A brief guide to the Australian laws regarding medical negligence.

1. Medical Negligence Claims
in Australia
Things You Should Know
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2. What is Medical Negligence?
A reasonable standard of care must be taken when
providing treatment as a health care practitioner.
Medical negligence occurs when a healthcare provider fails
to take reasonable care in circumstances where they could
and should foresee that their actions might cause harm.
Negligence may involve a patient who receives care below
a reasonable standard that results in an injury or causes an
existing injury to become worse.

3. Examples of Medical Negligence
A patient is not warned in advance about known risks or
side-effects of a proposed treatment.
A diagnosis is incorrect or incomplete (when this should be
obvious to a professional practitioner).
A significant delay in performing a diagnosis, where this
affects the outcome of a treatment.
Results of diagnostic tests are not reported accurately.

4. Examples of Medical Negligence
Appropriate care is not taken when performing a medical
procedure.
The person who performs a medical procedure does not
possess adequate skills and training.
Incorrect medication is administered to a patient.
Appropriate post-operative care is not provided.

5. Who can be held Negligent ?
A negligence claim may be made against any individual or organisation that
provides professional medical care, including:
A doctor or nurse
A public or private hospital
A chiropractor or physiotherapist
A midwife or obstetrician
A dentist or pharmacist

6. Australian Law & Medical Negligence
The laws relating to medical negligence claims are
different in every Australian State and Territory.
Each State and Territory has a different threshold
(minimum severity of injury) that must be met for
different types of compensation claim.
This is especially true for claims relating to pain and
suffering directly caused by medical negligence.

7. Medical Negligence & Common Law
In some parts of Australia, common law applies.
This means so that courts do not directly judge the competence of a
medical practitioner.
Instead, negligence is determined by whether the practitioner discharged
their duty of care according to the normal practices of their profession.
In other words, a practitioner may be found negligent if they do not carry
out their duties in accordance with accepted professional standards.

8. Other Considerations
In some States, a practitioner is not negligent if the treatment
they provide is in line with accepted professional opinion – even
if it subsequently turns out to be harmful.
Professional opinion does not have to be universally accepted to
be considered widely accepted.
In these States, the court must determine whether reasonable
"duty of care" was practiced based upon the assessment of
independent medical experts.

9. Risk Assessment
All medical procedures involve an element of risk.
An adverse outcome from a medical procedure DOES NOT
automatically imply medical negligence.
In order to make a medical negligence claim, it is necessary
to demonstrate that a reasonable standard of care was
not followed, based upon the prevailing medical wisdom.

10. What Can I Claim?
Compensation for pain and suffering from the original
injury or illness and any aggravation of that condition.
Compensation for income lost while recovering from
the condition.
Compensation for future earnings lost as a result of
the condition.

11. What Can I Claim?
Reasonable medical expenses incurred while
recovering from the effects of the condition.
Transportation costs to and from the place where
treatment occurs.

12. What Should I Do?
Because this area of the law varies from one State to the
next, you should to talk to a personal injury lawyer before
choosing a course of action.
Be wary about accepting any offer from an insurance
company before getting legal advice.
In most cases, once you accept any offer from the
insurer, you forfeit the right to pursue legal action for
medical negligence.

13. Questions?
If you have any questions about the information in this
presentation, visit:
www.legalinjury.com

14. Disclaimer
The information contained in this presentation is of a
general nature and does not constitute legal advice.
Always seek expert legal advice tailored to your
individual circumstances. If you have a potential medical
claim, contact Legalinjury immediately so that
appropriate legal advice can be arranged.
www.legalinjury.com

15. The End
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