• Negligent medical treatment can include but is not limited to any of the following: 

1. failing to warn a patient of any serious risks to their health and wellbeing prior to commencing treatment;
2. failing to correctly diagnose a condition in a timely manner;
3. failing to provide appropriate treatment;
4. if the required treatment goes beyond the capabilities of a particular doctor failing to refer that patient to a more skilled or knowledgeable practitioner;
5. failing to perform a medical procedure or surgery with reasonable care and skill;
6. failing to properly read or follow up on test results, scans, reports and x-rays; 
7. failing to exercise due diligence and skill; or
8. failing to provide appropriate post-operative care. 

• A person can claim for two types of damages:

1. general damages; and 
2. special damages. 

• General damages are a type of compensation payment that cover:

1. non-quantifiable losses like pain and suffering; 
2. loss of future earning capacity; 
3. reduced quality of life; and 
4. 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. 

1. 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:

1. medical treatment; 
2. therapy; 
3. lost earnings up until the date of trial; and 
4. any other related expenses incurred. 

• You can claim for mental harm but damages will generally only be awarded where:

1. 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
2. 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.

• 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 NSW proceedings are commenced against medical practitioners by lodging a writ or a statement of claim in the relevant court.
• Medical malpractice claims invariably require specialist medical reports concerning the treatment you received.
• The court 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 us before you go to court. You will also need to gather evidence so that you have all the necessary paperwork to commence proceedings.
• Specialist counsel (a barrister who practices in medical malpractice) will be briefed to advice and act.
• Once the statement of claim is lodged and accepted we 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 more than 90% 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. 

• Yes. In NSW proceedings for medical negligence claims need to be commenced within three years of the injury or loss.
• Exemptions may be made in cases where the injury does not arise until years after the negligent treatment was provided.

• 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 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. 

• 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. 

• 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. 

Question

I was pregnant and went to have an ultrasound. I was told that my child was fine so I proceeded with the pregnancy. When my child was born she was born with severe physical and mental disabilities and will likely require 24 hour care for the rest of her life. While I do not wish any harm upon my daughter I know that if my doctor had detected the abnormalities during that ultrasound I would likely have terminated the pregnancy. Can I sue the doctor for negligence?

Answer

• Claims like these are known as wrongful birth claims. These have come to prominence in recent years due to the advent of new and improved forms of prenatal testing for genetic disorders as well as advanced contraceptive techniques. 
• As it is a new and developing area of law it is difficult to say with any certainty whether a wrongful birth case is likely to succeed or not. What is known about them is that:

1. it is possible to seek damages in wrongful birth claims to compensate for the cost of raising a child regardless of whether the child is healthy or disabled if the child’s existence was due to the negligence of a medical professional;
2. generally the parents must testify that had the negligence not occurred they would not have planned to have had the child; and
3. in NSW, QLD and SA damages are only available if the child is disabled. 

• Damages for wrongful birth claims involving a healthy child and pure economic loss cannot be awarded.
• These elements are in addition to the ordinary elements that must be satisfied in a medical negligence claim. 
• You need to check the relevant legislation in your state or territory as the rules are different in each jurisdiction.

Question

I underwent a sterilisation procedure 4 years ago because my partner and I did not want any more children. Last year I unexpectedly fell pregnant and realised the doctor that performed my sterilisation must have been negligent. I gave birth to a healthy boy and while I am happy he is here I certainly did not plan for his arrival and am concerned about the costs of raising him. Can I sue the doctor for wrongful birth?

Answer

• It depends on where you are. A similar scenario was tested in the Australian High Court recently. This case saw the court award damages to the parents of a child that was healthy but not planned for and whose existence was solely due to the negligence of the doctor performing a tubal ligation on the mother. 

1. In that case it was found that the child could be considered ‘damage’ for the purposes of the law in the sense that the cost of raising him would certainly leave the parents ‘worse off.’ 
2. Damages were awarded to assist with the costs of raising a child the parents did not plan for. 

