The scary reality of medical negligence claims in Australia

From delayed or incorrect diagnosis to surgical errors, countless cases of medical negligence and malpractice are reported in the media and seen in courtrooms across the country on a daily basis. These cases offer some insight into the fact our medical system is far from perfect, writes Attwood Marshall Lawyers Compensation Lawyer Yasmine Chalvatzis.

When examining the available data of medical negligence claims in Queensland, the numbers are quite astonishing.

Recent data obtained by ABC through Right to Information (RTI) laws revealed that in Queensland alone, over $390 million has been paid out in medical negligence claims between January 2018 and October 2023. This staggering amount stems from 1,049 public health claims.

While comparable data from other states and territories is not available, it is reasonable to assume that the figures are similarly high. These statistics underscore the prevalence of medical negligence in Australia.

In a recent case reported by ABC News, a newly retired graphic designer, Mr Michael Stewart, who, after presenting at Redcliffe hospital with stomach pain and nausea caused by a partial small bowel obstruction and multiple hernias, underwent a laparotomy that led to severe complications. The procedure resulted in bowel perforations, sepsis, a heart attack, stroke, and ultimately, brain damage. For a man that was about to embark on his well-earned retirement, he now finds himself living in an aged care facility requiring 24/7 care. This is the stuff of nightmares. As a result of the substandard medical treatment Mr Stewart received, he was awarded $2.19 million almost eight years after the incident.

In another case, a now 17-year old male sought compensation from a Canberra Hospital for the misdiagnosis and inadequate treatment he received for pneumococcal meningitis and septicaemia in 2006, when he was just three months old. Although the specifics of his suffering were not disclosed publicly, Associate Justice McWilliam awarded the 17-year-old $7 million, acknowledging the lifelong impact of the medical negligence he suffered:

“The plaintiff and his parents have been dealing with the consequences of the events in 2006 for 17 years.”

“They will continue to do so for the rest of the plaintiff’s life and the quantum of the settlement reflects that reality”.

– Associate Justice McWilliam

These issues have persisted in our medical system for many years, as evidenced by the seminal 1993 case of Rogers v Whittaker. In this case, a patient became completely blind after undergoing a recommended surgery. When she sought treatment from her doctor for one eye that had lost its vision, her doctor did not inform her of the associated risks, including sympathetic ophthalmia, which can lead to blindness in both eyes.

Following the surgery, the patient developed sympathetic ophthalmia and became completely blind. She sued the doctor for negligence, claiming that he failed to inform her of the risk.

The High Court of Australia held that the doctor was negligent, establishing that a medical practitioner has a duty to warn patients of material risks inherent in proposed treatments.

The court defined a material risk as one to which a reasonable person in the patient’s position would likely attach significance.

These cases highlight the critical importance of understanding medical negligence claims, and what rights to compensation you have if you have suffered an injury or illness because of the negligence of a medical professional or healthcare facility.

Here, we delve into the circumstances when an individual might be eligible to claim compensation for medical negligence, providing you with the knowledge needed to navigate this complex legal landscape.

Understanding medical negligence and medical malpractice

Identifying if a medical practitioner or hospital has been negligent and committed malpractice can be complex, and it is essential to seek the right legal advice and get the support you need after suffering physical harm and financial loss.

Medical negligence refers to a breach of duty by a healthcare provider that results in substandard care or inadequate medical care. It means that a healthcare professional has failed to provide the level of care that a reasonably competent and skilled professional in their field would provide under similar circumstances. Negligence can involve actions, omissions, or mistakes that cause harm to a patient.

Medical malpractice is a specific subset of medical negligence that involves situations where a healthcare provider’s negligent actions or omissions directly cause harm to a patient.

To prove medical malpractice under Common Law, the following elements are required:

1. The healthcare provider had to provide a duty of care to the patient. That includes the duty to warn the patient of all material risks in the procedure, even if they are considered extremely rare.
2. The healthcare provider breached their duty of care and failed to meet the expected standard of care.
3. The breach of duty directly caused harm or injury to the patient.
4. The patient suffered measurable harm or damages due to the healthcare provider’s negligence.

While medical negligence refers to a failure to meet the appropriate standard of care, medical malpractice involves explicitly proving that this negligence led to harm and resulted in compensable damages.

Medical malpractice cases are extremely complex and require a high level of legal scrutiny and evidence for a claimant to be successful.

