Medical negligence often exists when you suffer injury or harm as a result of wrongful treatment or misdiagnosis for a medical condition. When proven before a court, you may be awarded compensation in the form of general and/or special damages as well as for future losses.

What the law seeks to instill among health providers is a standard of reasonable care for the safety of their patients. Aside from the absence of reasonable care, there must also be a showing that:

• the patient suffered from harm or injury
• the injury is a direct result of the failure to take reasonable care
• the injury or harm was foreseeable at the time reasonable care was not exercised

The following situations may be considered negligent:

• failing to or delay in diagnosing a condition
• failing to or delay in providing the appropriate treatment or referral for the condition
• failing to perform surgery with reasonable care and skill
• failing to report correctly on test results
• failing to provide post-operative care with reasonable care

A claim for compensation can arise from a failure to diagnose or misdiagnosis of a wide range of medical conditions including the following:

• ectopic pregnancy
• heart valve problem
• cancers of the liver, ovary, cervix, breast, prostate, lung, stomach and skin
• limb fracture
• lumps and tumours
• nerve damage
• aneurysm
• deep vein thrombosis

How to file a claim for medical malpractice

Medical malpractice is a complex case requiring the assistance of a specialist to help you establish your claim. If you think that you have a case for medical negligence, it is important for you to consult a malpractice specialist who will take your statement and make a preliminary assessment of your case.

If medical negligence appears on the preliminary assessment, the specialist will conduct a closer investigation of your case by obtaining your medical records and reports from your treating doctors, and an independent medical expert’s opinion to bolster your claim.

You will also be asked to produce documents such as receipts, records and other papers proving financial costs and losses that you incurred as a result of the injury or harm you suffered.

Time limits

The timeliness of your claim is important or it may be barred by time limits prescribed by law for bringing a claim in court. While these limits may vary across territories, experts recommend that you consult a medical malpractice specialist at the soonest time to avoid losing your claim to a technicality.

Existing health and medical laws in Australia require health care providers to provide treatment and advice according to a reasonable standard of care. Health care providers include:

• hospitals
• doctors
• nurses
• dentists
• pharmacists

A health provider’s failure in providing this reasonable standard of care may give rise to a medical negligence claim if it causes injury to a patient. While the law does not provide an exact definition for ‘reasonable care’, it must be determined according to the facts of each case.

What constitutes medical negligence

1. Wrongful treatment and advice: While the field of medicine is complicated and providers are not expected to be perfect, mistakes that are beyond simple and reasonable errors are constitute negligence.
2. Failure to take reasonable care
3. Foreseeable injury: There is negligence when the situation was such that the health care provider could or should have foreseen that their actions could result in injury.

The following situations may be considered negligent:

• failing to or delay in diagnosing a condition
• failing to or delay in providing the appropriate treatment or referral for the condition
• failing to perform surgery with reasonable care and skill
• failing to report correctly on test results
• failing to provide post-operative care with reasonable care

If you have suffered physical, psychological or financial harm as a result of negligent medical treatment, you are allowed to file a claim for compensation against the responsible health provider.

Compensation can take the following forms:

General damages: These refer to compensation for items that do not have distinct monetary value and cannot be precisely calculated. Examples are awards to compensate for ‘pain and suffering’ and ‘loss of amenity’ or inability to pursue the lifestyle enjoyed prior to the injury.

Special damages: These refer to compensation for losses and expenditures that can be calculated accurately, often substantiated by documents such as receipts and records. Only expenses or losses that have been reasonably incurred and arise directly from the injury may be claimed. Examples of compensable losses and expenses are:

• loss of earnings
• future loss of earnings
• medical costs
• travel expenses
• assistance for household chores
• special care aids
• necessary equipment
• care and assistance
• adapted accommodation
• adapted transport
• general out of pocket expenses

Future losses: Compensation for future losses is calculated using a special formula containing the estimated annual loss.

Medical negligence can arise from various aspects of medicine such as:

• obstetrics
• paediatrics
• gynaecology
• emergency medicine
• surgery
• orthopaedics
• misdiagnosis of medical conditions
• drugs and drug reactions
• cosmetic surgery

Medical negligence litigation is a highly specialised field that is best handled by a specialist who possesses knowledge and experience in medical malpractice.

Shortly before 6:00am on 08 June 2010, Gary Allibon and two armed security colleagues were in the course of their work with Chubb Security when they were held up at gunpoint in Goulburn Street, Sydney.  In the course of the hold-up Mr Allibon was shot and died later that morning at the Royal Prince Alfred Hospital.