• Following this decision the NSW, SA and QLD governments introduced legislation to overturn the decision and its effects essentially eliminating the possibility for parents to obtain compensation for the wrongful birth of a healthy child. 
• In other jurisdictions it is still possible to claim damages for economic losses suffered due to an unintended child caused by professional negligence.
• You need to check the relevant legislation in your state or territory as the rules are different in each jurisdiction.

Question

I was born with severe disabilities. I am in constant pain. I need 24 hour care and my quality of life is miserable. There is no hope of my condition improving. My parents told me that their doctor failed to pick up on my condition during my ultrasound and that if they had known how much I would suffer as a result of my condition they would have spared me by undergoing an abortion. Can I sue the doctor that failed to pick up on my condition in the ultrasound for wrongful birth?

Answer

• Claims like these are known as ‘wrongful life’ claims and are generally not successful. 
• In a recent case a 24-year-old disabled woman sued the doctors that treated her mother during pregnancy after they negligently failed to pick up that the mother had the rubella virus. 

1. As a result the applicant was born with serious disabilities. 
2. In that case the application failed because the High Court of Australia did not consider the applicant’s life with disabilities to be ‘damage.’ 
3. ‘Damage’ was interpreted to mean ‘worse off’ and the court found that there was no way to prove that the applicant would not have been ‘worse off’ had the negligence not occurred. If the doctor had warned her mother about the rubella an abortion would have been booked and the applicant would never have existed. 
4. The courts were not prepared to suggest that not existing at all is better than living with disabilities due to obvious policy implications. 
5. As a result of this decision wrongful life cases are generally not successful in Australia.

• You should speak to an experienced medical negligence lawyer to discuss your particular matter. 

Question

I developed a rash and felt slightly feverish but thought I would wait a day or two before seeing a doctor about it. Later that day I attended a dinner party where an old classmate who is now a doctor was in attendance. During the course of the evening I described my symptoms to the doctor and asked what they thought of it. The doctor advised me that it was “probably nothing a course of antibiotics wouldn’t fix.” The next day I felt considerably worse and called an ambulance to be told I had contracted the meningococcal virus. Due to complications my leg had to be amputated. Can I sue that doctor I met at the party for negligence?

Answer

• It may be difficult to establish the existence of a doctor-patient relationship that gave rise to a duty of care in this instance. Generally the law is reluctant to impose an active duty on medical practitioners beyond clinical settings. However this presumption can be challenged. 
• The court would likely examine the circumstances in which the advice was given to determine whether a relationship was formed. 
• In this instance you were in a social setting where parties were possibly consuming alcohol. This may have affected the doctor’s judgement when giving you the advice. 
• In addition the question makes no mention of a physical examination occurring. The doctor did not:

1. take your temperature;
2. ask you questions in response to your symptoms; or 
3. observe the rash you described. 

• Finally the advice was sought while attending a dinner party that you felt well enough to attend so it is possible that at first glance you didn’t look any worse than someone with a mild complaint. 
• In the circumstances it may be difficult to show that a relationship giving rise to a duty of care was formed.

Question

I recently underwent surgery on my jaw to correct a malocclusion. I was told by my doctor prior to the procedure that there were some small risks associated with nerve damage and pain after the surgery but that they would most likely fade within a year. It had now been 16 months since the surgery and the pain in my jaw is excruciating to the point where I cannot function without the use of morphine. Due to the side effects of the morphine I am unable to work, carry out home duties, care for my children or socialise. When I complained to my doctor he confessed that this was a risk but that he hadn’t warned me about it before the surgery as he considered the risk to be far too small to get me worked up over.

Answer

• It is possible that you may have a claim for compensation. 
• Doctors are not obligated to inform patients of each and every single risk associated with the proposed treatment. 
• If there is a risk of a catastrophic outcome for the patient the doctor must inform the patient of that risk and obtain their consent to the procedure even if the risk of that outcome eventuating is extremely small.
• The doctor may avoid liability if he can demonstrate that you would have undertaken the surgery even if you had been informed of the risk. For example if the surgery was necessary to save or significantly improve your quality of life then it is likely you would have proceeded regardless of the risks. 
• This is highly unlikely to have been the case if your surgery was primarily for cosmetic purposes.

