Client information regarding medical negligence claims

If you have suffered loss as a result of poor treatment by a doctor, hospital or health professional you may be entitled to bring a claim for compensation for medical negligence.

Medical negligence claims are a complex area of law requiring experienced and specialised lawyers.

Medical negligence is where the treatment you have received falls below a reasonable standard of care and skill. Medical practitioners have a duty to exercise care and skill in their treatment of patients. If they have breached this duty and a patient has suffered injury or loss, as a result, they may be liable to pay compensation.

Modern medicine is complex and specialised. Even with the best treatment and care sometimes, unfortunate results can occur. There are risks for all procedures. Just because the treatment ends up with a poor result doesn’t necessarily mean there was negligence.

As a general proposition, to succeed in a medical negligence claim you must prove that the treatment you received was below the standard expected of a reasonably competent medical practitioner in the circumstances and you suffered loss as a consequence of the negligence. The second part of the test, caused causation, is often the hardest part to prove.

The medical practitioner has a defence to the claim if they can prove their actions were widely endorsed by a competent body of their peers and the professional acted in a manner that (at the time) was widely accepted in Australia as competent by other practitioners in the field.

Medical negligence cases cover several situations, including failing to diagnose a condition, a delay in providing treatment or referral, failing to perform surgery or post-operative care with reasonable care and skill, failing to interpret test results correctly or failing to warn of the risks of treatment.

PROCEDURE

The first step is to arrange a meeting for us to take a detailed statement from you regarding your potential claim. If it appears there may be grounds for a claim, we will obtain your treating medical records and reports from your treating doctors and hospitals. A supportive expert report will be required from a suitably qualified independent medical expert to address the questions of negligence and causation. You will also be asked to provide information, documents and receipts to prove your loss (such as wage records and tax returns).

COMPENSATION

If successful in a medical negligence claim, the following heads of damages are potentially available, if supported by evidence:

  • Non-economic loss (loss of enjoyment of life, pain, restrictions in movement etc);
  • Past medical, equipment and rehabilitation expenses;
  • Future medical and out of pocket expenses;
  • Past loss of income or income earning capacity;
  • Past loss of superannuation benefits (if applicable);
  • Future loss of income or income earning capacity;
  • Future loss of superannuation benefits;
  • Past care (either provided gratuitously by a friend or family member or on a commercial basis from a cleaner or gardener for example); Future care.

TIME LIMITS

Time limits apply for the commencement of court proceedings. Specific advice regarding the time limits applicable to your claim will be provided by your lawyer.

LEGAL COSTS

We act for you on a no-win/no-pay basis. This means we are not paid for the work we do or the expenses we have incurred on your behalf if your claim is not successful. At the successful conclusion of your claim, the medical defence insurer will contribute towards your legal costs but they will not pay all your legal costs and disbursements.

We reach individual agreements with our clients regarding payment for expert reports and other expenses on a case by case basis.

We are required by law to enter into a costs agreement with you which will be provided at the start of our work together and provide details in relation to the legal costs.

INITIAL MEETING

We would be happy to meet with you or talk over the phone for a free initial assessment about your claim. We can visit you at your home or wherever convenient.

Contact North Star Law today.