How Do I Prove Medical Negligence?

Proving Medical Negligence Claims | Henry Carus and Associates

You go to your doctor or to hospital expecting they will help you get better. Sadly, sometimes mistakes happen in the treatment given that cause patients to suffer complications that result in declining health or, in the worst-case scenario, death.

When you or a loved one suffers an adverse outcome while receiving medical care, you generally are not in a position to say whether the outcome was one caused by improper medical care or not. Instead, you are just left wondering if a doctor, nurse, or other professional is to blame. Although not all unfavourable outcomes are the result of negligence on the part of a medical professional, it is important to know that you and your loved ones have rights if medical negligence was a factor.

The team at Henry Carus + Associates has extensive experience handling medical negligence claims in Melbourne and throughout VIC. For a free, no-obligation consultation, please call 03 9001 1318 today.

What Is Medical Negligence?

First, it is important to understand what medical negligence is not. Generally speaking, a simple mistake by a medical provider does not rise to the level of negligence. Rather, negligence is an act or omission (i.e., a failure to act) that violates the standards of the medical profession.

The standard of care is the legal term for the competence expected of a qualified healthcare practitioner. Whether or not a provider violated the standard of care is central to medical negligence claims.

In order to prove medical negligence, you must be able to show that the provider:

  • Owed you or your loved one a duty of care (i.e., you or your loved one was a patient of the provider)
  • Violated the standard of care in treating you or your loved one
  • Harmed you or your loved one in deviating from the standard of care
  • Caused you and/or your family injury for which damages can be sought

Proving all of these elements of a medical negligence claim is a daunting task. It is important to contact a lawyer as soon as possible if you believe the negligence of a healthcare provider harmed you or a family member.

Proving a Medical Negligence Claim

Medicine is a complex, highly specialised field. Many doctors and other providers are required to make life-and-death decisions at a moment’s notice. As a result, violations of the standard of care are often difficult to prove.

An experienced medical negligence lawyer can help you overcome these challenges. Building an effective claim generally involves the following steps:

  • Gathering all documents that show your relationship with the provider
  • Collecting medical records that document tests, diagnoses, treatments, surgeries, referrals to specialists, etc.
  • Assessing the medications prescribed to you
  • Reviewing consent documents to ensure procedures were properly explained to you
  • Evaluating your medical history
  • Hiring medical experts to assess the evidence in your claim

Expert medical evidence is crucial in medical negligence claims. Proving negligence in your claim is generally dependent on the expert evidence of one or more professionals in the same area of medicine as the provider who caused the injuries to you or your family member.

Qualified medical experts can testify as to the standard of care (i.e., what a competent professional would have done if faced with the same situation), what errors the provider(s) made, and how those errors resulted in your injury or condition.

Proving Damages in Your Medical Negligence Claim

For a favourable resolution of your claim, it is not enough to prove that a healthcare provider was negligent. You must be able to prove that you or a relative suffered harm as a result of the negligence, and that you and your family subsequently suffered injury and what losses follow from that injury.

Damages in a medical negligence claim may vary widely depending on how your health has been impacted. You may be entitled to compensation for losses such as:

  • Pain and suffering for the injury suffered
  • The cost of subsequent and future medical treatment
  • Lost wages and loss of anticipated income
  • The cost of hiring home healthcare workers and in-home service providers
  • Out-of-pocket expenses for home and vehicle modifications, adaptive devices, etc.
  • Emotional anguish

If your loved one died as a result of medical negligence, you and your family may be able to recover compensation for economic and non-economic losses stemming from the death of your relative. Generally, this means filing a claim under the Wrongs Act 1958.

As with other types of common-law personal injury claims, your ability to recover non-economic damages is contingent on proving that medical negligence resulted in a significant injury as defined by the Wrongs Act. Significant injury is defined by statute as:

  • Loss of a foetus
    OR
  • “[A] … psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth”
    OR
  • “[L]oss of a breast”
    OR
  • “[T]he degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner … as satisfying the threshold level”

The “threshold level” for degree of impairment is 5 percent or more for physical injuries, 10 percent or more for psychiatric injuries, and 5 percent or more for injury to the spine. Claimants must be evaluated by an approved medical practitioner, who will issue a certificate of assessment that states whether or not the degree of impairment meets the threshold law.

Get Started on Your Medical Negligence Claim

Medical negligence claims are among the most complicated claims we handle at Henry Carus + Associates. Our firm has the experience, dedication, and resources, including access to leading medical experts, to build a strong claim on your behalf.

The team at Henry Carus + Associates is committed to one simple principle: You Deserve More. We are committed to getting you more, not only in terms of compensation but the support and quality of service you deserve throughout the duration of your claim.

If you or a loved one suffered serious harm due to medical negligence, please call 03 9001 1318 today for a free, no-obligation consultation. Henry Carus + Associates handle medical negligence claims on a No Win No Fee basis for clients in Melbourne and throughout Victoria.

Medical Negligence
Last updated on - Originally published on

Leave a Reply