31 January 2019

Medical negligence explained: What you should know before making a claim

Mellor Olsson Lawyers


Mellor Olsson is a leading South Australian law firm, offering specialized legal advice to families and businesses across the State. With a focus on client needs, our experienced lawyers strive to enhance the lives and businesses of our valued clients. We are committed to South Australia, providing high-quality legal services in Adelaide and regional areas, building lasting relationships through personalized service.
A claim of medical negligence may succeed only after a medical practitioner acts negligently and that has caused loss.
Australia Food, Drugs, Healthcare, Life Sciences
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Medical practitioners owe a high duty of care to their patients. This does not mean however, that if something goes wrong during treatment or surgery, that the patient automatically has a negligence claim against their doctor. There are many reasons for adverse patient outcomes that have nothing to do with the doctor’s competency.

The majority of medical procedures come with some level of risk, and it is only when a medical practitioner has acted negligently and this negligence has caused the loss, that a claim against them will succeed. Such claims can be made against doctors, as well as other health professionals, such as dentists,  nurses, midwives, chiropractors, physiotherapists, pharmacists and even organisations like hospitals.

To make a successful negligence claim against a medical practitioner, it must first be shown that the practitioner failed to act with the due care and skill expected of someone with their qualifications, and that their failure to do so caused injury.

Negligence can arise in many situations. Some of the more common ones we see include:

  • Failure to diagnose your injury or illness;
  • Failure to appropriately treat your injury or illness;
  • Failure to perform your surgery or treatment to an appropriate standard;
  • Failure to adequately monitor or intervene during childbirth;
  • Failure to warn, advise or provide other information to you about the risks associated with your treatment; and
  • Failure to obtain your informed consent before the procedure is completed.

The medical practitioner’s negligence must have also caused the patient to suffer ‘loss’.

The type of losses that you are able to claim include:-

  • Pain and suffering;
  • Loss of amenities (enjoyment) of life
  • Loss of expectation of life;
  • Disfigurement;
  • Mental harm;
  • Medical and treatment expenses;
  • Paid care and care provided by family members;
  • Future care needs including any holiday care needs;
  • Domestic assistance;
  • Housing modifications or, in some cases, a purpose built home;
  • Loss of income and superannuation, past and future; and
  • Travel to appointments.

Damages for medical negligence are intended to provide the injured person a sum of money to put them in the same position, or as best as possible, the position they would have been in had they not sustained the injuries. This amount is calculated by allocating a dollar value to the relevant categories of damage listed above.

There are two ways of resolving medical negligence claims, either by out-of-court settlement (which usually involves your lawyer negotiating with the medical practitioner’s insurance company and lawyer) or through a Court trial. Regardless of which method is used, the compensation awarded is a lump sum that represents full and final settlement of the claim, and permanently discharges the defendant’s (medical practitioner’s) obligations. The plaintiff (the patient) only has one chance at settling their claim, and therefore seeking specialist legal advice is essential.

Determining whether negligence has occurred is complex and requires specialist knowledge. Because of this, Mellor Olsson offers a free no-obligation first appointment for all medical negligence matters where an initial assessment of the claim is made and options discussed. It is important to be aware that strict time-limits apply to making a claim, and therefore, advice should be sought as soon as possible.

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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