Medical negligence payouts in Australia range from tens of thousands of dollars to millions of dollars. Depending on the severity of your injuries, the total compensation amount can include:

• Lost income both past and future
• Medical expenses – resulting from your injuries
• Travel expenses – to and from medical appointments and treatment
• Domestic assistance – the cost of getting help with home duties
• Pain and suffering – an amount to compensate you for your pain and suffering, based on the extent of your injuries

Individuals who have suffered harm or injury as a result of medical negligence can make a claim for compensation. The following individuals may be able to make a medical negligence claim:

1. Patients: Patients who have received medical treatment that fell below the standard of care and caused harm or injury may be able to make a claim.
2. Family members: Family members of patients who have died as a result of medical negligence may be able to make a claim for compensation.
3. Legal guardians: Legal guardians of patients who are unable to make their own decisions, such as minors or individuals with mental incapacity, may be able to make a claim on their behalf.
4. Executors of estates: Executors of the estates of deceased patients may be able to make a claim on behalf of the deceased’s estate.

It is important to note that medical negligence claims can be complex and require a thorough understanding of the legal and medical issues involved. It is advisable to seek the advice of a qualified and experienced medical negligence lawyer to assess your case and determine whether you have a valid claim.

Doctors have a duty to warn you of inherent risks involved in a medical procedure. A doctor’s duty to warn of inherent risks is to protect you from injury that is unacceptable.

If for example, you underwent a surgical procedure relating to your spine. The doctor would have to warn you of the inherent risks such as nerve damage and paralysis.

However, if one of these risks eventuated (you suffered nerve damage for example) and your doctor did not warn of the risks the doctor could be said to have breached his duty of care to you.

However, you must then prove that had the doctor warned you of the risk of nerve damage, you would not have gone ahead with the operation. If you would have gone ahead with the procedure despite being informed of the risks than the failure to warn could not be said to have caused the injury.

In summary, the following must occur:

1. Doctor fails to warn of the risks;
2. the risk eventuates; and
3. had you been warned of the risk, you would not have proceeded with the procedure.

The underlying policy behind the court only providing protection for failure to warn of risks which eventuate is that liability should not extend to harm from risks that the patient was willing to hazard.

If your doctor has made a mistake and you have suffered loss/injury as a result you may have a claim in negligence against your doctor.  It is important to consider all the factors which may have contributed to your injury for example your doctor, the hospital, ambulance, pharmacist and the circumstances of your injury.

A good lawyer will be able to consider which is the easiest case for you and the least risky.

As a preliminary to considering whether your doctor was negligent, it is important to have all your treating medical records. Your lawyer will assist in obtaining these records. To learn more about how to access your medical records, click here.

How do I show that my doctor was negligent?

To establish negligence, you must show that:

1. Your doctor owed you a duty of care;
2. Your doctor breached that duty of care (by doing or not doing something);
3. You have suffered physical or financial harm; and
4. Your doctor’s breach of duty of care caused that harm.

Proving the above is more difficult than you might think. Doctors like any professionals make mistakes and not all mistakes are negligent. For example, your doctor may make a serious mistake in prescribing you the wrong medication but fortunately you do not suffer any adverse reaction to the medication, and you suffer no loss. In this case there is no negligence.

We have had a case where a doctor operated on the wrong hand during surgery. In this case, negligence was easy to prove.

Your doctor owed you a duty of care

The first step in showing that your doctor owed a duty of care is the easiest to prove. All hospitals, doctors and nurses have a duty of care to take reasonable care in the treatment they provide.  The duty of care is owed to anyone who could foreseeably be harmed by their actions (or failures to act).  This special relationship between a doctor and patient gives rise to a non-delegable duty of care.

Your doctor breached that duty of care

In deciding whether there has been a breach of the duty of care, the first question to be determined is whether a reasonable person in the doctor’s position would have foreseen that his conduct involved a risk of injury to you.

The second question to be determined is what a reasonable person would do by way of response to the risk.  The Court needs to consider whether the risk of harm was foreseeable and whether the risk was not insignificant.

If for example, during surgery you suffered an inherent risk of the surgery and you provided consent to proceed with the surgery, the doctor may not have breached his duty of care. In these circumstances it would have to be considered whether your consent was what is called ‘informed consent’. Informed consent is the process by which a patient agrees to undergo the proposed course of treatment with full knowledge of the possible consequences.

To learn more about the duty of doctors to warn of risks read our article on this topic here.