Unfortunately, armed hold-ups are becoming all too frequent in our community causing both physical and emotional injury.  Perhaps the most distressing aspect of these attacks is that the vast majority of them are preventable.

The courts have been quick to identify the risks.  Justice Boland of the New South Wales Industrial Relations Commission said in a judgment recently:

Armed hold-ups represent a serious threat to employees not only in banks but also in all manner of places where goods and cash are kept including service stations, retail outlets and warehouses.  The duty on employers is to make certain employees are not exposed to risk their health, safety and welfare whilst at work and that responsibility extends to circumstances where an armed offender might confront employees.

Derrick –v- Australian and New Zealand Banking Group Limited [2003] NSWIRC406

Beilby Poulden Costello have had a number of successful claims recently acting on behalf of the victims of robberies.  One of those cases involved a lady who was the subject of an armed hold-up whilst working for a fast food restaurant and another was employed to look after the takings from the gaming area at a hotel.  In each case we have been successful in demonstrating that the appropriate measures were not taken to ensure the safety of our clients, as a result of which they have suffered loss and injury.  The claims were settled prior to trial.

If you would like further information, please contact Beilby Poulden Costello.

By Scott Hall Johnston

If a person dies under circumstances which are violent, unnatural, suspicious, unusual or where the cause of death is unknown, it is likely that this death will be referred to the State Coroner. However, less than 5% of all deaths referred to the Coroner result in an inquest into the death being held. If the Coroner decides that an inquest is appropriate, an inquest is held with a view to determining all matters in relation to the death that has been referred.

In 2007, two trucks used to transport goods were travelling in opposite directions on the Newell Highway in Northern New South Wales. A tyre on one of the trucks blew, forcing it into the oncoming lane. A head-on collision between the two trucks was unavoidable and a massive fire ensued. Tragically, both drivers were killed.

The deaths of both of these drivers were referred to the State Coroner, and it was determined that these deaths were to be the subject of a joint inquest. The medical causes of the deaths of the drivers were never in issue. The real issue before the Coroner was the cause of the tyre blowout. It was subsequently discovered that the make and model of the tyre that had blown had been the subject of a spate of tyre blowouts in New South Wales and Queensland. Several months after the fatal accident in 2007, this make and model of tyre was the subject of an Australia-wide recall.

There are a number of parties to this inquest and they include the tyre manufacturer, the tyre distributors, the insurer of one of the trucks, and the relatives of both drivers.

Beilby Poulden Costello is representing the relatives of one of the truck drivers that was killed in this accident. The hearing of this inquest began earlier this year and ran for nearly a month. The hearing was not concluded and is to be recommenced in October this year. It is hoped that at the conclusion of the hearing in October, the Deputy State Coroner will be in a position to make a finding as to whether these tragic deaths were avoidable and perhaps make recommendations that would assist in preventing such deaths in the future.

By Caryn Ger

When engineering feats fail, there is often a toll of resulting injuries. But when everyone escapes seemingly unscathed, the injuries may run deeper than they first appear.

On 2 November 2005, at approximately 2 a.m., the Lane Cove Tunnel was under construction when the roof of the tunnel collapsed, causing the land above the tunnel to give way. There were several tunnelers working inside the tunnel when the roof began to collapse. The collapse necessitated the evacuation of the construction workers and 60 residents that were in the vicinity.

WorkCover NSW conducted an investigation into the incident, and the collapse was considered to have been caused by a multitude of factors including the geological conditions of the tunnel, the distance from the surface, the width of the tunnel and inadequate roof supports. It was reported that the tunnelers “narrowly escaped injury” when they made it out of the tunnel before it collapsed. However, nearly 5 years on, that is clearly not the case.

Beilby Poulden Costello is representing one of the construction workers who escaped the tunnel collapse with minor physical injuries, but today remains haunted by his brush with death, and has suffered significant psychological injury as a result of the traumatic events he lived through.

Later this year, proceedings will commence in the Industrial Relations Commission to see if the entities involved in the tunnel’s construction satisfied their legal obligation to provide a safe system of work. Once those proceedings are concluded, our client will be able to forge ahead with the action for his unseen but deeply felt and lasting injury.

By Caryn Ger

Here at Beilby Poulden Costello we often represent people who have suffered as a result of medical negligence. It has been well covered in the media that NSW hospitals are some of the worst in the country. In fact, according to an article in the Sydney Morning Herald, in the year 2007-2008 NSW hospitals reported 59 cases of medical negligence, compared to 28 in Victoria which was the next worst performing state.

Medical negligence can have a devastating effect on the patient as well as their family and friends. Some of the ways has been known to happen is the performing of surgery on the wrong body part, material left in the body after surgery, medication errors on the part of an inexperienced or overstressed professional and general misdiagnosis.

