Medical malpractice is a term used to refer to an act (or omission) by a medical professional which falls below the accepted standard of care for the profession. It can also be termed as negligence, injury, or death due to medical negligence. A medical malpractice case occurs when a medical professional (doctor, nurse, dentist, etc.) is negligent in their duty to provide the necessary standard of care, and this negligence results in injury, or death.
In the context of medical malpractice cases, negligence refers to a failure to provide that degree of skill and knowledge which is generally accepted by medical professionals in the same area. A doctor may be found guilty of medical malpractice through either action or inaction, i.e. either making an incorrect diagnosis (action) or not checking a patient’s condition so death or injury occurs as a result (omission).
There are various reasons why medical malpractice cases occur. In most cases, it is due to doctors providing incorrect information when treating patients. It can also occur if the doctor fails to keep up-to-date with their research so they do not have the most up-to-date skills and knowledge. Some medical malpractice cases also occur due to mistakes made by either the doctor or their staff. For example, a nurse accidentally gives a patient the wrong medication which results in death or permanent disability.
What is the “standard of care”?
The “standard of care” is the level of care that is accepted as being reasonable for the circumstances and is required by medical professionals in the same field. In medical malpractice cases, the relevant standard of care is what would be expected by a reasonable doctor in the same area of practice in the specific circumstances of each case.
For example, a patient presents to a hospital with symptoms indicating that they have an inflamed appendix that is likely to rupture if not operated upon immediately. However, they are not examined by a doctor but rather treated by an intern who decides that the patient does not require immediate surgery and instead gives them pain killers. The appendix ruptures resulting in death. In this case, the standard of reasonable care is that appropriate treatment should have been provided by a suitably qualified medical professional (a doctor) as soon as possible to prevent death. In contrast, the intern involved should not treat patients with symptoms indicating a ruptured appendix without obtaining medical advice or attempting to operate on them as quickly as possible.
More examples of medical malpractice include surgical errors, failure to obtain informed consent, and various other medical errors.
When can medical negligence result in medical malpractice claims (also known as “medical negligence claims”)?
Medical malpractice claims can arise in a number of circumstances:
A patient dies due to a medical professional’s actions.
A patient suffers harm caused by a medical professional’s action or inaction and endures pain and suffering, economic loss and other damages as a result.
In Australia, medical malpractice cases can be made through various avenues (legal ways) and are dealt with by several bodies including courts of law, government departments, and health departments. The course of action taken will depend upon the state or territory in which the malpractice occurred and on the body involved, as well as whether or not a prior settlement has been made to avoid legal proceedings.
Medical malpractice legal actions are complex and often adversarial (i.e involving opposing sides). Medical malpractice lawyers need to have a broad understanding of medical procedures and the relevant expert witnesses (medical practitioners) to prove a case. Witnesses can be patients, relatives of patients, or medical experts. Doctors involved do not just provide expert testimony but also may have to give evidence against one of their colleagues in court – which is often difficult for them as well as the legal teams representing the applicant (patient).
People may be able to pursue compensation through a medical malpractice claim if they feel that they have been harmed due to the negligence of a medical professional. It is important to note, however, that it is not always necessary to pursue litigation (legal action) against a doctor, health care provider, or medical facility in order to receive compensation for harm suffered.
Medical malpractice law in Australia is complex and can be confusing to understand due to the differing laws, procedures, and terminology from one state or territory to another. The specific factors that will determine how a medical malpractice case unfolds are also different depending on which jurisdiction of Australia the injury occurred in (e.g. New South Wales, Victoria, South Australia) and also whether or not a previous settlement has been reached between the doctor involved and the injured patient.
So, medical malpractice occurs when medical professionals fail to meet accepted standards of practice in their area of expertise or provide negligent treatment which leads to harm for their patients. In Australia, medical malpractice is dealt with predominantly through the medical compensation law systems in each state and territory. The processes for filing a liability claim against a doctor or medical facility for medical malpractice are complex and there are numerous avenues (legal ways) that can be pursued to redress the harm suffered by patients.
Why engage a lawyer?
No Win, No Fee – these are legal services offered by lawyers whereby you only pay them in the event of a successful claim. If they fail to win your medical negligence or medical malpractice lawsuit and do not recover any costs for advancing the claim, then you do not have to pay their legal fees.
To find out more about medical negligence, injury claims, and other liability claims – or if you would like assistance with any other legal issues in Australia – please contact C+F Lawyers. We can also assist you with other kinds of professional negligence claims, motor vehicle accident claims, public liability claims and workers’ compensation claims.
Disclaimer: This article contains general information only and should not be acted upon without obtaining specific legal advice.
