If you have sustained an injury from medical treatment or advice you have received from a medical practitioner, dentist, orthopaedic surgeon, neurosurgeon, psychologist, psychiatrist, medical specialist, physiotherapist, chiropractor, or any other medical provider, then you may have a claim for personal injury compensation.
No Win No Fee Personal Injury Lawyers are experts in medical negligence claims
No Win No Fee Personal Injury Lawyers specialise in medical negligence, or medical malpractice claims as they are also known, and are experts in this area of personal injury law. We can assist you in identifying whether you have a valid claim to pursue and pursuing that claim for you. If you would like to speak to an Expert about a medical mistake you may have experienced, please feel free to call us on 1300 388 383 anytime, day or night, Livechat with us through our Livechat Service on this website, or send us an enquiry via one of our FREE Instant Case Appraisal forms on our website.
Your Medical Provider Owes You A Duty To Use Reasonable Care & Skill & To Warn Of Risks
All medical providers owe a duty of care to use reasonable care and skill when providing medical advice or treatment to patients for any injury or medical condition, and they also have a duty to warn patients of any risks associated with the treatment they are providing.
Your medical provider has a duty to use reasonable care and skill not to expose you to a reasonably foreseeable risk of injury when providing you with medical treatment or medical advice. If your doctor, medical specialist, dentist etc., breaches this duty of care and you suffer injury because of it, then you will have a right to claim personal injury compensation for the loss and damage you sustain and are likely to sustain in the future.
Duty of Medical Providers to Warn of Risks Associated with Medical Treatment
The duty of care that a medical provider has when providing treatment and advice to a patient is a duty at law, but it is also governed by the provisions of the Civil Liability Act 2003 (“CLA”), which applies to medical malpractice claims in Queensland. The CLA deals with the duty of care a medical provider has to warn patients of the risks involved with any medical treatment or medical advice that they are providing to a patient. A medical provider has a duty to provide the following information about any risks associated with medical treatment or advice they are providing:
- Information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice;
- Information that the medical provider knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.
Where a medical provider fails to give appropriate warnings to their patient, and the risk of injury eventuates during the treatment or whilst following the medical advice given to them, then the medical provider will have been negligent in failing to warn, and liable to compensate their patient for the injury resulting from the risk.
Medical providers who fail to warn of the risks associated with surgery, do have a Defence to such claim under legislation. This Defence operates where it can be shown the patient would have most likely proceeded with the treatment or following the medical advice in any event, whether advised of the risk or not.
For example, a man with a very serious back injury is told by his General Practitioner (GP) that surgery may very well cause him more problems than he already experiences, and the man tells his GP that he does not care, he will try anything. If this man is then not given appropriate pre-surgery warnings by his surgeon, and suffers an injury during surgery he should have been warned of, then the defence will be that, even if the man had been given warning of the the injury possibly occurring from the surgery, he would still have, more than likely, continued with the surgery and been willing to take the risk in the hope of improving his medical condition. His pre-surgery mindset will be used to defend the claim.
Of course, if his injury was caused by the surgeon acting without due care and skill, then he will still have a valid claim against the surgeon for this breach of duty of care.
Medical Malpractice/Negligence is a more Complex Area of Personal Injury Law
Medical negligence claims can be quite complex matters and as such, there are not a lot of personal injury firms in Queensland willing to take on the running of these claims. The reason for this complexity is because in most cases, when a person is receiving treatment for an injury or medical condition, they are usually already disabled to some extent by that medical condition, and because of this, the increased injury sustained may not impact that significantly on the patient’s pre-injury lifestyle and employment, to make the claim worthwhile pursuing.
Pre-existing injury & injury from the medical malpractice can be difficult to identify
Also, it can often be difficult to differentiate between symptomatology relating to the pre-existing injury for which treatment was being provided, and injury sustained from the medical malpractice. In other words, it is all about ‘causation of injury’.
