When a doctor, dentist, hospital or an allied health care professional fails to provide competent care, and this results in harm, victims and their families can make a compensation claim.

What is medical negligence?

When you go and see a doctor you expect the highest level of expertise and professionalism. Doctors and other healthcare providers owe a duty of care to patients.

Medical negligence is when a medical professional breaches their duty of care and acts in a way that deviates from accepted norms or standards and this causes harm. There are three elements to a medical negligence claim:

• Breach of duty: this is about the doctor’s or healthcare provider’s conduct. Did they act in a way that fell below accepted standards?
• Medical causation: Here, the question is whether the health professional’s breach caused your injury or condition. This can be difficult. As the injured patient, it falls on you to prove that if the health professional had not breached their duty of care, your injury would not have occurred.
• Compensation: if the health professional’s breach of duty caused you injury, you are entitled to compensation. The amount of the compensation depends on several factors. You can claim compensation for pain and suffering that you have had to endure (and will endure), lost income and loss of future income (and loss of super), the costs of any necessary additional medical treatment, any other travel, medication and related expenses. These are just a few examples, and depending on the severity of the situation additional compensation can also be claimed, such as the costs of medical aids, home care and so on.

What are some examples of medical negligence?

There are many different examples involving medical negligence. Here are some common examples:

• the doctor fails to diagnose a particular condition
• misdiagnosis: the doctor diagnoses the wrong condition
• surgical mistakes
• failure to investigate underlying conditions: for example, do you have an underlying health condition that makes you unsuitable for a particular procedure? Here is a just a basic scenario: a smoker may not be a suitable candidate for certain types of dental procedures. If the dentist fails to establish that you are a smoker, and as a result the dental procedure fails, you may have a claim.
• delays in investigating or diagnosing conditions
• failure to provide a referral to a specialist
• failure to warn of risks
• failure to advise that there are alternative treatments available
• failure to communicate test results, or incorrect reporting of results
• birth trauma or injuries

Who can be liable to pay damages for medical negligence?

It’s important to remember that it’s not just doctors who can be liable for medical negligence. There is a wide variety of health care professionals that owe patients a duty of care and who may be a respondent in a negligence claim. For example:

• Hospitals
• Nurses
• Dentists
• Cosmetic injectables providers
• Specialist surgeons
• Anaesthesiologists
• Pharmacists
• Nursing homes
• Obstetricians

What to do if you believe you that your health professional was negligent?

Firstly, if possible ask your doctor what went wrong and why. It’s important to keep in mind that sometimes undesirable or unsuccessful outcomes can happen without any negligence on the part of the doctor or health professional.

Ask your doctor to give you a plain English explanation of what happened. From there if you believe there was negligence, consult a compensation lawyer with experience in medical negligence cases.

How can we help you?

After our initial consultation, we would first investigate your claim. This involves getting your medical records and obtaining an expert report from a specialist to see if your claim is viable. If you try and do this on your own, one difficulty which you may encounter is that doctors are reluctant to say bad things about other doctors. On the other hand, we have access to experts who can provide reliable opinions in a wide range of medical specialties.

We also investigate the health professional who may have been negligent. We check their background and we have had instances where we were able to obtain records from AHPRA (the regulator) which showed that the health professional had been involved in similar situations in the past.

If we think you have a claim, we will then quantify how much compensation you are entitled to, and then take all necessary steps to secure compensation on your behalf.

Medical indemnity insurance

Every health professional must have professional indemnity insurance. This means if we make a claim against your doctor, you can have peace of mind that if we are successful, the doctor’s insurance company will be required to pay you compensation.

For many years before starting Denes Lawyers, our principal solicitor, Oszkar Denes,  used to act for insurance companies. He knows how insurance companies defend claims, what are their pressure points and how they assign a value to the claim. Find out more about Oszkar here.

Simple no win no fee agreement

When you come to us for help with your medical negligence claim, you can be rest assured that you won’t have to pay any fees or expenses until we win your compensation claim.

In Queensland, most compensation firms will charge you 50% of your compensation amount – the maximum allowed at law. This is very expensive. Our fees are usually much lower than that. Please note, however, that while we do offer a 25% fee cap in personal injury claims, this does not apply to medical negligence claims. The reason for this is simple: these claims can be much more difficult and often require significantly more work.

Before you engage us, we will provide you a written Disclosure Notice and a Client Service Agreement. These documents set out in detail the service we provide, as well as our fees and outlays. Before you sign anything, you can take these documents home with you, and study them with your family. You can take as long as you need, there is never any pressure from us. If anything in these documents doesn’t make sense to you, we can discuss it with you and you are free to ask another lawyer to give you advice.  And remember, no win – no fee agreements come with a 5 day cooling off period for extra peace of mind.