Adelaide Medical Negligence Solicitors - South Australia, SA

Medical negligence law is complex. If you have been damaged (physically and/or emotionally) as a result of a misdiagnosis, incorrect medical treatment or a poor surgical outcome, it may be possible to claim compensation for negligence.

What is the law of Medical Negligence in South Australia?

Medical negligence arises when a healthcare provider (doctor, dentist, nurse, physiotherapist, pharmacist, hospital) does not deliver the level of care that is reasonably expected, leading to harm or injury to a patient. This can involve mistakes in diagnosing, treating, or providing aftercare. In South Australia, medical negligence laws are a combination of common law (case law) and legislation known as the Civil Liability Act 1936, SA. The law acknowledges that while healthcare practitioners are not required to perform to perfect standards, they are expected to meet the standard of care that a skilled professional in their specialty would offer.

To successfully prove medical negligence in South Australia, the following elements must be established:

1. Duty of care: The healthcare provider owed a duty of care to the patient.
2. Breach of duty: The provider breached that duty by failing to meet the expected standard of care.
3. Causation: The breach caused harm or injury to the patient.
4. Damages: The patient suffered harm or loss that can be quatified.

The standard of care for a health professional is that expected of the reasonably competent practitioner professing that skill (section 40 of the Civil Liability Act 1936, SA). The court will decide what is competent professional practice and it will take into consideration the opinion of other professionals practicing within the same field as the defendant health care professional. Even if a particular practice is common or accepted by other practitioners, it may still be negligent.

The fact that a complication or material risk eventuates, or that the desired medical outcome was not achieved, does not necessarily mean that the health care practitioner was negligent. For negligence to have occurred, the behaviour or actions of the healthcare provider must not meet the standard of care which a reasonable person would meet in the circumstances. It is also necessary to prove that the plaintiff has suffered foreseeable damage or injury which was caused by the breach in duty of care.

What compensation can I receive?

When assessing a medical negligence compensation claim, it is usually necessary to obtain copies of your medical records, hospital records, and independent opinions from one or more medical experts, before any definitive advice can be given as to whether the health care practitioner may be liable for compensation. If liability can be proven, a solicitor will then go on to calculate in detail, the amount of compensation that may be awarded. Most cases settle by way of negotiations through written offers and counter-offers, however, a small percentage of claims do end-up in court.

When assessing the value of your claim, your solicitor will account for various “heads of damage”, including:

• Loss of income (past and future losses).
• Loss of earning capacity.
• Out-of-pocket expenses (relating to medical treatment, pharmaceuticals, rehabilitation).
• Cost of domestic assistance, attendant care.
• Non-economic loss (compensation for pain and suffering).

Areas of Negligence

Most cases of negligence involve a missed diagnosis. As a consequence of an incorrect diagnosis, the real condition goes untreated, and damage can be done by taking the wrong treatment or through delay in receiving the right treatment. Patients can suffer from permanent damage to their health, or they may even die.

Examples of clinical cases include:

Misdiagnosis of Cancer:

• Misdiagnosis of cancers of the breast, bowel, uterus, cervix, prostate and other organs, means no treatment. If the cancer is diagnosed later, it may be too late for effective treatment.

Emergency Department Errors:

• When a patient comes to an emergency room with symptoms of a heart attack, stroke or brain haemorrhage, and an incorrect diagnosis is made, resulting in a delay in necessary care.

Pregnancy Negligence:

• Failure to treat gestational diabetes, pre-eclampsia, toxemia, infections.

Labour Complications:

• For example, ruptured uterus due to negligent administration of labour-inducing medication. Severe cervical lacerations/episiotomy.

Birth Injury:

• Cerebral palsy due to failure on the part of the doctor and/or midwife to monitor for signs of fetal distress and failure to perform a timely c-section. Erb’s palsy and brachial plexus injuries are other examples.

Neonatal Injury:

• Failure by a paediatrician to diagnose and treat jaundice, kernicterus, causing the baby to suffer brain damage.

Surgery Errors:

• An artery or an organ is damaged during surgery. The surgical team may leave behind a swab, sponge, scissors, or fail to effectively close a surgical opening.

Medication Errors:

• When a doctor prescribes a contra-indicated drug or when an incorrect medication is dispensed by the pharmacist.

Anesthesia Errors:

• Errors by an anaesthetist resulting in “anaesthesia awareness” during surgery. Too much anesthesia or the wrong anesthesia can have catastrophic results including coma, brain damage, or wrongful death.

Informed Consent:

• There may be a failure on the part of the surgeon to inform the patient of material risks associated with the procedure, for example, cosmetic surgery procedures (including liposuction, rhinoplasty, and breast augmentation), bariatric surgery, gastric-banding, laparoscopic surgery versus laparotomy.

Psychiatric Claims/Mental Illness:

• Pure mental harm cases (section 33 Civil Liability Act 1936); psychiatric misdiagnosis and medication errors.

What is the time limit for a medical negligence case in South Australia?

There is a statutory time limit of 3 years within which you can make a claim for compensation. There are some exceptions to this, for example, different time limits apply to babies, children and persons suffering from intellectual and mental disability. In very limited circumstances, an extension of the time limit may be granted. However, courts are fairly strict when it comes to time limits. If records have been destroyed or witnesses have disappeared or died, an extension may be refused. It is therefore in your best interests to seek legal advice as soon as you become aware of the possibility of a possible medical mishap having occurred.

Making a claim for compensation for personal injury involves compliance with limitation law in South Australia. Legal proceedings must be issued in a court of law within a set period of time subsequent to an injury failing which the opportunity to claim compensation may be lost forever. If you think the legislation has invalidated a potential claim you should obtain expert legal advice as soon as possible.

The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here