For example, Joe has a very bad back. Joe spends most of his day lying down to relieve his back pain and cannot work because of it. He decides to undergo surgery, which he is told will help with his chronic pain, but it will not assist his debilitation. During surgery, his surgeon makes a mistake. When considering what further impact the medical malpractice has had on Joe’s life, a Court will look at whether there is any increased impairment in his everyday living, employment and general functioning due to the surgery. Given Joe was already severely restricted and unable to work because of his pre-existing back injury, and his medical and care needs have not been increased because of the further injury, then the damages he would be looking at receiving from a medical negligence claim may be so minor that his claim would not be worth pursuing. And this is even though he does have a valid claim to pursue for his surgeon’s negligence.
Further, with his pre-existing degenerative condition, it would be very difficult to determine what symptomatology relates to Joe’s pre-existing back injury and any further injury sustained from his surgeon’s negligence.
In determining compensation for the medical mistake, a Court will take into account the claimant’s position had the surgery been successful
Importantly, when assessing what loss and damage should be accorded to further injury sustained from incidence of medical malpractice, a Court will take into account the likely improvement to the pre-existing medical condition had the medical negligence not occurred and the treatment had been successful.
For example, in the case of our friend Joe with his serious back injury above, if it were the case that a successful surgery could have resulted in Joe getting back to some form or light, sedentary work, then he would most likely have a worthwhile claim to pursue if the medical mishap during surgery resulted in him being permanently unemployable.
Another reason for the complexity in medical negligence claims is because it is not always clear whether the injury is from the negligence of the treatment provider, due to the inherent risks involved with most medical treatments.
Just because injury arises from medical treatment or advice provided to a patient, it does not automatically follow that there is a personal injury claim to pursue. For example, it is widely accepted that there is a certain inherent risk involved when undergoing surgery, and mistakes can happen even where the surgeon has used appropriate care and skill. In such case, no matter how significant the further injury sustained, the patient will not be entitled to compensation for that further injury because the surgeon did not breach their duty of care. This is often referred to as, “medical misadventure”.
Not all medical mishaps result in a personal injury claim
Unfortunately, certain risks will always be associated with undergoing medical treatment, and complications can and do arise even where the medical provider applies due care and skill. Suffering further injury from a medical treatment, will not always mean that there is a personal injury claim to pursue.
However, if the medical provider fails to advise of the risks of injury associated with the treatment or advice prescribed, and the risk of injury is sustained whilst undergoing the treatment or following the advice, then there may be a personal injury claim for the doctor’s failure to provide prior warning of that risk of injury.
Pursuant to the Civil Liability Act 2003, there are Defences that medical providers can raise against claims of medical malpractice. We have already touched on one of these above, where they meet their duty to warn of risks. Another is where a medical provider can establish that the prescribed medical treatment or advice causing the injury was widely accepted by a significant number of respected and competent professionals in the relevant medical field as an appropriate treatment.
If the doctor, surgeon, physiotherapist, chiropractor, dentist etc., can establish this, then, unless a Court considers the professional opinion relied upon was irrational or contrary to law, the medical provider will not be found negligent in prescribing that medical treatment or advice.
However, that does not take away from a claim that the treatment, although appropriate, was performed or provided in a negligent manner, and without the use of due care and skill. And it is also not a defence where there was a breach of the duty to warn of risks associated with the treatment, prior to the treatment commencing.
What Compensation am I Entitled to in a Medical Negligence Claim?
If you are the victim of medical malpractice, then you will be able to claim compensation or damages for the injury sustained because of that medical malpractice, and any resulting loss and damage suffered as a consequence. The heads of damages which you can claim for in a medical malpractice claim include:
- Compensation for pain & suffering & loss of amenities of life ;
- Reimbursement for past lost income, and for the loss of future income;
- Loss of past and future superannuation benefits (associated with past and future lost income);
- Reimbursement for past medical expenses and out of pocket expenses, as well as compensation for the likely expenses you will incur in the future for medical treatment, medical aids & devices, pharmaceuticals, home & vehicle modifications, surgery & hospitalisation, dental treatment, as well as any other therapeutic remedies you reasonably require because of the injury sustained from the medical malpractice;
- Compensation for care & assistance you have required and are likely to continue requiring into the future (assistance with domestic duties, vehicle & yard maintenance, nursing care etc);
- Interest on past lost income & superannuation and out-of-pocket expenses.
