Health system let you down? We help find answers and hold those responsible accountable.
Healthcare providers have a high duty of care but regrettably there are times when the system itself is the cause of an adverse outcome.
This could be due to a lack of appreciation of the significance of a condition, poor planning, delays in treating or diagnosing a condition, misdiagnosis, allocating staff with insufficient qualifications or experience or otherwise wrongly dealing with the issues at hand.
If you have suffered due to the negligence of a Queensland health care professional or provider such as a hospital then you may be entitled to a medical negligence claim on a no win, no fee basis.
Murphy's Law Accident Lawyers are medical negligence experts led by Queensland Law Society Accredited Specialists.
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What constitutes medical negligence?
In basic terms, medical negligence occurs when:
- a hospital, doctor or other health professional does something wrong; and
- your health is affected by that error.
If that’s happened to you then you will likely be able to bring a medical negligence claim against the medical practitioner involved.
‘Medical negligence’ is a civil claim made by the patient against the health practitioner. The doctor doesn’t get fined or charged for any misconduct through these types of claims (those are carried out in separate disciplinary or complaint processes with the governing medical bodies or other health authorities).
A medical negligence claim involves seeking compensation for your pain and suffering and for past and future losses caused by the medical error.
At any one time there are about 14,000 medical negligence claims running (according to the 2014 data collected for the Australian Institute of Health and Welfare).
From a legal perspective, to succeed in a medical negligence claim there are three (3) things that need to be proved:
- the health practitioner/hospital owed you a duty of care: that duty will exist in almost every situation where you are seeking medical treatment or advice. The doctors owe you a duty to take care for your health.
- they breached their duty of care: You need to show that a normal health professional with the same type of qualifications or specialty who was acting reasonably would have taken a different and safer option. And that if they had done that then you would not have been hurt.
- their error caused your current medical condition (this is known as causation, more detail on that below).
You need to be able to prove all three elements for your claim for compensation to succeed.
What are some examples of medical negligence?
Medical negligence claims generally fall into 7 different categories:
- Failing to identify or diagnose a medical condition.
- Diagnosing the wrong medical condition (a misdiagnosis)
- Prescribing the wrong medication.
- Taking too long to work out what the medical condition is (a delayed diagnosis).
- Failing to send someone off for further tests or specialist treatment or failing to act on tests/recommendations which have been made.
- Making an error during a medical procedure (operating on the wrong body part or damaging other parts of the body during a procedure).
- Failing to warn a patient about risks that might be involved in a procedure.
Some of the most common types of medical negligence which we come across are:
- Making errors during surgery leaving people with long term complications.
- Misdiagnosing or delays in diagnosing and treating cancer (cancer misdiagnosis).
- delay in diagnosing and treating infection.
- misreading or overlooking test results.
- birthing injuries (including cerebral palsy, brain haemorrhage, skull fracture);
- failing to detect birth defects (such as Aicardi Syndrome, Down Syndrome);
- delay in diagnosing and treating cancer (cancer misdiagnosis);
- cosmetic surgery injuries.
- post surgery trauma from events such as waking during surgery due to anaesthetist errors
Can I sue my doctor for negligence?
Yes, you may bring a If you believe you have sustained some kind of personal injury (or have lost a loved one) as a result of medical negligence, you may be entitled to seek compensation for your injuries and losses.
There are three (3) things you need to prove to succeed in a medical negligence claim:
- the health professional did something wrong (the legal term is that they breached the duty of care which they owed you); and
- an injury or death occurred; and
- the injury or death was caused by the wrongful act taken by the health professional (in other words, it wasn’t an outcome that would have happened anyway regardless of anything the health professional did). The legal term for this is causation.
In order to give yourself the best chance of succeeding in a medical negligence case, it is extremely important that you:
- contact a lawyer as soon as possible to obtain advice;
- engage lawyers who have experience with medical negligence claims.
Can you sue a doctor for being prescribed the wrong medication?
Yes. If you have been prescribed an incorrect medication by a doctor which has caused you to suffer some kind of personal injury (or caused the death of a loved one) you can bring a claim for compensation.
To succeed in such a claim, the key is to show that taking the wrong medication led to your current problems (rather than the original illness you were taking the medication for in the first place).
