Medical Negligence Claims for Personal Injury

Have you suffered injury or other loss as a result of inadequate medical
treatment?

If that treatment (or failure to treat) was negligent you can claim against the
doctor or other medical provider.

Negligent medical treatment can involve any of the following:

failure to act with reasonable care or skill in the performance of a medical
procedure;
failing to provide any or appropriate treatment at the right time;
failing to warn the patient of risks or side effects associated with treatment;
failure to properly diagnose a condition;
provision of inappropriate treatment;
provision of treatment or aspects of treatment without the consent of the
patient.

Medical negligence claims are complex and can be difficult. Unlike most
other injury cases, potential claims usually require careful and detailed
investigation before a decision to proceed can be made.

WHAT IS MEDICAL NEGLIGENCE?
The concept of negligence arises out of a general duty on all members of
society to take reasonable care to avoid injury or damage to other people.
If you suffer injury or damage through another person’s failure to fulfil this
duty you can take action in negligence.

A claim in negligence requires the following three elements:-
The existence of a Duty of Care
Breach of the Duty of Care
Loss or Damage resulting from the breach of Duty of Care

These same principles apply to medical practitioners who are required to
exercise reasonable care and skill in the treatment of patients. This duty
extends to all aspects of the medical practitioner’s involvement with the
patient including the process of diagnosis, warning the patient regarding
risks and side effects, administering appropriate treatment in a timely
manner as well as acting with reasonable care and skill in the performance
of medical procedures. Each of these aspects is dealt with separately in the
following paragraphs.

FAILURE TO ACT WITH REASONABLE CARE AND SKILL
Medical practitioners are under a duty to act with reasonable care and skill
in administering treatment. Sometimes adverse outcomes result from medical
treatment even where reasonable care and skill has been exercised by the
practitioner. In these cases the medical practitioner will not be found to be
negligent, provided that appropriate advice has been given to the patient
regarding the risks associated with the treatment. The requirement for
disclosure of risks is detailed separately under the heading Duty to Warn of

Risks Associated with Treatment.
Whether there has been a departure from reasonable standards of care and
skill in any given circumstance is usually a complex question. Investigations of
the issue require the complete medical history and record up to that time to
be analysed by an independent medical specialist consultant. In some cases
it becomes apparent that a clear medical “bungle” has occurred.
In these cases the medical mistake is often obvious and negligence may not be
difficult to prove or liability may be admitted. These cases are rare.

More commonly a dispute will arise as to whether the treatment in question
was consistent with the exercise of reasonable care and skill by the
medical practitioner. This question can only be determined by detailed
analysis of all of the circumstances at the time. In any given set of
circumstances it is not uncommon for there to be conflicting medical
specialist opinions. In such cases the Court is required to decide which
of the competing medical specialist opinion is to be preferred.

Alternatively, there can be agreement between the medical experts but a
dispute can arise between the patient and the medical practitioner as to the
history of events, usually concerning the patient’s complaints and/or
development or symptoms during the course of treatment.
In these cases the history recorded in the doctor’s medical notes is a critical
and frequently determining factor although it is not uncommon to find that
the medical notes are incomplete or contain inaccuracies. In those cases the
Court is required to hear all the relevant evidence and determine the factual
history issues in dispute between the parties. This may not involve any
medical questions if the dispute relates entirely to the history of events.

DUTY TO WARN OF RISKS ASSOCIATED WITH TREATMENT
Medical science is imperfect and all treatments are accompanied by some
degree of risk. The law requires medical practitioners to exercise reasonable
care, not only in diagnosis and treatment, but also in the provision of advice
about appropriate forms of therapy. A doctor has a duty to warn a patient of
all material risks inherent in proposed treatment. These can be risks of “side
effects” arising, or the possibility that the proposed treatment may fail or
result in some other adverse outcome.

A risk is material where a reasonable person in the patient’s position, if
warned of the risk, would be likely to attach significance to it. Alternatively,
if the doctor knows (or should have known) that a particular patient would
be likely to attach significance to the risk, it should be disclosed regardless
of whether a reasonable person would have attached significance to it.

It is important to understand that where the patient is properly advised of
the risks associated with proposed treatment and the treatment is competently
carried out but results in an unfavourable outcome, the patient has no right
to claim in negligence. This is because no breach of duty of care by the medical
practitioner arises in these circumstances, regardless of the severity of the
loss or damage suffered. However, where the treatment is associated with
risks of potentially severe loss or damage, the extent and requirements of
the duty to warn are correspondingly increased.

Alternatively, if the adverse risks associated with the treatment are so
remote (unlikely) as to be insignificant, the medical practitioner may not be
under any obligation to warn the patient in the absence of special
circumstances such as specific concern expressed by the patient regarding
the risks issue. An interesting example of a case where a patient expressed
such specific concern giving rise to a duty to warn of a remote or unlikely
risk arose in the case of Rogers v Whitaker decided by the High Court in
1992.

