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Medical Negligence Lawyers - What Every Patient Victim Should Know

How Many People are affected?

Australia has a very high rate of clinical error, with many incidents serious enough to justify legal action by medical negligence lawyers. Even high density population areas such as Perth, Sydney, Adelaide and Melbourne which historically would be expected to have exemplary care have suffered from an epidemic of bad practice.

Australia has one of the highest incidences of negligent clinical care in the developed World and according to a Quality in Australian Health Care Study:-

    18,000 people may die every year in hospitals through preventable medical negligence in Australia
    50,000 people suffer from permanent injury annually as a result of medical negligence in Australia.
    80,000 Australian patients per year are hospitalised due to medication errors.

Reasonable care and nothing more?

Not all medical errors are "negligent". Just because a person suffers a bad outcome from treatment, does not mean that they have an automatic right to instruct a solicitor to sue for compensation. A clinical error is only considered "negligent" by medical negligence lawyers if the healthcare practitioner has failed to take "reasonable care". The law does not require a doctor to act "perfectly", but rather, the law requires that a doctor take "reasonable care" in treating and advising a patient. This is not a high or impossible standard to achieve.

"It is expected of a professional person that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill . . ."
Bolam v Friern Hospital Management Committee [1957]

Proving medical negligence is not easy.

If there is a failure to take reasonable care, patients medical negligence lawyers have to get over the "causation" and "damages" hurdles before they can sue. This is not as easy as it seems. Patients have the onus of proof in court placed on them to establish that a doctor has not only breached their duty of care by failing to provide reasonable care resulting in injuries, but the solicitor must also prove that the most likely cause ("causation") of their injuries was the doctors' failure to take reasonable care. This is very difficult to establish, given that most patients already have underlying illness and medical conditions, and it can sometimes be impossible to prove that a patient would have had a better outcome or a chance of a better outcome if a doctor had acted reasonably in the first place. Insurers will often purport to establish that a patient's injuries and disabilities are pre-existing conditions rather than caused by negligence, so as to avoid having to compensate the plaintiff.

Doctors sticking together.

In order to commence proceedings against a doctor, most jurisdictions require that the plaintiffs medical negligence solicitors have at least one supportive medico-legal opinion (that is a written report from an independent doctor) who supports the plaintiff's case on liability (breach of duty of care), causation and damage.

In Sydney and NSW in general for example, lawyers cannot commence court proceedings without filing an expert report with the plaintiff's Statement of Claim. This means that if your lawyer can't find a doctor willing to speak-out on your behalf, then you simply cannot bring a negligence case in a Sydney court of law.

The result of having a "close-knit" profession in Australia means that many plaintiffs have to pay for expensive reports from overseas medical specialists (especially from London). Not many people can afford paying £3,000 Sterling for an obstetric opinion from the UK, for example. So basically, if you can't afford an opinion, and your lawyer or solicitor wont pay for it, you will never know whether your treatment was negligent.

Medical profession - Behind closed doors.

The High Court case of Rogers v Whitaker which was initially determined in Sydney held that the courts in Australia do not judge a doctors competence by reference to the generally accepted practices of the medical profession but whether it conforms to the standard of reasonable care demanded by the law. That meant that questions of competence were to be decided by the judges and the courts as opposed to the medical profession, on its own behind closed-doors.

However, over the past couple of years, extensive lobbying has taken place by the medical profession for changes to the law for medical negligence in Australia. Medical lobby groups have sought to have the governments legislate what is known as the Bolam test- where the negligence of a doctor is determined solely on the basis of other doctors opinions about the doctors conduct, regardless of what judges and the courts have to say. However, in Australia, the governments decided not to adopt the Bolam test outright, but rather, adopt a modified version that would still allow judges to reject doctors opinions in medical negligence cases, if their opinions are irrational.

The common law concept of professional negligence developed by courts and set-out in the decision of Rogers v Whitaker, has now been changed to a statutory definition in QLD, SA, NSW, VIC, TAS. A person practising in a profession ( "a professional" ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

It would be rare indeed to identify instances of treatment that is both irrational and in accordance with an opinion widely held by a significant number of respected practitioners in the field.

