- Article by
- Greg Masselos
- Principal Lawyer
You can sue for medical negligence in Australia. Here is what medical negligence is, what you’ll need to prove it, and the steps we take to prove your case.
Doctors, nurses, and dentists are three of the most trusted and respected professions in Australia.
Unfortunately, that doesn’t mean these professions are infallible. Accidents happen, and the treatment you deserve and expect can sometimes fall below standard. Should that happen, you may be able to make a claim for medical negligence.
Here’s a little more about the definition of medical negligence, what you will need to prove your case, and the steps a medical malpractice lawyer will take when working your case.
What is medical negligence?
While there are small differences in the exact definition of medical negligence between states and territories in Australia, the gist remains the same: it is the failure of a treatment provider to take reasonable care or steps to prevent injury to their patient.
Keep in mind, negligence isn’t the same as simply making a mistake, or making the wrong decision. Healthcare often involves taking risks in trying to reach the best outcome, and sometimes the best case scenario doesn’t occur – but that doesn’t mean anyone has been negligent.
What do you need to prove medical negligence?
Proving medical negligence involves specific steps. There are four elements that must be proved in a medical negligence case. These are:
Duty of care
You must prove that the medical professional owed you a duty of care in their interaction with you. This is usually the easiest step as just about all professionals who provide treatment services to you owe you a duty to take reasonable care for your safety.
Breach of duty
You must then prove they did not live up to their duty of care. This could be through their actions, or even their inaction. This is sometimes proven by comparing their actions (or inactions) to what would be expected from a reasonable healthcare professional in their position.
Causation
Next, you must prove your injury or damage was caused by the breach of duty. This is often the most difficult part of a medical negligence case, as you need to prove that you would have had a better outcome if the breach did not occur. It can often be difficult to disentangle the effects of the breach from the effects of the medical condition that you sought treatment for in the first place.
Damage
Finally, you will prove that you have suffered a loss arising from a personal injury caused by the breach, including pain and suffering, out-of-pocket expenses, loss of income, or a need for care and assistance.
Steps your lawyer will take in a medical negligence case
Every case is different, but personal injury lawyers will generally follow similar steps.
Free consultation
You will have a free consultation to discuss whether your medical negligence case has reasonable prospects of success. We will discuss your situation with you and talk about the kind of proof we’ll need.
Gather information
We will work with you to gather the necessary information, such as photos, medical reports and police reports, and we will begin the paperwork to make a claim. We will seek opinions from other medical experts to help make our case, and collect any witness statements.
Presentation of your case
When we are ready to present your case, we will speak with the healthcare provider’s insurance company and legal teams, and if necessary, take the case to court.
If you believe you have been a victim of medical negligence, get in touch for a free consultation to find out more.
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