You can read a summary here of an example where a doctor was held negligent in his performance of an ACL reconstruction of a Newcastle Knights rugby league player.

Your doctor’s breach of duty of care caused that harm

In proving that a doctor breached the duty of care owed to you, commonly an expert opinion of a similarly trained and experienced doctor will be obtained to comment on the standard of care provided to you.

You have suffered physical or financial harm

This final element of a negligence claim is called damages. Damages are awarded for both economic and non-economic loss.

Economic loss includes loss of wages and income, as well as out of pocket expenses such as medical expenses and necessary domestic services. Non-economic loss refers to the pain and suffering as a result of the harm or injury.

Damages are awarded on a case-by-case basis. When deciding on an appropriate amount, a Court will consider:

(a)  The amount of any financial loss

(b)  The severity of the injury

(c)  The impact of the injury on one’s future

Time limits

Medical negligence claims must also be brought within a relatively short period of time. In NSW, the time limit for a personal injury claim is generally three years from the date of the injury itself, with certain exceptions.

It is important to not delay obtaining legal advice as there is a great deal of work to be done to prepare a claim. McAuley Lawyers acts in these matters on ‘no-win no-fee’ basis. Please call our personal injury lawyers today on 1800 180 500.

Have you suffered injury or loss as a result the negligent care of your dentist?  If so, you may have a dental negligence claim.  The principles of medical negligence are applicable to dental negligence.

The requirements necessary to establish negligence are:

1. Your dentist owed you a duty of care;
2. Your dentist breached that duty of care (by doing or not doing something);
3. You have suffered physical or financial harm; and
4. Your dentist’s breach of duty of care caused that harm.

All dentists have a duty of care to take reasonable care in the treatment they provide.  The duty of care is owed to anyone who could foreseeably be harmed by their actions (or failures to act).

Some of the common complaints against dentists are:

• Failure to diagnose and treat complications arising from extractions- infection, sinus perforation, mandibular fracture, TMJ injury.
• Performing unnecessary treatment.
• Failure to warn of material risks associated with treatment eg nerve damage.
• Failure to make necessary specialist referral when appropriate
• Cosmetic dental surgery negligence.
• Failure to diagnose oral cancer in a timely manner.
• Nerve damage
• Periodontal disease
• Failure to obtain informed consent

Informed consent is the process by which a patient agrees to undergo the proposed course of treatment with full knowledge of the possible consequences.  Some dentists fail to properly communicate the proposed procedures with their patients. You should always be explained the risks associated with any dental procedure.

In a recent case, a dentist decided to cap every one of the patient’s teeth, not because of clinical need but for his own financial gain. The Court decided that where the treatment is not necessary, there cannot be any informed consent and that whenever there is a dispute in respect of informed consent, the burden of proof falls upon the medical practitioner.

In deciding whether there has been a breach of the duty of care, the first question to be determined is whether a reasonable person in the doctor’s position would have foreseen that his conduct involved a risk of injury to you.

The second question to be determined is what a reasonable person would do by way of response to the risk.  The Court needs to consider whether the risk of harm was foreseeable and whether the risk was not insignificant.

One aspect of proving that your doctor has been negligent is answering the question whether your doctor failed to comply with what is accepted competent professional practice.   The other aspect is to establish that the breach of the duty of care actually caused an injury.  If the injury, loss or damage would have happened regardless of the breach of the duty of care, then no compensation can be claimed.  You must show that it was more probable than not that the breach of the duty of care caused the injury and the loss and damage that flowed from the injury.

Cosmetic surgery is booming in Australia. Australians now spend more on cosmetic procedures per capita than the United States. Every year Australians are consuming $350 million worth of Botox procedures, having 8,000 breast augmentation surgeries and 30,000 liposuction procedures.

The top five most popular procedures are anti-wrinkle injection, fillers, breast augmentation and reduction and liposuction.

Some of the most common cosmetic surgery complications are hematoma (pocket of blood that resembles a large, painful bruise), nerve damage, infection, deep vein thrombosis, scarring, appearance dissatisfaction, organ damage and blood loss.

Whilst some of these complications may not occur through any fault of your doctor, many are. Doctors have a duty of care to provide reasonable treatment and care.

As the demand continues to increase for cosmetic surgery, doctors must ensure that they provide reasonable treatment and care.

Assessing whether any complication in your cosmetic surgery was due to the fault of your doctor is not always easy to assess.

