Henry Carus + Associates | Injury Lawyers

What Is the Duty of Care in Medical Negligence Claims?


Medical negligence claims are governed by Victoria’s Wrongs Act 1958. As with other types of common law personal injury claims, claimants must prove that their injuries were caused by the negligence of the party or parties at fault.

One of the key components of proving negligence is establishing that the defendant owed the plaintiff (i.e., the injured person) a duty of care. Broadly speaking, the “duty of care” is the obligation to “take precautions against a risk of harm.” Specifically, Part X, Division 2 of the Wrongs Act describes a breach of the duty of care as follows:

  • The individual at fault did not take precautions against foreseeable risks
  • The risks involved were “not insignificant” (i.e., the risks were not “far-fetched or fanciful”)
  • A reasonable person in the same situation would have taken the necessary precautions to avoid harm

Doctors and other medical professionals are bound by a duty of care, meaning that they are required to act in accordance with standards of care required in Australia. There is a certain level of care that Australians are entitled to receive from doctors and healthcare workers. If the care that a patient receives falls below that standard, the care provided is considered to be negligent. When medical professionals fail in this duty to meet the standard of care, patients can pursue compensation through a medical negligence claim.

Did a Healthcare Provider Owe You a Duty of Care?

The first step in building a medical negligence claim is determining whether your doctor and/or another healthcare practitioner owed you a duty of care. Generally, this condition is satisfied by proving that you were a patient of the provider in question. Evidence that can help establish the duty owed to you includes:

  • Intake or admission forms
  • Letters from the doctor and/or the office staff
  • Bills
  • Insurance statements

Both individual practitioners and their employers (such as hospitals, surgical centres, etc.) can be held liable for medical negligence. If you or a loved one suffered harm as a result of substandard care in a hospital or other facility, you should keep all relevant documents showing the date, time, and nature of your treatment. The hospital may be liable for the negligence of its employees and/or negligence in operations and administration.

What Is Medical Negligence in Relation to the Duty of Care?

When a professional has a duty to a patient, he or she is required to uphold the standard of care expected of that profession. This requirement extends to those in the medical field.

According to the Wrongs Act Part X, Division 5, Section 58 (Negligence of professionals and persons professing particular skills), the standard of care is determined according to the following factors:

  • “[W]hat could reasonably be expected of a person possessing that skill”
  • “[T]he relevant circumstances as at the date of the alleged negligence and not a later date”

In other words, the standard of care that one might expect from a junior medical doctor or a general practitioner may be lower than the standard of care that you may expect from a specialist doctor working in a big metropolitan hospital.

Peer Professional Opinion Defence

Section 59 of the Wrongs Act 1958 states that a health professional is not negligent and did act in accordance with the requisite standard of care if they acted in a manner widely accepted by a significant number of respected practitioners in the field of medicine in the circumstances of the claim. Therefore, even if some medical professionals may be of the opinion that a certain practice fell below the standard of care, if a health professional can establish that a standard of care they provided was widely accepted in Australia at the time as competent professional practice in the circumstances of the particular situation, the standard of care had been met. The standard of care will have been met even if the group of practitioners who believe that the care was reasonable is not the majority; the only requirement is that they are a group and they are respected in their field.

Examples of a Breach in the Duty of Care

Previous claims Henry Carus + Associates have had include:

Whether or not these and other medical errors represent a breach of the duty of care will depend on the specific circumstances that led to your injuries.

The standard of care is an important element of your medical negligence claim. You must show that the medical provider deviated from the widely accepted course of action for his or her profession given the same situation.

For example, if a patient goes to the emergency room complaining of chest pains and the attending doctor does not order an electrocardiogram, this would likely be considered a failure to treat the patient in accordance with the reasonable standard of care required in Australia because they failed to arrange for the necessary precautionary tests. If the patient later suffers a heart attack, he and/or his family would likely have a viable medical negligence claim against the doctor who failed to order the necessary tests.

An obstetric example might be that a prudent and competent obstetrician is required to recognise the importance of monitoring a woman’s blood pressure and other vital signs during labour. If the doctor fails to diagnose a bleeding issue and the woman suffers a postpartum haemorrhage, the court would likely find that the obstetrician failed to uphold the standard of care.

Qualified, independent medical opinion is essential for proving the breach of duty and the standard of care. A knowledgeable medical negligence lawyer will consult with experts in the same field of medicine as the defendant in your claim to prove that the practitioner’s errors meet the legal standard for negligence and directly led to your injuries and damages.

Do You Have a Medical Negligence Claim?

Ultimately, four distinct elements must be proved for you to recover compensation for medical negligence:

  1. Duty of Care
  2. Breach of Duty
  3. Causation
  4. Damages

Medical negligence claims are complicated, and it is extremely difficult to prove these elements on your own. If you or a loved one came to harm and you suspect a medical error is to blame, we encourage you to contact Henry Carus + Associates as soon as possible.

Adverse events in healthcare frequently have serious consequences for patients. You should not have to bear the costs alone if you were injured or lost a loved one due to the negligence of a doctor or other medical professional.

The Henry Carus + Associates philosophy is You Deserve More. We consult medical experts and gather all relevant evidence to demonstrate the seriousness of your injuries. If you are entitled to compensation for non-economic damages due to a significant injury, our team will counsel you through the assessment of the degree of impairment process, referral of questions to a medical panel, and more.

Please contact Henry Carus + Associates by calling 03 9001 1318 today for a free, no-obligation consultation. Our medical negligence lawyers serve clients in Melbourne and throughout VIC.