Medical Negligence Lawyer

Medical negligence occurs when the treatment provided by a health practitioner or health care provider falls below the standard of treatment that is reasonably expected of a competent health practitioner or provider. This includes doctors, pharmacists, dentists, physiotherapists, hospitals or any hospital staff.

If you have suffered injury as a result of medical care, our solicitors can help determine whether you have a medical negligence claim and advise you as to your best course of action.

Establishing a Medical Negligence Claim

Although the law relating to medical negligence varies between states and territories within Australia, in general terms individuals can claim compensation for medical negligence where they can establish that: 1. there was negligent medical treatment; and 2. they suffered physical, psychological or financial harm as a result of negligent medical treatment.

Some states and territories have established thresholds to determine whether an injury is significant enough to allow a person to bring a claim for medical negligence. For example, in Victoria in order to constitute a significant physical injury, the injury must impair a person’s whole body to a level of 6% or more. Queensland does not have such strict thresholds. However, for practical purposes there must ordinarily be a fairly significant permanent injury in order for it to be financially viable to bring a claim.

Negligent medical treatment can occur in many different contexts and can include:

• failure to diagnose a specific condition (or excessive delay in making that diagnosis);
• failure to refer a patient to an appropriate specialist;
• failure to report correctly on test results; or
• failure to provide appropriate treatment;
• failure to warn of the risks associated with a procedure;
• failure to perform a procedure with reasonable care and skill; and
• failure to provide post-operative care with reasonable care and skill.

The law recognises that the practice of medicine is very complicated and it does not demand perfection from health practitioners. Medical treatment often involves an inherent element of risk and uncertainty. For a variety of reasons, treatment may not always be successful or it may result in injury to the patient. Harm or injury alone is not enough to establish medical negligence.

In order to establish a medical negligence claim, it is necessary to demonstrate that the conduct of the health practitioner fell below the standard expected from such a professional in those circumstances. Commonly health practitioners seek to defend their claim by demonstrating that at the time they provided the health service, they acted in a manner that would be widely accepted by their professional peers in similar circumstances. In some situations, the standards that health practitioners must meet are affected by legislation such as the Civil Liability Act 2003 (Qld).

Time Limitations

If you believe you have suffered any injury as a result of medical negligence, it is very important to obtain legal advice as soon as possible. This is because there are important time limits for making a compensation claim. In Queensland, generally court proceedings must be commenced within three years of the date of the injury. For any adult contemplating legal proceedings against a health practitioner, it is very important to keep the three year limitation period firmly in mind. Failure to bring legal proceedings within the limitation period usually results in the case being barred from proceeding.

In limited circumstances, it may be possible to make a request to the court to extend a limitation period. However, such requests can be complex and costly, and there is no guarantee that the court will exercise its discretion to extend the limitation period. Because time limitations can be complex, it is essential to obtain specific legal advice about the time limitations applicable to your circumstances as soon as possible.

Damages

In the event that you are able to establish that you have suffered injury as a result of medical negligence, a court may award damages. In Queensland the assessment of damages related to personal injury is governed by the Civil Liability Act 2003 (Qld). A solicitor can help ensure that your rights are protected. The damages that are awarded by a court will depend upon the evidence supporting the claim. Damages may be awarded in relation to pain and suffering, lost earnings (both past and future), and the cost of future medical or rehabilitation services.

The Health Rights Commission

In 1992 Queensland established an independent body called the Health Rights Commission. The Commission enables individuals to formally lodge their concerns about the health services they received and work toward a satisfactory resolution to the complaint.

If a complaint is accepted by the Commission, the Commission may assess problems in the provision of a health service, investigate serious complaints, refer complaints about professional standards to registration boards, and use information from complaints to recommend improvements to the health system.

Making a complaint to the Health Rights Commission does not prohibit an individual from initiating their own personal legal proceedings against a medical practitioner for medical negligence.

Take The Next Step

At Gerard Malouf & Partners we offer a service of the first consultation free to ascertain details of your claim & explain our services that only require payment if the action we undertake on your behalf is successful.