Medical Negligence Claims in Australia


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A brief guide to the Australian laws regarding medical negligence.

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Medical Negligence Claims in Australia

  1. 1. Medical Negligence Claims in Australia Things You Should Know
  2. 2. What is Medical Negligence?A reasonable standard of care must be taken whenproviding treatment as a health care practitioner.Medical negligence occurs when a healthcare provider failsto take reasonable care in circumstances where they couldand should foresee that their actions might cause harm.Negligence may involve a patient who receives care belowa reasonable standard that results in an injury or causes anexisting injury to become worse.
  3. 3. Examples of Medical Negligence A patient is not warned in advance about known risks or side-effects of a proposed treatment. A diagnosis is incorrect or incomplete (when this should be obvious to a professional practitioner). A significant delay in performing a diagnosis, where this affects the outcome of a treatment. Results of diagnostic tests are not reported accurately.
  4. 4. Examples of Medical Negligence Appropriate care is not taken when performing a medical procedure. The person who performs a medical procedure does not possess adequate skills and training. Incorrect medication is administered to a patient. Appropriate post-operative care is not provided.
  5. 5. Who can be held Negligent ?A negligence claim may be made against any individual or organisation thatprovides professional medical care, including: A doctor or nurse A public or private hospital A chiropractor or physiotherapist A midwife or obstetrician A dentist or pharmacist
  6. 6. Australian Law & Medical Negligence The laws relating to medical negligence claims are different in every Australian State and Territory. Each State and Territory has a different threshold (minimum severity of injury) that must be met for different types of compensation claim. This is especially true for claims relating to pain and suffering directly caused by medical negligence.
  7. 7. Medical Negligence & Common Law In some parts of Australia, common law applies. This means so that courts do not directly judge the competence of a medical practitioner. Instead, negligence is determined by whether the practitioner discharged their duty of care according to the normal practices of their profession. In other words, a practitioner may be found negligent if they do not carry out their duties in accordance with accepted professional standards.
  8. 8. Other ConsiderationsIn some States, a practitioner is not negligent if the treatmentthey provide is in line with accepted professional opinion – evenif it subsequently turns out to be harmful.Professional opinion does not have to be universally accepted tobe considered widely accepted.In these States, the court must determine whether reasonable"duty of care" was practiced based upon the assessment ofindependent medical experts.
  9. 9. Risk AssessmentAll medical procedures involve an element of risk.An adverse outcome from a medical procedure DOES NOTautomatically imply medical negligence.In order to make a medical negligence claim, it is necessaryto demonstrate that a reasonable standard of care wasnot followed, based upon the prevailing medical wisdom.
  10. 10. What Can I Claim?Compensation for pain and suffering from the originalinjury or illness and any aggravation of that condition.Compensation for income lost while recovering fromthe condition.Compensation for future earnings lost as a result ofthe condition.
  11. 11. What Can I Claim?Reasonable medical expenses incurred whilerecovering from the effects of the condition.Transportation costs to and from the place wheretreatment occurs.
  12. 12. What Should I Do?Because this area of the law varies from one State to thenext, you should to talk to a personal injury lawyer beforechoosing a course of action.Be wary about accepting any offer from an insurancecompany before getting legal advice.In most cases, once you accept any offer from theinsurer, you forfeit the right to pursue legal action formedical negligence.
  13. 13. Questions?If you have any questions about the information in this presentation, visit:
  14. 14. Disclaimer The information contained in this presentation is of a general nature and does not constitute legal advice. Always seek expert legal advice tailored to yourindividual circumstances. If you have a potential medical claim, contact Legalinjury immediately so that appropriate legal advice can be arranged.
  15. 15. The