Medical injury claim for negligent medical treatment

Australia's healthcare system is frequently ranked as one of the best in the world, and we typically enjoy a very high standard of care. However, when things go wrong, it can have a devastating effect upon a patient's life and the lives of their family members. In each Australian state and territory, a person who has suffered a physical or psychiatric injury as a result of negligent medical treatment may be entitled to medical injury claims.

Jodie's story

In 2007, Jodie underwent a colonoscopy to investigate intermittent bleeding but was told there was nothing abnormal in her results. Over the next few years, Jodie's condition worsened – but despite undertaking various tests, repeated colonoscopy and making significant lifestyle changes – at every visit with her GP, she was told that she simply had haemorrhoids and no further treatment was needed.

In early 2017, Jodie was told she didn't have haemorrhoids– she was in fact fighting Stage 3 bowel cancer. "I was so shocked – for years I've been told these are haemorrhoids. I could have caught this at stage one, I could have caught this at stage two ... we should have caught it earlier," Jodie said.

Maurice Blackburn Lawyers Principal Sarah Atkinson says both doctors and hospitals can be held medically negligent for failing to refer patients in appropriate time frames. "Jodie's case really stands out as an example of a young person really trying to do the right thing, but who has been terribly let down by the medical profession," Ms Atkinson said. "If she had had that colonoscopy earlier, we are confident that it would have made a significant difference to her outcome."

What makes medical treatment 'negligent'?

The law requires that medical practitioners provide a reasonable, but not perfect, standard of care. This means that there can be some mistakes and errors which may not necessarily be negligent.  Further, the fact that a person has suffered a bad outcome following medical treatment also does not necessarily mean that the treatment that they received was negligent.

Negligent medical treatment occurs where the treatment provided falls below the reasonable standard of care expected of doctors operating within that specialty.

Whether particular treatment falls below this standard is determined by independent experts practicing within the same field of medicine as the doctor that provided the treatment.

If you bring a claim for compensation, your lawyer will assist you to investigate these issues by obtaining written opinions from independent medical experts.

What caused your injury?

The law of medical negligence is not designed to punish the doctors who provided the negligent treatment.  Instead, its aim is to provide financial compensation to the injured person.

Because of this, it is therefore not enough to show that the treatment provided was negligent. Instead, in order to bring a claim a person must also prove that their injuries are caused by the negligent treatment. Or, in other words, they must prove that they would have avoided their injuries had they received appropriate treatment.

In some cases, the answer to this question is relatively straight forward; however, in other matters, the answer can be very technical.

This is another issue that your lawyer will assist you to investigate by obtaining further expert evidence.

The nature of your injury

A patient must also have a recognised ongoing injury in order to bring a claim. Several states and territories also apply injury thresholds that must be met before a person can claim certain sorts of compensation.

However, there are a number of limited exceptions to this – for example, where a patient is injured as a result of the intentional actions of a person treating them, where those actions are performed without any therapeutic benefit.

If you are unsure whether your injuries may entitle you to bring a claim for compensation, you should seek legal advice from a lawyer with experience in medical malpractice claims.

Claiming compensation for your injury

It goes without saying that financial compensation will never undo the harm that a person has suffered as a result of negligent medical treatment. However, the compensation may mean that they are able to access the equipment and services that they need to start moving on with their life.

There are typically two types of compensation that a person who has suffered an injury as a result of medical negligence may be entitled to.

The first is compensation for your past and future out of pocket expenses. This includes your past and future medical expenses, lost earnings and superannuation, and the cost of equipment, services and attendant care.

Secondly, you may also be entitled to compensation in recognition of the pain and suffering that you have been through as a result of your injuries.

What next?

Medical negligence is a complex area of law that frequently involves technical questions about medicine and the treatment provided.

Further, there are strict time limits that apply to a person's ability to bring a claim for compensation in medical negligence.

If you have suffered a physical or psychiatric injury as a result of unreasonable medical treatment, you should seek timely specialist legal advice to find out if you may be entitled to compensation for your injuries.

Medical treatment gone wrong

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Katie Murphy

Maurice Blackburn Melbourne
Katie Murphy is a medical negligence Associate in Maurice Blackburn’s Melbourne office in Victoria. She also regularly sees clients in Dandenong, Frankston and Traralgon. Katie is a friendly and compassionate lawyer who assists clients who have suffered injuries as a result of misdiagnosis, delayed ...

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