FAILURE TO DIAGNOSE OR TREAT EXPEDITIOUSLY
The medical practitioner’s obligation to act with reasonable care and skill
includes the duty to diagnose and administer treatment with reasonable
and appropriate care, skill and expedition.

Failure to diagnose in a timely manner can lead to failure or delay in the
provision of medical treatment with potential adverse medical consequences.
In other cases appropriate diagnosis can be made but there may be failure
to administer necessary treatment or inappropriate delay in the
administration of treatment resulting in loss or damage.

In these circumstances, to prove negligence it is necessary to show that the
failure to diagnose or provide appropriate timely treatment was due to lack
of reasonable care and/or skill on the part of the medical practitioner. It is
not sufficient simply to establish that the medical practitioner’s diagnosis
or treatment was incorrect. It must be shown, in addition, that the error or
delay would not have occurred had the medical practitioner exercised
reasonable care and skill. Independent specialist medical advice based on
the full medical record is usually required to assess this question.

It is critical to understand that a mistaken diagnosis, or a failure or delay
in the administration of treatment, may not be found to be negligent if the
same error would have been committed by a competent medical practitioner
exercising reasonable care and skill in the same circumstances.

The second critical issue which often arises in these cases is the matter of
causation. That is, proving that loss or damage resulted from failure to
diagnose or delay in treatment. This loss or damage must be separately
identified and additional to any medical problems which would have arisen
anyway in the event of competent medical treatment.

Identifying the “additional” loss or damage attributable to a failure to
diagnose, or delay in treatment, is often difficult particularly in progressive
medical conditions which may have been likely to advance even with
appropriate treatment. In assessing the extent of compensable injury
in these cases it is necessary to identify the likely progress of the
condition had appropriate treatment been administered.

The claimant is then compensated for the additional medical loss or damage
over and above this level caused by the negligent treatment.

Establishing the extent to which a medical condition may be attributable to
negligent treatment in these circumstances requires expert independent
medical opinion and is frequently a contentious issue. Further comment
on this aspect is set out under the heading “Causation – Proving that the
negligence caused loss or damage”.

CAUSATION – PROVING THAT THE NEGLIGENCE CAUSED
LOSS OR DAMAGE
In addition to establishing that treatment failed to comply with reasonable
standards of professional care and skill (negligence), it is necessary to
establish that this failure resulted in harm or loss which would not otherwise
have occurred. Hence it is necessary to identify the medical problems
which the patient would have suffered in any event had the treatment or
procedure been competently performed or had appropriate risk warnings
been given. Any claim is limited to the additional loss or damage which has
been sustained over and above that which would have arisen had
negligence not occurred in the course of treatment.

In the case of failure to warn of risks, it is required the patient establish that
had the appropriate warnings been given beforehand, he or she would not
have proceeded with the proposed treatment or procedure, or would have
obtained other medial treatment or advice which would have resulted in a
significant reduction in risk. Failing this, it may be found that the outcome
would not have differed had the warning in question been given. In such a
case although the failure to warn may have been negligent, the claim
would fail for lack of establishing that loss or damage was caused by the
failure to warn as the ultimate outcome would have been the same in
any event.

Issues of causation can be complex and difficult. An interesting example of
a case of failure to warn of risks of surgical treatment involving difficult
causation questions is the case of Chappel v Hart decided by the High Court
in 1998.

NEGLIGENCE OF OTHER MEDICAL PROVIDERS
The advice outlined in this Information utline generally relates to the
negligence of medical practitioners. However the negligence concepts are
generally applicable to all medical providers such as hospitals, pharmacists,
physiotherapists, chiropodists, podiatrists and others, and are not limited
solely to medical practitioners. In each case, the medical provider is
required by the law to provide treatment to the standard of reasonable
competency within their professional field. Failure to comply with this
standard of care resulting in injury or loss can be the subject of a negligence
claim in accordance with the principles outlined in this information.

HOW IS THE AMOUNT OF COMPENSATION CALCULATED?
The first step in the calculation of compensation is to establish the extent
of loss or damage caused by the medical negligence. This issue is discussed
under the heading “Causation – Proving that the Negligence Caused the
Loss or Damage”. Once the extent of this loss or damage has been identified,
compensation can be awarded in the following categories:

Pain and suffering.
Medical treatment expenses incurred up to the present and anticipated
future care and treatment expenses.
Travel expenses.
Loss of income up to the present and future anticipated loss of income.
Loss of superannuation benefits.
Compensation for loss of life expectancy.
Compensation for voluntary services/assistance provided by immediate
family members.
It is essential to ensure that all loss and damage claimed is directly
attributable to the medical negligence and that the loss and damage would
not have resulted had appropriate treatment been provided. Medical
problems which would have eventuated in any event are not compensable
and must be excluded from consideration. In some cases negligence can be
proven but only minor loss or damage may be able to be shown to have
resulted. It may not be practical to pursue a medical negligence claim in
these circumstances if negligence is in dispute, because the cost and
difficulty of pursuing the claim may out-weigh the compensation recoverable.