Question

I was run over by a car. A doctor who happened to be driving by stopped to help me. In the course of performing CPR he broke my ribs and punctured my lungs. I suffered worse injuries as a result of that puncture than from the car. Can I sue the doctor?

Answer

• You can sue the doctor under these circumstances but it should be noted that the doctor may be protected by a ‘good samaritan’ defence. 
• This defence is generally applied to medical practitioners that lend their assistance to strangers in emergencies. 
• Unless a doctor was grossly negligent in providing the CPR treatment to you as a stranger it is highly unlikely that they will be held accountable for any injuries caused during the course of that assistance. 

Question

I underwent treatment on the advice of my doctor and as a result of his negligence was left with extremely disfiguring scarring on my face. While there is nothing physically wrong with me I am extremely depressed due to my appearance and cannot bring myself to leave the house or find employment. Can I sue the doctor for the mental harm I have suffered?

Answer

• Yes. Disfigurement is a kind of harm that attracts general damages. You will be able to claim for the psychiatric harm that resulted from the disfigurement provided it can be shown that depression arising as a result of disfigurement was a reasonably foreseeable outcome. 
• It will be necessary for an independent doctor to assess the level of disfigurement in order to determine whether you meet the required impairment threshold. 
• You need to check the relevant legislation in your state or territory as the rules regarding impairment are different in each jurisdiction.

Question

I speak English as a second language. I went to hospital to give birth to my second child with my husband acting as my interpreter. Unknown to me my husband gave permission to the doctors to complete a hysterectomy on me while completing a C-section to deliver my baby as he did not wish for us to have any more children. As my language skills were poor I trusted my husband and signed everything he gave me. I had no idea what had occurred until a few weeks after my discharge from hospital when a doctor who spoke my language asked why I had chosen to have a hysterectomy when I had spoken of wanting many children in the past. I have suffered extreme depression in the aftermath of this incident. I have divorced my husband and have contemplated suicide. Can I sue the hospital for not doing more to ensure I was consenting to the procedure?

Answer

• Given the complex and irreversible nature of the procedure and the fact that undergoing the procedure will have a significant impact on your life the hospital should have provided an independent interpreter to ensure your full and informed consent to the procedure. 
• You should speak to a lawyer regarding your options. 

Question

I suffer from anxiety and was extremely nervous prior to undergoing a necessary medical procedure to save my life. As a result of the treatment my life expectancy was extended but I had to undergo an amputation on my legs due to an infection. When I asked my doctor why he didn’t warn me about the risk of amputation and infection he told me he didn’t want to tell me as he knew how anxious I get and he was concerned I would refuse to undergo the procedure and possibly die as a result. Was he within his rights to do that?

Answer

• There are some instances where a doctor is not required to inform patients of serious risks. 
• This may include where the doctor has reasonable grounds for believing that disclosing the risk could harm the patient. 
• You should understand that this exemption will not apply in cases where the patient asks the doctor a direct question about the risk and the doctor fails to respond honestly to that question. 
• For example in this case your doctor may have been concerned that given your history of anxiety you would not have consented to the life-saving procedure which may have resulted in your early death. 
• Having said that a double amputation is an extreme outcome which will have a significant impact on your ability to lead a normal life. It is possible that his failure to warn you of that risk constituted a compromise in your consent to the procedure. 
• Speak to your lawyer about whether you have a claim. 

Question

I had to undergo a heart surgery and during the surgery the anaesthesiologist gave me a lesser dose of anaesthetic. My friend who is also a nurse and was inside the operation theatre during my procedure told me that they found out and quickly corrected the dosage in time and no harm was done. The procedure went smoothly and my heart condition was corrected. I however have started stressing about what could have happened if the anaesthesiologist had not picked up on his mistake in time. Can I sue for a near-miss? 

Answer

• No. Near misses will generally not attract a claim for compensation as it does not satisfy the ‘harm’ or ‘damage’ element of the claim. 
• Mere stress or anxiety due to the near-miss will not be enough to constitute mental harm.