as a doctor or medical practitioner, 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.
Some examples of medical negligence include:
- Performing medical treatment or surgery without reasonable medical care or skill
- Performing medical procedures without informed consent
- Making errors in prescriptions or medications
- Failure to correctly diagnose (misdiagnosis)
- Providing a correct diagnosis, but in an untimely manner
- Failure to warn or advise of all associated risks of the medical treatment
What are the 5 Ways to Prove Medical Negligence?
To establish that there has been medical negligence, there are five elements which must be proven:
1. A Duty of Care
To prove medical negligence has occurred, there must be a duty of care owed and this duty must have been breached. The law has deemed that medical professionals owe their patient 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.
2. 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 medical 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.
3. Causation
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 as proven in the medical records. If the medical professional’s negligent treatment had not been performed, the patient’s injuries would have been avoided.
4. Damages
Compensation is most commonly paid out in a lump sum. However, sometimes inaccurate predictions about the long-term nature of the injuries can leave patients finding that this payout fails to meet their long-term needs. Therefore, it is best to seek legal advice in order to receive an appropriate compensation amount.
5. Defences
A medical professional may defend against claims of medical negligence if they are able to disprove any of the above elements, or show that the injury was not solely their fault. For example, a medical professional may argue a defence of contributory negligence where the patient themself has failed to take reasonable care after their medical treatment and made an injury worsen.
Common Difficulties when Claiming Medical Negligence
Establishing Causation
Establishing causation is often the biggest challenge for compensation lawyers in a medical negligence claim. Causation refers to proving that the injuries or harm you have suffered were caused by your medical practitioner’s failure to act at the expected standard.
Some complications are unavoidable and can occur even when your doctor has taken all the right steps in providing your care. In these cases, no compensation can be claimed. It is necessary to be able to show that your medical practitioner breached the duty of care owed to you and that you suffered injuries due to this.
Choosing Compensation Lawyers
Finding experienced compensation lawyers can be difficult as some legal professionals are willing to take any case on, regardless on their specialisation. It is important to do your research before you choose a lawyer to begin your medical negligence claim. Ask about their past experience in medical negligence claims and find out if they have formal training in compensation law.
Good compensation lawyers will be able to provide you with clear answers to your questions and a good idea of your chance of success. Be cautious of legal professionals who are vague about their previous experience with medical negligence claims or avoid directly answering your questions.
Time Restrictions For Claiming Medical Negligence
There are strict time limits for making a medical negligence claim. This is one of the difficulties when claiming medical negligence because often complications of medical care are not evident straight away. Legally you are given three years from the time the negligence occurred to lodge a medical negligence claim. Sometimes extensions are granted but these are in very rare circumstances. Hiring a good compensation lawyer will help you make sure that you do not miss any deadlines and ensure that your case goes smoothly.
Costly Legal Fees
Medical negligence claims involve hiring compensation lawyers to best present your case. Compensation lawyers can often charge expensive fees upfront which can pose as a difficulty for financially disadvantaged people. No win, no fee lawyers are a good option for individuals who do not have the means to pay upfront.
A no win, no fee guarantee allows clients to forego legal fees until their case reaches a settlement. Usually, if the case is unsuccessful, you will only have to pay a small legal fee but if the case is successful, you will pay the full amount of legal fees with the compensation you are awarded.
Medical Negligence Claims Are Lengthy
Expect to be making a major time commitment when beginning a medical negligence claim. The average time for a medical negligence claim to be closed is 3-4 years from when the negligence occurred. This means that you will be meeting with compensation lawyers, attending court and dealing with legal paperwork for a long period of time.
For most people, this process is still worth the trouble. However, if you are not willing to prolong your negative experience with legalities and you do not believe your case is very strong, perhaps reconsider making a medical negligence claim. Consult with your compensation lawyers on the likelihood of you winning your case so that you can decide if the time commitment is worthwhile.
Psychological Trauma
A medical negligence claim can take a psychological toll on you, especially with how rigorous the process is. Many people who suffer due to medical negligence prefer to move on from the experience as quickly as possible. However, if you have suffered life-altering injuries, it is important to make a medical negligence claim so that you can receive the compensation you deserve.
Make sure you have a good network of support around you (e.g. family and friends) to make the process less stressful for you. Remember, while it may be difficult to begin a medical negligence claim, it is important to hold your medical practitioner responsible for their misconduct so that others do not suffer the same consequences as you.
What Happens Once I Can Prove Medical Negligence?
If you have satisfied the elements above, you may be entitled to make a medical negligence claim. This claim allows for victims of medical negligence to be compensated for the negligent actions of their medical professionals.
A medical negligence claim can be brought against an array of medical professionals such as a doctor, surgeon, nurse, dentist, pharmacist, midwife, radiologist 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 case, their insurance company will usually pay the patient’s compensation.
If your medical negligence claim is successful, then the medical negligence compensation you will receive will vary depending on your individual case, and is calculated based on the amount of pain and suffering or loss you have suffered rather than on the degree of medical negligence.
For more information on medical malpractice lawyers and making a medical negligence claim, contact Schreuders today.