Medical Negligence Claims - Slater & Gordon
Medical Negligence Claims - Slater & Gordon
Medical Negligence Claims - Slater & Gordon
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<strong>Medical</strong> negligence claims<br />
Third Edition, 2007
<strong>Slater</strong> & <strong>Gordon</strong> has come<br />
to mean fair access to<br />
justice for thousands of<br />
Australians, who rely on<br />
the skill and innovation of<br />
our lawyers to resolve their<br />
legal problems.<br />
With over seventy five<br />
years experience in some<br />
of the most complex<br />
litigation cases undertaken<br />
in Australia, our reputation<br />
as expert negotiators and<br />
litigators has been built by<br />
winning landmark cases<br />
that have helped redefine<br />
the law.<br />
Our long standing<br />
commitment to the delivery<br />
of social justice and law<br />
reform drives us to take the<br />
calculated risks necessary<br />
to challenge the law, and<br />
enable ordinary people to<br />
face the future.<br />
This underlying ethos of<br />
commitment to social justice<br />
has made <strong>Slater</strong> & <strong>Gordon</strong>,<br />
Australia’s most progressive<br />
and well known law firm.<br />
Contents<br />
What is a medical<br />
negligence claim? .............................3<br />
<strong>Medical</strong> negligence<br />
case examples ...............................4<br />
What do I have to prove? ............5<br />
What is compensation? ................6<br />
Negligent treatment<br />
that causes death ..........................7<br />
When is a claim viable? ...............8<br />
Time limits .....................................9<br />
What is NOT a medical<br />
negligence claim? .......................10<br />
Steps to making<br />
a compensation claim ...................11<br />
Step one – assessment<br />
and recommendation .................11<br />
Step two – investigation ............13<br />
Step three<br />
– the Court Process .....................13<br />
Other services ...............................15<br />
Reputation & Results
What is a medical<br />
negligence claim?<br />
Health care providers have a duty to take proper care when treating<br />
their patients. If a provider does not treat you with reasonable skill and<br />
care, and causes you an injury as a result, you may be able to make a<br />
claim against them.<br />
A claim in medical negligence is usually a claim under the common law,<br />
the law made and administered by the courts. However, often these<br />
‘tort’ claims have been modified by laws dealing with civil liability. Some<br />
cases are for breach of contract, others may be made under statutes.<br />
But in almost all cases you must be able to prove that your injury was<br />
caused by the fault of the health service provider concerned in order to<br />
obtain compensation.<br />
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<strong>Medical</strong> <strong>Negligence</strong> <strong>Claims</strong> 3
<strong>Medical</strong> negligence case examples<br />
There are perhaps as many examples of medical cases as there are<br />
different types of medical advice & treatment. Here we can only list<br />
a few; you may wish to refer to our website www.slatergordon.com.au<br />
for more examples. The case types referred to may involve claims for<br />
failure to warn of potential poor outcomes for some procedures,<br />
or errors in carrying out procedures:<br />
• Cosmetic surgery problems from breast surgery, liposuction,<br />
chemical peels, or nose reconstruction<br />
• Chiropractic errors such as inappropriate spinal manipulation<br />
leading to permanent nerve damage such as cauda equina<br />
syndrome<br />
• Antenatal testing failures – failure to recommend testing or errors<br />
in reading tests for conditions such as Down Syndrome<br />
• Pregnancy & labour management – failure to monitor and treat<br />
gestational diabetes, or to respond to fetal distress<br />
• Surgical errors – damage to major structures, such as the<br />
femoral nerve<br />
• Sterilisation failures on performing tubal ligation or vasectomy<br />
• Prescription errors, perhaps the prescription of wrong medications<br />
or excessive dosages<br />
4 <strong>Medical</strong> <strong>Negligence</strong> <strong>Claims</strong> Third Edition • 2007
What do I have to prove?<br />
<strong>Negligence</strong><br />
You must first be able to prove that the treatment you received was<br />
negligent. <strong>Negligence</strong> is a very specific concept, and not every failure<br />
or error made by a provider will be negligent. A provider may be<br />
negligent if their treatment fell below a level seen as a widely accepted<br />
competent treatment by a peer provider at the relevant time, in<br />