But, as we have discussed above, your claims will only relate to the loss and damage due to the injury sustained from the medical malpractice and not any pre-existing injury.
The Civil Liability Act 2003 applies to medical negligence claims, and therefore the restrictions on damages under that Act apply. The most significant restrictions relate to claims for pain & suffering, which are accorded damages pursuant to a Schedule set out in the Regulations to the Civil Liability Act 2003. This Schedule lists all the various types of injury that can occur, and then allocates a range of damages that should be accorded to the injury. The Act also stipulates thresholds for claiming care and assistance and restricts claims for interest on past medical expenses & out of pocket expenses, past income loss and past care claims.
How Much Compensation will I Receive for my Injury?
The process of calculating what amount of compensation a person should receive because of an injury sustained through the negligence of another, is based on the principle that the compensation awarded should be sufficient to, as much as possible, place them back into the same position they would have been, but for the injury occurring.
Therefore, the calculation of injury compensation is subjective – it is as individual as the person making the claim. How much compensation is paid will depend on how the injury sustained from the medical negligence will impact upon their everyday living and employment, as it was at the time just prior to the incidence of medical malpractice occurring.
Generally, the greater the impact of the injury on a person’s pre-injury lifestyle and employment, the greater the compensation amount.
As we have discussed above, it can very often be difficult distinguishing between what symptomatology and restriction has been caused by the medical malpractice and what relates to the pre-existing injury, and where the pre-existing injury is significant, then it may be that a personal injury claim is, unfortunately, not worth pursuing (for more information on this issue, see our discussions above).
However, when a Court is assessing what compensation should be paid for the further injury sustained as a result of the medical malpractice, it will take into account any likely improvement in the pre-existing injury or medical condition had the medical negligence not occurred and the surgery been successful.
Here’s a Case Example
An example of damages achievable in a medical malpractice claim is a recent case handled by the Principal of No Win No Fee Personal Injury Lawyers, where a young woman who had a serious pre-existing lower back injury, requiring two previous surgeries, sustained further injury when the wrong lumbar disc was removed during surgery. This lady already suffered quite significant symptomatology, and was not in any employment due to her previous back injury, but she was able to achieve damages of $565,000 for the increased pain and debilitation she suffered due to the incorrect disc level surgery.
One of the reasons for this damages assessment was because of the possibility that had the surgery been successful, the improvement may have resulted in this unfortunate lady being able to return to employment and generally having better functioning in her everyday living activities.
Fatal Medical Accidents – Dependency Claims
Where a medical mistake tragically results in fatality, then this usually has terrible repercussions for the victim’s family and those close to them, particularly where there was a reliance on them for financial support.
Where this has occurred, the relatives of the victim do have a right to recover compensation for the loss of financial and any other type of support that the victim normally provided to them (eg. care and assistance) prior to their death. These types of claims are called Dependency Claims wherein a claim can be made for the loss of regular financial support of the deceased and any care and assistance they would normally provide (eg. looking after vehicle or yard maintenance, undertaking the domestic duties in the home etc).
Those that can claim are a spouse, child and parent, but a claim can be made by a relative where a pecuniary loss has been sustained by them because of the victim’s death.
In relation to a claim by a spouse, this includes a defacto spouse and a child includes children not as yet born at the time of the deceased’s death. A child can also claim where the deceased stood in place of a parent to the child before their death, although they were not legally a child of the deceased. Similarly, a person who stood in the place of a parent to the deceased at the time of their death, although not legally recognised as a parent, can also claim where they have sustained loss.
