Informed consent to medical procedures
The law requires doctors to advise a patient about all risks
which are material to a person in the patient's situation. But to
make a successful claim, the patient must show that he or she would
not have had the procedure if properly warned about the risks.
Common medical consent claims about failure to warn about risks
of the procedure have been made in the following circumstances:
- bile duct injury (and other injuries) during laparoscopic
- changes in sensation following breast surgery
- injuries following urinary tract surgery
- unimproved or worse vision following eye surgery, and
- scarring following change in pigmentation of the skin after
laser treatment to the face.
Sometimes a procedure will be performed without any consent.
There are some circumstances, such as in an emergency or under
mental health legislation, where this may be acceptable. In other
situations, a person may be able to make a compensation claim for
FAQs about informed consent to medical
How do I make a claim?
If you think you have a medical negligence claim, contact the
Maurice Blackburn Medical Negligence team. We will take a statement
from you about what has occurred and then provide you with a
preliminary assessment. If we believe you should proceed further
with your claim, we will then carry out an investigation of your
case. An investigation will involve obtaining your medical records
and reports from your treating doctors, if appropriate, then
obtaining an independent medical expert's opinion.
How much will it cost?
In medical negligence cases that we believe have merit, we will
conduct the investigation on a "No win - No charge" basis.
This means you will only be charged profit costs in the event you
receive an award of damages and no profit costs will be charged if
the claim is not pursued after being investigated.
If proceedings are issued after investigating the claim and the
claim is successful, you will be charged for the costs of the
investigation and the legal work performed after issuing
proceedings. This will be a charge on the appropriate Court Scale,
and you will be given more information about this at the time when
the decision is made to issue proceedings. No costs are charged
unless you receive a settlement or award of compensation.
However, in medical negligence cases, we require you to pay for
the costs of the investigations, such as the fees charged by
doctors for providing us with medical reports or by hospitals for
providing us with medical records. We have to obtain these reports
and records before we can advise you whether you are likely to be
successful with your medical negligence case.
If, after carrying out the investigation, we believe that you
should proceed with a claim, then we can offer you various remedies
for obtaining compensation. If the medical treatment has resulted
in an unexpected death, then we may recommend that a report be made
to the Coroner's Court. Sometimes we also advise that a report
should be made to the Health Care Complaints Commission of New
South Wales, the Health Services Commissioner of Victoria or the
Health Rights Commission of Queensland.
How long do I have to make a
There are time limits for making a compensation claim. The time
limits and pre-litigation requirements vary between States and
Australian Capital Territory
In the ACT pre-court procedures require a claimant to notify a
potential defendant of a possible claim within the earlier of
9 months of the incident or appearance of symptoms or 4 months of
instructing a lawyer regarding a possible claim and the defendant
being identified. Generally, a person has three years
from the time of the injury occuring or if the injury is a disease
or disorder three years before the day you first knew that you
suffered an injury that is a disease or disorder and that the
injury is related to someone else's act or omissions, to bring a
claim. If they are a child, there is provision to
extend the time to bring a claim if it involves a disease or
disorder. If Court proceedings are not commenced within
within the relevant time period you may be prevented from ever
bringing a claim. Legal advice is therefore essential.
In Victoria a person has three years from the time of injury or
medical negligence was (discoverable) to issue proceedings.
The concept of (discoverability) is yet to be fully defined by the
Courts and accordingly it is prudent to be conservative when
judging the date of discoverability to have occurred, for example
where the negligent treatment involves an injury as a result of
surgery undertaken in a negligent fashion, a conservative
assessment as to the date of injury would be the date the surgery
was undertaken, even where the negligence was not discovered by the
Claimant until some time thereafter. The position will vary from
case-to-case and you should obtain legal advice about the time
limits in your case.