Frequently asked questions about Medical Negligence

Have a question you need answered about Medical Negligence claims? Check out our FAQs below.

FAQs - your questions answered

Medical negligence, or malpractice, happens when treatment from a health service provider such as a hospital, doctor, dentist, pharmacist or allied health professional falls below an acceptable standard.  Medicine is a complicated practice and health service providers are not expected to be perfect; sometimes medical treatment is unsuccessful and injuries can occur, but that doesn’t mean there’s been any negligence. Negligent treatment is much more than a simple reasonable mishap or mistake.

Negligent treatment may involve the following:

  • failure to or delay in diagnosing a condition
  • failure to or delay in providing the appropriate treatment or referral for the condition
  • failure to perform surgery with reasonable care and skill
  • failure to report correctly on test results
  • failure to provide post-operative care with reasonable care and skill, or
  • making an existing medical condition worse.

Time limits do apply to medical negligence claims, so if you think you have experienced negligence or malpractice, contact Maurice Blackburn today.

Laws relating to medical negligence vary between states and territories, but generally Australian law allows a person to claim for compensation if they have suffered physical, psychological or financial harm as a result of negligent medical treatment. This is called a medical negligence claim.

To claim compensation, with the help of a lawyer, you need to prove:

  • there was negligent medical treatment; and
  • this treatment caused an injury or some harm that would not have otherwise occurred.

Medical negligence claims can involve:

  • obstetrics
  • paediatrics
  • gynaecology
  • emergency medicine
  • surgery
  • orthopaedics
  • misdiagnosis of medical conditions
  • delayed diagnosis of medical conditions (for example after a pap smear, breast screening or other diagnostic test)
  • drugs and drug reactions, or
  • cosmetic surgery.

Even if you have received negligent treatment, you can’t make a compensation claim if you haven’t also suffered harm or injury because of the treatment. The law in some states also has a threshold that determines how significant or severe an injury has to be before you’re entitled to claim damages for pain and suffering caused by this injury.

  • 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.
  • We will obtain your medical records and reports from your treating doctors, if appropriate, then get an independent medical expert's opinion.
  • We lodge your legal claim.
  • We keep you informed of progress along the way.
  • We represent you at mediation and settlement hearings.
  • If your case doesn’t settle, we represent you in court.

In medical negligence cases that we believe have merit, we will conduct the investigation on a 'no win, no fee' basis. This means you will only be charged for our time if the case is successful and you are awarded damages. You will not be charged our costs 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.

Please note, in medical negligence cases, we do require you to pay for disbursement 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. Sometimes, funding is available for these expenses.

If, after carrying out the investigation, we believe that you should proceed with a claim, then we can offer you various options 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 state-based complaints commission. 

There are time limits for making a compensation claim which vary between states and territories. In most jurisdictions you need to start legal action within three years of the injury, or six years if you are a child. However, some legal processes have to occur much sooner than this, so it’s best to seek legal advice as soon as possible. Extensions of time limits are sometimes possible.

Medical negligence, or medical malpractice, is a fairly technical and complicated area of law, and for that reason, it’s always a good idea to have someone who specialises in these cases to represent you. Maurice Blackburn has Australia’s largest medical negligence team that exclusively represents injured patients and their families.

We have acted in many landmark medical negligence cases and are able to provide you with the benefit of our extensive experience from cases such as negligence at birth, during surgery, improper drug treatment or misdiagnosis, faulty hip and knee replacements and ‘informed consent’ to medical procedures cases. We have also provided legal advice and representation at coronial inquests for many families who have lost loved ones.

Maurice Blackburn's dedicated medical negligence solicitors recognise that medical negligence can affect your life and the lives of your loved ones. We can help streamline your legal access to make it easier. 

As a national law firm, we'll fight for your rights and provide legal assistance in whatever areas you need.

Our superannuation and insurance claims experts can help you with any claims you may be eligible to make through an insurance or superannuation policy, or you may need loan repayments adjusted.

Our employment lawyers can advise you about your work rights if you can no longer work as a result of the negligence or you may be able to return to work but need some help with varied responsibilities.

And our medical negligence lawyers can help you get your legal affairs in order such as arranging for the drafting of a Will, setting up powers of administration and advanced care directives.

Your lawyer can put you in touch with any of these experts and ensure you are cared for throughout the process.