Medical Negligence Claims - Slater & Gordon

Medical negligence claims
Third Edition, 2007

Slater & Gordon has come
to mean fair access to
justice for thousands of
Australians, who rely on
the skill and innovation of
our lawyers to resolve their
legal problems.
With over seventy five
years experience in some
of the most complex
litigation cases undertaken
in Australia, our reputation
as expert negotiators and
litigators has been built by
winning landmark cases
that have helped redefine
the law.
Our long standing
commitment to the delivery
of social justice and law
reform drives us to take the
calculated risks necessary
to challenge the law, and
enable ordinary people to
face the future.
This underlying ethos of
commitment to social justice
has made Slater & Gordon,
Australia’s most progressive
and well known law firm.
Contents
What is a medical
negligence claim? .............................3
Medical negligence
case examples ...............................4
What do I have to prove? ............5
What is compensation? ................6
Negligent treatment
that causes death ..........................7
When is a claim viable? ...............8
Time limits .....................................9
What is NOT a medical
negligence claim? .......................10
Steps to making
a compensation claim ...................11
Step one – assessment
and recommendation .................11
Step two – investigation ............13
Step three
– the Court Process .....................13
Other services ...............................15
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What is a medical
negligence claim?
Health care providers have a duty to take proper care when treating
their patients. If a provider does not treat you with reasonable skill and
care, and causes you an injury as a result, you may be able to make a
claim against them.
A claim in medical negligence is usually a claim under the common law,
the law made and administered by the courts. However, often these
‘tort’ claims have been modified by laws dealing with civil liability. Some
cases are for breach of contract, others may be made under statutes.
But in almost all cases you must be able to prove that your injury was
caused by the fault of the health service provider concerned in order to
obtain compensation.
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Medical Negligence Claims 3

Medical negligence case examples
There are perhaps as many examples of medical cases as there are
different types of medical advice & treatment. Here we can only list
a few; you may wish to refer to our website www.slatergordon.com.au
for more examples. The case types referred to may involve claims for
failure to warn of potential poor outcomes for some procedures,
or errors in carrying out procedures:
• Cosmetic surgery problems from breast surgery, liposuction,
chemical peels, or nose reconstruction
• Chiropractic errors such as inappropriate spinal manipulation
leading to permanent nerve damage such as cauda equina
syndrome
• Antenatal testing failures – failure to recommend testing or errors
in reading tests for conditions such as Down Syndrome
• Pregnancy & labour management – failure to monitor and treat
gestational diabetes, or to respond to fetal distress
• Surgical errors – damage to major structures, such as the
femoral nerve
• Sterilisation failures on performing tubal ligation or vasectomy
• Prescription errors, perhaps the prescription of wrong medications
or excessive dosages
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What do I have to prove?
Negligence
You must first be able to prove that the treatment you received was
negligent. Negligence is a very specific concept, and not every failure
or error made by a provider will be negligent. A provider may be
negligent if their treatment fell below a level seen as a widely accepted
competent treatment by a peer provider at the relevant time, in
Australia. Breaches of contract or statutory breaches are usually assessed
in much the same way.
Connection between negligence and injury – “Causation”
If you are able to prove that the treatment you received was not of
a reasonable standard, you must then show that this caused or
contributed to your injuries.
In some cases, treatment may have been provided in a negligent way
but no harm or injury results. If so, a claim will probably not be viable.
Informed consent
You may be able to make a claim if your practitioner failed to advise
you on the possible unfavourable outcome of a proposed treatment,
and if you were advised you would have declined the treatment, or
sought advice and treatment from a more qualified practitioner.
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The extent of the harm suffered
You can only be compensated for injuries and losses that result from the
negligent treatment. Medical evidence is always necessary to prove the
extent of the physical and/or psychiatric injury and the likely consequences,
for example, inability to work or the need for nursing care.
What is compensation?
Since the primary purpose of a compensation claim is to recover monies
as compensation, it follows that a claim cannot be usefully pursued
unless there is in fact a loss of some kind.
Compensation is awarded according to the damage of harm and loss
suffered. It does not relate to the degree of the provider’s negligence.
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Compensation may include the following:
• medical treatment expenses
• future medical expenses
• past wage loss & interest
• future wage loss
• damages for pain, suffering, emotional distress and loss of
enjoyment of life
• personal, domestic or nursing assistance provided by agencies
or sometimes without charge by family or friends.

