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When we visit a doctor, nurse, or other healthcare professional, we trust that they will treat us with all the required care and skill expected of their profession.
For a variety of reasons, medical professionals, hospitals or other treatment providers can fail to take reasonable care when treating a patient, which can lead to injury, illness, making the condition worse, or even death. This failure is called medical negligence, and it can have profound consequences on your physical, financial and mental wellbeing.
As specialist medical negligence lawyers, we can help determine whether negligence has occurred and discuss alternative ways of being heard if you’re unhappy with your medical treatment.
In this article we’ll cover what medical negligence in Australia means, the elements needed to prove a claim, and what kinds of compensation you may be eligible for.
Examples of medical negligence
Medical negligence can take many forms. Below are some of the most common that we see:
- misdiagnosis or delayed diagnosis, such as failing to identify cancer or an infection in time.
- choosing the wrong treatment.
- failing to refer for further tests or treatment.
- not actioning on important test results.
- surgical errors and complications.
- medication errors, including prescribing the wrong drug or dosage.
- birth injuries, where improper care leads to harm to the baby or mother.
- incorrectly reporting imaging
- poor aftercare, such as not managing an infection after surgery.
- suicides while an inpatient.
These incidents can have devastating consequences for patients and their families, ranging from prolonged illness to permanent disability or even death.
What is the difference between medical negligence and medical malpractice?
In practice, there isn’t one. Medical negligence and medical malpractice both refer to a healthcare professional’s failure to provide an appropriate standard of care.
The four principles of negligence
A successful medical negligence claim depends on you being able to prove the following:
- the medical professional owed you a duty of care
- the duty was breached because they failed to meet the required standard of care
- damage, such as injury or loss, was caused as a result.
- causation, being a direct link between the breach of duty and the resulting damage.
- Duty of Care
- Breach of Duty
- Damage
- Causation
Duty of Care
In Australia, all medical professionals owe their patients a duty of care. This means they must take reasonable steps to avoid causing harm. When you visit a GP, specialist, or hospital, you expect them to provide treatment that meets professional standards.
Proving that a medical professional owed a duty of care to their patient is typically easy to prove. The key issue is usually whether the duty was breached.
Breach of Duty
A duty of care is breached when a medical professional fails to provide an appropriate or reasonable standard of care.
This might mean doing something they shouldn’t have — like prescribing the wrong medication — or failing to do something they should have, such as ordering further tests when symptoms indicate a serious problem.
However, a bad medical outcome or negative medical experience doesn’t always mean there has been negligence. Mistakes can and do happen even when doctors do their best. The determining factor is whether the care provided was reasonable under the circumstances.
Damage
For a negligence claim to succeed, you must also have suffered injury or loss as a result of the negligence. It’s not enough that something could have or did go wrong. This can include:
- physical injuries, including worsened illness, surgical complications, or new injuries
- psychological harm, such as trauma, anxiety, or depression
- financial losses, like medical bills, lost income, or future care needs.
Physical and psychological impacts
Some patients may experience long-term consequences, such as chronic pain, disability, or infertility. Others might suffer emotional distress, especially if the negligence caused a loved one’s death or a traumatic experience during care. These impacts are taken seriously by the courts.
Causation
For a medical negligence claim to be successful, you must be able to prove that the negligent treatment caused the injury or loss, otherwise known as causation. In other words, you must prove that your injury or loss would have been avoided had you received appropriate care.
For example, if a doctor missed a diagnosis, but the condition would have progressed the same way regardless, then causation is not established.
Proving causation is one of the trickiest parts of a negligence case. That’s why having experienced legal support is so important .
Jill’s story: Doctors didn’t listen until it was too late
Jill's trip to the hospital should have been for a routine surgery. She was booked in for surgical intervention for an umbilical hernia repair and treatment for her bowel obstruction .
However, after her surgery and a week of complaining of vomiting, temperature and tachycardia, doctors finally identified a significant injury that occurred during the surgery. Jill suffered a range of complications, including blood loss, infection and loss of part of her bowel.
If the surgical injury had been identified and treated earlier, she would have avoided the extent of her complications and had a better outcome.
How much compensation can you claim?
If your medical negligence claim is successful, you may be awarded compensation (also called damages) to help cover:
- medical treatment and rehabilitation costs
- loss of past and future income or earning capacity
- pain, suffering, and loss of enjoyment of life
- domestic assistance or home modifications.
Every case is assessed individually, based on the extent of harm and how it has affected the person’s life. Courts weigh many competing factors when deciding how much compensation to award. As experts in medical negligence litigation, we can assist the court in calculating the highest possible compensation payment you’re entitled to.
What if there was no negligence?
If you’re unhappy about the level of care you received, but the treatment doesn’t mean the legal threshold for negligence, there are still ways you can be heard and potentially receive compensation.
This includes:
- Making a complaint to the Australian Health Practitioner Regulation Agency (AHPRA), who can investigate what happened
- Making a complaint to the health complaints body in your state.
- Making a complaint to the National Health Practitioner Ombudsman, who offer an independent complaint-handing service.
- Writing to the hospital or clinic where you received treatment.
After hearing your story, we can advise you on the best strategy for your circumstances.
Need legal advice about medical negligence?
At Maurice Blackburn, our medical negligence lawyers have extensive experience helping Australians navigate these complex claims.
We’ll listen to your story, explain your rights, and guide you through every step of the legal process. We work on a No Win, No Fee basis, so you don’t pay our professional fees unless we win your case.
Contact us for a free initial consultation
We offer free initial consultations to assess your situation and give guidance on your next steps, with no obligation to proceed with us if you don’t want to. Contact us for a free initial consultation now.
Speak to a medical negligence lawyer
We've successfully represented hundreds of patients and their families in complex and sensitive cases.
We can help with medical negligence claims
Our team of expert medical negligence lawyers are here to help you understand your legal options and to achieve the best possible outcome for you.
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