Medical Negligence

Medical negligence claims arise when a health professional causes an injury to a patient as a result of a failure to exercise reasonable care or skill. In South Australia the standard of reasonable care and skill is determined with reference to what is widely accepted in Australia by members of the same profession as competent professional practice.

Medical malpractice can extend to various scenarios including inappropriate advice or treatment, the failure to obtain informed consent from a patient or warn of a possible outcome, or the failure to properly diagnose a medical condition.

If medical negligence results in death, the spouse, children and parents of the deceased may be entitled to claim compensation.

If a health professional has acted negligently but there is no injury or loss as a result, there will be no claim.

Eligibility to pursue a medical negligence claim

Provided that the physical or psychological injury sustained by you as a result of the negligence (or fault) of a health professional or hospital employee significantly impaired your ability to lead a normal life for a period of at least 7 days after the incident and/or you have incurred medical expenses of a prescribed amount, you may be entitled to claim compensation.

Factors limiting claims and reducing compensation

Medical treatments and surgical procedures are often complex and, notwithstanding adequate care and skill on the part of a health professional, involve a certain amount of risk. If a risk is properly explained and you consent to the treatment or procedure, you may not be able to bring a claim if the risk eventuates or if there is a poor outcome.

Making a claim for compensation

If we are of the view that you have a claim then, on your instructions, we will notify the health professional and/or their insurance company on your behalf. Thereafter, we will gather medical evidence in relation to your injury and, if there is a dispute regarding liability (that is, whether the health professional’s negligence caused your injury), we will investigate the circumstances of the incident which resulted in your injury. This often involves obtaining copies of clinical records and expert medical opinion. It may also be necessary to interview witnesses. Finally, we will enter negotiations with the insurer with a view to finalising your claim as soon as possible.

Time limits for lodging a claim

If you are over 18 years, you have 3 years from the date of the incident to lodge and settle a claim with the insurer. If the claim fails to settle, court proceedings must be filed before the 3 year anniversary of the incident. This is known as the “statute barred date”. If you are late filing proceedings you will not be able to claim compensation without making an application to the court which may, in certain circumstances, grant an extension of time.

If you are under 18 years at the time of the incident, you have 3 years from the date of your 18th birthday to issue court proceedings. However, at any time after the incident your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf. It is not always necessary to wait until you are 18 years old. Much depends on the nature and long term consequences of your injuries.

Compensation payments

The categories of compensation are also known as “heads of damages”. Not all heads of damage may be applicable to you and will depend on your personal circumstances. Therefore, your entitlements may or may not extend to the following:

  • An amount for pain, suffering and loss of the amenities of life (that is the extent to which your ability to engage in sport, leisure activities and so on has been restricted). This amount is based on a scale between 0 and 60, where 0 represents the most trivial injuries and 60 represents the most serious, short of death.
  • Where you have been incapacitated for work, with the exception of the first week, an amount equivalent to any past loss of earnings (excluding any taxation which would have been paid) and (if appropriate) an amount to cover any future loss of earnings or loss of future earning capacity.
  • Treatment expenses reasonably incurred at the recommended rates including the cost of hospital admissions, medical treatment, chiropractic therapy, physiotherapy, pharmaceuticals and rehabilitation, and an allowance for future medical treatment.
  • Where, as a result of your injuries, a spouse, domestic partner, child or parent has been obliged to carry out domestic and personal services on your behalf then you may claim for compensation for the voluntary services that were provided.
  • Where domestic services may be required because of any incapacity resulting from your injuries, an award may be made for past and future paid services.
  • Likewise, if you required and/or will require the services of a personal carer, an award may be made for the costs of such services.
  • If you require equipment, aids and appliances, vehicle or home modifications because of your injuries, you will be entitled to an award to cover the associated costs, together with the costs of future replacements, if applicable.
  • Reimbursement for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.
  • A contribution towards your legal costs.

Assessing compensation

Your compensation will be assessed with reference to the evidence supporting your claim. Therefore, in the initial stages of a claim, time is taken to collect the evidence required.

We will obtain a copy of the clinical records of the health professional who treated you or from the hospital where you were admitted for treatment. Depending on the nature of the injuries, it may be necessary to obtain specialist reports which address the question as to whether or not the health professional treated you, or administered the procedure, with the required care and skill.

Medical opinion may also be required in relation to the nature and extent of your injuries, whether your condition has stabilised and is capable of final assessment, and whether you have been left with permanent disabilities which may affect your work and/or domestic capacity.

Copies of all medical reports obtained are forwarded to the health professional or their insurer, which is also entitled to arrange for you to attend independent medical examinations to obtain further medical reports. It is not advisable to settle a claim when the full consequences of your injuries are not yet known.

If you have sustained financial loss you should obtain copies of your taxation documents, pay advices, sick certificates and other information which your employer may provide to assist in progressing your claim.

Timeframe for settling a claim

This will depend on how long it takes for your injuries to stabilise to the point where it is possible to assess the loss flowing from the injuries and any residual impairments. Only when your injuries have stabilised is it possible to assess your future medical treatment needs, any future domestic services which may be required and future economic loss arising from a reduced earning capacity. If your injuries are not serious then it is reasonable to expect that your claim would resolve within 12-24 months.

If liability is in issue finalisation of your claim may be delayed. Liability becomes an issue when the health professional or hospital, or the insurer does not accept responsibility for the incident which gave rise to your injuries. In such a situation we will investigate the circumstances of the incident by interviewing witnesses, and if required, obtaining a report from an appropriate expert. The insurer may undertake similar investigations.

How much will my claim cost?

Upon the successful conclusion of your claim the insurer will pay a contribution towards your legal costs. However, there will be a gap between your actual legal costs and the contribution to costs.

Repayment of Centrelink, Medicare and private health insurance benefits

If you received Centrelink benefits after the incident and your compensation includes an amount for economic loss, then Centrelink will be entitled to recover some, and possibly all, of the post injury benefits paid to you. If your award is substantial you may also be precluded from claiming benefits for a period after the conclusion of your claim.

Likewise, if Medicare has paid certain medical services associated with your injury, or if you have claimed the costs of treatment from your private health insurer, you will need to repay these benefits on receipt of compensation.

Medical negligence claims are complex and require careful investigation and expert medical opinion.

If you would like to discuss a potential medical negligence claim with us, and it is our opinion that your claim would not succeed and you do not pursue the claim, we will not charge for your initial consultation. Should you proceed on the basis that you have a potential claim, our team of experts will guide you through the legal processes, liaise with the responsible health provider and/or insurer on your behalf and pursue your claim to ensure you are fairly compensated for your losses.

If you need any assistance contact one of our lawyers [email protected] or call (08) 8202 0099 for a no-obligation discussion and for expert legal advice.