Summary

You may have a claim for compensation if you have suffered injury or complications as a direct consequence of the negligence of a health professional either in a hospital, medical clinic or elsewhere.

These claims are not easy as there are so many variables involved when it comes to medicine. However, you are entitled to expect that when you place yourself in the hands of a health professional, that they exercise the necessary care when treating you.

These cases often are very complex and expensive to run. Highly skilled legal representation and specialist medical opinion is essential.

Frequently Asked Questions

Do I have a claim for compensation?

Yes, provided you can show that the medical treatment you received was not adequate or wrong to the point that it constitutes negligence.

Who can I bring a claim against?

A claim is brought against the medical health professional and/or the organisation that provided or facilitated the medical service. Their medical indemnity insurer will then defend the claim on their behalf.

What can I claim compensation for?

This depends upon your particular circumstances but may include damages for:

  • Pain and suffering
  • Loss of enjoyment of life
  • Loss of life expectancy
  • Past and future loss of earnings
  • Paid or unpaid help from family, friends or other third parties
  • Past and future medical and rehabilitation costs

What has to be proven for my claim to be successful?

Typically three things need to be established to make a claim:

  1. The treatment provided did not meet Australian standards.
  2. The inadequate treatment caused you physical or psychological pain and suffering or injury.
  3. The resulting harm was a direct result of the negligence of the treatment provider.

Negligence will be present when the medical treatment does not reach the standard of care reasonably expected from a health professional.

It will usually be determined by comparing the treatment or lack of treatment with that provided by another reasonable health professional in the same area of practice. This will require obtaining one or more medical expert’s opinion confirming that in their view the conduct of the health professional or organisation was negligent.

Are there any important time limits to bring a claim?

Yes. You have three (3) years within which to file court proceedings to claim compensation.

The three years may begin from the date the:

  • the negligent medical treatment took place; or
  • the negligence was discovered; or
  • you found out about the injuries caused as a result of the negligent actions or inactions of the medical health professional or organisation.

Who pays me the compensation?

The professional indemnity insurer of the health professional or the organisation at fault.

How much compensation can I claim?

This is impossible to say without a thorough investigation of your claim.

How long does a claim for compensation take?

Again, this is impossible to answer until we understand how simple or complex your claim is. Once all the facts are obtained we will be in a better position to be able to advise you.

Can I make a claim as a beneficiary or dependant if the injured person has passed away?

Yes, provided the estate can prove that the injured person’s death was caused by medical negligence. However, it needs to be understood that the compensation that might be claimed will be less than if the deceased was alive. This is because the estate cannot claim damages for pain and suffering as death ends such suffering. Any claim for future entitlements also dies with the patient.

Damages are limited to past loss e.g.:

  • past loss of wages
  • past medical expenses
  • past unpaid or paid care from family members, friends or third parties

However, a parent, spouse, partner, child or grandchild may be able to make a claim for mental harm if they can show that they have suffered a psychiatric illness as a consequence of the death of the deceased.

A dependency claim may also be possible for the likes of spouses or children if they are financially dependent on the deceased.  Dependency is assessed based on the extent of the financial dependency of the spouse or children of the deceased, the loss of services that the family experiences as a result of the deceased’s death and in the case of children, loss of care and guidance.