If you think that you have suffered from any of the above, it is important that you contact a lawyer who is an accredited specialist in personal injury compensation. The financial and personal ramifications of medical misconduct are far reaching, and you need to make sure that the rights of you and your family are protected. Beilby Poulden Costello have extensive experience in helping clients who have suffered at the hands of the poor NSW health system. Please do not hesitate to contact us if you believe that you or one of your family members may have a case, or browse our extensive FAQ section above.

To read more about the NSW health system, browse the news articles below:

A poor state of health: NSW hospitals the worst in the country

Patients’ hospital horrors

Beilby Poulden Costello recently filmed a new TV commercial at the BPC offices. Keep a sharp eye out for the dashing  Courtenay Poulden and Barry Beilby helping some clients out with their questions…

Click on the video to play or stop at any time.

Many of our clients would have seen our partner, Courtenay Poulden appear on Today Tonight recently. Courtenay was being interviewed following a decision of the Supreme Court which accepted our argument that our client was entitled to substantial compensation as a result of negligent dental treatment. Hospital and medical negligence is a major part of our practice so make sure you take a look at our frequently asked questions if you have any queries.

You can read more about this case at the Sydney Morning Herald: Dentist treated 25 teeth too many.

Courtenay Poulden was also interviewed by A Current Affair in July 2009 regarding a client who was badly injured in an attack outside a nightclub. While BPC achieved a positive result with the judge awarding over $4 million compensation to the client, unfortunately the nightclub’s foreign registered insurer has since closed. This has sadly resulted in no one being left to pursue for the cross claims or to pay the compensation the client deserved. Watch the video of this story and the interview with Courtenay about the complexities of the case by clicking on the link below.

Help the Quintano Family – A Current Affair – 1st July 2009

Beilby Poulden Costello were recently successful in a landmark case before the High Court of Australia which will have real benefits for injured workers in New South Wales.

On 12 March 2003 our client suffered severe injuries when a pushbike he was riding in Gardeners Road, Mascot was struck by a car travelling in the same direction.  He sued the driver of that car for damages.  For his part the driver pleaded that our client was guilty of contributory negligence, that is to say that he alleged the accident was partly our client’s fault.

The accident occurred while our client was in the course of his employment and as a result he received payments of workers compensation.

The claim for damages was settled by our client’s acceptance of an Offer of Compromise.  The amount of the offer took into account the allegation of contributory negligence.

If damages are recovered by an injured worker, the worker is required to repay the workers compensation payments that have been received.  In 1965 the Parliament of New South Wales enacted legislation as a result of which the recovery of workers compensation payments are to be reduced to the same extent as the workers contributory negligence.  For example, if the worker was 50% responsible for the injury then the worker would be entitled to recover only 50% of the damages suffered but would only be required to repay 50% of the workers compensation payments.

Our client suggested to the employer that he was not required to repay the full amount of the workers compensation payments because he had settled his claim for a reduced sum due to the issue of contributory negligence.  The employer alleged that because the claim was settled the worker was required to repay all of the workers compensation payments.  The Courts have not been previously required to decide which of these arguments was correct.  In a unanimous decision delivered on 12 March 2009 the High Court determined that our client was obliged to pay back only part of the compensation payments to his employer even though the claim had been settled.

This decision has far-reaching benefits for workers who can now bring and settle a claim for damages without being disadvantaged because the accident was partly their fault.

By Scott Hall-Johnston

BPC Lawyers are pleased to have welcomed two new professional staff in the last twelve months:

Shams Ahmad
Shams is currently assisting our partner Courtenay Poulden. Shams has previously worked for over five years for two of the leading motor accident insurers. Shams then worked for one of Sydney’s leading plaintiff personal injury firms before joining us during 2009. Shams brings a lot of experience to the firm particularly in motor accident claims. Having worked on both sides of the fence he understands the way things work and is a marvellous addition to our team. Shams will complete the final part of his legal studies shortly and we look forward to his admission as a legal practitioner during 2010. Outside of the law Shams is a lover of motor cars and likes nothing more to tinker with his Golf GTI. He is recently married and will look forward to the birth of his first child later this year.

Caryn Ger
Caryn has been around BPC for a while so to call her new is stretching things a bit. Caryn came to BPC after a number of years at one of Sydney’s largest law practices. Caryn decided that it was plaintiff personal injury cases she wanted to do and has set about focusing her career in that direction. Caryn has been a solicitor now for 3 years and assists our partner Scott Hall-Johnston in a wide range of personal injury cases.