Medical Negligence Solicitors - Australian Lawyers Injury Compensation Claim
Our personal injury lawyers are medical negligence experts who deal with compensation claims using a no win no fee deal. That means that if you don't win, you won't pay professional legal fees. Our medical negligence solicitors compensation claims are totally risk-free for you.
You can ask for advice at no cost on personal injury compensation claim law. You can use the MedNeg helpline. Also, you can email us or complete the contact form. An expert Australian medical negligence lawyer will speak to you on the phone about medical malpractice with no obligation.
The law varies depending on which state or territory the incident took place. There are often different rules, protocols, and practices. There are also differences in time limits. It is therefore important that you receive advice from specialist medical negligence solicitors in your own area. Our lawyers have offices situated in Adelaide, Brisbane, Canberra, Melbourne, Perth, Darwin, and Sydney. Do yourself justice - give us a call.
Compensation claims seek an award of damages for injury caused by the negligence of a health care provider through legal action. A health care provider can either be a doctor, dentist, pharmacist, nurse, midwife, or hospital. Health care providers must give treatment that is in accordance with a fair level of care. If your health care provider fails to take 'reasonable care', then they have breached their duty of care to you.
Failing to take reasonable care is clinical negligence. Especially in cases where the health care provider could or should have foreseen that their actions could harm you.
If you have suffered damage, loss, or injury, that is the result of wrongful treatment or bad clinical advice, then a medical negligence solicitor may be able to claim a compensation payout on your behalf.
Negligence Law in Australia
The law in Australia is generally based on a federal system with each state or territory having its own individual legislation on a particular topic and if no such legislation exists the applicable law is known as 'common law' which has grown up over the years based on the equitable decisions made by judges in earlier cases which can differ dependent on location. Some statutes are passed by the Government of Australia and do apply nationally however in the case of medical negligence claims whilst there are moves afoot to unify the law on a national basis at the moment each state or territory has its own law.
In some parts of Australia the common law applies to medical negligence claims and in other areas there is legislation. Where the common law applies courts do not judge a doctors conduct by comparing it to other medical practitioners but apply absolute standards A common law medical negligence claim will succeed if the standard of care did not reach the level demanded by the law in that particular location.
Upon taking initial instructions a medical negligence lawyer will ensure that the court time limits have not expired. A personal injury compensation claim must be settled or proceedings must have been issued in a court of law within three years of the negligent act or within three years of discovery of the negligence. Failure to comply with these time constraints may mean that the opportunity to claim compensation is lost forever. There are exceptions to the basic three year rule for minors and the mentally disabled. In the case of minors the three year period does not start to run until the eighteenth birthday and in the case of the mentally disabled time does not start to run until full mental capacity has returned. In addition the court does have a wide discretion with regards to time limits which is rarely exercised.
Overview of Medical Negligence
The definition of what constitutes medical negligence varies dependant on location. Our medical negligence lawyers are based in Adelaide, Brisbane, Canberra, Melbourne, Perth, Darwin, and Sydney. In some states common law applies and a doctor’s behaviour is judged by comparing the allegedly erroneous behaviour with that of peers working in similar circumstances whereas in other places the standard is set by legislation. There are exceptions to the general rules and treatment may be considered to be negligent if it is irrational and peer comparison does not have to be universal provided that a substantial body of medical practitioner would have approved. In all cases the courts will decide the issue following consideration of the evidence and after hearing expert witnesses.
Medical negligence is a legal term that occurs when a patient is harmed by a medical professional, usually a doctor. Legal rules applied by medical negligence solicitors vary from state to state but there are some general rules that apply to all cases.
There are several facts that a medical negligence solicitor needs to prove 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 yourself to the doctor and the doctor must agree that you are a patient.
The doctor must have been careless. You must show that the doctor acted in such a way that a skilled and fair doctor in the same specialty would not have done. You must show what the level of care should have been in your case and that this level 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 level of care should have been in your case.
You must show that the act of negligence resulted in harm to you. It can be hard to prove this aspect because many people are already injured or sick prior to seeing the doctor. It may not have been medical negligence if the damage was more a factor of the patient's prior illness. An example is when a patient had stomach cancer and the doctor was negligent in treating the patient. What was the bigger factor in the patient's later death: the doctor's actions or cancer itself. This is a case that medical experts would have to argue out.
The injury must 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, added medical care, mental anguish, and loss of work or future earning capacity.
There are many categories of this problem including:
When the doctor fails to detect the illness. If the doctor missed the diagnosis or if the doctor made a diagnosis unlike the right one, this represents medical malpractice if the right diagnosis would have led to a better outcome for the patient. If this is the case, the patient may have a claim against the doctor.
When 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 harm. This can also occur if the doctor fails to tell the patient of common side effects of a drug and the patient was harmed by taking the drug.
If the doctor performs treatment that was not right. If the doctor performs a treatment that no skilled doctor would have done, there may be a case involving the doctor's treatment. The doctor can also choose the right treatment but can do it the wrong way, resulting in harm.
There are any number of negligent acts that can result in a medical negligence lawyer taking legal action for malpracice. The most common issues are outlined below :-
- failure to diagnose
- delay in diagnosis
- delay in treatment
- medication errors
- prescription errors
- delayed care
- failure to advice on alternative treatment
- Inadequate treatment
- negligent surgery
- inadequate post-operative care
- Failure to disclose risk to patient
- wrong side surgery
- failure to refer patent to a specialist
- equipment failure
- failure to properly interpret text result
- lost records
Duty of Care
In some parts of Australia, the common law applies so that courts do not judge a doctor's competence by reference to the generally accepted practices of his profession. To obtain judgment, Australian medical negligence solicitors must show that the doctor's actions did not conform to the level of fair care required by the law.
