What common challenges do medical negligence plaintiffs face?

Published 18 Dec 2017

A successful medical negligence claim can have a significant impact on a person’s life, providing compensation to help cover any financial losses and emotional trauma after failed treatments.

But these cases are a complex area of liability law, and successful claims must meet a high threshold of proof to satisfy a judge.

Here are some common problems that plaintiffs face:

1. Professional negligence is difficult to gauge

Medicine is a sophisticated profession that requires years of training to become qualified. Judges aren’t medical experts and must therefore rely on a panel of industry specialists to offer their opinions on whether negligence occurred.

Many illnesses and injuries have multiple treatment methods, and experts often disagree on what the best course of action should have been. This can make medical negligence claims less predictable than other types of public liability case.

2. Medical treatments carry inherent risk

If you go to the supermarket or visit your local council, you don’t expect a life-changing injury or illness to occur because of an accident or negligence.

However, medical treatments always carry some element of risk, and patients are – or should be – informed of this ahead agreeing to a procedure. Unsuccessful treatments do not necessarily constitute negligence.

3. Even proof of negligence may not be enough

Causation is a key element of medical negligence cases. In other words, did the medical practitioner’s actions result in the injuries or illness that led to your claim?

A doctor may have made mistakes or even been negligent, but the judge may rule that these actions were not ultimately what caused your injuries.

4. An element of guesswork is involved

Judges are forced to make a number of assumptions when ruling over medical negligence claims. For example, when a patient isn’t adequately informed of the risks of surgery, would they have still agreed to the treatment if they’d been properly warned?

The courts must also estimate what the patient’s health outcomes might have been if the negligence hadn’t occurred. Accurate estimates are difficult, which means plaintiffs may receive far less in compensation than they expect.

5. Your claim may not be financially viable

Medical negligence claims can take several years to reach a decision, with legal fees and other costs accumulating in the meantime.

The average time between an alleged negligence incident occurring and the case closing is between three and four years, according to the Australian Institute of Health and Welfare.

You should discuss your claim with experienced lawyers to ensure the compensation you may be eligible to receive is worth pursuing.

Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers has a team of dedicated personal injury lawyers who can help you with your claim.

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