• Negligent medical treatment can include but is not limited to any of the following:
  • failing to warn a patient of any serious risks to their health and wellbeing prior to commencing treatment;
  • failing to correctly diagnose a condition in a timely manner;
  • failing to provide appropriate treatment;
  • if the required treatment goes beyond the capabilities of a particular doctor failing to refer that patient to a more skilled or knowledgeable practitioner;
  • failing to perform a medical procedure or surgery with reasonable care and skill;
  • failing to properly read or follow up on test results, scans, reports and x-rays;
  • failing to exercise due diligence and skill; or
  • failing to provide appropriate post-operative care. 

• A person can claim for two types of damages:
  • general damages; and
  • special damages.

• General damages are a type of compensation payment that cover:
  • non-quantifiable losses like pain and suffering;
  • loss of future earning capacity;
  • reduced quality of life; and
  • disfigurement.
• Courts will take into account the victim’s personal circumstances and the impact that the harm has had on their lives when determining the appropriate amount of general damages to award.
  • Most states and territories have placed caps on the maximum amount of general damages that can be claimed. You will need to speak to your lawyer about the maximum claimable amount for your state or territory.

• Special damages refer to compensation for quantifiable expenses like:
  • medical treatment;
  • therapy;
  • lost earnings up until the date of trial; and
  • any other related expenses incurred. 

• You can claim for mental harm but damages will generally only be awarded where:
  • the mental harm is incidental to another physical or psychiatric injury such as when you suffer depression because your physical injuries prevent you from being able to work or socialise; and
  • the mental harm can be characterised as a recognised psychiatric illness.

• Pure mental harm such as stress or emotional turmoil will not be enough to attract a claim for damages.
• You can use our LegalPlan™ membership to ask lawyers for tenders or a Fixed fee Quote in relation to your medical negligence needs.

• By law all medical practitioners are required to hold professional indemnity insurance.
• This insurance is designed to cover them in the event that they are sued under a negligence claim.
• If you are successful in suing the medical practitioner or if you receive a settlement sum the insurer is the one that will pay you the compensation amount.
• The financial position of the medical practitioner will have no bearing on the amount of your compensation.

• In most states and territories proceedings are commenced against medical practitioners by lodging a writ or a statement of claim in the relevant court.
• In some states such as Victoria a statement of claim for medical negligence proceedings will not be accepted unless it is accompanied by a certificate of assessment that determines whether or not the harm you have suffered meets the relevant injury threshold.
• Most states and territories will also require filing of an affidavit with the statement of claim.
• As a result of these requirements there are a number of processes you will need to complete with your lawyer before you go to court. You will also need to gather evidence so that you have all the necessary paperwork to commence proceedings.
• Once the statement of claim is lodged and accepted your lawyer will serve filed copies of this document on the doctor or hospital you are suing.
• The courts will then contact both parties and advise the next step.
• Courts will usually refer parties to mediation first in an attempt to have the matter resolved by settlement rather than through trial in the court.
  • It is estimated that as many as 97% of all medical negligence matters are resolved through mediation.
• If mediation fails the matter is referred to the courts for trial.
  • Matters referred to trial can take in excess of 18 months to resolve and can cost thousands of dollars in legal fees. They can sometimes cause tremendous amounts of stress for the people involved. 

• If you are injured while receiving treatment in a hospital then the hospital will be held responsible for the harm suffered.
• If a private practitioner in a private clinic treats you then the practitioner will be sued privately.
• You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.

• Yes. In most states and territories proceedings for medical negligence claims need to be commenced within three years of receiving the injury or loss.
• Exemptions can be made in cases where the injury does not make itself apparent until many years after the negligence was discovered. 

• In order to file proceedings most states will require the victim to be assessed by an approved independent medical specialist to determine the extent of their injuries.
• If the injuries are deemed serious enough to meet an ‘impairment threshold’ then the person will be entitled to sue for damages.
• In NSW and Victoria the impairment threshold is measured by a percentage of whole person impairment. Whole person impairment is defined as an alteration to a person’s health status that is pain, damage or malfunction that is fixed, stabilised and unlikely to change substantially over the next year.
• In other states and territories impairment thresholds are determined by quantifying the loss that has been suffered since the negligence was discovered.
• You need to check the relevant legislation in your state and territory as the rules are different in each jurisdiction. 

• Yes but only if you are a dependent of the deceased.
• The compensation available will generally only cover the financial losses to the dependants. Compensation for grief, pain and suffering will not be available.
• If you have any concerns you can use our free and anonymous Ask a lawyer service to get information specific to your situation. 

• The duty of care implies a binding obligation on the medical practitioner to provide a reasonable standard of care when providing treatment that carries foreseeable risks.

Where a medical practitioner fails to meet that standard of care their action or inaction can constitute a breach of the duty and may give rise to legal remedies for the patient.