Hospitals are often under resourced and doctors and nurses are being required to work onerous hours under significant stress. The law in medical negligence plays an important role in ensuring that each individual is duly compensated but also provides a financial incentive for Hospitals and doctors to act in accordance with the law.
The Civil Liability Act 2002 (NSW) has the effect that a doctor is negligent if he/she fails to take precautions against a risk of harm, the risk of harm was foreseeable, was not insignificant and a reasonable person in the person’s position would have taken those precautions.
In considering whether a reasonable person would have taken precautions against a risk of harm, the following factors are considered:
1. the probability that the harm would occur if care were not taken;
2. the likely seriousness of the harm;
3. the burden of taking precautions to avoid the risk of harm;
4. the social utility of the activity that creates the risk of harm; and
5. the burden of taking precautions to avoid the risk of harm.
The next consideration is whether your doctor acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. To establish this, it is necessary to obtain an expert report from a relevant medical professional. This is a burdensome and expensive obstacle to overcome as expert reports can be expensive.
If an individual has a medical negligence concern, it is always recommended that they obtain legal advice.
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.