A doctor has a duty to disclose to you an adverse event if the usual practice is for the doctor to disclose the adverse event.

A doctor’s duty to inform patients of treatment that has been given or will be given is integral to the provision of medical care and treatment. As Bryson J once stated “One cannot stick a needle into a person and walk away wordless, as one would with a horse.”

In Wighton v Arnot NSWSC 637 the plaintiff developed a lump on the right side of her neck requiring multiple surgeries by the defendant. The plaintiff alleged that during the surgical procedures, her doctor severed her right spinal accessory nerve and that his treatment thereafter was negligent in that he failed to inform the plaintiff of his suspicion that he had severed the nerve, and failed to refer the plaintiff to an appropriate specialist. When the plaintiff eventually saw a neurosurgeon, an accessory nerve reconstruction was no longer feasible.

The court found that the treating doctor owed a duty to disclose given his suspicion that he had severed the plaintiff’s nerve as this was a relevant part of the patient’s medical outcome and was a necessary part of reasonable aftercare.

The court also considered that the duty extended to an obligation for the doctor to undertake investigations given an adverse outcome was suspected.

There was no finding that the doctor had been negligent in the performance of the operation generally, nor in severing the nerve. Liability only arose through the failure to disclose the adverse outcome to the patient, where it was usual practice for the doctor to disclose and investigate the suspected adverse event and provide an opportunity for remedial surgery.

Treating practitioners have various obligations when they are treating patients. There may also be occasions when they are obliged to advise patients of the various risks involved with such treatment. This is most commonly seen with surgeries. 

Usually a waiver is signed by the patient prior to a surgery to cover the interests of the treating practitioner if something goes wrong or if one of the outlined risks actually eventuates. You should know however, that although you have signed a waiver, this does not entitle the treating practitioner to disregard his obligations in providing you with health care according to the set standards and guidelines which apply to different types of treatment and surgeries.

For example, if you have had surgery and developed a deep vein thrombosis, the treating practitioner would most likely have discussed the possibility of this with you prior to the surgery, or provided you with a hand out detailing the risks of such a surgery. You also most likely would have signed a waiver acknowledging that this condition can occur after surgery. If, however, the treating practitioner did not take the relevant precautions to avoid this condition or treat this condition before such time that it caused a more significant problem, the treating practitioner can still be liable for a wrong doing. 

In these circumstances, it would always be prudent to check in with a lawyer in relation to your rights and entitlements. At McAuley Lawyers, we run all our personal injury matters on a no win no fee basis.

So, if you or someone you know has suffered an injury when a treating practitioner has made a mistake or has not done the right thing, please feel free to get in touch with us for an obligation free conference so we can help you get the compensation you are entitled to. 

Nervous shock is a historic term derived under English law which refers to psychiatric/mental illness or injury inflicted upon a person by intentional or negligent actions or omissions of another.

Who can bring a nervous shock claim?

In NSW, nervous shock claims can be brought by persons who have witnessed, a victim being killed, injured or put in peril if it is accepted by the Court that they have a genuine psychiatric illness arising from a circumstance that the defendant ought to have foreseen to be capable of causing a person of ‘normal fortitude’ to suffer a recognisable psychiatric illness if reasonable care were not taken.

A close member of the family of a victim includes:

• a parent of the victim;
• persons with parental responsibility for the victim;
• the spousal partner of the victim;
• a child or step-child of the victim; and
• or any other person for whom the victim who has parental responsibility. 

The definition extends to siblings, half-brothers or half-sisters, step-brothers and step-sisters.  A “spouse or partner” is defined as a husband or wife or a de-facto partner.

What is the legal test of a nervous shock claim?

The common law provides three elements to prove a nervous shock claim:

1. That a duty of care is owed by the defendant to the plaintiff; and
2. That it was reasonably foreseeable that the plaintiff could suffer psychiatric injury due to the defendant’s act or omission; and
3. That it was the defendant’s negligent act or omission which caused the plaintiff to suffer this injury.

What compensation can be claimed with a nervous shock claim?

The following may be able to be claimed:

• Past expenses
• Future expenses
• Lost wages
• Future economic loss
• Non-economic loss

The damages that may be claimable will depend on the severity of the injury and its duration.

What time limits apply to a nervous shock claim?

A statutory limitation of three years from the time of the date of the incident applies in which to commence court proceedings for personal injury, including for nervous shock claims.

