Medical Negligence Claims
Medical Negligence
What is a Medical Negligence Claim?
A medical negligence claim arises when a healthcare provider (medical professional or medical institution) fails to meet the standard of care and breaches their duty of care expected in their profession, resulting in harm or injury to a patient. The harm can be physical injury or psychological injury.
The negligence can be early in the treatment stage (such as as misdiagnosis), during the course of the specific surgery or treatment (errors during said treatment) or after the surgery or treatment (such as inadequate follow up care).
Subject to the nature of the negligence and resulting injury or harm, you may be entitled to make a claim as against the medical professional or institution.
Types of Medical Negligence Claims
-
Misdiagnosis of medical condition or failure to recommend necessary medical treatment
-
Delayed diagnosis/treatment of a medical condition
-
Failure to warn of risks
-
Surgical errors or complications
-
Medication errors, including prescribing incorrect medications or dosages
-
Birth injuries resulting from medical errors during pregnancy, labor, or delivery to the mother or the baby
-
Anesthesia administration error
-
Failure to obtain informed consent for treatment or procedures
-
Nursing negligence, such as inadequate monitoring or care of patients
-
Inadequate follow up care after diagnosis or treatment including surgery.
What can you claim?
When pursuing a medical negligence claim, you are entitled to make a claim for damages as follows:
Non-Economic Loss Damages
Non-Economic Loss damages is compensation for the pain and suffering you have experienced as a result of your negligent treatment.
Pain and suffering damages are aimed to compensate you for the physical and emotional pain and suffering you’ve endured as a result of the negligent treatment. It takes into account factors such as the severity of your injuries, the impact on your quality of life and the inability to participate in hobbies or activities you previously were involved in.
Economic Loss Damages
You can claim damages for the any financial and economic losses you have incurred following your accident. This includes lost wages/income if you’ve had to take time off work or are unable to return to your job because of your injuries.
Economic loss damages may also cover future loss of earning capacity if your injuries have long-term effects on your ability to work and earn an income. We will also claim for past and future loss of superannuation benefits.
Treatment Expenses
Reimbursement for any medical expenses you have incurred as a result of the injuries sustained following negligent medical treatment. This includes treatment costs such as ambulance fees, hospital bills, doctor’s consultation and appointments, medication costs, rehabilitation, physiotherapy, psychological treatment and other ongoing treatment expenses. It is important to keep record of all your medical expenses by way of receipts to receive full reimbursement for these expenses.
A claim is also made for the proposed future treatment expenses which have been recommended to you including the costs of future surgery, ongoing treatment and rehabilitation costs. Anticipating these future expenses helps to ensure that you receive fair compensation to support you in the years ahead.
Domestic Assistance
Damages for domestic assistance is compensation for your inability to perform household tasks or care for yourself after your accident as a result of the injuries you have sustained.
You may be entitled to claim the cost of hiring paid assistance or if your family members or friends have assisted you since the time of your accident then you may be entitled to claim the cost of the gratuitous assistance provided.
Domestic assistance tasks can include personal care tasks, cleaning, heavy household tasks such as vacuuming and mopping, cooking, gardening and transportation.
Legal Costs
In addition to the heads of damages listed you are also entitled to claim a recovery of your legal costs including professional fees and expenses (such as disbursements and barrister’s fees) from the Defendant in your claim and/or its insurer. There are some restrictions regarding the recovery of legal costs and Law Works can assist you in maximising your recovery for compensation.
Criteria for a Medical Negligence Claim
In a medical negligence claim – we must prove several key areas to successfully argue that a medical provider or institution was negligent in their actions or omissions. These elements typically include:
- 1. Duty of Care
- We have to prove that the medical provider or institution owed a duty of care to the patient. The duty of care arises from the provider-patient relationship and requires the provider to adhere to a certain standard of care expected in their profession.
- 2. Breach of Duty
We must establish that the medical practitioner breached their duty of care owed to the patient. This involves demonstrating that the provider’s actions or omissions fell below the accepted standard of care, considering factors such as medical guidelines, protocols, and peer professional opinion. - 3. Causation:
We must prove that the medical practitioner’s breach of duty directly caused an injury to the patient. This requires establishing a connection between the practitioner’s actions or omissions and the patient’s adverse outcome. - 4. Expert Opinion
In all medical negligence cases, expert reports from a peer professional is necessary to establish the breach of standard and duty of care as well expert evidence to confirm this breach caused the injuries sustained (causation) and evidence on the injuries sustained (damages). Law Works will work closely with medical experts to build a strong case on your behalf. - 5. Damages
We must prove that the patient suffered damages as a result of the medical practitioner’s negligence. Damages include pain and suffering, economic loss, treatment expenses and domestic assistance as well as contribution to the legal costs incurred.
Time Limits
It is important to be aware that strict time limits apply when pursuing a medical negligence claim. There is a 3 year limitation period which requires you to commence court proceedings within 3 years from the date of the treatment.
We recommend seeking legal advice as soon as possible to ensure your claim is filed within the necessary timeframe as the investigation of your claim, gathering of the necessary evidence and evaluation of your claim is a detailed and timely process. Medical negligence claims are complex and require thorough attention by your solicitor.
Time Limits
It is important to be aware that strict time limits apply when pursuing a medical negligence claim. There is a 3 year limitation period which requires you to commence court proceedings within 3 years from the date of the treatment.
We recommend seeking legal advice as soon as possible to ensure your claim is filed within the necessary timeframe as the investigation of your claim, gathering of the necessary evidence and evaluation of your claim is a detailed and timely process. Medical negligence claims are complex and require thorough attention by your solicitor.
Did you know?
Compensation to Relatives Claim
If your family member or relative has died as a result of the medical negligence of a medical practitioner or medical institution, then you may be entitled to bring a compensation to relatives claim.
A compensation to relatives claim arises if you and/or other family members were financially dependent on the deceased.
The amount of compensation available to be claimed is governed under the Compensation to Relatives Act 1987 (NSW). The claim can cover economic losses of the deceased and medical and funeral expenses.
If as a result of their unexpected death you or another family member have developed a psychological injury then you may be entitled to bring a nervous shock claim for your injuries resulting in the death of your family member. The damages claimed in a nervous shock claim are similar to those claimed in a medical negligence claim including non-economic and economics loss, treatment expenses and domestic assistance.
Contact Law Works today for tailored advice on your compensation to relatives claim and/or your nervous shock claim.
How Law Works Can Help
Our dedicated team specialises in handling medical negligence claims in NSW and is dedicated to advocating for the rights of injured persons. Here’s how we can assist you:
Expert Legal Guidance
We'll provide you with expert legal advice and guidance tailored to your individual circumstances.
Investigation and Evaluation
We'll thoroughly investigate the circumstances surrounding the claim by gathering and reviewing medical records to determine who is at fault and consulting with medical experts to determine whether fault can be established, and assess the full extent of your damages by gathering the relevant medical material to present to the at fault medical practitioner and its insurer.
Negotiation with Insurers
We'll handle all communication and negotiations with the insurer or their solicitor on your behalf including a fair and reasonable settlement in your favour.
Litigation
If a fair settlement cannot be reached, we're prepared to take your case to Court and fight for your rights.