How to you know if your doctor has been negligent?

Mar 29, 2023 | Publication

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.

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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