It is important to understand the difference between negligence, mistake or an unexpected result if you believe you have suffered an injury from medical treatment as this will determine the type of compensation you may be entitled to.

The difference between negligence, mistake and unexpected result can be ambiguous and we recommend you speak with one of our specialist lawyers to assist you.

What is Negligence?

Negligence occurs where a medical professional has caused an unintended injury to a patient while the patient was under their care (also known as medical malpractice). To make a successful claim for compensation, you must prove the medical professional breached their duty to exercise reasonable care, skill and judgment when providing medical care and that this caused your injury.

You must also be able to prove that the medical professional’s treatment did not comply with Australian standards of care. This will require reports from medical specialists detailing correct procedures, treatment, care, standards and safeguards that medical professionals must follow and whether in their opinion, the medical professional met these standards.

When is a mistake just a mistake and when is it deemed negligent?

Negligence is more than a simple mistake made by a professional, for a mistake to be deemed negligent, it must be shown that the standard of care provided fell below what is expected of a medical professional.

A mistake becomes negligence when a medical professional does not exercise reasonable skill, care or expertise to be expected of a medical professional in the same position. It must be proved that other medical professionals at the same level would not have acted in the same way.

It must also be proved that the mistake caused harm or injury beyond the primary condition for which the patient was receiving treatment. An example of this, in the case of Sochorova v Durairaj & Anor, the plaintiff was admitted to a Queensland hospital and received care after having a stroke. Whilst receiving treatment for her stroke, she suffered a second stroke causing severe and permanent disability. The plaintiff alleged her second stroke was caused by the treatment administered for her first stroke. The court held the treatment administered to the plaintiff after her first stroke was safe and appropriate treatment and did not cause the second stroke. The second stroke was caused by the original stroke symptoms progressing.

What is an unexpected result or outcome?

Unexpected outcomes sometimes occur where a medical practitioner fails to warn a patient of the risks of a medical procedure, alternative treatments available, possible side effects and costs involved. If a medical practitioner fails to provide this information before the procedure, they have failed to obtain informed consent to performing the medical procedure. If a patient subsequently suffers any injury or loss from the risks involved in the procedure, this can amount to medical negligence. For example a patient undergoes cataract surgery and loses their eyesight permanently as a result. Their doctor had failed to inform them that permanent vision loss is a risk factor for this type of surgery. The patient may argue that had they been warned of this risk, they would not have proceeded with cataract surgery. The medical practitioner can still be liable for any injury regardless of whether there was any negligence as they failed to provide informed consent to their patient.

A case that illustrates how informed consent works is G & C v DOWN [2008. A surgeon had performed tubal ligation surgery on his patient and failed to make clear the specific risks of this type of procedure failing. He was held liable for negligence when the patient became pregnant not long after the procedure. This case also made clear that it is no excuse for a medical practitioner if a patient is not inquisitive of the risks involved or does not seek further information from the practitioner or whether the practitioner believes the patient would comprehend such information. The medical practitioner must still provide this information regardless.

There are exceptions to the requirement of obtaining informed consent from a patient, for example, where an emergency leaves no time to explain the risks involved.

There are also situations where although a patient has provided informed consent, their consent is not legally recognised, such as where consent was given by a patient who was not legally competent at the time.

Informed consent can be a complex area of law, as it may be difficult to prove a patient would not have undergone a medical procedure had they been aware of the risks involved. We strongly recommend you speak with one of our lawyers who specialise in this area if you believe this situation may apply to you.

If you or someone you know wants more information or needs help or advice, please contact us on (08) 8202 0099 or email [email protected].