How do you know if your doctor has been negligent?

Mar 27, 2023 | Publication

Proving that your doctor has been negligent is not always simple.  It’s important to note that not every negative outcome or complication is a result of medical negligence.

Medical professionals are not infallible, and sometimes things can go wrong despite the best efforts of everyone involved. However, if you have concerns about the care you received, it’s important to obtain legal advice from an accredited specialist in personal injury law.

The NSW Civil Liability Act 2002 codifies the requirements necessary to establish negligence.

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.

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.

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.

If you have concerns about the care you received, it’s important to obtain legal advice from an accredited specialist in personal injury law. McAuley Lawyers has accredited specialists in personal injury law and acts on a no win no fee basis in relation to most personal injury matters.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

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