If your medical bills are being paid
by either Medicare or a private
health insurer these benefits must
be repaid out of any settlement money
received. The same applies to any
income payments made by Centrelink
while you are incapacitated for work
by your injury. These payments must
be repaid to Centrelink if you receive
compensation for your lost earnings or
your inability to earn an income.
Negligent treatment that causes death
If your partner or a family member dies as a result of negligent
treatment, a limited type of compensation is available to the people
who were financially dependent on the deceased or who received
unpaid services in the home from the deceased.
Dependants of the deceased may only claim for the economic loss that
they have suffered, or for the value of the lost services.
Nervous shock
Useful phone numbers
Unfortunately, the law does not provide compensation for the grief
associated with the death of or injury to a family member. However, if
you can prove that you have suffered a recognised psychiatric injury as
a direct consequence of the ‘shock’ of the death, you may be able to
make a claim. You must be able to prove that the death or injury was
caused by negligence.
Third Edition • 2007
HIC (Medicare)
132 127
Centrelink
Sydney (02) 9208 2001
Melbourne (03) 9201 9119
Brisbane (07) 3871 6111
Perth (08) 9238 9493
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When is a claim viable?
Assessment of the viability of a claim requires consideration of the facts,
the law, the chances of a successful outcome, the likely costs involved in
bringing a claim and the potential award of financial compensation.
Ultimately that assessment and the decision whether to pursue a claim
or not is one for you to make. Our role is to provide you with advice on
the elements, and of course we can express an opinion on whether the
investigation seems worthwhile which may be of some assistance to you
in making your decision.
The key elements are:
• Time limits – can the claim be made in time, or can a time
extension be obtained.
• Law – Does the law support the claim so that (on the facts
which can be proved) it has reasonable prospects of success.
• Damages – What amounts might be awarded on the successful
conclusion of the claim.
• Costs – What will the claim cost to bring, and what portion of those
costs may be recovered as part of the claim.
• Payment – Will there be a fund from which the compensation can
be paid, either from assets or insurance.
• Timing – How long will the process take.
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Not all claims are viable – in some cases, the risks and the likely costs
may exceed the potential compensation, particularly for smaller claims.
Throughout Australia, there are differing “thresholds” for claims.
Slater & Gordon will provide you with details and indicate how your
claim may be assessed.
Time limits
The right to sue does not exist forever. There are time limits imposed
by legislation on your right to make a claim. If you allow the
time limit to expire then your rights will be lost.
In some exceptional circumstances the courts may allow
an extension of time.
Slater & Gordon will provide you with details of time limits, which
vary throughout Australia.
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Medical Negligence Claims 9

