Henry Carus + Associates | Injury Lawyers
phone-volume-solid.svg
Call

Medical Negligence Claims

Our Comprehensive Approach To Medical Negligence Will Get A Result That Exceeds Your Expectations.

icon

We all place a lot of faith in healthcare providers when we’re sick or injured, or when a friend or family member has to go under the knife.

So when medical treatment doesn’t go according to plan it can be traumatic, if not overwhelming. While medical negligence may not play a part in a poor outcome, if an error has been made and an accepted standard of care breached you could be entitled to claim compensation.

icon

As one of the most challenging areas of compensation law, medical negligence claims require expert knowledge and the backing of a team that offers experience and a lot of determination.

Henry Carus Personal Injury Lawyer in Victoria

At Henry Carus + Associates our focus in these cases is on trying to prove that a health provider – be it a doctor, specialist or hospital – has not done the right thing in respect of their medical treatment of a client. Of course we can’t fix the medical error, but what we can do is seek a successful compensation outcome for the person whose life has been affected.

icon

In many ways a medical negligence claim follows the same process as a public liability claim. But with one major difference. It all comes down to understanding the medical evidence and getting the right expert medical evidence to support the claim.

What Makes A Medical Negligence Claim?

Medical treatment is supposed to improve a patient’s health, but in some cases the opposite happens. Although not every negative medical outcome is a result of medical negligence, some are.

Medical professionals – doctors, nurses, psychiatrists, dentists, surgeons, pharmacists and others, as well as the hospitals, clinics and practices that employ them – owe their patients a duty to provide care that meets the standards of the profession.
When a medical provider makes an error in treatment that falls short of the accepted standard of care and a patient suffers harm because of it, this may amount to medical negligence.

Healthcare providers are not expected to be perfect, and all medical procedures carry a certain degree of risk. Medical negligence goes beyond that. Medical negligence occurs when a provider does something – or fails to do something – that is outside the range of acceptable practices and results in serious patient harm.

icon

Due to the complexity of these matters, it is crucial that you work with a law firm that has experience with medical negligence claims and access to medical experts who can review your records for indications of substandard care and resulting harm.

Even though all instances of complications or mistakes do not rise to the level of medical negligence, it is never wrong to question an unexpected outcome from a procedure. The experienced legal team at Henry Carus + Associates in Melbourne is prepared to review the facts of your case and provide you with advice about your potential legal options for recovering compensation.

Examples of Medical Negligence

Negligent medical errors take many forms. Some of the most common types include:

  • Misdiagnosis and failure to diagnose medical conditions, particularly cancer, heart attacks, strokes, and infections
  • Surgical errors, including leaving surgical tools inside the body, operating on the wrong body part or the wrong patient, and severing nerves or blood vessels during an operation
  • Inadequate post-operative care
  • Failure to properly administer anesthesia or monitor a patient while under an anesthetic
  • Mistakes involving the medications, including providing the wrong dose or the wrong medicine to a patient
  • Birth injuries such as cerebral palsy or brachial plexus injuries that could have been avoided with proper care during labor and delivery
  • Emergency room errors
  • Failure to order proper tests, miscommunication of test results, and other lab errors
  • Mistakes made by general practitioners, including failure to refer a patient to a specialist
  • Failure to obtain informed consent for a medical procedure

Benefits Available To Medical Negligence Victims In Victoria

Victims of medical negligence in Victoria may be entitled to recover compensation for a range of losses, such as:

benefits-lp.png
  • Payment of medical bills and other expenses related to the treatment of the injury caused by the medical negligence, both past and future
  • Replacement of lost wages due to the injury, both past and future
  • Payment for assistive devices like wheelchairs and prosthetics, and modifications to the home and vehicle made necessary by the injury caused by medical negligence
  • Payment of the cost to hire in-home assistance such as nurses, gardeners, and cooks
  • Compensation for reduced life expectancy
  • Compensation for pain, suffering, and emotional distress

In most cases, compensation for losses due to medical negligence will be paid by the responsible party’s Professional Indemnity Insurance (PII).

Why Choose Henry Carus + Associates?

At Henry Carus + Associates, we are all about detail. And under the leadership of our highly experienced lawyer, Michelle Durbrava, our medical negligence claims usually involve the following:

  • Collating of all relevant medical histories and records.
  • Documenting of all relevant events over time.
  • Focusing on the perceived errors that the claim is based on.
  • Locating appropriate experts to comment on the medical evidence.
  • Countering any defence arguments to the contrary.
icon

At Henry Carus + Associates, we won’t stop until we’ve won. The results of our dedication and hard work are easy to see in the outcomes of our clients’ cases. More than 98% of our clients have found success on their claims – with some recovering as much as five times the compensation that was initially offered.

