How Do I Make a Claim for Medical Negligence?

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| Preston Law

Medical negligence is the term for when a healthcare provider, including a doctor or surgeon, does not take proper care in their handling of your medical needs.

If you have undergone a medical procedure and the healthcare provider failed in their duty of care or you have been left injured after receiving medical attention, you may be entitled to make a medical negligence claim.

This area of the law is complex, and it can be difficult to ascertain who was at fault and how they failed to provide a duty of care, however, if you believe you may be able to make a claim, here is what you will need to prove to establish that medical negligence occurred.

A lack of duty of care

A duty of care is the legal obligation held by a medical practitioner to ensure your safety (and the safety of other patients). Healthcare providers who are attending to your wellbeing must take reasonable care in their work and a failure to do so could be deemed as negligence or a lack of duty of care.

The duty extends beyond physical treatment and also covers medical advice.

Unacceptable standard of care

If you believe that your case was met with an unacceptable standard of care then it will need to be assessed by others in the medical industry who can determine if an acceptable standard of care was taken by the healthcare providers attending to you.

A finding that there was a failure to meet the acceptable standard of care may help your claim.

Foreseeable harm

If the actions taken by the healthcare provider can be linked to the injury you ultimately endured, causation may be proved. This means that the healthcare provider caused you physical or psychological harm that was foreseeable in the circumstances, and if you can prove that your injuries would not have occurred had the healthcare provider offered alternate advice or treatment, this could be helpful to your claim for medical negligence.

Anomalies in care

It is highly likely that the healthcare provider being accused of negligence will defend themselves by saying they acted in accordance with their role and their duty of care and in line with the acceptable standard of care for the industry. You will need to be able to prove that their actions were incongruent with the usual level of care or typical treatment for your condition to help your case.

The need for damages

If your life has been impacted in a way that means a lump sum payment for damages would be reasonable, then this may form part of your claim for medical negligence. On the other hand, if your injury has not caused a loss of earnings or required ongoing medical care, you may not be entitled to compensation for damages.

Why is it so hard to prove medical negligence occurred?

For a person who does not work in the medical field it can be difficult to know exactly what the acceptable standard of care is. Where medical treatments and surgery are involved, it can be frustrating when they do not provide you with a solution to your problem or end your pain. This means that sometimes the line between negligence and unsuccessful treatment is blurred. A personal injury lawyer who has experience in the medical negligence field will be able to assist you in determining whether or not your claim is worth pursuing.

Is there a time limit on making a medical negligence claim?

Yes. Claims for medical negligence are subject to a three-year time limit from the date the injury occurred. You must commence court proceedings prior to this limit. Under special circumstances you may receive a deadline, but the sooner you seek legal advice the easier the process will be.

What can I claim?

If you successfully prove medical negligence, you may be entitled to claim the following types of expenses:

  • Medical appointments, including surgery to fix the injury and rehabilitation;
  • Travel to and from appointments, particularly in cases where your specialists is located many kilometres away from your home;
  • Lost earnings due to prolonged periods of time off work or for business owners, where wages have had to be paid to someone else to cover your absence or lost work;
  • Assistance in the home, including carers and cleaners; and/or
  • A lump sum payment for pain and suffering if the injury has significantly impacted your quality of life or is likely to.

If you feel that you may be entitled to a medical negligence claim, please contact one of our experienced personal injury lawyers on (07) 4052 0770 to discuss this today.