Leading case in nervous shock claim

The leading case in Australia in respect to nervous shock is Tame v NSW (2002) 211 CLR 317. In January 1991, Ms Tame was the driver of a car that was involved in an accident, which was the fault of the driver of the other car.

Ms Tame sued and obtained damages for physical injury. The other driver had a blood alcohol level of 0.14. while Tame had no alcohol in her blood. However, the police initially recorded in their accident report that Ms Tame’s blood alcohol level was 0.14. The error was corrected shortly afterwards. Ms Tame however heard about the error and the police apologised to Ms Tame and assured her that the error would be fixed.

However, Ms Tame became obsessed with the error and developed a psychiatric injury as a result. Ms Tame brough a claim against the State of NSW for the negligence of the police and was awarded about $115,000 in damages in the District Court of NSW.

The State successfully appealed the decision to the NSW Court of Appeal, and Ms Tame obtained special leave to appeal to the High Court.

The High Court dismissed the appeal finding that the police officer who prepared the erroneous report did not owe a duty to take reasonable care to avoid psychiatric injury to her, as it was not reasonably foreseeable that a person in her position would sustain a psychiatric injury as a result of the error.

The Court considered that when considering whether a defendant owes a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the crucial question is whether the risk of the plaintiff sustaining such an injury was reasonably foreseeable.

The court also considered three ‘control mechanisms’ for the imposition of such a duty of care:

1. The requirement that liability for psychiatric harm be assessed by reference to a hypothetical person of ‘normal fortitude’;
2. The requirement that the psychiatric injury be caused by a ‘sudden shock’; and
3. The requirement that a plaintiff ‘directly perceive’ a distressing phenomenon or its ‘immediate aftermath’.

These three ‘control mechanisms’ are not pre-conditions but are relevant considerations.

Shortly after Tame, Part 3 of the Civil Liability Act 2002 (NSW) was enacted. Section 32 which deals with psychiatric injury is mostly consistent with Tame.

Contrary to Tame however, section 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness. This was affirmed in Wicks v State Rail Authority of NSW (2010) 241 CLR 60 at 26.

Has a loved one died a violent, and/or unnatural death or in unusual circumstances? If so the coroner has jurisdiction to hold an inquest. 

Our experience is that the coroner is becoming increasingly reluctant to hold inquests and has adopted a defensive approach. 

There are many advantages to having an inquest in that often a case in negligence arises subsequently.

At McAuley Lawyers we have experience dealing with the coroner’s court.
The coroner has jurisdiction to hold an inquest into any death or suspected death in circumstances including where:
• the person died a violent or unnatural death,
• the person died a sudden death the cause of which is unknown,
• the person died under suspicious or unusual circumstances,
• a medical practitioner has not given a certificate as to the cause of death; and
• the person was not attended by a medical practitioner within the period of 3 months immediately preceding his or her death or suspected death.

In many of the above situations, it is up to the coroner whether an inquest should be held. However, in some circumstances the coroner is obliged to hold the inquest.

If the coroner does not choose to hold an inquest, any interested party can ask for written reasons. An interested party may appeal to the Supreme Court of NSW if they believe that an inquest should be held but the coroner is refusing to do so.

Frequently, the findings of an inquest lead to proceedings in negligence being commenced by family members seeking compensation.

If you believe a loved one has died a violent, and/or unnatural death or in unusual circumstances, contact McAuley Lawyers and speak to an experienced compensation lawyer.

Did you know that you do not own your own medical records?  Whilst you do not own them, you have a legal right to access your records under the Health Records and Information Privacy Act 2002 (NSW). 

Your request must:

1. be in writing;
2. include your name and address;
3. identify the health information being requested;
4. specify how you would like to access the health information (for example, if you want a copy of it or just to look at the information at their office); and
5. if you want someone else to access the health information on your behalf you will need to put the name of the person/organisation you are authorising to access your health information.

The organisation must write to you with its decision within 45 calendar days from receiving your request. The health service provider is entitled to charge a fee for providing access to health information.

However your medical provider may decline your request on the following grounds:

1. providing access would pose a serious threat to the life/health of an individual;
2. providing access would have an unreasonable impact on the privacy of other individuals;
3. the health information relates to existing/ anticipated legal proceedings and you would not be able to access this information through court processes;
4. providing access would be unlawful; or denying access is required/authorised by another law; and
5. the request is a repeated request and has been reasonably declined previously, or the information has already been provided.

A claim can be brought against a doctor for bad advice so long as that advice is considered negligent.

