15-09-09
Catherine Henry Partners Lawyers Newcastle
This fact sheet briefly explains some things you should know before you make a medical negligence claim.
When can I make 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.
The claim must be supported by an expert who can verify treatment was below the standard of care expected of a health care provider.
Examples of some of the actions which can give rise to medical negligence claims are:
- failing to conduct surgery with appropriate care and skill
- misdiagnosing a condition
- providing the wrong type of drugs
- providing unsuitable post-operative care
- incorrectly reporting test results.
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.
How do I prove medical negligence?
Expert evidence is required to support a claim that treatment or advice breached accepted clinical practice.
Success in medical negligence claims depends on showing that negligence caused damage which wouldn’t have occurred otherwise.
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) restrict smaller claims from proceeding.
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.
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.
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