Our firm handles medical negligence claims on a No Win, No Fee basis. That means you owe us nothing for our legal services unless we recover compensation on your behalf. Our consultations are completely free and totally confidential.

Frequently Asked Questions About Medical Negligence Claims

Claims for medical negligence in Victoria are governed by the Wrongs Act. This is the statute that allows people who have been injured outside of Victoria’s other compensation schemes (TAC and WorkCover) to bring common law personal injury claims when they are harmed as a result of someone else’s negligence.

Establishing negligence can be difficult, especially given the complexities of medicine. Therefore, it is in your best interest to retain a lawyer to handle your medical negligence claim. Even if you have a very strong claim, achieving compensation, let alone fair compensation, is difficult without retaining a lawyer.

Your medical negligence lawyer will need to prove the following:

  1. You were owed a duty of care as a patient of the medical provider. “Duty of care” is defined in Part X, Division 2, Section 48 of the Wrongs Act.
  2. The medical provider was negligent and breached his or her duty to you.
  3. Your injuries were caused by the medical professional’s negligence.
  4. You suffered compensable damages as a result of the medical injury.

Each of the elements above must be satisfied for you to have a viable medical negligence claim.

When medical treatment goes wrong, most patients zero in on their doctor’s role in causing the harm. However, multiple medical professionals may be liable for medical negligence.

It is important to account for all of the professionals involved in your care and identify all those whose negligence may have contributed to your injuries. The liable parties in a medical negligence claim may include:

  • General practitioners (GPs)
  • Specialist doctors
  • Surgeons and anaesthesiologists
  • Nurses
  • Medical assistants
  • Paramedics and ambulance drivers
  • Allied health professionals (such as chiropractors, podiatrists, physiotherapists, pharmacists, etc.)
  • Dentists
  • Lab workers
  • And More

Medical negligence claims can also be brought against hospitals and health service centres. Your lawyer can investigate to determine if employees of the facility were negligent, as well as identify negligence and wrongdoing on the part of administrative staff.

Read More: Can I Sue a Hospital for Negligence?

Your right to bring a medical negligence claim is dependent on several factors. Generally speaking, a viable claim will involve the following:

  • You were a patient of the medical professional in question. This is fairly easy to establish through records maintained by the doctor or facility, such as admission forms, consent forms, etc.
  • The medical professional violated the standard of care through unacceptable errors or omissions. Establishing the standard of care and proving how the provider deviated from it is one of the most challenging aspects of any medical negligence claim. Doctors and other medical professionals in Victoria are afforded broad discretion by the peer professional opinion defence provision of the Wrongs Act.
  • You sustained physical and/or psychiatric injury due to the medical professional’s negligence. “Injury” is a broad term that encompasses aggravation of an existing medical complaint, worsening health from an undiagnosed or misdiagnosed condition, or physical or psychological harm, as well as the loss of a foetus.
  • You incurred damages as a result of the medical negligence. These may include present and future economic damages (e.g., medical expenses, lost wages, payment for services and assistive devices, loss of earning capacity, etc.) as well as non-economic damages (e.g., pain and suffering, loss of enjoyment of life, etc.).

Although proving the elements above is sufficient to recover compensation for economic losses, non-economic damages are only recoverable in certain circumstances. To claim damages for non-economic loss, victims must prove that they suffered a “significant injury” as defined by Part VBA, Division 2 of the Wrongs Act.

Some injuries are automatically considered to meet the threshold for significant injury:

  • Loss of a breast
  • Loss of a foetus
  • 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” (i.e., a birth injury)

An assessment of impairment is required to determine if other injuries meet the threshold to be considered a significant injury. The percentage of impairment is assessed by an approved medical practitioner who evaluates the permanent impact of your injury according to specific guidelines.

You will be issued a certificate of impairment stating whether your injuries meet the relevant significant injury threshold. You may have a claim for non-economic damages if permanent impairment is assessed at 5% or higher for spinal injuries, more than 5% for other types of physical injuries, or 10% or higher for psychiatric injuries.

As with other common law personal injury actions, medical negligence claims must be brought within a certain time limit. The Limitation of Actions Act Part I, S. 5(1AA) sets the time limit at 3 years from the date of injury.

The limitation period is extended for those who suffer injuries as minors. If your child suffers injury as a result of medical negligence, the limitation period begins on your child’s 18th birthday.

