Making a Medical Negligence Claim

Even more than for other personal injury law claims, it is vital that you contact a personal injury lawyer before you make a medical negligence compensation claim.

This is because hospitals and doctors have their own legal representation, and even if you have been wrongly cared for, it is difficult to fight your case alone.

Once you contact us, we will take your statement and give you our initial professional assessment about your claim. Then, we will begin our investigation into the negligence which caused your injury. This means we will need to obtain all medical records and certificates from your doctors, and possibly seek a second or third medical opinion as well.

Proving negligence

You will win a medical negligence claim if you can prove that the healthcare provider could or should have foreseen that their actions would lead to your injury. To determine this, the Court decides if the healthcare provider acted in a way that was widely accepted by peer professional opinion (at the time of the injury) as competent professional practice. There must be an established connection between what the healthcare provider did (or didn’t do) and your injury. This can include a lack of appropriate communication between you and your healthcare provider.

For example, if your doctor prescribes you with a medication to treat a condition, and neglects to inform you of risks or severe side effects which you later suffer, you are eligible to sue under medical negligence.

What our clients say

21/11/2011 |

LC, Canberra

Joshua Dale -

Testimonials

Hi Joshua I am still in disbelief [regarding my award of compensation]. Wow! Thank you so much for your assistance, hard work and unders...

Recent Successes

28/11/2011 |

Workers Compensation paybacks in Medical Negligence matters.

Jodie Baker -

Recent Success

We have a client who sustained an injury in the course of his employment and was paid compensation pursuant to the Workers Compensation Act ...

We have a client who sustained an injury in the course of his employment and was paid compensation pursuant to the Workers Compensation Act 1987 (NSW) ("the Act"). The client required surgery to treat the injury and as a consequence of the negligence of the treating doctor, suffered an additional injury.

In the course of the proceedings for damages against the doctor, the client sought a declaration from the workers compensation insurer that payments made to him pursuant to the Act were not repayable pursuant to Section 151Z.

The workers compensation insurer advised us that they considered they had a right of recovery for all weekly compensation benefits and medical expenses paid pursuant to Section 151Z (1) (d) of the Act and would be pursuing recovery of these.

In reply we wrote to the insurer and advised there have been a series of Court of Appeal decisions which have found that in this situation Section 151Z (1) (d) does not operate to allow the workers compensation insurer to recover the payments it has made.

In Hood Constructions Pty Limited v Nicholas [1987] NSWLR 60 the court stated that the injury caused by the medical treatment was not "an injury for which compensation is payable" within the meaning of Section 151Z, notwithstanding the fact that the surgery was undertaken to remedy an injury sustained in the court of employment. The court went on to find that the worker's damages against the doctor were to be reduced to take into account the compensation payments already received.

This was confirmed in the matter of Rooty Hill Medical Centre Pty Limited v Gunther [2002] NSWCA 60. The court of appeal confirmed that Section 151Z of the Workers Compensation Act did not apply and the plaintiff’s damages had to be reduced to give effect to the overriding intention of parliament that a worker should not be entitled to both compensation and damages.

The workers compensation insurer then conceded that Section 151Z did not apply in this case and they would not be pursuing any recovery from our client. This was important as we were then able to advise our client on his likely damages if he was successful in the claim.

Other examples of malpractice include:

A wrong or delayed diagnosis (when it can be said that the medical practitioner should have known, based on their ‘duty of care’, the correct diagnosis)
Failure to give the correct treatment or medication (or a prescription of too much medication)
Failure to warn of disease or potential conditions
Failure to return correct test results
Problems resulting from careless surgeries
Failure to sterilise, or failure to properly monitor a pregnancy or birth

If you believe you have been injured as a result of medical negligence you should:

1. Contact Stacks/Compensation to receive an assessment on whether you have a claim that is likely to be successful.

2. We will investigate your claim.

3. After investigation, we will advise you on your next step. For example, if medical malpractice resulted in death, we may suggest that you send a report to the Coroner’s Court. Or we may recommend that you make a report to the Health Care Complaints Commission of New South Wales, or the Health Rights Commission of Queensland.

If you have been injured or suffered illness as a result of medical negligence / medical malpractice, call one of our medical negligence specialists on freecall number