Recent legislative changes to the common law in some states have changed the law so that a doctor is not negligent if it is proved that they acted in a way that (at the time the service or advice was given) was widely accepted by peer professional opinion by enough number of respected doctors in the field as competent professional practice.
There are some exceptions to this rule. For example, peer professional opinion cannot be relied on if the court considers that the opinion is baseless. The fact that there are differing peer professional opinions widely accepted in Australia about a matter does not prevent any one or more (or all) of those opinions to be relied on. Also, peer professional opinion does not have to be universally accepted to be considered widely accepted.
The court will rule what is the fair level of care and competent professional practice, after hearing all the evidence (including the opinion(s) of independent medical experts).
Examples of care which may be considered negligent (depending on the context of the case) by a clinical negligence lawyer under current law involve failure to:
- diagnose a condition
- provide the appropriate treatment for the condition
- refer to a specialist
- diagnose in a reasonable time frame
- advise of risks associated with treatment
- perform surgery with fair care and skill
- report correctly on test results
- provide adequate post-operative care
Medical negligence solicitors proving a breach of the duty of care is a major point in a compensation claim however the hardest part of winning the case relates to a legal concept known as 'causation'. Many claims fail at the causation hurdle.
Causation relates to the need to show that a breach of the duty of care was behind the patient's current condition. There are many cases where negligence has been proved but, the patient is in no worse condition than they would have been had there been no breach of the duty of care. For example, there have been cases where treatment has been carried out on a terminally ill patient in the hope of reversing the illness which failed due to negligence. In order to claim damages, a medical negligence solicitor needs to show on balance that care would have succeeded had it been done diligently and that the patient would have improved which is very hard bearing in mind that the patient was already very ill when the failed negligent care started.
Compensation awards for medical negligence are for putting the victim back to the same position that they would have been had the injury not occurred. Clearly, this is not a realistic proposal as a financial benefit can never adequately pay for the pain and distress of physical injury or death.
Solicitors for both sides each put forward their own estimates of the value of the injury usually based on similar injuries in previously decided cases. The judge then would assess the amounts to be ordered by the court after hearing these representations.
The judge must decide the amount of the payout based on the lawyer's representations, consideration of previously decided cases, government guidelines, and their own experience as practicing lawyers.
Once the figure for pain and distress has been decided, there are other damages to be considered and assessed which include all other losses and expenses suffered by the claimant.
These secondary losses may later make up most of the amount of the claim and can include elements of wages losses, physical care, and loss of the previous lifestyle in addition to others which may be considered depending on the claimant's previous lifestyle.
Damages may be paid as a lump sum at the end of the trial. But, there are cases where ongoing monthly or annual payments also may be awarded for a certain period or for the lifetime of the claimant. This is known as a periodical payments order in addition to a lump sum.
Medical negligence lawyers divide awards of compensation into two main types being damages that can be accurately calculated on a mathematical basis special damages) and damages that must be assessed (general damages) by a Judge using previous case law as guidance. In addition interest may also be payable.
- loss of Income
- gratuitous assistance / free domestic care
- out-of-pocket expenses
- medical expenses
- lost wages
- travelling expenses
- special aids
- home alterations
- general expenses
- cost of paid care
- pain & suffering
- loss of amenable employment
- loss of lifestyle
- loss of consortium
- loss of physical capacity
- loss of mental capacity
- disadvantage on the job market
Medical Negligence Solicitors
Our medical negligence solicitors in Adelaide, Brisbane, Canberra, Melbourne, Perth, Darwin, and Sydney are experts in winning fair compensation on a no win no fee basis. You will only pay our lawyers professional fees (as a pre-arranged percentage) if the claim is won and you are awarded compensation. If the claim is lost, our negligence lawyers will not ask for their professional fees.
Our terms will be in writing before we start. Our initial advice on compensation claims is offered at no cost once you have given us the information needed for us to take a professional view on the case.
Where death arises from surgical mistakes, GP negligence, medical mistakes and accident and emergency negligence it may be possible to start a wrongful death compensation claim. If you believe that a loved one passed away because of medical negligence you may be able to claim compensation. It goes without saying that a medical practitioner owes their patient a duty of care and if that medical practitioner failed to reach a reasonable standard of care they may be guilty of medical negligence and be liable to pay compensation. Our medical negligence lawyers can help you to claim for pain & suffering, loss of income, psychological distress and loss of quality of life. There are two parts to a wrongful death compensation claim being the deceased's own claim and a claim for the survivor or next of kin or dependant. It is necessary to prove the duty of care, failure to meet the necessary standard of care and make a connection between the failures and the death bearing in mind tat the patient was already ill prior to diagnosis and treatment. You must be in a position of legal entitlement which is determined by family relationship or a proven dependant of the deceased person. The normal rules about time limitation apply in wrongful death cases. It is always advisable for a member of the family or a lawyer on their behalf to attend the coroners inquest to take written notes as the evidence given may be relevant to a subsequent medical negligence compensation claim.
This website is not intended for viewing or consideration by residents of Queensland (QLD). Legislation prohibits the advertising of
personal injury legal services in Queensland (QLD). Our legal service is not available for any Queensland (QLD) accident claims.
The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here