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Medical negligence arises when a failure by a medical professional to take reasonable care to avoid causing a preventable injury or loss to another person. Medical professionals have a duty of care to a patient, and a breach of that duty can give rise to a personal injury claim.
Medical negligence cases are complex; this is because many medical treatments involve highly specialised and technical skills, and extensive evidence about the correct procedures and safety measures are required by a court before a decision can be made. There is often conflicting opinions from medical experts, and the court ultimately is to decide which medical opinion/s to accept. The court also has the challenging task of considering whether the patient would have undergone the treatment if properly warned of the risk and assessing the damages (which are restricted to the injuries resulting from the negligence only, not the prior medical condition). Medical negligence impacts can range from a reduced ability to work and earn money to long-lasting pain.
In Queensland, medical practitioners are required to meet an acceptable standard of knowledge and performance in their care for patients. If the medical practitioner assisting a patient is working at the high standards of their duty of care to a patient when something goes wrong, this would not be grounds for a personal injury claim. On the other hand, if a medical practitioner is performing poorly and inadequately in accordance with their duty of care, this is potentially cause for a medical negligence personal injury claim.
Medical errors that may be considered as matters of negligence include:
• Surgery or any other invasive medical procedure being performed on the wrong body part or on wrong person;
• A mistake with the prescription of medication, leading to serious side effects;
• Retention of a medical tool or other object inside a patient, causing harm;
• A failure to give adequate warning/medical advice about the risks or effects of a procedure; and
• A misdiagnosis of a condition, leading to ongoing treatment problems.
To prove medical negligence, it must be shown that:
• the medical practitioner did not behave in the way a reasonably competent medical practitioner would have behaved in the circumstances;
• the negligent conduct caused damage to the patient; and
• the damage suffered is in a category for which the law allows compensation to be paid.
If it can be proved that a medical practitioner with a duty of care over a patient in a medical situation caused a patient harm as a direct result of the medical practitioner’s actions, that is when a patient can commence a medical negligence claim. Damages in a medical negligence claim include, but are not limited to, repayment of additional medical costs, a lump sum payment to compensate for pain and suffering or loss of quality of life, as well as repayment of wages that cannot be earned due to an inability to work.
The Personal Injuries Proceedings Act 2002 provides the procedures for making a claim. There are specific steps that must be taken to make a valid claim, and strict time limits apply.
Firstly, written notice must be given to the medical professional against whom a claim is made. This “initial notice” must contain details including a description of the medical services alleged to have given rise to the injury and claim, the name of the doctor, the date and place of the service provided, and the injury alleged to have been suffered. It must be given on the earliest of:
• within 9 months of the medical incident, or if the symptoms arising from the incident were not immediately apparent, the first appearance of symptoms;
• within 1 month of the day the person instructs a law firm to act on their behalf; or
Within 1 month of receiving the above notice, the medical professional or their representative, must give a written response stating whether documents are held and providing copies of all documents held.
Within 12 months, the plaintiff then must give a notice of claim including a written report from a medical specialist that states that in that specialist’s opinion there was a failure to meet an appropriate standard of care in providing medical services, the reasons for this, and that as a result of the failure the person suffered personal injury.
The respondent then has 1 month to accept or reject the claim. Within 6 months, the respondent must inform themselves of the incident, and give the plaintiff written notice:
• stating whether liability is admitted or denied, and if contributory negligence is claimed, the degree of contributory negligence as a percentage;
• stating whether a settlement offer has been accepted or rejected, or if an offer has not been made, inviting the plaintiff to make one;
• giving a fair and reasonable estimate of the likely damages to which the plaintiff would be entitled if the claim went to court; and
• making an offer or counteroffer of settlement, setting out the basis on which the offer is made.
The procedure and time limits for a medical negligence claim for a child are slightly different.
A parent or legal guardian must give a notice of claim before the earlier of:
• 6 years after the day the parent or legal guardian knew, or ought to have reasonably known, that the injury occurred; or
• 18 months after the day the parent or legal guardian consulted a lawyer.
A medical professional is authorised to give the parent or legal guardian of the child a “notice of an adverse event”. It can be an offer to remedy any harm suffered as a result of the medical incident, an expression of regret, or both. It is not an admission of liability and is inadmissible as evidence in any subsequent court proceeding.
Emily Wright and our team at Littles are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, please reach out to Emily Wright and Littles Lawyers today.
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