Let’s look at an example:
- John attends upon his local GP in the morning to collect his prescription for pain medication.
- Instead of providing John with his normal prescription, the GP accidentally gives John a script for blood pressure tablets.
- John collects the blood pressure tablets from his pharmacist and takes two of those wrong tablets. That afternoon he gets dizzy and falls over. He later realises that he has been given the wrong medication.
Can John sue the doctor? If he hurt himself from the fall or the dizziness (or other problems) is long-lasting then John could sue his doctor.
If John wasn’t injured though and doesn’t have any ongoing health effects there is unlikely to be any real medical negligence claim worth pursuing (even though the GP did the wrong thing). There needs to be some sort of personal injury involved for a successful claim for compensation.
Can I sue a doctor or hospital for misdiagnosis?
Yes. If the doctor or hospital get your medical condition wrong you could sue for medical negligence compensation.
A medical misdiagnosis can happen in a number of ways:
- the health professional might not detect your condition at all when they should have;
- you could be told you have the wrong medical condition;
- the doctor or hospital might tell you the medical condition is mild or new when it’s actually serious or well advanced.
It is much mor prevalent than you think. According to some medical experts, as many as 140,000 cases of medical misdiagnosis occur in Australia every year. Up to 21,000 of those result in serious harm.
One of the most common examples of medical negligence that we come across is the misdiagnosis of cancer. That commonly arises when:
- a lump or growth is not seen or properly tested;
- blood test results are not read correctly;
- something is missed in your x-ray, CT or MRI scans; or
- a health practitioner fails to consider all your symptoms and link those to a cancer.
All of these can form the basis of a failure of the doctor’s standard of care and can lead to a successful cancer misdiagnosis claim.
Medical research shows that other common types of medical misdiagnosis include:
- vascular events (strokes, heart attacks and so on);
- infections;
- neurological disorders (such as Multiple Sclerosis and Parkinson’s disease);
- lupus;
- fibromyaligia;
- Lyme disease;
- Celiac disease; and
- chronic fatigue syndrome.
To succeed in a medical negligence claim for misdiagnosis you need to show that your health is worse off because of the doctor’s or hospital’s error. An important first step to take is to speak with an experienced personal injury lawyer to help explore your options.
Compensation for stillbirths and neonatal deaths
Tragically, we hear too often about parents losing a child (either before, during or after they are born) as a result of medical negligence.
The Australian government’s statistics reveal that the majority (59.5%) of stillbirths occur before the onset of labour. It’s clearly a very important and delicate time in an infant’s development.
We have found the most common causes of prenatal (before birth) and neonatal (after birth) injuries and deaths include:
- a delay in diagnosing or treating infection;
- a delay in diagnosing and treating a complication in the womb;
- preeclampsia; and
- complications during the delivery of a child.
If your child has been injured or has passed away due to medical negligence, you may be entitled to seek compensation for your injuries and losses.
Can I sue for failed cosmetic surgery and procedure?
Yes. If you are unhappy with the outcome of cosmetic surgery or have suffered some sort of complication from cosmetic surgery you could be entitled to seek personal injury compensation.
The most common types of cosmetic surgery and procedures which can give rise to medical negligence claims includes:
- breast augmentation surgery (breast implants);
- nose surgery (rhinoplasty);
- tummy tuck (abdominoplasty);
- laser therapy;
- cosmetic injectables;
- dermal fillers;
- botox injections;
- chemical peels;
- dermabrasions;
- skin rejuvination; and
- liposuction.
Some of the most common complications that occur with cosmetic surgery include:
- scarring or skin necrosis;
- complications from the anesthesia (such as lung infections, stroke, heart attacks and death);
- lengthy bruising and swelling;
- numbness or nerve injury;
- organ damage;
- blood clots leading to Deep Vein Thrombosis (DVT) and pulmonary embolism;
- blurred vision, overproduction of tears or altered shape of eyes (for eyelid surgery)
- infections;
- scarring; and
- psychological injuries.
If things go wrong then getting advice from an experienced and specialist personal injury solicitor is a good starting point before considering a cosmetic surgery compensation claim.
Are there risks with having cosmetic surgery overseas?
