If you have ever wondered what is involved in suing a doctor for medical negligence in Australia, our guide below covers the most frequently asked questions.
What is medical negligence?
Medical negligence occurs when the treatment provided by a medical provider (such as a doctor, dentist, nurse, pharmacist) falls below an acceptable standard of care. The standard of care is determined by courts of law with regard to expert medical opinion. There are various legal components to proving medical negligence. It’s not as simple as proving that an error occurred. The patient must prove a departure from standard of care, causation and damage.
What is a medical negligence claim?
Medical negligence compensation claims are generally brought by patients who have been harmed or injured due to poor medical treatment or misdiagnosis from a medical provider such as a doctor, nurse, dentist, physiotherapist, chiropractor. The purpose of a medical negligence claim is to seek compensation for injuries (physical and psychological) as well as financial loss (such as loss of income, medical expenses) that are the result of the medical negligence. Laws relating to medical negligence vary between states and territories in Australia
How do I make a medical negligence claim?
It is best to speak with a solicitor who specialises in medical negligence compensation. They will advise you of the time limits, the legal process, and the costs involved. Self-representation is not recommended in most cases, as these matters are highly complex and insurance companies often vigorously defend claims against doctors.
How long do I have to make a claim?
There are time limits for making a compensation claim, which vary between states and territories, with most jurisdictions having a time limit of 3 years. However this time limit is different for children and you should seek legal advice straight away. It is sometimes possible to be granted an extension of time.
What if I can’t work because of medical negligence?
If you can no longer work or your ability to earn an income is affected by medical negligence, your solicitor will take this into account in calculating your compensation entitlements. They may also provide advice on related income issues such as applying for Centrelink benefits, or claiming on insurance policies such Income Protection and TPD (Total and Permanent Disability Claims) and early access to Superannuation.
How much does it cost to make a medical negligence claim?
Most medical negligence solicitors will act on a No Win No Fee basis and may ask you to contribute to some expenses such as paying for copies of your medical records and expert reports. The cost of medical records varies depending on the price set by the hospital (or doctor), but must not be unreasonable. Experts reports greatly vary, are set by the individual expert and can range from afew hundred dollars to thousands of dollars, depending on the complexity of the matter. It is also common for supplementary reports to be commissioned as more evidence comes to light.
A solicitor must give you a Cost Agreement which will include an estimate of the solicitor’s fees. In complex cases or cases involving an application for Extension of Time (i.e because the time limit expired), it’s not unusual for a solicitor to ask their client to contribute upfront a specified amount.
Also note that there is a real financial risk to you if you lose your case. The solicitors acting for the doctor/hospital can seek that you pay their legal costs. That’s why it’s important that when commencing legal action you should have an expert medical negligence solicitor represent you, and that your case is thoroughly investigated. An experienced medical negligence solicitor should thoroughly inform you of the risks involved in commencing legal action and going to court (if your case gets that far). Most cases will settle out of court. With weak cases there may be an opportunity to pull out of the case at an early stage, without having to pay the legal costs of the doctor’s lawyers (should they agree to it).
Will I need to hire a barrister for a medical negligence claim?
It’s quite common for a medical negligence solicitor to brief a barrister (also known as counsel) for an opinion and/or representation. This may happen at any time during the investigation of your matter. Many barristers will also act on a No Win No Fee basis, but this is something you should ask your solicitor about before they brief a barrister. There are barristers who also have a special interest in medical negligence law and they usually work closely with medical negligence solicitors. So a specialist medical negligence solicitor will often recommend a barrister whose work they are familiar with.
Where a case is listed for trial and is complex, it’s not uncommon for two barristers to be briefed (Senior Counsel and Junior Counsel). As stated above, many cases will settle prior to court through negotiations and/or a formal mediation. It’s also common for a solicitor to brief a barrister to appear at a mediation.
Who pays for my medical negligence compensation?