If you have suffered the loss of a loved one because of a medical mistake, we would like to assist you in obtaining all of your compensation entitlements and ensure you are protected for the future. Please call us on 1300 388 383, Livechat with us, or send us your enquiry via one of our Free Instant Case Appraisal Forms. Your enquiry is FREE of any charge, totally confidential and without any obligation.
Nervous Shock, Loss of Consortium & Servitium Claims
Where your loved one has been the victim of a medical mistake and this has resulted in them suffering very serious injury or fatality, then you may also have a Nervous Shock and Loss of Consortium Claim. Those eligible for such claims are close relatives of the victim, such as parents, a spouse, children and siblings. Other relatives who can show that they were especially close to the victim can also claim, for instance, a grandparent or aunt who stood in place of a parent to the victim.
Nervous Shock is actually a psychiatric condition that can occur when someone loses a person close to them suddenly and unexpectedly, such as in a case of medical malpractice. Nervous Shock can be very debilitating for those who suffer this condition, impacting on their capacity to care for themselves, those dependent on them and to continue in their employment.
If you have sustained Nervous Shock as a result of the unexpected loss of a loved one due to a medical accident, then please contact us so that we can assist you to obtain the compensation you need to ensure you and your family are protected for the future. Call us on 1300 388 383, Livechat with us, or send us an enquiry by submitting a FREE INSTANT Case Appraisal form on our website.
Loss of Consortium claims are claims for the loss of company of those close to you, for instance, loss of enjoyment of undertaking social activities with them, loss of their input into the household duties, intimacy or generally due to a change of personality because of the serious injury they have sustained.
Loss of Servitium claims are available to a company or business that will suffer financial loss due to the loss of the victim. It is usually because the victim was an integral part of the business and as a result it will be significantly impacted financially by their loss. An example of this is a plumber who sets up a plumbing company with his spouse who looks after the administration side of the business. In the case where the plumber suffers a fatal accident, then the company has lost its primary employee as he was the plumber who actually performed the work that earned the company’s income. The plumbing company can sue for recovery of the financial loss it is likely to suffer because of the loss of its integral employee.
Exposure to medical negligence whilst having treatment for an injury already the subject of a personal injury claim
This actually is not an uncommon situation in personal injury claims. For example, a car accident victim suffers further injury due to the negligent treatment received at a hospital following the accident. In such case, the car accident victim will be able to claim for all injuries sustained consequential to the motor vehicle accident in their motor accident claim, including those injuries arising from the negligent medical treatment.
The car accident victim will not have to bring a separate claim against the negligent doctor or hospital for medical malpractice. Compensation for all injuries will be encompassed in the motor accident claim. And it is the same in the case of workplace injury claims, and all personal injury claims in Queensland.
This is because the law recognises that, when an accident victim receives treatment for their injuries, it is reasonably foreseeable that this may include poor medical treatment causing them further injury.
However, there is a situation where this does not apply. This is where the negligent medical treatment amounts to “gross negligence”. “Gross negligence” comprises of treatment that is so negligent that it causes a break in the chain of causation for the original injury, including such things as the wrong limb being amputated, the wrong surgery being performed or a surgeon operating when inebriated. It is where there is a gross lack of reasonable care by the medical provider in the provision of the treatment causing the injury.
In cases of gross negligence, a separate personal injury claim will be required against the medical provider who was grossly negligent.
Restriction on Damages in Cases of Failure of Sterilisation or Contraception Treatments
Where there is a failure of sterilisation and contraceptive treatments, such as viscectomy or tubal ligation procedures, and as a result a child is conceived, any damages claim for the negligence of the treatment providers responsible for the treatment failing is restricted by the Civil Liability Act 2003 (“CLA”).
The CLA provides that a Court cannot award any compensation for the normal cost of rearing a child when awarding damages in such cases.
