Medical Negligence

A claim can potentially be made against a doctor, hospital or other health provider if injury is caused because of a failure to:

• use reasonable care and skill in the performance of surgery;
• properly interpret or act on medical test results;
• diagnose, or diagnose without unreasonable delay;
• act on the diagnosis of a medical condition;
• provide appropriate treatment for a condition, and
• provide correct medication or appropriate dosages of medication.

Most health professionals and hospitals, including Queensland Health, are covered by their own medical insurance.

You may be entitled to receive damages for:

• pain & suffering and permanent impairment;
• lost earnings/income;
• medical, hospital, rehabilitation and other costs;
• loss of occupational superannuation benefits whilst you are off work, and
• future loss of earnings/impairment of earning capacity caused by your injuries, up to your anticipated retirement age.
• paid or gratuitous care required due to your injuries.

Your damages are generally tax free.

In Queensland, there are strict time limits regarding the making of a claim against health professionals. A notice should generally be sent to the health professional within 9 months of a medical negligent act or in 1 month of instructing a solicitor to seek damages for personal injury. (A failure to do so can usually be overcome). Legal proceedings must be instituted within 3 years of the negligent act.

You may be eligible to make a claim if your doctor or healthcare professional:

• failed to diagnose, or unreasonably delayed in diagnosing, or acting on the diagnosis of a medical condition;
• failed to properly interpret or to act on medical test results;
• delayed in providing the appropriate treatment or delayed in referring you to a specialist for the condition;
• failed to use reasonable care and skill in the performance of surgery or a medical procedure;
• failed to monitor your condition or provide post-operative care with reasonable care and skill;
• failed to provide appropriate treatment for a condition;
• failed to provide correct medication or appropriate dosages of medication;
• failed to disclose to you associated risks of medical procedures;
• as a result of negligent medical treatment, caused you physical, psychological or financial harm.

A medical negligence claim can be brought against a healthcare professional or medical facility which has caused or contributed to your injury. This could include:

• Allied healthcare professionals, such as chiropractors, osteopaths and physiotherapists;
• Dentists;
• General Practitioners (GPs);
• Emergency services;
• Laboratory service providers;
• Medical and dental technicians;
• Midwives;
• Neurologists;
• Nurses;
• Obstetricians and Gynaecologists;
• Opticians;
• Orthopaedic surgeons;
• Paediatricians;
• Pharmacists;
• Psychiatrists, mental health care teams;
• Public and private hospitals;
• Radiologists, and
• Surgeons.

Most health professionals and hospitals, including Queensland Health, are covered by their own medical insurance.

Medical negligence or medical malpractice occurs when the treatment provided by a health service provider falls below an acceptable standard. You will need to prove that:

• the doctor or hospital’s treatment did not meet the relevant Australian standards;
• the poor treatment resulted in suffering or injury to you, or
• any physical or psychological harm was caused by the negligence.

1-9 months to lodge a claim

An initial notice should be sent to the health professional, in the approved form, within 9 months of a medical negligent act or 1 month after instructing a lawyer to seek damages for personal injury (whichever is the earlier). A failure to do so can usually be overcome.

3 years to commence court proceedings

Court proceedings must be commenced within 3 years from the date of the medical negligence or, in some cases, from the date the negligence was first discovered.

Others

There are different time limits which apply if a child or a person under a disability is involved (the time limits are longer). You still need to act quickly to make sure their rights are protected.

Compensation amounts are calculated based on the amount of harm or loss you suffer, rather than the degree of negligence. There are many variables which impact on the amount of compensation you can receive. However, it largely depends on:

• the severity of your injuries and the impact those injuries have on your life and your ability to work;
• any previous injuries or pre-existing medical conditions that have been aggravated by the accident (including psychological conditions);
• your age, your loss of earnings and likely loss of earnings in the future;
• your out of pocket expenses;
• the amount of care you need or may need, and
• any future expenses incurred as a result of your injuries sustained as a result of the medical negligence.

How long your claim takes depends on a few things, for example how complex your particular situation is.

It usually takes around 12 months to complete the preliminary investigations of your claim, which involves obtaining the relevant medical records, waiting for your injuries to stabilise and waiting for the independent medical experts to produce reports.

The severity of your injuries will impact on the likely duration of your claim. If your injuries are more significant then it is important to wait until your injuries settle or stabilise, to better gauge the long-term impact of your injuries, to ensure you recover a proper and fair, level of injury compensation.

After speaking with you, one of our expert personal injury lawyers who work in this complex area of law will be able to give you a better idea of the timeframes involved with your claim.