The evidence required to be successful in a medical malpractice claim includes:

• Existence of a medical practitioner and patient relationship.
• Evidence of the medical practitioner’s breach of duty of care owed to the patient – medical and hospital records, test results, diagnostic imaging results, expert witness reports, evidence of injury etc.
• Causation: that breach caused harm or injuries to a patient such as misdiagnosis, delayed diagnosis, failure to treat, surgical mistake and prescription errors.
• Actual damages: the injuries resulted in loss of quality of life, pain and suffering (non-economic losses) and economic losses suffered including loss of income earnings, lost ability to earn an income, and medical bills to treat the injuries suffered.

Time limits apply if you have suffered an injury or illness as a result of medical negligence or malpractice and intend on claiming compensation. You must file a claim within three years of the incident causing the injuries, or your claim will be barred. If your claim is barred, it means you are legally prevented from pursuing the claim.

For minors (under the age of 18) the time may be extended to 3 years from their 18^th birthday.

Most common types of medical negligence claims

• Misdiagnosis or delayed diagnosis leading to a worsened condition. This can have significant consequences, leading to dire patient outcomes.
• Surgical errors, including foreign objects left in a patient, a surgeon operating on the wrong body part, a surgeon proceeding with unnecessary surgery, or damage caused by the surgery.
• Anaesthesia complications. Complications arising from being administered an incorrect dose of anaesthesia, which can cause brain injuries, nerve damage, stroke, adverse reactions, or even a patient waking up during surgery.
• Psychological injuries. When a patient experiences a traumatic event, they can suffer nervous shock or a psychological injury. Psychological injuries can happen due to a medical injury or the loss of a loved one who died due to medical malpractice.
• Exacerbation or worsening of injuries/conditions. Where the treatment provider negligently caused the injury or condition to become more severe.
• Medication errors. If a patient receives an incorrect medication or an incorrect dose is administered, they can experience adverse reactions and side effects, organ damage, drug interactions, toxicity, a worsened medical condition, or even death.
• Birth injuries. If an individual suffers injury or illness due to negligent treatment from an obstetrician, gynaecologist, doctor, midwife, or other medical professional during pregnancy or the child’s birth, they may be able to claim compensation.

What type of compensation can be claimed for medical negligence

Subject to various thresholds, the main types of compensation you may claim for are:

• Pain and suffering (general damages)
• Past and future treatment and rehabilitation costs
• Income you have lost, and will lose in the future (including superannuation)
• Past and future care and assistance costs (personal care, domestic tasks, etc)

Each medical negligence case is unique, and several factors will influence a person’s entitlement to compensation. These factors may include:

• The individual’s personal circumstances.
• The type of injury sustained.
• The impact the injury is having on the individual’s life.

What defences are available if a medical professional is accused of medical negligence or malpractice?

When a medical professional is accused of negligence or malpractice, several defences may be available to contest the claims. These defences include:

• The doctor provided the information required.
• The doctor can argue that their actions were consistent with a widely accepted professional opinion among peers. This defence suggests that the standard of care provided was in line with what other similarly skilled professionals would have done in the same situation.
• If the injury resulted from an inherent risk of the procedure that was properly communicated to the patient, the medical professional might not be held liable. This defence hinges on the concept that some risks are unavoidable even with the highest standard of care.
• The medical professional can claim that the patient’s own actions contributed to their injury (contributory negligence). For example, if the patient did not follow medical advice or instructions, their behaviour could be considered contributory negligence, reducing or negating the liability of the medical professional.
• If the patient’s injury or condition existed prior to the treatment, the medical professional might argue that the harm was not caused by their actions but was a result of the pre-existing condition.
• Consent provided:
  • If the patient gave consent to the procedure, the medical professional could argue that there was no negligence. Consent implies that the patient was informed in broad terms about the nature of the procedure or treatment.
  • Treatment is generally illegal without the patient’s consent unless it is an emergency. Therefore, valid consent protects the medical professional from claims of unauthorised treatment.

As with all matters, if a medical negligence claim is made, each matter will be determined on its own facts and merit.

Attwood Marshall Lawyers – experts in compensation law

Our dedicated team of compensation lawyers practice exclusively in this complex area of law and can assist with all compensation claims on a ‘No Win, No Fee’ basis.

It is our goal to ensure that you get the treatment and support you need after suffering an injury or illness, and that you have the financial security you deserve for the future.

If you believe your medical provider was negligent and you suffered as a result, we can assess your case to determine the chances of your claim succeeding and guide you through the claims process.

For a confidential discussion about your specific circumstances, please call our Compensation Law Department Manager, Tyra Hall on direct line 07 5506 8261, email thall@attwoodmarshall.com.au or call our 24/7 phone line on 1800 621 071 any time. Our team are ready to listen to your story and help you understand your rights.