Fact Sheet

WHAT YOU SHOULD KNOW ABOUT MEDICAL NEGLIGENCE LITIGATION

When can a medical negligence claim be made?

 A medical negligence claim is a form of personal injury action where compensation is claimed for injury and damage which is caused by the negligence of a health provider: either a doctor or a hospital. The claim must be supported by expert evidence to the effect that the treatment falls short of the appropriate standard of care expected of the health care provider.

Some examples of the sort of actions that can give rise to medical negligence claims are: failing to conduct surgery with the appropriate care and skill, failing to properly diagnose a condition, providing the wrong type of drugs in or out of the hospital setting, failing to provide appropriate post-operative care and failing to report properly on test results.

Are there any time limits for commencing a medical negligence claim?

Yes – the law now provides that all people with potential medical negligence claims – whether adults or children – must commence the claim within three (3) years of the alleged negligence.

In appropriate cases the three (3) year limitation period can be extended by application to the Court. These applications are very difficult in that it is more often than not very hard to convince the Court to extend the 3 year limitation period.

How is medical negligence proved?

Expert evidence needs to be obtained to support the fact that the treatment or advice provided represented a breach of accepted clinical practice.

The success of many medical negligence claims depends upon being able to prove that the negligence caused some damage which would not have occurred but for the doctor’s negligence: (the ‘causation’ element).

What sorts of losses can be compensated?

• Pain and suffering, i.e. loss of enjoyment of life etc (provided that that pain and suffering exceeds a certain threshold [see below]).
• Past and future wage loss
• Past and future medical and treatment expenses
• Commercial costs of care provided on a gratuitous basis
• Cost of future care

Are all claims, whether large or small, worth litigating?

No – recent legislation in NSW- the Health Care Liability Act, 2001 (NSW) and the Civil Liability Act 2002 (NSW) have restricted the smaller claims from proceeding. In order to be a viable claim, a threshold in respect of the claims for pain and suffering of “greater than 15% of the most extreme case” applies to all matters commenced after 5 July 2001.

Are there any circumstances in which compensation may be especially difficult to recover?

Yes – there are instances where despite the fact that a claim has been successfully brought, maybe the medical defence organisation which has indemnified the doctor has exercised its discretion to not fund the claim.

Examples of instances where this policy may be applied include cases where the doctor has engaged in an inappropriate relationship with the patient, where the doctor has died prior to the action being finalised and/or where the doctor has been declared a bankrupt.

In such cases unless the doctor personally has enough assets to satisfy the judgement you may not recover any compensation you have been or may be awarded.

Is there any other organisation I should notify about my claim?

In appropriate cases, it may be worthwhile lodging a complaint with the independent office of the NSW Health Care Complaints Commission located in Sydney (ph: (02) 9219 7444).

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