Do You Need to Invoke Ryan’s Rule
“Ryan’s Rule” applies in all Queensland Health Facilities (public hospitals, medical centres or institutions). If you or someone close to you is receiving treatment in a Queensland Health Facility, and you believe that proper treatment is not being provided but your concerns are not being listen to by treatment providers, then you can invoke “Ryan’s Rule”. Once this Rule is invoked, the Hospital or health facility involved, must immediately review the case and a second opinion must be provided.
Ryan’s Rule is named after 3 year old Ryan Curtis who was hospitalised in Emerald for what was doctors at the hospital diagnosed as mumps. Little Ryan’s condition deteriorated quickly and within 30 hours of his emergency transfer to Rockhampton Hospital, he passed away. During Ryan’s hospitalisation, his parents repeatedly told treating doctors that something was very wrong but their pleas were ignored. The Coronial Inquest handed down a finding that brave little Ryan was suffering from a serious bacterial infection, and had proper treatment been provided (simply providing Ryan with appropriate anti-biotics to fight the infection), and had the warnings of his parents been heeded, his death could have been avoided.
Ryan’s Rule was introduced into Queensland hospitals and health facilities, to hopefully ensure that such a tragedy will never happen again.
The National Injury Insurance Disability Scheme – Your Entitlements
You may be aware that as from 1 July 2016, the State and Federal Governments rolled out the National Injury Insurance Disability Scheme (NIIS) in Australia. The Scheme’s purpose is to aid those who are seriously disabled by injury, a medical condition or disease. The Scheme provides assistance with medical treatment, the provision of medical equipment, aids & adaptive devices, dental, as well as personal, domestic & nursing care needs.
The NIIS provides assistance to anyone who suffers “Catastrophic Injury” under the Scheme, whether it is hereditary or caused by an accident, assault or illness, as it is a no-fault based Scheme. “Catastrophic injury” under the NIIS includes spinal cord injuries, brachial plexus injury, traumatic brain injuries, permanent blindness, severe burns, and amputation injuries.
If you have been catastrophically injured in an accident, then you may be entitled to assistance under the NIIS. The NIIS is not a compensatory body and it does not replace accident compensation via a personal injury claim. You must still bring a Common Law Claim to be properly and fully compensated for your injuries. The NIIS is purely there to ensure those suffering serious disability in Australia have access to the medical treatment and care they need to provide them with a decent quality of life.
To learn more about the NIIS and what services it provides, click on the following link to its website: The National Injury Insurance Scheme.
The NDIS, is a Queensland Scheme that provides assistance to the seriously impaired or disabled, who are likely to require ongoing care for their lifetime. This scheme has already been implemented in far North Queensland, and will be rolled out across the rest of Queensland over the next 2 to 3 years. To learn more about the NDIS, go to the following link: NDIS in Qld.
Time Limits Apply in Medical Negligence/Malpractice Cases
As in all personal injury claims, legislation provides strict time limits to cases of medical malpractice or medical negligence. If missed, it will only be in exceptional circumstances where you will be able to bring a claim. This could mean the loss of significant compensation.
You should not delay investigating whether you have a claim and taking steps to protect that claim. There are specific complex and often time consuming procedures required under legislation governing these types of claims, that have to be complied with in order to protect your claim before the limitation date expires and to proceed with your claim.
If you have sustained an injury because of negligent treatment or medical advice, you will need the advice of Experts in the area of medical negligence, a complex and very specialised area of law, strenuously defended by medical insurers. It is because of this specialisation and complexity, that many firms do not handle such claims at all or they refuse to undertake them on a No Win No Fee basis.
No Win No Fee Personal Injury Lawyers are experts in medical negligence claims and can assist you in providing you with the advice you need to achieve a successful compensation payment. And our services are guaranteed provided on a No Win No Fee basis.
Contact us on 1300 388 383, chat with us via our Livechat service or send us an enquiry via one of our FREE Instant Case Appraisal forms on our website. It is totally FREE, Confidential and there’s NO obligation.