Can I sue my doctor for bad advice?

Mar 29, 2023 | Publication

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:

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.

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