08 Nov Filing a medical negligence claim
If you believe you’ve suffered personal injury due to medical negligence, you may be asking yourself, “Can I file a claim due to my situation? How do I file one? What’s the process and what can I expect?”
Requirements for establishing negligence
In any medical negligence case, it must be shown that a medical practitioner (i.e., doctor or hospital) acted in a manner that was not widely accepted as competent professional practice.
To make a medical negligence claim in South Australia, you and your legal counsel (the ‘plaintiff’) must show that:
- Your doctor or hospital (the ‘defendant’) owed a duty of care
- That there was breach of duty in the way (or the lack of the way) treatment was provided by the defendant
- You suffered pain, injury or loss that should have been foreseeable
- Your injury or loss was caused as a result of the breach
Will my case qualify?
There are many types of medical negligence claims, but a few examples include:
- Improper surgical treatment (e.g., a mistake was made during surgery, surgery was unwarranted, poor care after surgery)
- Giving a patient the wrong prescription
- Failure to notify a patient of possible side effects of treatment or medication
- A delay in diagnosing a patient’s condition or referral to a specialist
- Mismanagement of labour and delivery
Additional types of negligence cases can be referenced here.
Also, when filing a case, time is of the essence – you have three years from the time of the incident to file a case. (This time frame is known as a statute of limitation.) After that time, you will need permission from the court to bring an action, which generally increases difficulty and reduces the chances of making a successful claim.
Medical negligence claims are considered civil suits – in other words, they do not arise from criminal activity, and plaintiffs seek monetary compensation rather than legal punishment. All civil suits can be complicated, but negligence claims are often time-consuming and especially complex due to the need for thorough research with medical professionals, insurers, etc., and to prove ‘causation’ – that your injury, pain or suffering was the result of wrong-doing on the part of a medical professional or hospital.
What kind of compensation will I receive?
Every case is different, and there are no set amounts for successful negligence claims in Australia. However, if causation and wrong-doing are established, the ‘damages’ (money you receive) are calculated based on your out-of-pocket expenses, level of pain and suffering, lost income (such as lost wages or salary due to missed work time), and additional home care or medical expenses.
A 2010-11 report by the Australian Institute of Health and Welfare found that over half of claims (53%) had payouts of less than $10,000, 25% were $10,000-$100,000, 16% were $100,000-$500,000 and 6% were for $500,000 or more.
Will I have to go to court?
In Australia, over 95% of medical negligence claims are settled out of court. If a solid case is established by the plaintiff, malpractice insurers usually offer a lump sum payment in exchange for giving up the right to sue.
What should I look for in a medical negligence lawyer?
The lawyer you choose has a huge impact on your overall experience, not just the financial outcome. If you believe you have a case, you should seek a medical negligence expert who has years of experience in research and negotiation.
If you still have questions or concerns about whether or not to file a negligence claim, we urge you to contact our professional team to discuss your situation.