Medical negligence
Compensation claims after medical negligence in Queensland
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. This detailed guide highlights some of the issues you need to be aware of when considering your compensation options.
Written and reviewed by Oszkar Denes, personal injury lawyer
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What is medical negligence?
Medical negligence occurs when you suffer loss because of preventable medical errors. The medical professional fails to provide competent care and their conduct falls below the expected professional standard. It’s important to appreciate that it’s not just doctors who may 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
Examples of medical negligence claims
Failure to diagnose
When a doctor fails to diagnose a condition, or there is a delay in the diagnosis, patients may be left with fewer treatment options. Potentially life-saving surgery or other treatment may no longer be available.
Surgical mistakes
May include errors such as leaving surgical tools in the body, operating on the wrong body part, on the wrong patient or carrying out incorrect surgery – to name a few.Â
Misdiagnosis
Includes claims for incorrect medical diagnosis, such as radiological misdiagnosis, stroke misdiagnosis as well as many other scenarios.
Obstetricians and gynaecologists
Life threatening mistakes in diagnosis and treatment of conditions such as ovarian cancer, breast cancer or cervical cancer as well as failure to properly manage care during pregnancy and delivery.
Dentists
Claims include, for example, negligent placement of dental implants, nerve damage caused during dental procedure.
Lack of informed consent
Before a medical professional can undertake any procedure, they must explain the risks. Without this there is no informed consent to the procedure by the patient. In this case a claim can be made even if there was no negligence during the procedure.
Is it difficult to prove medical negligence?
To succeed with a medical negligence claim it’s not enough to show that the surgery or other form of treatment lead to a poor outcome. Unfortunately, even though it is very unfair that you are left with a bad surgical result, this in itself is not sufficient to win a claim. This is because doctors can try their best and do everything right and you can still end up with a poor outcome. To succeed with a claim it’s necessary to prove that:
- the medical professional owed you a duty of care (in many cases this is not in doubt)
- the doctor breached his or her duty of care. In other words, their conduct fell below accepted standards.
- you suffered loss. This includes pain and suffering, as well as a range of different kind of financial loss, such as loss of income, medical costs and so on.
- Your loss was caused by the doctor’s negligence.
Proving that a doctor breached their duty requires expert medical evidence. If we think your claim has merits, we can assist with finding a medical expert with appropriate qualifications to supply the necessary report.
Lack of risk warning/informed consent
An alternative avenue to succeed with a claim is if you can prove that your doctor failed to warn you about a material risk involved in the proposed surgical procedure or other treatment. In this case, the issue is not whether the doctor made a mistake during diagnosis or surgery. Rather, the issue is that there was a risk of a poor outcome which you weren’t told about.
It’s necessary to show that you were not given a warning or explanation about the risk of the poor outcome, the risk of material (not necessarily in percentage terms), and if you had known about the risk, you wouldn’t have agreed to the procedure.Â
What evidence is required in a medical negligence claim?
Examples of evidence we would typically obtain include:
- extensive medical records, including not just the records of the doctor in question, but any other relevant records held at other hospitals/providers.
- expert witness report. We engage highly experienced specialists (doctors with decades of experience) to explain what went wrong, why your doctor or hospital was at fault, and what injuries you have suffered as a result. It’s not uncommon that we need multiple reports from different specialists to support your claim. We often hear from people that their new doctor has told them that the previous doctor made a mistake, but the new doctor doesn’t want to say this in writing. It’s best to leave this issue for your lawyer. For example, specialists from a different State may be more willing to help, but this is something that your lawyer needs to address.
- photographs, particularly for injuries that take a long time to heal. For example in dental injury claims photos of your teeth and entire face can be helpful.
- eyewitness accounts. These can come from nurses or other staff who were present during surgery or the procedure that lead to your injuries. Again, your lawyers should speak to the witnesses.
- prior complaints or disciplinary action against the doctor. As a starting point, AHPRA has a register which might show the outcome of previous investigations. On occasions, these can be relevant to your claim.
What to do if you believe 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.Â
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 Denes Lawyers 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.Â
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.
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