There has been a growing trend towards cosmetic tourism (travelling overseas to undergo surgery) in recent times. Not only should that give rise to genuine concern about safety and medical options if things go wrong but it will also likely have a significant impact on your legal remedies.
Each country has their own unique medical negligence compensation. They can be similar to Australian law and standards of care or they can be vastly different. Some countries give visiting foreigners no legal rights at all.
It’s best to speak with an experienced and specialist Plastic Surgeon before you undergo any cosmetic surgery and a specialist medical negligence lawyer (if you’re seriously contemplating overseas surgery) to work out how that might impact your legal rights.
How long does a medical negligence case take?
In our experience, the average timeframe for a medical negligence claim to be finalised is about 18 months.
It all depends on the nature of the person’s medical condition, how easy or difficult it is to prove the negligence and how many defendants are involved (typically the more doctors and hospitals involved the longer the claim will take).
In Queensland there is a key piece of legislation that governs medical negligence claims, called the Personal Injuries Proceedings Act 2002 (referred to as “PIPA”).
Before you commence a claim with the court there are certain steps you need to go through under the PIPA legislation. Depending upon the complexities involved in your claim, it could take anywhere between 12-18 months for your claim to reach the point of an informal settlement conference (where you try and negotiate a settlement with the other party).
If the claim cannot be resolved there then legal proceedings need to be filed with the court and the formal court process begins. That can take anywhere between a further 6-18 months to conclude (depending on what steps are involved). Australian Government data confirms that these types of claims can take years to conclude.
However, there are circumstances where a claim can be fast tracked, especially so in circumstances where someone has been diagnosed with a terminal illness.
Either way, it is extremely important that you seek legal advice as soon as possible so that the circumstances of your claim can be investigated as soon as possible.
How to start a medical negligence claim
To start a medical negligence claim then the first step is to consult a medical negligence lawyer. Our medical negligence experts can provide free initial advice and provide you with options to your specific situation.
Once we start a claim then we will lead the process which, in Queensland, begins with delivering an “Initial Notice” upon the doctor/hospital responsible.
However, it is extremely important to note that:
- there are strict time limits that apply to serving an Initial Notice; and
- there is a strict requirement for the Initial Notice to contain all the information that is required by the Personal Injuries Proceedings Act 2002 (referred to as “PIPA”).
Once you have served your Initial Notice, that then triggers a timeframe in which you are required to then subsequently serve your Part 1 Notice of Claim form upon the doctor/hospital.
There are other requirements however that you need to satisfy in order to serve a complying Part 1 Notice of Claim form (including having a report from an appropriate expert who supports your case). For that reason, you should seek legal advice before you serve your Part 1 Notice of Claim form.
How long do you have to sue for medical negligence?
Generally speaking, in Queensland, you have 3 years from the time of any medical negligence to bring a claim with the court. If you don’t you can totally lose your legal rights to pursue a claim.
There are exceptions to that general rule. For example:
- If you weren’t aware of the medical error (or that your current condition was related to it) within the usual 3 year time period, but later become aware of the negligence, you can ask the court to give you an extension of time to make a claim. But you need to do that within 1 year of learning of these matters;
- Children have until their 21st birthday to bring a claim (although a formal notice of the claim should still be given within six years of any injury occurring);
- People with certain types of mental or cognitive incapacities who have no ability to make their own decisions have an ongoing extension in which to bring a claim.
How much compensation will I get for medical negligence?
Medical negligence compensation is usually given in the order of tens of thousands of dollars or hundreds of thousands of dollars. In cases of very serious injuries, compensation awards in the millions of dollars can be made.
Data kept by the Australian government’s National Claims and Policies database (for 2017) shows that while most claims are finalised with payments of less than $100,000 there are a percentage of serious cases (about 6% of all claims) where awards of more than $500,000 are made.
No two compensation claims are the same. Particular care and attention needs to be given to the impact a medical negligence event can have on a person in every claim.
A number of factors which will affect the level of compensation include:
- the nature of the injuries;
- the number of injuries that you have;
- how badly impacted you are;
- the need for any ongoing surgeries or treatment;
- what impact your injuries have upon your work;
- what ongoing medical treatment you require; and
- whether you now need care and assistance with your day-to-day activities.
An experienced medical negligence lawyer will be able to help give you an estimate of the compensation you might be entitled to.