TIME LIMITS FOR BRINGING A CLAIM
In South Australia, all medical negligence claims must be instituted within
three years of the date of the cause of action arising in Victoria it is six years
from the date of injury.

The cause of action arises when a negligent act occurs which results in loss,
damage or injury.
In the case of negligent treatment, this is likely to be the date on which
the treatment occurred. However, the date on which the cause of action
arises can be a complex issue and requires consideration in each case by
a legal practitioner. It is our strong recommendation that you obtain legal
advice at the earliest opportunity should you wish to pursue a medical
negligence claim. This is highly advisable to allow sufficient time for
extensive preliminary investigation of the claim to be undertaken
before legal proceedings are required to be instituted.

The time limitation rules require the issue of legal proceedings in Court
within three years of the date the cause of action arose. An extension of
this time limitation period can be sought in certain circumstances.
The granting of an extension of time remains in the discretion of the
Court. As a general rule, the longer the extension of time required the
less likely the Court will exercise its discretion to grant the extension.
If you believe that you have a potential medical negligence claim which
may require an extension of time you should seek legal advice from
an experienced solicitor without delay.

THE INITIAL INVESTIGATION PROCESS
Medical negligence claims generally require extensive preliminary
investigation to ascertain whether negligence can be established. This
requires the full record of treatment and medical history to be obtained
and an independent highly qualified specialist consultant to review the
records and provide a detailed report. The costs of this process are
generally significant. In most cases, it is not possible to express an
opinion on the likely success of the claim until the initial investigation
process has been completed.
In some cases, it becomes apparent after the
initial investigation that negligence cannot be proven. In these cases the
claim may not be able to proceed. If on the other hand a decision is
made that the claim has potential to proceed, frequently further
investigations and enquiries into the finer points or further issues
raised in the initial investigation will need to be made.

It is necessary to continually monitor the outcome of these further
investigations and proceed on a step by step basis to
investigate and build up the evidence required to support the claim.

This process can take considerable time. Consequently it is our
recommendation that you instruct a solicitor to act on your behalf
and commence the investigation process at the earliest opportunity.

Significant difficulties can arise where parties seek to pursue a claim
close to the expiry of the three year limitation period leaving little time
for investigation. Whilst this late instruction is not fatal to the claim, it
can cause additional practical difficulties in the investigation process
and is likely to result in increased costs and expenses.

HOW CAN MY MEDICAL RECORDS BE OBTAINED?
The first step in investigation of a potential claim is to obtain the complete
medical records. Where treatment has taken place at a public hospital,
the treatment records are available under the Freedom of Information Act.
Most public hospitals have prepared their own application forms for
Freedom of Information requests.

If the treatment took place at a private hospital or a doctor’s private rooms,
the medical records are unlikely to be made available voluntarily. In these
circumstances it is usually necessary to make application to the Court for
an order that a copy of the medical records and notes be provided.
This is called an application for “Pre-Action Discovery”. You will need to
retain a solicitor to act on your behalf to institute such an application in the
appropriate Court.

It is important to retain all documents or records relating to the course
of your treatment, including any diaries containing relevant historical
information. These documents/records may be important to establish
historical events in dispute, or to assist in reconstructing the course of
events during the initial investigation of your claim.

LEGAL COSTS
You may be aware of “no win no fee” (contingency fee) legal costs
arrangements. The basis of these agreements is that your solicitor will
not charge you legal costs if your claim is not successful. If the claim
succeeds, legal costs are paid at a higher than normal rate. In the event
that the claim is unsuccessful you will not be required to pay your solicitor’s
legal costs but you may remain responsible for disbursement expenses
(such as medical report and evidence fees, Court issue fees and related
“out-of-pocket” expenses) and any legal costs which may be awarded
against you by the Court in favour of the other parties. Commonly,
solicitors are prepared to act in medical negligence claims on a “no win
no fee” basis after the initial investigation process has indicated that a
claim has the potential for success. The initial investigation involves the
gathering of background material and preliminary medical evidence.

On the basis of that material the solicitor can express a legal view regarding
the prospects of a medical negligence claim succeeding. At that point, the
solicitor may be prepared to back his or her own judgment and proceed with
a claim on a “no win no fee” basis should you wish to do so. Such arrangements,
however, vary from solicitor to solicitor and you will need to discuss this with
your solicitor.

Many solicitors offer a first free no obligation interview. This enables you
to obtain initial preliminary advice regarding any potential claim without
expense or obligation.

Medical negligence claims are generally among the most complex and
difficult of personal injury matters and we strongly recommend you ensure
that any solicitor you instruct is experienced in this area.

To find out if your recommended solicitor is experianced enough to run
your claim you can call or write to the Law Institute for the lawyers
experiance and specialisations.