How is medical negligence proven in Australia?

If you’ve been injured by a healthcare professional or health services provider, you may be entitled for compensation. Here’s what you need to prove it.

Doctors and other medical professionals have a duty towards their patients to provide reasonably competent care. But what happens when they slip up? Here, we look at what sort of behaviours fall into the realm of medical negligence and how you can prove any potential wrongdoing.

What is negligence?

Negligence describes someone’s failure to take reasonable care while doing something. In everyday life, these can be considered momentary lapses that happen while we were a little absent-minded or just felt a little off. Whether you forget your keys at home or an appointment slipped your mind – it happens to the best of us. The most important thing is that these things generally don’t end up hurting someone else. 

In law, however, the definition of negligence is slightly different. Here, negligence usually refers to a lack of reasonable care towards other people, which possibly resulted in physical or psychological harm to them. If that has happened to you, you may be eligible for compensation. For example, if you’ve been in a car accident, you may be entitled to a motor vehicle accident claim due to driver negligence. Or if you’ve been injured at work, you may be able to apply for a workers compensation payout by way of a work injury damages claim.

When it comes to medical negligence, a recent study found that cases of medical wrongdoing are disproportionately higher than claims pursued. In fact, claims appear to be receding. But if you’ve been injured while in the care of a healthcare professional or health services provider, you should consider exploring your options. Consulting a personal injury lawyer with medical negligence expertise may help get you a holistic view of what you could be entitled to.

Medical negligence vs malpractice

It’s important to note that medical negligence is not limited to malpractice. The truth is, medical malpractice is just one area of negligence in healthcare. While general medical negligence is usually the result of an unintentional action, malpractice is when a healthcare professional knowingly didn’t follow the standard of care they were supposed to provide. For example, when knowingly administering the wrong medication or not conducting surgery to the clinical standard required. The main difference with medical malpractice is, you’ll have to prove there was intent in harming a patient or causing them loss. This is where it can get tricky.

How can you prove medical negligence?

Regardless of whether it was simply negligence or indeed medical malpractice, in court, you’ll be looking to prove the four D’s of medical negligence to make your case:


Duty of care

Doctors, nurses and other medical healthcare professionals have a duty of care to their patients. This means they have a legal obligation to provide and uphold a standard of care that’s considered reasonable for someone of their level of training, education and knowledge. To show a medical professional has had a duty of care in your circumstances, you must show that you’ve had a client or patient relationship with that person. This could be the doctor that has cared for you while you were a patient at their hospital or the GP you’ve been seeing for years. Outside this type of framework, a medical professional might not necessarily have a duty of care. For example, if something happens while they just happened to be sitting in a restaurant and chipped in to help.


Dereliction or Breach of Duty

The next step is to show that this duty of care has been breached. This means they have abandoned their responsibilities of taking reasonable care of a patient. Here, you would have to demonstrate how the medical professional has breached their duty of care. For example, by administering the wrong medication or executing a different treatment to what you’ve agreed on.


Direct causation

Direct causation means you have to prove that the physical or psychological injuries or loss you sustained in the incident were a direct result of the above breach of duty. In some situations, this may be a very straightforward line of events, in other cases, the lines can be a bit blurry, so having experienced legal representation in your corner can help you play your cards right.



Finally, in a medical negligence lawsuit, the court will assess the damage done. This includes any potential physical harm done as the result of negligent care, any trauma or psychological injuries as well as any economic loss you may have experienced or will continue to experience in the future. In medical negligence cases it comes down to the finest of details, so if it gets down to the nitty gritty bits, it’s important to have a legal expert at your side. Contact our local office to see if we could help you get back on your feet.

RELATED: Find a medical negligence lawyer for your case

We’re here to help

Call or book an appointment with us today

Get in touch today

Our expert lawyers are on hand to answer any questions you might have, with no obligation.