May 10, 2021

You think you might have a medical negligence claim. What should you do?

medical negligence

You think you might have a medical negligence claim. What should you do?

The first thing you should NOT do is tell your treating doctor, specialist, physiotherapist or other health providers as the case might be that you intend to sue them. That will only make them defensive, and it might also interfere with obtaining further treatment that you might need.

Like all personal injury claims, the claim depends upon its own particular circumstances and facts. Beware of taking legal advice from your mate at the pub or even your doctor.

If you think you have grounds for a medical negligence claim, have a chat with a solicitor/lawyer who is an expert in this area. Keep in mind that not every personal injury lawyer is conversant with the complexities of medical negligence claims.

Most practitioners will give you some free time in which to outline your claim to them and provide you with some guidance.

What if the claim involves a child?

If the claim involves an injury to your child, the claim will be your child’s claim, but you or your partner can act as the child’s “litigation guardian” and prosecute the claim on their behalf. If the claim is settled before the child is 18 years old, then any settlement funds will need to be managed by either the Public Trustee or a privately appointed trustee.

What are the time limits for a child’s claim?

A child has until their 21st birthday to file a claim in court. BUT there are legislative requirements to give notice of the claim within 9 months of the incident. It can be risky to ignore that requirement, so legal advice from a solicitor/lawyer who is an expert in this area ought to be obtained as soon as you have reason to believe your child may have a claim.

What if the claim involves an elderly or non-working parent?

If the claim involves an elderly parent, then it is their claim, and you cannot make their claim for them unless they are incapable of providing legal instructions, in which case, you may be appointed as their legal guardian.

Unless a claim involves substantial care requirements arising from the medical negligence alone, it is unlikely that a claim for an elderly person is likely to be substantial enough to justify the legal costs involved. This is a matter of considerable distress to many potential claimants where the doctor or other medical provider has been clearly negligent.

The Beattie Labor government enacted legislation in 2002 which prevents claimants from recovering their standard legal costs unless the value of their claim is in excess of a prescribed amount which is now about $80,000. That makes many claims uneconomical even though the injured person has had their life ruined by the negligent actions of another.

Is there a time limit to make a claim?

Yes. The general rule in Queensland is that a personal injury claim must be filed in a court within 3 years of the negligent act or omission. However, there are complex requirements required to be completed before such a claim can be filed, so it is important to seek legal advice as soon as possible and not leave it until the last minute.

The 3 year limitation period can be extended in special circumstances where a “material fact of a decisive character” is discovered such that a claimant comes to realise they have prospects of a claim, whereas prior to that “material fact”, they were unaware of that possibility. Legal advice ought to be sought as soon as possible as the limitation period is only extended by one year from the time of finding out that fact.

What if the claim involves a child’s death?

Parents are usually shocked to find that they are not entitled to any damages or monetary compensation when their child’s death is caused by the negligent actions of a doctor, hospital or another medical provider. We see so many news reports from the USA that people believe the same laws apply here. They do not.

The only time that damages are payable to a parent in such circumstances is when the parent suffers from a diagnosable psychiatric condition (not normal grief) as a result of the child’s death. Further, that psychiatric condition would generally need to be severe enough to prevent the parent from working, thus causing considerable economic loss. Otherwise, the claim is likely to be uneconomical.

What if the claim involves the death of an adult?

The most common claim arising from an adult’s death by medical negligence is a “Lord Campbell’s Act action”, otherwise known as a “dependency claim”.

Typically this involves a parent or spouse who leaves behind dependent children and/or a dependent spouse. These claims can be very substantial, and advice ought to be sought from a solicitor/lawyer who is an expert in this area.

Occasionally, an elderly person can be dependent upon their adult child for care. If the death of that adult child causes extra expense to the older person, such as paying for care or being moved into a nursing home, damages may be claimed as a dependency claim.

Why are medical negligence claims so difficult?

Like any professional, a doctor or other medical health provider finds it difficult to accept that they may have caused injury to another by their negligence. But more than that, a claim is handled by their medical indemnity insurer. Like all insurers, medical indemnity insurers are reluctant to pay out.

Because medical negligence life claims are so “technical,” medical indemnity insurers have a habit of making claimants “jump through every hoop” even if it is quite clear that the insured medical provider is at fault. That tends to make the claims drawn out and thus more expensive.

The other major difficulty is finding medical experts prepared to “call out” medical treatment or advice that does not meet the appropriate standard of care. The medical profession is a relatively small and tight-knit group, particularly within the various specialities. Within some specialties, practitioners throughout Australia may all be known to each other.

So one of the major benefits of engaging a solicitor/lawyer who is an expert in medical negligence claims is their knowledge, contacts, and ability to source medical experts who are prepared to put pen to paper.

If the doctor or surgeon causes me an injury, can I automatically successfully sue him or her?

No. Just because an injury or bad outcome occurs whilst undergoing treatment or surgery does not automatically make the doctor or surgeon liable.

The appropriate standard of reasonable care is not one of “perfection”. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.

To prove that a medical professional failed to meet the appropriate standard of care, a written report by an appropriately qualified medical expert in the relevant field will be necessary.