What is NOT a medical negligence claim?
Complaints about service provision
You may be dissatisfied with a number of aspects of your medical
treatment and care including the cost, the attitude or manner of a
health service provider or the way in which the health service was
delivered. However, those complaints will not give rise to a claim in
medical negligence. While these things may be frustrating, infuriating
and distressing, unless they have actually caused you an injury and you
have suffered some compensable loss, they are not the basis of
a medical negligence claim.
That does not mean that disrespectful or poor quality treatment is
acceptable or that you should not complain about it.
Complaints can be made to a Commissioner or agency, and
Slater & Gordon will provide you with details of the complaints
process in your area.
ACT (02) 6205 2222
Health complaints
www.healthcomplaints.act.gov.au
NSW (02) 9219 7444 www.hccc.nsw.gov.au
NT (08) 8999 1969 www.nt.gov.au/omb_hcscc/hcscc
QLD (07) 3234 0272 www.hqcc.qld.gov.au/index.htm
SA (08) 8226 8666 www.hcscc.sa.gov.au
TAS 1300 766 725 www.healthcomplaints.tas.gov.au
VIC (03) 8601 5222 www.health.vic.gov.au/hsc/
WA (08) 9323 0600 www.healthreview.wa.gov.au
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Steps to making
a compensation claim
Step one – assessment and recommendation
By the time you are reading this booklet, you may already have called
our Legal Help Line on 1800 555 777.
Our client services consultants give information to help decide on the
best course of action for you and will obtain necessary background
information from you, for review by one of our lawyers.
If we agree to act for you, this will often be on a conditional (what is
sometimes called a ‘No Win – No Fee’) basis. However not all claims
can be investigated or pursued on that basis.
A retainer agreement will confirm our preparedness to represent you.
It provides an outline of potential costs and how they will be calculated.
Work commences when you sign and return the retainer agreement.
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The solution to your enquiry may or may not require assistance from
a lawyer. Depending on the nature of your complaint and the reason
for seeking legal advice it may be more appropriate for you to raise
your concerns with:
• the health service provider concerned
• the relevant registration board or professional association; or
• the health complaints body in your area.
Preparing for your first appointment
If in your possession, please bring or send to us all medical records,
letters from doctors or hospitals or medical reports, x-rays or scans.
If your claim relates to a cosmetic procedure, scarring or disfigurement,
it would be helpful to supply photographs.
Note key details of your medical treatment to help you answer
our questions and provide a clear, chronological summary
of what took place.
It is important to provide the approximate dates of any medical
treatment and the names and addresses of doctors, hospitals or other
health care professionals you have consulted.
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Step two – investigation
Initial investigation includes gathering information about your
claim, requesting medical reports and obtaining the opinion of an
independent medical expert.
If on completion of our investigations we are of the opinion that you
have a viable claim, we will advise you as to the best way of pursuing
your claim further.
Step three – the Court Process
In some cases medical negligence claims can be resolved without court
action. If it is necessary to go to court, Slater & Gordon has the skill
and experience in litigation to guide you through the complexities of
court proceedings.
In many cases the commencement of legal proceedings will result in
the parties getting together to discuss resolution of the case.
Remember, only a small percentage of cases result in a court hearing.
Slater & Gordon will prepare your case to ensure you are well
informed of:
• relevant court processes
• duration of legal proceedings
• how to prepare for giving evidence
• what to expect during cross examination
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Preparation will involve engaging a barrister to represent you at court
as well as arranging the attendance of any witnesses.
Communication
How we communicate with you is an important part of our service.
Your lawyer will ensure that your claim is reviewed at key points
throughout litigation process and keep you informed of any
changes which may impact on your expected result. This may be
either in person, writing, email, by telephone, or fax.
How long will my claim take to finalise?
Most cases take between two and three years depending on the injury.
As almost all claims are settled ‘once and for all’ it is important that any
settlement takes into account any future problems that your injury may
cause you such as whether there will be any future medical costs.
If your case is particularly complex then it may take longer to resolve.
This will depend upon various factors, such as the strength of your case,
court delays, problems in gathering evidence and the willingness of the
other party to negotiate a settlement.
Many Courts have established specialist lists involving the conduct of
medical cases and court management rules apply to ensure the effective
and efficient management of claims. In addition, the Courts often
require the parties to participate in a dispute resolution process, known
as Mediation, prior to trial in an endeavour to resolve claims without
the cost and anxiety of a trial.
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Privacy
Slater & Gordon seeks to comply with the National Privacy Principles.
We will be collecting your health records as part of the investigation
and litigation process. Those records may be disclosed to other persons
and organisations. They may also be served upon solicitors representing
other parties and provided to a Court or Tribunal.
Slater & Gordon will endeavour to ensure that your records will be stored
securely, not kept any longer than necessary, and disposed of appropriately.
When your matter concludes the records may be sent to an archive
facility, for storage and eventual secure destruction.
Other services
Slater & Gordon have established dedicated practice groups in
specialist areas of the law to ensure our clients have to expert
knowledge and resources.
• Asbestos disease claims
• Motor vehicle and similar injury claims
• Work injury and ComCare claims
• Commercial litigation
• Estate disputes
• Class actions
• Employment law
• Family law
• Military and Defence compensation claims
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Our Medical Negligence Group
The Slater & Gordon Medical Negligence National Practice Group is managed
and supervised by Accredited Specialists, who possess years of experience
and knowledge in the area of medical negligence.
The group’s reputation for excellence extends into professional
communities, where our contribution to health education has resulted in the
establishment of strong professional networks with medical practitioners.
This network ensures the timely delivery of quality services to all our clients.
Legal help line
1800 555 777
www.slatergordon.com.au
© Copyright Slater & Gordon Pty Limited, 2007
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