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Icon of a doctor for medical negligence death compensation

The death of a loved one is never going to be without grief and loss. It is devastating to lose someone close to you. The sense of loss is felt all the more keenly if you were dependent on the person who has died for care and financial support, when all of a sudden that support and care is missing from your life. 

If the death of your loved one or family member has been caused or contributed to in some way by the negligence or actions of a doctor, medical practitioner, nurse, or hospital then you may be able to make a claim for compensation.

An incident which causes serious harm or death to a patient, and which was preventable, is also known within medical safety reporting language as a ‘sentinel event’.

A sentinel event is a “subset of adverse patient safety events that are wholly preventable and result in serious harm to, or death of, a patient”. In Australia in 2017-18 there were 80 such events, while in 2016-17 there were 65 sentinel events.

An example of a sentinel event might include wrong-site surgery, wrong patient surgery, unintended retention of a foreign object in a patient after surgery, medication errors and discharge or release of a child to an unauthorised person causing the death of the child. These incidents, while rare, do happen. And if your loved one has died as a result of the negligence or improper treatment of a medical professional or hospital, you may be able to seek compensation for your loss.

Speak to our Brisbane based medical negligence law experts about your potential wrongful death or negligence cases and find out how we can help you receive compensation for the wrongful death of a loved one.

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Possible causes of death by medical negligence

The loss of a loved one due to the negligent acts of a medical provider, nurse, hospital or doctor can happen in a number of different ways. Causes will vary for each person, but some examples of potential claims for negligent treatment include:

List with warning icon to show causes of medical negligence
  • Misdiagnosis: you may have a claim for negligence if your loved one was misdiagnosed and given a treatment which has caused adverse effects, or where the incorrect medication has been administered causing death.
  • Delayed diagnosis: a claim for negligence may arise where there has been a delay in diagnosing or identifying an acute illness or infection such as sepsis or meningitis. Delayed diagnosis can also arise where an illness such as cancer, if diagnosed earlier, might have been treatable.
  • Surgery error: potential claims for compensation arise in surgical errors where there are mistakes on the operating table leading to death, or where the incorrect or inappropriate surgery is performed on your loved one, or where the incorrect surgery is performed on the wrong person.
  • Hospital infection: infections that spread in hospitals can target people who are already weakened with illness. So if your loved one contracted a hospital-borne illness, such as SARS or a staphylococcus bacterial infection you may have a claim for compensation.
  • Hospital error: a claim for negligence can arise in a number of ways, from administering the incorrect medication through to providing the wrong treatment for the wrong illness.

You may also have a claim for medical negligence which has arisen from a different set of circumstances. Our negligence lawyers can help you to identify where you have a claim for compensation and will help you navigate the claims process.

Proving negligence

To have a medical negligence claim then negligence needs to be proven. There are three elements which need to be met to establish that a claim for negligence is possible.

There must be a duty of care

In Australia, the relationship between medical providers and their patients is an established duty of care. What this means is that a doctor, nurse, specialist, or medical practitioner has a duty to provide medical treatment in a way that avoids harming any person that they should reasonably consider might be harmed as a result of their acts.

The duty of care must then be breached. While doctors and medical practitioners do not need to be perfect, a breach of a duty of care will be found in cases where the treatment provided falls below the standard that a reasonable medical practitioner would be expected to exercise in the same circumstances.

The final element which must be found in establishing negligence is damage. What this means is that you must show that you have suffered harm because of the negligent act. Damage in the instance of medical negligence causing the loss of a loved one can come in the form of your loss as a dependant, and can also exist in the form of psychological injury as a result of their death.

Example: Alicia presents to a hospital suffering from seizures and is given scans to identify the issue. Due to an error with the hospital’s system, the doctor chooses to rely upon an oral report from the imaging specialist who believed that everything was normal in her scans. She is not given critical treatment at a time when it would have assisted her. As a result of this action, Alicia suffers further complications and later dies as a result of a misdiagnosis. Alicia’s husband and her children would be able to make a claim for compensation as a result of their loss.

Example: Harry is treated by a medical professional who initially misdiagnoses him with a particular type of cancer, but then correctly diagnoses him afterwards with the cancer that he has. Harry later dies, but on investigation it is found that the first diagnosis, even though wrong, was at the time it was made was reasonable and in line with Australian medical professional standards, and that the delay in diagnosis did not contribute to his death as he would have died regardless due to the aggressive form of cancer that he had. Harry’s dependents would likely not be able to successfully claim for compensation as there was no breach of the duty of care.

Proving negligence in a medical matter can be complex. This is because there can be a substantial body of evidence and information that needs to be gathered in order to prove the breach of the duty of medical care and/or that breach was the cause of the injury as opposed to other issues. You will also need to make a complaint directly to the healthcare provider, such as the hospital responsible for treatment, as well as to the Queensland Health Ombudsman.

Our personal injury lawyers can help you with not only making these complaints, but also with making a successful claim to ensure that you get the amount of compensation that you deserve for the loss of your beloved family member. Compensation will never take away the loss, but it can help to support you financially and ensure that you and your family members can be supported in your grief, pain and suffering without the additional burden of financial strain.

Dependency Claims

Medical negligence death partner and children dependency claims icon showing a man, women and child

If the person who has died was a primary carer or financial support, such as your partner or parent, then you may be able to claim for the support and care you have now lost. You may be able to make a claim for things such as:

  • Loss of household care and assistance, such as driving you and/or your children around, helping with meals and daily chores, or tasks such as mowing the lawn or helping around the house.
  • Loss of financial support, such as the salary or income of a partner or parent.

When you meet with our personal injury lawyers, we can help you go through what you may be able to claim for as part of your dependency claim and will discuss how to proceed with your claim for clinical or medical negligence. 

Mental Harm Claims

Sometimes when a loved one passes away unexpectedly there can be significant mental distress and suffering which takes place, to the point where a person develops a diagnosable psychiatric injury. 

A diagnosable psychiatric injury might include mental health conditions such as post-traumatic stress disorder, anxiety disorder, depression, and other forms of resultant mental illnesses. If it is found that your psychiatric injury arose as a result of the unexpected death of your loved one then you may be able to claim for lost income, pain and suffering, loss of enjoyment of life, and your medical and treatment expenses to manage your mental health.

Time limits

When you make a claim for compensation in Australia there are certain time limits which apply, and which can impact on whether you are able to claim for your loss. Where you are claiming for the loss suffered as a result of the death of a loved one, you generally have three years from the date of the death of your loved one to begin your claim. 
However, you should take action as early as possible so that you can confirm the information you need for a successful claim, and ensure that you have the best possible chance of a positive outcome for your matter.

Posted by Richard Greenwood Head of Marketing

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Disclaimer: Please note, this content is designed as general information only and does not constitute legal advice. While we make every effort to fact check and keep items up to date, legislation may change from time to time. For advice on your specific situation then please contact us.
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