Australia. Breaches of contract or statutory breaches are usually assessed<br />
in much the same way.<br />
Connection between negligence and injury – “Causation”<br />
If you are able to prove that the treatment you received was not of<br />
a reasonable standard, you must then show that this caused or<br />
contributed to your injuries.<br />
In some cases, treatment may have been provided in a negligent way<br />
but no harm or injury results. If so, a claim will probably not be viable.<br />
Informed consent<br />
You may be able to make a claim if your practitioner failed to advise<br />
you on the possible unfavourable outcome of a proposed treatment,<br />
and if you were advised you would have declined the treatment, or<br />
sought advice and treatment from a more qualified practitioner.<br />
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The extent of the harm suffered<br />
You can only be compensated for injuries and losses that result from the<br />
negligent treatment. <strong>Medical</strong> evidence is always necessary to prove the<br />
extent of the physical and/or psychiatric injury and the likely consequences,<br />
for example, inability to work or the need for nursing care.<br />
What is compensation?<br />
Since the primary purpose of a compensation claim is to recover monies<br />
as compensation, it follows that a claim cannot be usefully pursued<br />
unless there is in fact a loss of some kind.<br />
Compensation is awarded according to the damage of harm and loss<br />
suffered. It does not relate to the degree of the provider’s negligence.<br />
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Compensation may include the following:<br />
• medical treatment expenses<br />
• future medical expenses<br />
• past wage loss & interest<br />
• future wage loss<br />
• damages for pain, suffering, emotional distress and loss of<br />
enjoyment of life<br />
• personal, domestic or nursing assistance provided by agencies<br />
or sometimes without charge by family or friends.
If your medical bills are being paid<br />
by either Medicare or a private<br />
health insurer these benefits must<br />
be repaid out of any settlement money<br />
received. The same applies to any<br />
income payments made by Centrelink<br />
while you are incapacitated for work<br />
by your injury. These payments must<br />
be repaid to Centrelink if you receive<br />
compensation for your lost earnings or<br />
your inability to earn an income.<br />
Negligent treatment that causes death<br />
If your partner or a family member dies as a result of negligent<br />
treatment, a limited type of compensation is available to the people<br />
who were financially dependent on the deceased or who received<br />
unpaid services in the home from the deceased.<br />
Dependants of the deceased may only claim for the economic loss that<br />
they have suffered, or for the value of the lost services.<br />
Nervous shock<br />
Useful phone numbers<br />
Unfortunately, the law does not provide compensation for the grief<br />
associated with the death of or injury to a family member. However, if<br />
you can prove that you have suffered a recognised psychiatric injury as<br />
a direct consequence of the ‘shock’ of the death, you may be able to<br />
make a claim. You must be able to prove that the death or injury was<br />
caused by negligence.<br />
Third Edition • 2007<br />
HIC (Medicare)<br />
132 127<br />
Centrelink<br />
Sydney (02) 9208 2001<br />
Melbourne (03) 9201 9119<br />
Brisbane (07) 3871 6111<br />
Perth (08) 9238 9493<br />
<strong>Medical</strong> <strong>Negligence</strong> <strong>Claims</strong> 7
When is a claim viable?<br />
Assessment of the viability of a claim requires consideration of the facts,<br />
the law, the chances of a successful outcome, the likely costs involved in<br />
bringing a claim and the potential award of financial compensation.<br />
Ultimately that assessment and the decision whether to pursue a claim<br />
or not is one for you to make. Our role is to provide you with advice on<br />
the elements, and of course we can express an opinion on whether the<br />
investigation seems worthwhile which may be of some assistance to you<br />
in making your decision.<br />
The key elements are:<br />
• Time limits – can the claim be made in time, or can a time<br />
extension be obtained.<br />
• Law – Does the law support the claim so that (on the facts<br />
which can be proved) it has reasonable prospects of success.<br />
• Damages – What amounts might be awarded on the successful<br />
conclusion of the claim.<br />
• Costs – What will the claim cost to bring, and what portion of those<br />
costs may be recovered as part of the claim.<br />
• Payment – Will there be a fund from which the compensation can<br />
