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
- 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.
- Failure to take reasonable care
- 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.