Medical negligence, also known as medical malpractice, relates to a lack of reasonable care provided by a health service provider such as a doctor or a psychologist, or a health service organisation such as a hospital. In Australia, the law recognises that all medical and allied health personnel owe a duty of care to their patients. If this standard of care is not met and an individual suffers harm, then the health practitioner or organisation has conducted themselves in a medically negligent manner.
In Australia, the law for medical negligence varies between states and territories. In NSW, medical negligence can only be claimed if suffering of physical, financial or psychological harm as a result of the negligent treatment can be proven.
To attest that harm was caused by negligent treatment, the claimant must be able to prove causation. This basically means that the individual making a claim must be able to prove the following:
An individual may be able to make a medical negligence claim if harm was suffered as a result of the following actions of the health practitioner or organisation:
An individual may also be able to make a medical negligence claim on the basis of the health practitioners’ failure to warn. This type of negligence occurs when a healthcare provider fails in his or her duty to inform the patient of any risks that may be incurred with the projected treatment or surgery. In this case, the claimant has suffered harm and seeks to make a claim on the basis that he or she would not have progressed with the treatment or surgery had he/she been warned by the health practitioner of the associated risks.
To make a medical negligence claim in NSW, an individual needs to do so within a specified time frame. This is because under the Limitations Act 1969 there is a statute of limitation on all personal injury claims, thereby restricting the time that an individual can use to make a claim.
Most medical negligence claims should be made within three years of a cause of action (negligent treatment) being discoverable. This is a period of three years starting from the date when the claimant knows or ought to know the following facts:
For people with disabilities, there is a suspended limitation period for the duration of the person’s disability. This means that the limitation period to make a medical negligence claim does not apply if an individual has a disability. The three years post-discoverability period, however, still applies if the person with a disability had or has a capable parent or guardian.
In NSW, the following people can make a medical negligence claim:
Most medical negligence cases tend not to end up in court. This is because court proceedings do not preclude settlement negotiations. As such, despite the commencement of court proceedings, an out-of-court settlement can still take place between both parties. Medical negligence cases typically settle out of court, with the insurers of the health practitioner/organisation offering an amount reasonable to the claimant to compensate for their suffering.
In conclusion, a medical mistake is not necessarily the result of negligence. Despite doing their best to treat and advise their patient, a health practitioner or organisation can still make a mistake. It is only considered negligent if the healthcare provider/organisation did not perform their work with ‘reasonable care’.
Comasters is able to accept instructions from clients in either commencing a medical negligence claim or in responding to one.
© Comasters March 2018.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.