be paid, either from assets or insurance.<br />
• Timing – How long will the process take.<br />
8 <strong>Medical</strong> <strong>Negligence</strong> <strong>Claims</strong> Third Edition • 2007
Not all claims are viable – in some cases, the risks and the likely costs<br />
may exceed the potential compensation, particularly for smaller claims.<br />
Throughout Australia, there are differing “thresholds” for claims.<br />
<strong>Slater</strong> & <strong>Gordon</strong> will provide you with details and indicate how your<br />
claim may be assessed.<br />
Time limits<br />
The right to sue does not exist forever. There are time limits imposed<br />
by legislation on your right to make a claim. If you allow the<br />
time limit to expire then your rights will be lost.<br />
In some exceptional circumstances the courts may allow<br />
an extension of time.<br />
<strong>Slater</strong> & <strong>Gordon</strong> will provide you with details of time limits, which<br />
vary throughout Australia.<br />
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What is NOT a medical negligence claim?<br />
Complaints about service provision<br />
You may be dissatisfied with a number of aspects of your medical<br />
treatment and care including the cost, the attitude or manner of a<br />
health service provider or the way in which the health service was<br />
delivered. However, those complaints will not give rise to a claim in<br />
medical negligence. While these things may be frustrating, infuriating<br />
and distressing, unless they have actually caused you an injury and you<br />
have suffered some compensable loss, they are not the basis of<br />
a medical negligence claim.<br />
That does not mean that disrespectful or poor quality treatment is<br />
acceptable or that you should not complain about it.<br />
Complaints can be made to a Commissioner or agency, and<br />
<strong>Slater</strong> & <strong>Gordon</strong> will provide you with details of the complaints<br />
process in your area.<br />
ACT (02) 6205 2222<br />
Health complaints<br />
www.healthcomplaints.act.gov.au<br />
NSW (02) 9219 7444 www.hccc.nsw.gov.au<br />
NT (08) 8999 1969 www.nt.gov.au/omb_hcscc/hcscc<br />
QLD (07) 3234 0272 www.hqcc.qld.gov.au/index.htm<br />
SA (08) 8226 8666 www.hcscc.sa.gov.au<br />
TAS 1300 766 725 www.healthcomplaints.tas.gov.au<br />
VIC (03) 8601 5222 www.health.vic.gov.au/hsc/<br />
WA (08) 9323 0600 www.healthreview.wa.gov.au<br />
10 <strong>Medical</strong> <strong>Negligence</strong> <strong>Claims</strong> Third Edition • 2007
Steps to making<br />
a compensation claim<br />
Step one – assessment and recommendation<br />
By the time you are reading this booklet, you may already have called<br />
our Legal Help Line on 1800 555 777.<br />
Our client services consultants give information to help decide on the<br />
best course of action for you and will obtain necessary background<br />
information from you, for review by one of our lawyers.<br />
If we agree to act for you, this will often be on a conditional (what is<br />
sometimes called a ‘No Win – No Fee’) basis. However not all claims<br />
can be investigated or pursued on that basis.<br />
A retainer agreement will confirm our preparedness to represent you.<br />
It provides an outline of potential costs and how they will be calculated.<br />
Work commences when you sign and return the retainer agreement.<br />
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The solution to your enquiry may or may not require assistance from<br />
a lawyer. Depending on the nature of your complaint and the reason<br />
for seeking legal advice it may be more appropriate for you to raise<br />
your concerns with:<br />
• the health service provider concerned<br />
• the relevant registration board or professional association; or<br />
• the health complaints body in your area.<br />
Preparing for your first appointment<br />
If in your possession, please bring or send to us all medical records,<br />
letters from doctors or hospitals or medical reports, x-rays or scans.<br />
If your claim relates to a cosmetic procedure, scarring or disfigurement,<br />
it would be helpful to supply photographs.<br />
Note key details of your medical treatment to help you answer<br />
our questions and provide a clear, chronological summary<br />
of what took place.<br />
It is important to provide the approximate dates of any medical<br />
treatment and the names and addresses of doctors, hospitals or other<br />
health care professionals you have consulted.<br />
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Step two – investigation<br />
Initial investigation includes gathering information about your<br />
claim, requesting medical reports and obtaining the opinion of an<br />
independent medical expert.<br />