The limitation period may also be extended if it can be proved that a plaintiff did not discover or could not have reasonably discovered the injury within 3 years. According to Section 27F of the Limitation of Actions Act, discovery is considered to occur when all of the following conditions are met:

  1. The plaintiff knows or ought to know of the personal injury
  2. The plaintiff knows or ought to know that the injury is the fault of a medical professional
  3. The plaintiff knows or ought to know “that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action”

Whether or not a person “ought to know” of a medical injury is contingent on the individual taking “all reasonable steps before that date to ascertain the fact.” In matters of medical negligence, “all reasonable steps” could be considered receiving followup care, taking all prescribed medications, acting on adverse symptoms in a timely fashion, etc.

If you couldn’t reasonably have known about the existence of an injury caused by medical negligence and that it was the fault of the provider, you may have additional time to bring a claim. The long-stop limitation period sets a maximum of 12 years to bring a claim after the date of personal injury (per Limitation of Actions Act Part IIA, Division 1, S. 27A).

However, it is important not to rely on these exceptions to bring your medical negligence claim after the limitation period. Any delay carries the risk of the court throwing out your claim, which is why you should seek legal counsel as soon as you experience adverse effects that you believe may be the result of medical negligence.

Medical negligence claims involve a number of unique challenges. Chief among these is the level of expertise needed to prove that the doctor or other professional violated the standard of care owed to the patient.

It is not enough to argue that a medical professional made a mistake and you suffered harm as a result. Rather, you must show that the actions of the professional (or the professional’s failure to act) fell outside what is “widely accepted in Australia by a significant number of respected practitioners in the field” (known as the peer professional opinion).

Insurance companies that represent doctors, hospitals, etc. will arrange for expert witnesses to testify that the defendant’s actions fell within the “widely accepted” standard of the medical profession. To overcome this defence, your medical negligence lawyer will need to enlist similarly qualified medical experts to provide compelling testimony that shows how the defendant deviated from the accepted standard and caused your injuries.

Read More: How Do I Prove Medical Negligence?

Causation is another key element of a medical negligence claim that can be extremely difficult to prove. Often, medical injuries are caused by a series of errors rather than a single incident. To make matters more complicated, multiple doctors and other professionals may be at fault.

A medical negligence lawyer will delve into your medical records to identify issues of negligence. This includes comprehensive review of:

  • Your medical history
  • Diagnostic notes
  • The treatment plan for any conditions and complaints
  • Prescribed medications
  • X-rays and other imaging
  • Test results
  • Descriptions of surgeries and other procedures
  • Letters from your GP, specialists, surgeons, etc.
  • Hospital and emergency department records

Instances of medical negligence are not obviously documented in your chart. Sometimes they are omitted entirely. It takes a highly specialised, experienced law firm to handle medical negligence claims effectively.

The Medical Negligence Practice Group at Henry Carus + Associates has the experience, resources, and record of results you need if you or a loved one suffered harm as a result of a medical error. Our lawyers and staff anticipate your needs, develop a customised plan for winning your claim, and handle legal complexities so you can dedicate your time to recovery.

It can take approximately 1 year for us to obtain your records and get all of the evidence required to commence proceedings. Once proceedings are commenced you can usually achieve resolution within 12 months. Multiple factors can affect the duration of the process.

If your injuries are life-threatening your claim can be expedited. We frequently expedite missed diagnosis of cancer claims and other claims where our client has a short life expectancy. We can achieve resolution in these claims within 3 months, if necessary.

The slow pace of a medical negligence claim can often be attributed to the complexity common to these matters. Gathering evidence of medical negligence can be painstaking, especially if the error occurred in an obscure or complicated field of medicine. The same is true of arranging for expert witness testimony.

You may need to wait for your injuries to stabilise before an accurate calculation of your damages can be made. The long-term effects of a medical injury (and the financial ramifications thereof) may not become apparent until you reach the point of maximum recovery.

It is important to get the medical care, therapy, and rehabilitation you need for your injuries to become fully stabilised. At this point, your medical negligence lawyer can determine the total value of your damages. Lodging a claim prematurely when your injuries are not stabilised may result in a recovery that does not reflect the full compensation you need and deserve.

Another major factor that can prolong the resolution of your medical negligence claim is whether the matter settles or goes to trial. Negotiating a favourable settlement takes time, but still less than it would to go to trial. If your claim does not settle, you will need to wait for your day in court (which could be a long way off depending on how crowded the court docket is, amongst other issues).

Patience is essential in any medical negligence matter. Your lawyer should be in regular contact with you concerning the progress of your claim and any settlement offers, as well as providing guidance and support.