How are civil and criminal medical negligence different?

Published 27 Dec 2017

Australia’s legal system has two fundamental branches: criminal and civil.

Televised court cases – whether real or fictional – are usually criminal proceedings. The purpose of a criminal case is to punish a defendant, provided they are found guilty, and discourage other people from committing similar offences.

However, the primary motivation for civil cases is to offer redress via compensation to the victim of a wrongdoing. The offender is not at risk of a custodial sentence over civil matters, but victims of crime can pursue restitution through civil court at a later date for some offences.

So, how do these different branches of law relate to medical negligence claims?

When is medical negligence criminal?

The majority of medical negligence claims in Australia are civil matters. The plaintiff is usually seeking financial compensation for injuries suffered at the hands of medical practitioners who they believe failed to provide adequate care.

Nevertheless, examples of gross negligence can be deemed so severe that state or federal governments may decide to pursue criminal charges against the responsible individual. These incidents are usually medical manslaughter cases, whereby a professional’s lapse in judgement led to patient deaths.

There have only been a handful of successful medical manslaughter convictions in Australia, all of which involve giving patients the wrong medication or an overdose.

For example, Dr Margaret Pearce accidentally gave a 15-month-old child an adult dose of morphine at a clinic in Brisbane. The toddler later died in her sleep.

The most recent medical practitioner convicted of medical manslaughter was Dr Arthur Gow, who prescribed a man morphine tartrate instead of morphine sulphate. The patient passed away after self-administering a deadly dose of the treatment for his back pain.

Why are medical manslaughter cases so rare?

Medical manslaughter convictions are far more common in the UK than in Australia.

Professor Ian Dobinson, in a 2009 paper for the University of Queensland Law Journal, said Australian prosecutors lack a willingness to pursue these matters in criminal courts.

“While doctors may well be negligent in their treatment of patients, the degree of negligence required for a manslaughter conviction is high and may not be provable on the facts,” he explained.

However, the burden of proof for a civil medical negligence claim is lower than in criminal cases.

If you believe you sustained injuries due a medical practitioner breaching his duty of care, please discuss your case with Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

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