24-08-10
Catherine Henry Partners Lawyers Newcastle
This fact sheet briefly explains some things you should know before you make a medical negligence claim.
What is a medical negligence claim?
A medical negligence claim is a claim for compensation for injury and damage caused by negligence of a doctor, hospital, or other health care professional.
What kind of incidents might give rise to a medical negligence claim?
Medical negligence claims generally fall into one of two categories:
- A claim that the treatment you have received was below acceptable standards; or
- A claim that the health care professional failed to warn you of the risks associated with the treatment they performed.
Examples of some of the actions which can give rise to medical negligence claims based on the provision of substandard care are where a doctor or other health care professional:
- fails to conduct surgery with appropriate care and skill
- misdiagnoses or fails to diagnose in a timely manner a condition or disease
- provides the wrong type or dose of drug
- provides unsuitable or inadequate post-operative care
- incorrectly reports or fails to act on test results.
More specific examples of the types of cases in which Catherine Henry Partners have assisted clients in the past may be found here.
Cases alleging a failure to warn are discussed separately below.
What exactly constitutes negligence?
Negligence is a defined legal concept. To prove negligence at law you must be able to prove:
(i) The health care professional owed you a duty of care. This is usually not controversial in medical negligence cases as the doctor-patient relationship is among an established category of situations in which a duty of care has long been recognised to exist.
(ii) The health care professional breached their duty of care. Establishing breach of duty requires evidence that the health care professional has acted in a manner that, at the time the service was provided, was NOT widely accepted in Australia by peer professional opinion as competent professional practice. Establishing such proof is reliant upon being able to obtain supportive expert opinion that treatment or advice breached accepted clinical practice.
(iii) That the alleged negligence has caused you harm. It is necessary to be able to show that the health care professionals actions are directly responsible for the injury you have sustained, that is, ‘but for’ the negligence the injury would not have occurred.
(iv) The harm or ‘damage’ that you have suffered. Damages or compensation pay be payable for such things as pain and suffering, medical expenses, and loss of income.
When can I make a claim based on a healthcare professional’s failure to warn?
‘Failure to warn’ cases allege that injury has arisen due to the healthcare professional’s failure to warn the patient of the risks associated with the treatment they have performed. These type of cases do not allege that the treatment received was in any way below acceptable standards of care but, rather, that had you been warned of the material risks of the treatment you would not have undergone the treatment. Such cases are notoriously difficult as you must prove:
- That the healthcare professional failed to warn you of a ‘material’ risk. A risk is considered material if a reasonable person in the same circumstances as yourself, if warned of the risk, would be likely to attach significance to it or if the medical practitioner should reasonably be aware that, if warned of the risk, you would be likely to attach significance to.
- You underwent the treatment and the risk eventuated, causing you injury.
- If warned of the risk, you would not have undergone the treatment.and would therefore not have been injured.
How soon do I have to make a claim?
All medical negligence claims must be commenced within three years of alleged negligence.
In some cases the limit can be extended by application to the Court. However, it is extremely difficult and usually unsuccessful.
What losses can be compensated?
- pain and suffering
- loss of earnings, both past and future
- medical and treatment expenses, both past and future
- costs of care provided on a gratuitous basis
- cost of future care
Are all claims worth litigating?
No.
The Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW) effectively restrict smaller claims from proceeding. The legislation stipulates that where a person’s claim for pain and suffering is less than 15% of a worse case scenario, that person is not entitled to any damages for their pain and suffering. Even where this threshold is reached, at 15% the amount to be awarded for pain and suffering is only $4,500 and damages are also capped so the maximum amount payable for pain and suffering is $473,500. The effect of this restriction is that unless there is a substantial other component to the harm that you have suffered as a result of the negligence, for example considerable lost wages, many smaller claims are simply not economical viable.
Catherine Henry can advise you further on this aspect of your claim at the outset to aid you in the decision as to whether to pursue a claim for medical negligence.
Is compensation ever difficult to recover?
Yes.
There are circumstances where, despite a successful claim, compensation is not forthcoming - for example, where the doctor’s indemnity insurer has exercised its discretion not to fund the claim.
These instances include:
- where the doctor had an inappropriate relationship with the patient
- when a doctor dies before the action was finalised
- if a doctor has been declared bankrupt.
In such cases, unless the doctor personally has sufficient assets, you may not recover the money you are owed.
Are there other ways I can complain about the service I received from a healthcare professional?
Yes.
You may make a complaint to the Health Care Complaints Commission (HCCC). The HCCC is an independent statutory body which receives and investigates complaints concerning health care providers. The Commission may be able to help you conciliate your complaint with the health care provider concerned, however, the Commission is not empowered to order compensation to be paid to you. More information about how to make a complaint to the HCCC can be obtained on the website at : www.hccc.nsw.gov.au
In addition, you may make a complaint or notification to the Australian Health Practitioner Regulation Authority (AHPRA) concerning the conduct, health or performance of a health practitioner or concerning the health of a student health practitioner, although in NSW you will generally be directed to the HCCC. More information on the complaints process via AHPRA can be obtained on the website at: www.ahpra.gov.au
How can we help?
Medical negligence partner, Catherine Henry, can assist you with expert advice and legal support on your options.
Catherine is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over twenty years.
She has successfully pursued hundreds of claims against health care providers, and litigated some of the highest profile cases.
Back