All medical practitioners are required by law to have Professional Indemnity Insurance. So your compensation will be paid by an insurance company.
What medical evidence will I need to prove my case?
Generally speaking, your solicitor will need to obtain a copy of your medical records and medical reports. Medical reports may be obtained from a treating doctor regarding any relevant treatment you have received. Sometimes your treating doctor may also be asked for an expert opinion. Nearly all cases will require a report from an independent medical expert. Your solicitor will send a brief of documents (including relevant medical records) to an independent medical expert. Typically, the medical expert will be asked to provide an opinion on whether your doctor acted in accordance with the accepted standard of care and causation of damage.
How much compensation will I get?
All compensation claims are different because they are based on your unique facts and the severity of your injuries. Once your solicitor has thoroughly assessed the evidence in your case, they will have a better idea of what your claim is worth.
Generally speaking, compensation falls into various categories, covering the following areas:
- Pain and suffering and loss of enjoyment of life
- Past and future loss of earnings
- Domestic and attendant care and help provided by friends or family for free, as well as paid care
- Past and future medical expenses (surgery, pharmaceuticals and medical aides)
- Home and vehicle modification expenses
Can my doctor be disciplined for what they did?
The process for obtaining medical negligence compensation is separate from the process for disciplinary action against a doctor. In order for a doctor to be disciplined, a complaint will need to be made to a government body such as the Health Care Complaints Commission in NSW (or the equivalent in each state), the Medical Board or AHPRA. They will investigate the matter and decide whether further action needs to be taken (including prosecution for professional misconduct in a Tribunal). Most of the cases that result in a finding of professional misconduct are in relation to sexual misconduct and substance abuse. Disciplinary cases do not involve compensating patients; their purpose is to reprimand the doctor and protect the public.
If a family member has died as a result of medical negligence, can I make a compensation claim on their behalf?
Yes, it is possible to make a claim, however the types of compensation claims in these circumstances are limited to the financial benefit the dependents would have received from the deceased, had they lived. You may also be able to claim compensation if you have suffered a psychiatric illness as a result of the death of the family member.
If my private health insurance has paid for my medical treatment, will I still be entitled to compensation for medical treatment I need as a result of the negligence?
If you are awarded compensation (through settlement or court action), you will be required to payback your private health insurance company the cost of any medical treatment you receive in relation to the negligence claim that has been paid for by your private health insurance. Your solicitor will take this amount into account when calculating your damages claim.
If Medicare has paid for my medical treatment, will I still be entitled to compensation for medical treatment I need as a result of the negligence?
Similar to private health insurance (see answer above), Medicare will generally ask to be repaid and your solicitor will factor this amount into your claim.
Will my doctor go to jail?
A compensation claim is a civil matter. Doctors do not go to jail for being negligent in a civil compensation case. For a doctor to serve jail time, they would have to be charged with a criminal offence, successfully prosecuted and sentenced accordingly. The types of criminal cases where convicted doctors may serve jail time include for fraud, manslaughter, murder and sexual assault. If you think your doctor may have committed a crime you can speak with a medical negligence solicitor and they will advise you of the course of action you should take. The police should be notified as well as the appropriate governing body (Medical Board, AHPRA).
Can I find out if my doctor has been sued for medical negligence previously?
Most compensation cases settle out of court and the terms of settlement are confidential, therefore it can be extremely difficult for the public to find out if their doctor has been sued previously. Your medical negligence solicitor may or may not be aware of prior cases against your doctor. In Australia, we currently do not have a public register of sued doctors. Internationally, there is a move towards placing more information about practitioners on medical registers in the name of transparency.
You can search websites such as www.austlii.edu.au for reported court cases against doctors, however not all cases are reported in these databases. We hope to report as many cases as we can that become public/reported in the media/court decisions.
Disclaimer: Nothing on this page should be taken as legal or medical advice. You should speak to a lawyer to clarify the legal situation in your particular case.