Filing a medical negligence claim

An Overview

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:

  1. Your doctor or hospital (the ‘defendant’) owed a duty of care
  2. That there was breach of duty in the way (or the lack of the way) treatment was provided by the defendant
  3. You suffered pain, injury or loss that should have been foreseeable
  4. 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.