The victims in Australia are not all money hungry.

Medical Negligence Lawyers

In a study reported in the Medical Journal of Australia which is based in Sydney, it was found that most of health care complainants were not satisfied with either the process or the outcome. Typically they wanted stronger measures taken. Only a few wanted medical negligence solicitors to obtain compensation; more wanted acknowledgement of harm done; and most wanted the doctor punished.

Following medical negligence in Australia not every patient sues whenever something goes wrong. Most patients just want the mistake to be acknowledged, and for the doctor to apologise.

Why do people sue?

Imagine never being able to work again because of permanent brain damage caused by a doctors' negligence.

Imagine not being able to clothe, feed or bathe yourself, and needing 24 hours a day attendant care because of a permanent healthcare injury.

The purpose of compensation laws is to put the plaintiff back into the position they would have been, had the negligence not occurred. Compensation is calculated on the basis of need.

Compensation is awarded for :-

  • pain and suffering
  • income you may have forfeited whilst recovering from the condition attributed to the negligence
  • future income you may lose (known as future economic loss) as a result of the health care providers negligence
  • costs associated with treatment, medications, nursing services, rehabilitation courses etc to assist in the recovery and injury repair process.

What about the medical negligence solicitor?

Getting a lawyer to deal with a medical negligence case in Melbourne, Perth, Adelaide, Sydney or anywhere else in Australia is becoming more difficult and a common myth is that medical negligence lawyers take on ANY case regardless of its merits, in order to make $$$.

The commercial reality is that lawyers only take cases on if they believe there is a good chance of winning i.e if they are meritorious claims. After all, most cases are done on a No Win No Fee basis, so if the lawyer loses, then they won't get paid; there is just no financial incentive in running a frivolous claim.

The government has almost completely done away with legal aid for medical negligence victims. If it wasn't for lawyers taking on the financial risks of running a medical negligence case, most Australian citizens would not be able to afford to pursue their rights.

Also, under the Legal Profession Act, a solicitor cannot act for a party where there are "no reasonable prospects of success." There are serious consequences for a medical negligence lawyer who does so; including cost penalties. Hence there is just no incentive to take on frivolous or vexatious claims.

State governments have brought in legislation (such as the Civil Liability Act) which places caps on the amount of legal costs that a solicitor can charge in medical negligence cases.

Patients rights are taken away.

It is important that the frequency of medical injuries is reduced through a focus on clinical quality. Medical indemnity funds should be encouraged to expand their efforts to alert their members to potential risks and provide training in risk minimization and better complaint handling. Such strategies should be aimed at promoting quality practice and reducing the level of adverse events. Greater encouragement of the medical profession is needed to extend peer review procedures to ensure that problems are identified at an early stage.

Greater government funding to the healthcare system is needed to reduce the incidence of adverse events and therefore reduce the potential number of litigants. Underfunding of the public healthcare system and cost saving methods applied by private hospitals for promotion of greater profits are an important contributing factor to adverse events.

The government response to the rising number of incidents or adverse medical events has been to take patients' entitlements away from them. To take away these victims rights to compensation for their injuries, is to punish them again and has very real consequences of leaving them out-of-pocket when it comes to the cost of keeping a roof over their head and treatment for their permanent injuries and disabilities, for the rest of their life.

The Civil Liability Act in NSW (and its equivalents in other States) has resulted in :-

  • claims for "general damages for pain and suffering" being limited to no more than $350,000.00 (indexed)
  • no interest will be recoverable for non economic loss
  • victims will not be able to make any claim with respect to exemplary or punitive damages
  • claims for recovery of past and future economic loss (loss of salary and/or earning capacity) is restricted/capped
  • claims for future damages (including the cost for future medical care and equipment expenses) will be discounted by 5%
  • claims for the cost of future domestic care restricted; and future medical costs discounted by 5%
  • a scale governing the seriousness of claims for non economic loss/general damages for pain and suffering to the effect no pain and suffering damages is awarded for cases with permanent impairment less than 15%

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