When a doctor fails to exercise the proper standards of care, including giving bad advice to a patient, it isn’t necessarily negligence. Bad advice can simply be an honest oversight. People rely on doctors for help deciding on a course of treatment based on information and symptoms the patient provides. Unfortunately, this treatment may not always be what is best, and if another doctor reasonably would have given different advice in the same situation, it may be negligence.

How do I show that my doctor was negligent?

To establish negligence, you must show that:

1. Your doctor owed you a duty of care. A doctor-patient relationship must exist between you and your doctor at the time of the alleged bad advice. To do so, you must show that the doctor in question was in fact your doctor at the time of the incident.
2. Your doctor breached that duty of care. In this case by providing bad advice.
3. You have suffered physical or financial harm. The breach must have caused you an injury. For instance, you must provide proof that taking the doctor’s bad advice worsened your condition.
4. Your doctor’s breach of duty of care caused that harm. If you cannot show that you suffered injury as a result of the breach of duty, you will not have a claim.

If you can prove the above elements, then you can sue your doctor for bad advice.

A case involving Mrs Makaroff, provides a good example of where a doctor failed to advise Mrs Makaroff to have surgery. The delay resulted in Mrs Makaroff being denied a better outcome had she received the surgery at an earlier point in time. 

Makaroff v Nepean Blue Mountains Local Health District NSWCA 107 

On 19 September 2010 the appellant, Ms Makaroff, had an unfortunate incident with one of her horses, resulting in a dislocation to her right shoulder, and a bite wound. She was taken to Nepean Hospital, the first respondent, for plastic surgery on the bite wound. After being discharged she was in the care of her general practitioner, the second respondent. There was some delay in receiving an orthopaedic review and radiological examination until 3 February 2011, by which time was too late to have her shoulder repaired surgically, as she had suffered a significant rotator cuff tear.

The appellant claimed that had her injury been assessed and diagnosed promptly, she would have had the surgery with a good outcome. The claims were rejected on first instance, and Ms Makaroff appealed. On appeal the primary issues were:

1. Whether the Hospital breached its duty of care to the appellant;
2. Whether any such breach by the Hospital caused the appellant loss;
3. Whether Dr Percy breached his duty of care to the appellant;
4. Whether any such breach by Dr Percy caused the appellant loss.

The Court allowed the appeal against the Hospital, however dismissed the appeal against the second respondent, Dr Percy. In the decision, their Honours considered the application of s5O of the Civil Liability Act 2002, which operates to deal with the standard of care applied to people acting in their role as a professional. The primary consideration is whether at the time of the service, the professional acted in a manner that was widely accepted in Australia by peer professional opinion. As a result, claims of this nature will often turn on expert evidence.

The Court of Appeal found that there was in fact a duty owed to their patient, Ms Makaroff.  Additionally, but for this breach, she would have undergone the surgery required, which established causation. She was awarded damages of $276,319.95, and the hospital was ordered to pay the appellants costs both at first instance, and the appeal.

The decision of Makaroff v Nepean Blue Mountains Local Health District  NSWCA 107 can be read in full here: https://www.caselaw.nsw.gov.au/decision/179ab44cd9cac7e214fa50dd

Medical negligence cases can be complex, with a burden of proof on the victim and it is important to obtain legal advice. It is important to not delay obtaining legal advice as there is a great deal of work to be done to prepare a claim. McAuley Lawyers acts in these matters on ‘no-win no-fee’ basis and has accredited specialists in personal injury law. Please call our personal injury lawyers today on 1800 180 500.

Medical negligence can occur at any time during the course of medical treatment, but there are certain situations that may increase the likelihood of it happening.

1. Inadequate communication: Lack of clear and effective communication between healthcare providers and patients or their families can lead to misunderstandings and errors.
2. Lack of experience or training: Medical professionals who are inexperienced or insufficiently trained may be more likely to make mistakes.
3. High workload: Medical professionals who are overworked and overstressed may be more prone to errors.
4. Inadequate staffing: If there are not enough healthcare providers to care for patients, it can increase the likelihood of mistakes.
5. Failure to follow established protocols: Medical professionals who fail to follow established protocols or procedures may be more likely to make errors.
6. Use of new technology: Medical professionals who are not properly trained on new technology may be more prone to errors when using it.
7. Pre-existing conditions: Patients with pre-existing medical conditions or multiple health issues may be at higher risk for medical negligence due to the complexity of their cases.