Medical Negligence FAQs: Your 10 Most Common Questions Answered

1. Do I have a medical negligence claim?

Anyone who has been subject to medical care and/or treatment that falls below the expected standard of care and as a consequence has sustained injury may be entitled to make a medical negligence claim for compensation.

In Australia, the different states and territories have different threshold in relation to the extent of injury and damages. These thresholds may restrict an injured persons entitlements to make a medical negligence claim.   

2. Who are medical negligence claims against? 

Medical negligence claims can be made against a number of medical institutions and providers including but not limited to: -

  • Doctors
    • Specialists
    • General practitioners
    • Dentists
    • Optometrists/Ophthalmologists
    • Pharmacists
  • Hospitals
    • Private hospitals
    • Public hospitals
  • Allied health professionals
    • Physiotherapists
    • Chiropractors
    • Nurses & midwives

3. What kind of medical negligence claims can be made?

Medical negligence claims can be brought in relation to a number of failures, including but not limited to: -

  • Failure to warn of risks
  • Failure to advise
  • Failure to provide appropriate care and treatment
  • Failure to provide treatment and care to the required standard
  • Misdiagnosis/failure to diagnose
  • Product faults/product liability

4. Do I need a medical negligence lawyer?

Medical negligence claims are notoriously complex and are strongly defended by the medical negligence insurers.

In order to be successful in medical negligence the injured party must prove with evidence that the health care provider has breaches their duty of care (negligence) and that breach caused injury (causation).

This evidence must satisfy certain legislative requirement. If the elements of negligence and causation are not made out in the evidence, the claim will not succeed.

Due to the complex nature of medical negligence claims, and the importance of expert evidence it is always best to have an expert medical negligence lawyer act for the injured party so that the best result can be achieved in a timely manner.

5. Can I afford a medical negligence lawyer?

Yes, most medical negligence lawyers will enter into a no win no fee costs agreement at the commencement of your claim.

This means that the law firm will fund the claim up until the resolution of the matter. This is beneficial to injured parties as often they are struggling financially and would not otherwise be able to fund the claim.

No win no fee means that if the injured party is not successful in their claim, legal fees will not be charged.

When the claim is successfully resolved the lawyer will charge for the work undertaken and the expenses paid during the claims process.

That being said, in medical negligence claims, if successful, the medical negligence insurer will often pay approximately 70% of the legal fees, with the remainder payable by the injured party.

6. What is the process of bring a medical negligence claim (QLD)

The process for an injured party is summarised as follows: -

  1. Retaining a lawyer
  2. Putting the negligent party on notice of the medical negligence claim
  3. Obtaining evidence in relation to the breach
    1. Medical records
    2. Scans
    3. Treating doctor reports on injury/damage
  4. Obtaining expert medico-legal opinion on breach and causation
  5. Attending medical appointments to obtain expert medico-legal opinion on damages
  6. Attending medical appointments for the respondent
  7. Attending a conference/mediation to try and resolve the claim by way of negotiation
  8. Litigating the claim
    1. Filing the claim in the District or Supreme Court
    2. Taking a hearing date
    3. Attending the hearing
    4. Receiving a judgment

7. Will I have to go to Court?

Generally, 98% of medical negligence claims settle outside of Court in the alternate dispute resolution process E.g. Compulsory Conference and/or Mediation.

If a claim does not settle at Compulsory Conference/Mediation and is required to be litigated it does not mean the claim will proceed all the way to “Court” and a hearing.

Usually, matters that are required to be filed in Court do not make it to a hearing. This is because, in the lead up to a hearing there are plenty of opportunity to resolve the claim by way of negotiation.

8. How long do medical negligence claims take to resolve?

In QLD, the pre-court procedure requires parties to take a number of steps prior to meeting at a Compulsory Conference to try and resolve the claim.

Generally, a matter should proceed to a compulsory conference and resolution 12-18 months after the negligent party is put on notice of the claim.

9. What compensation am I entitled to receive?

  • General damages
  • Past & future economic loss
  • Past & future medical treatment & out of pocket expenses 
  • Past & future care & assistance

To read more about medical negligence damages see our recent article here.

10. How long do I have to make a medical negligence claim?

In QLD, there are strict time limits in which to make a medical negligence claim.

Under the Limitation of Actions Act 1974 an injured person has three (3) years from the date the cause of action arose in which to bring a claim.

Extensions are available in some circumstances but are difficult to obtain.

Therefore, it is important that medical negligence claims are commenced in Court prior to the expiry of the limitation period.

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