What if I had surgery overseas which has gone wrong?

If it is not already too late to say so, DON’T DO IT!

Many people are enticed to undergo medical treatment, particularly plastic surgery and dental work, overseas where the costs of the treatments may be much less than in Australia.

The first risk is infection. If that occurs overseas, your travel insurance will almost certainly not cover your return to Australia for treatment so you may be stuck in the medical system where you underwent treatment. Depending on the country involved, that care may be vastly inferior to that available in Australia.

The second risk is some other unfortunate outcome from the procedure which may not be apparent until you return home. Almost certainly, you are going to be stuck with having to seek compensation from an overseas medical provider with the laws of the relevant country applying. Unless it is a country with a common law legal system like ours, derived from the United Kingdom, then the legal outcome may be less than satisfactory.

Undergoing discretionary medical procedures overseas is a risky proposition. If you do it, you need to go in with your eyes wide open.

Is a medical negligence claim a good way to get back at your doctor?

Often, people who have been victims of some form of medical negligence will say either that they do not want the same thing to happen to someone else or want the doctor to feel some pain.

Unfortunately, medical negligence claims are about money. A court cannot fix you up or change what has happened – all it can do is award monetary compensation to you. Of course, part of the compensation may be to pay for a future medical treatment that may assist you.

If there truly was a terrible error by a doctor or a hospital, for example, then you can make a complaint to the Health Ombudsman. The complaint should be lodged as soon as possible as time limits apply. If the Health Ombudsman considers that the error is serious enough, it may refer the offending person to the Australian Health Practitioners Regulatory Authority (AHPRA). AHPRA can take disciplinary action against the health provider in some circumstances.

Most medical providers in Australia hold medical indemnity insurance policies. A claim against a medical practitioner does not necessarily hurt their pocket very much. It may well bruise their ego as no professional person likes to be accused of not meeting the appropriate standard of care, i.e. being negligent.

Can I recover the costs of my surgery in a medical negligence claim?

If the surgery provided no benefit to you whatsoever, then you could theoretically recover those costs.

Very rarely would that be a sufficient reason by itself to make a claim.

How long does it take to resolve a medical negligence claim?

There is a pre-litigation process that claimants must proceed through before filing a claim in a court.

That process is fairly long-winded. Firstly a notice has to be provided to the person causing injury. The only obligation on that person at that stage is to provide a copy of your medical records.

Then within one year, you are obliged to provide a medical expert report stating primarily that your injuries were caused by the medical practitioner failing to meet the appropriate standard of care.

After that, the respondent insurer to your claim is meant to investigate your claim within 6 months and then provide a liability notice stating whether they accept they are liable or not. Invariably, liability is denied, even in cases where liability ought to be admitted.

Then a compulsory conference is meant to be conducted between the parties within 3 months of that liability notice to attempt to resolve the claim. With many insurers taking longer than 6 months to investigate a claim, this entire period often runs out to 18 months or 2 years.

Medical negligence claims are not a quick fix. They require tenacity and commitment on the part of the claimant and their legal representative.

What about faulty dental treatment?

Complaints about faulty or unsatisfactory dental treatment are a vexed issue.

The Beattie Labor government enacted legislation in 2002 which prevents claimants from recovering their standard legal costs unless the value of their claim is in excess of a prescribed amount which is now about $80,000. That makes many smaller claims uneconomical even though the injured person has had their life ruined by the negligent actions of another.

The difficulty with dental treatment is that it is extremely rare to have a claim where the cost of rectifying faulty or negligently performed dental treatment exceeds more than about $30,000. It is vanishingly rare to see a claim exceeding $80,000.

The result is that dental treatment claims are virtually always uneconomical to pursue.

What is particularly unfair about it is that if your dentist sued you for not paying your bill, they would be entitled to recover their standard legal costs of successfully suing you.

One has to wonder why governments in Australia believe that it is acceptable to curtail people’s common law rights in this way selectively.

The only dental treatment claim we have ever pursued is one where the claimant wanted to make his point and was prepared to pay for our legal costs in any event. He was successful and made his point, but it was not necessarily financially sensible.

What if I have been misdiagnosed and now find I have terminal cancer?

These are often the most difficult types of medical negligence claims.

The big question is often whether the misdiagnosis or the late diagnosis has actually made any difference. In other words, the cancer was already there – so would life have been significantly extended if an earlier diagnosis had been reached?

This is a difficult question for a medical expert. Often it is impossible to say with sufficient certainty the stage of cancer when it should have been diagnosed because there is no record of it. Then survival rates are often matters of statistical probability based on past medical experience so it is difficult for an expert to provide an opinion about how long a particular patient would have lived but for the misdiagnosis or late diagnosis.

That is not to say they are all impossible claims. Advice ought to be obtained from a solicitor/lawyer who is an expert in medical negligence claims.

John Harvey

John Harvey

Following an earlier career as a business manager employing tradesmen, John completed 2 years of articles before being admitted to practice as a solicitor of the Supreme Court of Queensland in 2000. He is also admitted to practice as a solicitor in the High Court of Australia.

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