If on completion of our investigations we are of the opinion that you<br />
have a viable claim, we will advise you as to the best way of pursuing<br />
your claim further.<br />
Step three – the Court Process<br />
In some cases medical negligence claims can be resolved without court<br />
action. If it is necessary to go to court, <strong>Slater</strong> & <strong>Gordon</strong> has the skill<br />
and experience in litigation to guide you through the complexities of<br />
court proceedings.<br />
In many cases the commencement of legal proceedings will result in<br />
the parties getting together to discuss resolution of the case.<br />
Remember, only a small percentage of cases result in a court hearing.<br />
<strong>Slater</strong> & <strong>Gordon</strong> will prepare your case to ensure you are well<br />
informed of:<br />
• relevant court processes<br />
• duration of legal proceedings<br />
• how to prepare for giving evidence<br />
• what to expect during cross examination<br />
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Preparation will involve engaging a barrister to represent you at court<br />
as well as arranging the attendance of any witnesses.<br />
Communication<br />
How we communicate with you is an important part of our service.<br />
Your lawyer will ensure that your claim is reviewed at key points<br />
throughout litigation process and keep you informed of any<br />
changes which may impact on your expected result. This may be<br />
either in person, writing, email, by telephone, or fax.<br />
How long will my claim take to finalise?<br />
Most cases take between two and three years depending on the injury.<br />
As almost all claims are settled ‘once and for all’ it is important that any<br />
settlement takes into account any future problems that your injury may<br />
cause you such as whether there will be any future medical costs.<br />
If your case is particularly complex then it may take longer to resolve.<br />
This will depend upon various factors, such as the strength of your case,<br />
court delays, problems in gathering evidence and the willingness of the<br />
other party to negotiate a settlement.<br />
Many Courts have established specialist lists involving the conduct of<br />
medical cases and court management rules apply to ensure the effective<br />
and efficient management of claims. In addition, the Courts often<br />
require the parties to participate in a dispute resolution process, known<br />
as Mediation, prior to trial in an endeavour to resolve claims without<br />
the cost and anxiety of a trial.<br />
14 <strong>Medical</strong> <strong>Negligence</strong> <strong>Claims</strong> Third Edition • 2007
Privacy<br />
<strong>Slater</strong> & <strong>Gordon</strong> seeks to comply with the National Privacy Principles.<br />
We will be collecting your health records as part of the investigation<br />
and litigation process. Those records may be disclosed to other persons<br />
and organisations. They may also be served upon solicitors representing<br />
other parties and provided to a Court or Tribunal.<br />
<strong>Slater</strong> & <strong>Gordon</strong> will endeavour to ensure that your records will be stored<br />
securely, not kept any longer than necessary, and disposed of appropriately.<br />
When your matter concludes the records may be sent to an archive<br />
facility, for storage and eventual secure destruction.<br />
Other services<br />
<strong>Slater</strong> & <strong>Gordon</strong> have established dedicated practice groups in<br />
specialist areas of the law to ensure our clients have to expert<br />
knowledge and resources.<br />
• Asbestos disease claims<br />
• Motor vehicle and similar injury claims<br />
• Work injury and ComCare claims<br />
• Commercial litigation<br />
• Estate disputes<br />
• Class actions<br />
• Employment law<br />
• Family law<br />
• Military and Defence compensation claims<br />
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Our <strong>Medical</strong> <strong>Negligence</strong> Group<br />
The <strong>Slater</strong> & <strong>Gordon</strong> <strong>Medical</strong> <strong>Negligence</strong> National Practice Group is managed<br />
and supervised by Accredited Specialists, who possess years of experience<br />
and knowledge in the area of medical negligence.<br />
The group’s reputation for excellence extends into professional<br />
communities, where our contribution to health education has resulted in the<br />
establishment of strong professional networks with medical practitioners.<br />
This network ensures the timely delivery of quality services to all our clients.<br />
Legal help line<br />
1800 555 777<br />
www.slatergordon.com.au<br />
© Copyright <strong>Slater</strong> & <strong>Gordon</strong> Pty Limited, 2007<br />
Reputation & Results