When you consult with your doctor or are admitted to hospital in NSW, you expect to get the best treatment available and to feel safe and cared for. Medical practitioners, specialists, allied health professionals and hospital staff in NSW are highly trained and skilled so, naturally, you put all your faith and trust in them.
Unfortunately, sometimes individuals can become injured or ill due to the treatment, or lack of treatment or care of a medical professional. In this blog, we explore the options for those people to sue for medical negligence in NSW.
What is medical negligence?
Medical negligence, or medical malpractice, is a circumstance where a medical professional or medical institution breaches their duty of care to a patient. This may be due to an inaccurate diagnosis, a failure to diagnose or due to treatment that results in bodily harm. This harm can be physical or psychological in nature.
There is a standard of care that all medical providers must follow. Medical negligence is determined by proving that the medical professional or medical institution breached their duty of care and did not follow this very strict standard.
Breach of duty of care and medical negligence claims
There are a set of common law principles in medical negligence law. These are based on written case law and are assessed by medical negligence lawyers to establish if there was negligence by the health provider (an individual health practitioner or an organisation like a hospital), which resulted in harm to a patient, warranting a medical negligence claim.
They are as follows:
- The medical provider owed the patient a duty of care.
- By an action or omission, the medical provider breached that duty of care.
- That action or omission caused the patient physical, psychological and/or financial harm.
What is duty of care?
Duty of care is in a medical setting means that medical health providers owe their patients a particular standard of care that contributes to their patient's recovery from an injury or illness.
Duty of care also envelops the idea that medical providers must take all reasonable actions to eliminate the risk of further harm to a patient. Duty of care is taken very seriously by medical providers and if they are found to be negligent in performing their duty of care, they may be liable to civil action or medical negligence action.
How can I tell if I have a medical negligence claim?
Fortunately, instances of medical negligence are rare but do happen. You may have a medical negligence claim if, for example:
- your prescription was incorrectly ordered or incorrectly filled, causing a negative health event;
- you started feeling ill following the administering of improperly prescribed medication;
- your health deteriorated following failure to properly investigate your illness;
- your medical problem has been misdiagnosed or there is a delay in diagnosis, causing you further pain, discomfort, injury, illness or a further trip to the hospital.
There are too many instances to list where you may have been the victim of medical negligence. By their nature, medical negligence claims are complex. Not all instances are able to be pursued as the medical errors may not amount to medical negligence as defined by the law. That is why it is critical to allow medical negligence lawyers to review your circumstances to see if you have a meritorious claim.
What compensation can be recovered if I pursue a medical negligence claim?
Once your lawyer determines you have a reasonable cause of action in medical negligence, you will be able to claim various damages:
- Additional medical expenses;
- Loss of income;
- Rehabilitation costs;
- Pain & suffering;
- Loss of enjoyment of life;
- Home care and assistance.
It is most important to note that every claim is different, so it is essential that you seek expert legal advice before proceeding with a claim.
Time limits to lodge a medical negligence claim in NSW
It should be noted that there is a three-year time limit on all medical negligence cases in New South Wales.
This means if you are over 18 years of age and you feel you have been the victim of medical negligence, you have three years to commence a lawsuit against the relevant party. In some cases, the effect of negligent care or treatment may not come to the surface until a period of time after the incident. If you fall into this category and you think you are out of time to make a claim, it is crucial that you obtain legal advice about your options to commence a claim after the three-year time limit.
The law does not permit minors to prosecute a claim on their own behalf. Claims on behalf of minors are brought by their parent/s or carer/s who are known as a "tutor" in claim proceedings. The same time limit applies, being three years from the date of injury.
Any compensation obtained upon settlement of the claim is usually invested with the Public Trustee until the minor reaches 18 years of age. In the event that the minor's claim is resolved by way of negotiation, rather than a Court ordered judgment, the resolution of the claim will require the approval of the Court before it becomes binding. The Court needs to be satisfied that the settlement proposed is fair and proper and that the settlement monies will be invested appropriately until the minor reaches the age of 18.
How can a medical negligence lawyer help prepare your claim?
A medical negligence lawyer will most commonly take the following steps in preparing your compensation claim:
- They will assess all the information you provide to them and be able to tell whether your claim has any reasonable chance of being successful.
- They will obtain copies of all your clinical notes relating to your injury/illness.
- They will seek the opinion of an expert medicolegal specialist who will view the clinical notes and prepare an expert report. This is to determine whether or not the medical provider(s) breached their duty of care towards you, and whether that breach has resulted in injury.
- If this report is supportive then you will have a cause of action and be able to commence court proceedings. Further evidence will then be gathered to support your claim for your losses.
- Your solicitor will prepare a thorough statement of claim to be filed in court and obtain all supportive liability evidence and evidence of your losses in order to maximise the success of your claim.
Once your lawyer has gathered all the necessary evidence and determined you have a medical negligence claim, the medical providers' insurer will be approached to see if they are willing to engage in settlement negotiations. If a settlement cannot be reached, formal legal proceedings will be commenced by filing Court documents, and the court will order that the parties take part in a mediation to attempt settlement of the claim.
Fortunately, the majority of medical negligence cases are able to be resolved by settlement or mediation before there is any need to go to a hearing, with the insurers offering a lump sum, in exchange for an agreement not to be sued.
Get help from a medical negligence lawyer
Suing for medical negligence is not straightforward. To be successful, you must be able to prove that the medical provider's mistake was negligent, that they failed in their duty of care, and that the mistake or its consequences caused the injury.
Healthcare professionals or organisations will often argue that the injury resulted from an underlying health condition, rather than from any shortcoming on their part. They may insist that the decisions they took about a diagnosis or treatment were consistent with skilled professional practices or were following what was widely accepted as reasonable at the time.
They may argue that the injury was caused by a 'recognised side effect" of the treatment.
A lawyer who is experienced in medical negligence cases can speak with you about your situation, fully consider the evidence from a legal standpoint, and advise whether the medical mismanagement or failure to adhere to their duty of care would be considered negligent by the Court.
It is imperative you obtain professional legal advice before making a decision to sue a medical provider or organisation, as unrealistic expectations could lead to the failure of your case, leaving you liable to pay the legal costs of the healthcare provider you sued.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.