Henry Carus + Associates | Injury Lawyers

Learn About Medical Malpractice and How Can it Be Proven

medical malpractice in australia

In Australia, everyone in the medical profession owes what the law refers to as a duty of care. The duty of care essentially states that if a person is providing medical treatment, then they have a legal obligation to not cause reasonably foreseeable harm to the person receiving the treatment. If such foreseeable harm is caused, then the person who provided the medical treatment may be liable due to negligence in medical malpractice.

Types of medical negligence

Medical negligence can be said to occur whenever a healthcare worker provides treatment that is below the applicable reasonable standard. For instance:


  • If a healthcare worker carried out treatment in a manner that caused you or a member of your family immediate or later onset of injury, harm, or even death
  • If a healthcare professional takes the wrong action, or makes an incorrect diagnosis
  • Inaction or significant delays by a doctor in a situation where a reasonable doctor would have provided treatment, and as a result of that delay or inaction, harm or injury resulted
  • Prescribing the wrong or inappropriate medication, causing injury or harm
  • Errors arising through negligent undertaking of surgical procedures or surgery.

Damages for the negligence

In any of the above described scenarios (and any other examples that may exist), the healthcare worker is liable for his or her negligence. If injury or harm results from that negligence, then you are entitled to a sum of damages. This is a sum of money that the healthcare worker owes you to compensate you for any bodily injury and to cover he costs you incurred as a result of their medical negligence.

It is important to note that the harm has to be caused by the negligence. If you undertake a surgical procedure and, during recovery, you fall and damage your scar tissue, it is the fall that caused the harm and not any medical negligence on the part of the surgeon. However, if after surgery you are engaging in an ordinary daily routine and find that your scar tissue opens and becomes infected causing you further harm, then this may be seen as negligence if the surgeon had failed to appropriately and professionally seal the wound after surgery. The negligent doctor would be asked to compensate you for your injury and provide damages to cover any costs you incur as a result of the infected wound.

Who may be liable

Medical negligence is not necessarily limited to doctors. It can cover many people in the healthcare profession. This includes:

  • Surgeons
  • Other healthcare specialists, such as obstetricians
  • Nurses and other hospital staff
  • Psychiatrists
  • Midwives
  • Physiotherapists
  • Dentists
  • Pharmacists.

People in these professions are trusted with the health of others because they possess the trained expertise to care for them. Patients rely on people in these professions to be able to carry out their work professionally, and to a reasonable standard that doesn’t cause injury. The failure to meet that standard, and injuries sustained as a result, is the reason why medical negligence is covered in law.

Duty of care

If injury or harm is caused, it is not automatically assumed that the healthcare professional was negligent and therefore liable for medical negligence. Instead, the prognosis, diagnosis, treatment, or procedure will be considered by other medical experts to see if it is consistent with accepted medical practice. If it is, then the professional is most likely to be found to have acted within their duty of care. It is only when the diagnosis, treatment, or procedure was below standards that apply to that  healthcare worker that they may be seen to have breached a duty of care.

What can be covered

As a result of medical negligence, patients may suffer physical or mental harm. If that harm is permanent and at a significant level, then the patient would be entitled to compensation for pain and suffering for life. In addition, the patient will  incur many different debts and payments for the injury or harm sustained. There may be loss of income, permanent treatment required, or permanent deprivation of the ability to earn income. These matters are all considered in a medical negligence claim.

You can seek compensation for loss of income while recovering, for loss of future earnings as a result of the condition, in addition to the compensation for pain and suffering due to the harm or injury.

These costs are not arbitrarily sought, but need to be calculated to specific amounts.

Doctors and other healthcare workers usually have professional indemnity insurance to cover this very area of law. Because of this, it’s highly likely that you will be up against the healthcare worker’s insurer if you’re considering a medical negligence matter. To be confident you are also empowered with legal expertise, it is recommend in this circumstance that you consult with a lawyer about your scenario and seek a professional legal opinion.

If you or someone you know has suffered harm or injury as a result of medical malpractice, it is important to focus on the recovery, but also to know that you should not have to be out-of-pocket because of their negligence. Being compensated for the loss you suffered or for lost income will provide significant relief to what is an otherwise stressful scenario.

Get in touch with Henry Carus + Associates today and see how we can help you recover from medical malpractice.