Medical Negligence

– Your health, your rights –

In the legal sense, medical negligence is where treatment by a medical practitioner falls below an acceptable standard and has caused you injury or harm. This is not limited to doctors. It is a very broad range of professionals in the medical arena including:

• Surgeons
• Psychiatrists/Psychologists
• Nurses/Midwives
• Dentists/Ortho
• Paramedics
• Most medical specialists

There are different types of medical negligence, including:

• Informed consent (even if you have signed a form)
• Misdiagnosis
• Medical errors
• Birth injuries and defects
• Delayed procedures

• Failure to diagnose or misdiagnosed of a condition;
• Failure to alert patient of potential complications and risks of surgery or other procedures;
• Failure to perform appropriate tests such as blood tests, scans, biopsies, etc. to diagnose the condition, or failure to notify the patient of test results;
• Failure to provide appropriate treatment or referral to a specialist;
• Failure perform surgery with reasonable care and skill;

To prove medical /malpractice negligence, you must prove:

1. Duty of care. In order for a medical negligence case to be considered, it must be shown that a duty of care was exercised against you and that it was breached.
2. Did not meet standards of care. Requires evidence that the doctor/hospital acted outside the practice of competence. This can only be done by independent professionals.
3. Causation. You must prove that the doctor/hospital’s actions caused (or contributed to) the injury.
4. Damage. Once medical malpractice is proven, it is necessary to clarify who can claim compensation. This could be:

• Suffer pain and damage
• Loss of current and future wages
• Medical bills
• Future home care costs

Some people choose to file a complaint in addition to or instead of filing a medical negligence claim. You may lodge a complaint with an independent government agency/committee whether or not you seek compensation. In NSW you can file a complaint with the Health Care Complaints Commission and claim compensation for medical negligence.

As required by law, medical negligence complaints must be made in writing. To file a complaint online or download a complaint form, visit the Health Care Complaints Commission website. Alternatively, you can write a letter and send it to the committee by mail, email, or fax.

Not only those who have undergone an allegedly negligent treatment can complain about medical negligence.

Under common law, complaints can be filed by anyone, including:

• Anyone who has experienced questionable medical negligence. – the data subject or the parent or guardian of the child;
• A relative, friend or representative of the data subject’s choice for the purpose of lodging the complaint.
• Healthcare providers or other data subjects.

However, if you are filing a complaint on behalf of someone who has encountered an issue, you must have written authorization to file the complaint. It is also required if access to medical records is required under existing medical negligence laws. A written power of attorney is not required if the person is under the age of 18 or deceased.

Under applicable medical negligence laws, you may make a complaint against a NSW doctor, health care provider and/or medical institution.

This may include practitioners and organizations such as:

• Medical professionals such as doctors, nurses, dentists, pharmacists, and psychologists
• Public or private hospitals, clinics, medical centers, day clinics, or
• Providers of services that do not require registration in NSW, such as acupuncturists, naturopaths and psychotherapists.

When the Commission receives a complaint, it is assigned to an Evaluation Officer. The board will usually notify the health care provider that there has been a complaint and provide a copy of your complaint. The Commission has 60 days to assess your complaint. If the Commission makes an evaluation decision, all parties concerned will be notified in writing of the decision within 14 days. For more information on medical negligence claims, your rights and how to file a claim, please call our Medical Negligence Lawyers at 02 8098 1540.

Please also note that NSW has limits on the amount that can be recovered.

The  Civil liability Act:

• Limits claims for “general damages for pain and suffering” to no more than $350,000.
• Interest on non-economic losses cannot be recovered.
• Prevent victims from claiming exemplary or punitive damages.
• Caps compensation claims for lost wages and income.
• 5% billing discount on future bills, such as future medical and equipment bills.
• Limit future home health care bills; and
• Prohibits awarding damages if permanent disability is less than 15%.

Almost all medical negligence cases in Australia are filed with No Win No Fee basis. This means that the claimant does not have to pay attorneys’ fees other than out-of-pocket expenses such as: Medical reports, experts, and court costs in case of unsuccessful litigation. However, the losing claimant may be held liable for some of the doctor’s legal costs.

This arrangement also means that your attorney has the incentive to carefully consider your case before taking legal action.

Statistically, only a small percentage of cases actually go to court. There is a much higher likelihood of informal settlement of claims based on negotiations throughout the legal process.

You are entitled to receive compensation for:

• Loss of wages
• Loss of future income
• Career limitations due to your injury
• Carers, both paid and family assistance
• Medical expenses, past and future

In essence, you are entitled to compensation that covers the loss you have suffered if you are unable to continue with day-to-day life as you know it. You can also receive compensation for non-economic loss, including pain and suffering. This is a highly specialised area and compensation depends on your personal circumstances and the lawyer you choose.

Robert coined this phrase over 40 years ago, so naturally we offer a No Win No Fee policy if we believe your case has merits of success. What this means is if we do not win compensation for our client, we will not raise an invoice for our work and time. We also do not take a commission or percentage of your compensation, which is against the law in NSW for No Win No Fee lawyers!

Some traps to watch out for with some law firms: the Barrister fees are extensive. Robert works with top Barristers in the personal injury field who also operate on a No Win No Fee basis. We simply charge an hourly rate for our work and if you win we invoice you accordingly. Robert is happy to explain any questions you may have. Transparency on his No Win No Fee policy is key to our success.