Medical Negligence Law - Personal Injury Compensation Claim Lawyers
Our medical negligence law solicitors deal with personal injury compensation claims using the no win no fee scheme which means that if you don't win then you don't pay them any of their professional costs. If you would like advice at no cost and with no obligation just complete the contact form or email our lawyers offices or use the solicitors helpline and a specialist medical negligence law solicitor will review your claim and phone you immediately.
Our medical negligence law solicitors have offices situated in Adelaide, Brisbane, Canberra, Melbourne, Perth, Darwin, and Sydney. Do yourself justice - give us a call.
Australian medical negligence law has changed and instead of following UK law in regards to the 'Bolam Test' outlined in 'Bolam v Friern Hospital Management Committee (1957) 1 WLR 582' there are now a new set of parameters for healthcare professionals to consider which is in many ways more severe than the previously adopted principles used following 'Bolam'. Under the old rules if a doctor defendant "acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular area" and was able to satisfy the requirement that "the test is the standard of the ordinary skilled man exercising and professing to have a special skill" then subject to certain exceptions which came along in later cases he would usually avoid liability for negligent care.
The test in Australia was changed by the High Court in the case of 'Rogers v Whittaker (1992) 175 CLR 479', where the patient sued a doctor for failing to warn about a slight risk of debilitating side effects following an operation. The court in Australia now do not judge a doctors competence by reference to the generally accepted practices of his profession but whether it conforms to the standard of reasonable care demanded by medical negligence law. That means that questions of competence are decided by the court as opposed to any group of doctors.
Medical negligence law dictates that compensation as a result of a personal injury claim is intended to put an injured person back in the position that they would have been in had they not been injured. Damages payable are calculated as follows;
General Damages is compensation that cannot be precisely calculated and includes 'pain and suffering' for the injury and for long term disability and 'loss of amenity' to compensate for a detrimental change in lifestyle and disadvantage on the open labour market.
Special Damages is compensation that can be calculated accurately including expenses or losses that have been reasonably incurred and arise directly from the accident. Items which can be claimed include;
- loss of past and future earnings
- medical costs
- assistance for household chores
- special care aids
- adapted accommodation and transport
- general out of pocket expenses and other losses
Overview of Medical Negligence
Medical negligence is a legal term that occurs whenever a patient is harmed by a medical professional, usually a doctor. Legal rules around medical negligence vary from state to state but there are some general rules that apply to all cases.
There are a number of situations that need to be held true before a malpractice claim can be heard. These include the following:
- You need to prove that there was a doctor-patient relationship at the time of the incident. You must have presented to the doctor and the doctor must agree that you are the patient. It can't be a situation such as you'd find at a cocktail party when the doctor gives you off the cuff medical advice. Sometimes there is a situation where there is a consulting physician that gave advice to your doctor and this led to an injury. This is a sticky situation and one that has to be worked out in the court system.
- The doctor must have been negligent. You must show that the doctor behaved in such a way that a skilled and reasonable doctor in the same specialty would not have done. You must show what the standard of care should have been in your situation and that this standard of care was not met. This usually involves finding one or more expert witnesses who practice medicine in the field of medicine the doctor is in who can say what the standard of care should have been in the situation you were in.
- You must show that the act of negligence resulted in your injury. It is a big problem sometimes to prove this aspect because many people are already injured or sick prior to seeing the doctor so it may not have been negligence if the injury was more a factor of the patient's prior condition. For example, if a person had stomach cancer and the doctor was negligent in treating the patient. What was the bigger factor in the patient's subsequent death: the doctor's actions or the cancer itself. This is a case that medical experts have to argue out.
- The injury has to have led to specific damages. There must have been some harm as a result of the healthcare provider's actions. Some examples of harm include prolonged physical pain, additional medical bills, mental anguish and loss of work or future earning capacity.
There are many categories or types of this problem. They fall into one of the categories defined below:
- When the doctor fails to diagnose the illness. If the doctor missed the diagnosis or if the doctor made a diagnosis different from the correct one, this represents medical malpractice if the diagnosis made correctly would have led to a better outcome for the patient. If this is the case, the patient may have a claim against the doctor.
- If the doctor fails to warn the patient of known risks. This can happen if the doctor fails to warn the patient of a surgical risk and the patient suffers an injury. This can also occur if the doctor fails to tell the patient of common side effects of a drug and the patient was injured by taking the drug.
- If the doctor performs treatment that was improper. If the doctor performs a treatment that no competent doctor would have done, there may be a case involving the doctor’s treatment. The doctor can also pick the right treatment but can do it incorrectly, resulting in injury.
There are specific rules and requirements involving medical negligence cases that are important for you to know. Some of these include the following:
- There is a specific statute of limitations for this type of case. Sometimes the statute of limitations is when the doctor performed the negligent act and other times it is when the patient should have reasonably discovered the damage.
- Most cases involve expert testimony and in fact, it is crucial to the case to have this type of testimony. An expert is required so as to state what the doctor should or should not have done in the case. Expert testimony exists on both sides of the law suit and they often disagree. It is up to the court to decide which expert was the most credible. The state must decide which constitutes a qualified medical expert and in which field of medicine.