15 April 2023

Medical negligence or medical malpractice in NSW

JB Solicitors


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Medical negligence occurs when a medical professional fails to take reasonable care to prevent injury to a patient.
Australia Food, Drugs, Healthcare, Life Sciences
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What is medical negligence in NSW? Generally, medical negligence occurs when a medical professional fails to take reasonable care to prevent injury to a patient. Others use the term medical malpractice when referring to medical negligence.

Patients trust their doctors and put a huge amount of confidence in them. Thus, when doctors or medical professionals breach the high duty of care required of them, it gives rise to a claim for damages or a medical negligence case in New South Wales (NSW). This article discusses medical negligence in NSW.

Making a Claim for Medical Negligence in NSW

As a claimant, you must establish that the medical professional in question had to observe a duty of care. It is generally recognised that a doctor owes a duty of care to their patient. In fact, medical professionals have a higher standard of duty of care because of their special skillset, expertise and knowledge in the field. Thus, patients heavily place their confidence on their doctors.

If you, or even a family member, have suffered an injury or illness which you believe has been caused through the negligence of your doctor or medical practitioner, you may be entitled to make a claim for medical negligence. You may make a claim for medical negligence in NSW if the medical practitioner has:

  • failed to diagnose your condition within a reasonable timeframe (delay in diagnosis),
  • failed to provide medical treatment, follow-up care or advice,
  • failed to advise you of the risks associated with treatment including surgical procedures,
  • performed a procedure without your consent,
  • failed to refer you to a specialist or for further investigation,
  • misinterpreted or failed to correctly report on your test results, or
  • failed to provide post-operative care with reasonable skill.

Proving Medical Negligence in NSW

Generally, to prove medical negligence, the claimant must prove that:

  • The medical professional owed a duty of care,
  • The medical professional failed to exercise a reasonable standard of care,
  • The patient suffered injury or damage, and
  • The negligent conduct caused a foreseeable injury to the patient.

A medical professional can cause damage in various ways, such as medical intervention or the provision of different services. One must also note that it's not just surgical doctors who could face cases of medical negligence. All types of medical professionals can be liable for claims of medical negligence, including dentists, cosmetic surgeons, etc.

Compensation for Medical Negligence in NSW

Once a claim for medical negligence in NSW has been proven, the aggrieved party may be entitled to claim the following:

  • Non-economic loss. This includes physical harm, disfigurement, psychological damage, pain, suffering, and loss of enjoyment in life.
  • Out-of-pocket expenses. This includes private hospitals and ongoing medical expenses, surgical costs, rehabilitation expenses, and cost for medications.
  • Economic loss. This includes time off of work, use of annual and/or sick leave, reduction in earning capacity and or opportunities, claim for lost earnings, and superannuation benefits.
  • Domestic assistance. This includes paid and gratuitous care provided by family and friends with activities of daily living.

Amount of Compensation for Medical Negligence in NSW

The amount of compensation a claimant in NSW receives depends on the severity of the patient's injury. For instance, claims for medical negligence resulting in death can be higher than claims due to surgery complications resulting in permanent damage. However, there are statutory limits that apply to medical negligence claims in NSW.

The NSW government enacted the Health Care Liability Act 2001 (HCLA) to set limits on the amount of compensation a patient could receive from a successful medical negligence claim. The law aims to prevent the loss of medical services, as medical negligence claims can lead to the loss of medical practitioners.

The awarding of damages is governed by amendments within the subsequent Civil Liability Act 2002 NSW. The Civil Liability Act contains provisions which limit the recovery of damages in most areas of personal injury law, including medical negligence in NSW.

The HCLA contains restrictions on the amounts of possible damages, such as limits on the amount that could be claimed for non-economic loss. Under the HCLA, no damages would be awarded for non-economic loss unless the patient experienced at least 15% of the most extreme possible damage.

Additionally, the maximum award for non-economic loss would be reserved for those most extreme cases, such as in the case of Dell v Dalton (1991), where the medical negligence resulted in paraplegia (paralysis of the legs and lower body).

Making a Medical Negligence Claim in Court

Claimants can also recover legal costs when they succeed in making a negligence claim in Court. However, medical negligence cases are often resolved through negotiation with the medical professional concerned or their insurer. Some would prefer to go through negotiations rather than take the matters to the Court because court proceedings can take months, and even years, before the matter gets resolved.

Additionally, medical negligence cases in NSW are quite difficult because medical treatment can be highly technical and would require extensive scientific knowledge. Thus, Courts require extensive evidence and expert opinion in order to reach a fair decision.

But in medical negligence cases, Courts often receive conflicting evidence and conflicting testimonies from different expert witnesses. Courts also take into consideration whether the patient would have consented to treatment if they were adequately warned of the risks. Importantly, Courts also have to assess damages that arise from the negligence, separate from the pre-existing medical condition.

Seeking Legal Advice From Medical Negligence Lawyers

As mentioned earlier, pursuing a medical negligence claim can be quite difficult because it requires vast knowledge and expertise in medical negligence law from a medical negligence lawyer. Additionally, claimants have different situations and it is quite common that people are uncertain whether they have a rightful claim for medical negligence in NSW.

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.

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