Claiming compensation when a loved one dies due to medical negligence
We are lucky to have a high standard of medical care in Australia, and can confidently put our health and lives in the hands of our medical experts.
However, sometimes mistakes have occurred through the actions or inactions of medical specialists – mistakes that could’ve been avoided. Sometimes they have resulted in the wrongful death of a patient.
This type of preventable incident that causes harm or death to a patient is known as a ‘sentinel event’. The result can be devastating for a family, especially if they are dependent on that person financially or emotionally.
If the worst has happened and your loved one has died due to potential medical negligence, you may be able to make a claim for compensation to ease the financial pressure.
At Main Lawyers, we can help you through the process of claiming for death due to medical negligence, including submitting paperwork and dealing with insurers, so you can focus on what your family needs at this time.
Wrongful death and medical negligence
Wrongful death occurs when someone dies as a result of someone else’s negligence. It covers many circumstances, including car accidents, public liability and work-related accidents.
It also covers the death of a patient in a medical setting due to negligence. This is called medical negligence or medical malpractice – physical, mental or emotional harm or loss due to the action or inaction of a medical professional.
A wide range of medical professionals have a duty of care to provide the highest standard of medical care to patients, including doctors, nurses, dentists, chiropractors and more. When a professional breaches that duty of care and causes the death of their patient, it can leave families devastated and financially vulnerable.
Fortunately, death due to medical negligence is not common in Australia. But some instances have been caused by:
- misdiagnosis or lack of diagnosis of a condition
- procedures performed on incorrect parts of the body or the wrong person
- errors in medicine prescriptions
- lack of information about risks and side effects of medication or procedures
- delayed communication about test results
- negligence in aged care facilities
- mistakes during births or prenatal care
- plastic or cosmetic surgery malpractice
These types of mistakes and neglect can occur in a range of medical settings, including health clinics, hospitals, dental surgeries, aged care facilities and anywhere you get treatment from a medical specialist.
How to prove medical negligence
If your loved one has died due to medical negligence, you may be able to claim compensation to help you pay bills and other expenses while your family gets through this difficult time.
For a successful claim of medical negligence, you must be able to prove that:
- the medical professional owed the deceased a duty of care
- the professional breached this duty
- your loved one’s death was directly caused by this breach of duty.
The final point is vital. It’s not enough to show that the medical professional had a duty of care to your loved one as a patient. You need to prove that their death was directly caused by the specialist’s negligence.
Types of wrongful death claims
There are two types of claims you could make after the wrongful death of a loved one due to medical negligence:
- a dependency claim
- a claim for mental harm caused by their unexpected death.
You will need to meet certain criteria for these claims and it can get complex. You should consider getting legal assistance to determine how best to proceed with the claim.
You might be eligible to make a dependency claim if you were:
- the spouse or child of the deceased
- dependent on the deceased financially.
You may be able to claim for:
- lost income they provided for mortgage, food, bills, school fees, etc.
- the assistance they provided in the household, such as housework, cooking, gardening and raising children.
In some circumstances, you can claim for medical and funeral expenses.
In Queensland, you may be able to claim damages for the loss of ‘consortium’ or ‘servitum’ if you were in the spouse or de facto partner of the deceased.
These damages consider factors like companionship, a sexual relationship, assistance and comfort that you provided to each other in your relationship. We can give you further advice about making this type of claim in Queensland.
A family member may be able to claim for mental harm if they have suffered a ‘diagnosable psychiatric injury’ due to the sudden death of a loved one through medical negligence or malpractice. This could occur, for example, if the death occurred in the presence of the family member.
A diagnosable psychiatric injury might include:
- PTSD (post-traumatic stress disorder)
- anxiety or depression
- other mental illnesses.
If you have a psychiatric injury after the death of your loved one, you may be eligible to claim for:
- pain and suffering
- medical expenses, including treatment and rehabilitation
- lost income if you’re unable to work
- loss of enjoyment of life.
This claim would require a diagnosis from a medical professional who specialises in your particular psychiatric injury. We can organise this for you while we prepare your claim.
Who can make a claim?
The laws relating to who can make a claim for wrongful death due to medical negligence are complex. Generally, you can claim if you are:
- a spouse of the deceased, including a de facto partner under specific conditions
- a child of the deceased (including adopted child, stepchild or other child the deceased was responsible for)
- the parent of a young child who is the deceased (including stepparents and grandparents).
However, you might still be able to make a claim if you don’t meet any of these relationship criteria but were dependent or had a close relationship with the deceased.
In this situation, you should seek legal advice from a medical negligence lawyer to get everything you’re entitled to.
It’s important to note that only one person can make a claim on behalf of all the dependents of the deceased. Any damages received will be distributed among the multiple dependents.
What if your loved one started a claim?
In some cases, a loved one may have started a medical negligence claim due to an injury or loss caused by their medical professional, but they passed away before it was settled.
In this case, their estate might be able to continue progressing the claim. Contact a medical malpractice lawyer who can look at the options and help you through the process.
Time limits on claims
Under Australian law, you have a certain amount of time to make a claim for compensation due to wrongful death and medical negligence. These time frames could affect whether you’re able to make a claim.
Generally, you have 3 years to make a claim for loss suffered due to the death of your loved one. This period is taken from the date of their death.
Not all Australian states are the same. In Queensland, you have 3 years. But some states, like Victoria, might grant you an extension for up to 12 years in special circumstances.
While this probably isn’t something you want to think about after your loved one has passed, it is better to start the claims process sooner rather than later. Especially as it can take up to 2 years to get the compensation you need due to the complexity involved.
For example, there may have been several procedures or several medical professionals involved in your loved one’s care. So it could take time to sort through everything.
An experienced medical negligence lawyer will take care of the details for you, including dealing with paperwork and insurers, so you can focus on taking care of yourself and your family.
How to start making a claim
Obviously, no amount of compensation will bring back your loved one – but your family shouldn’t have to struggle financially because of someone else’s negligence.
If you believe you may have a claim, start by contacting a medical negligence lawyer, like Main Lawyers. You can tell us what has happened and we’ll determine whether you do have a case.
We will also tell you what kind of evidence and information you’ll need. It’s important to record as much as you can. Write down all the details of what occurred, including names, dates, locations, and what was said and done.
If you have other evidence, like witness statements, medical records, correspondence, photos and more, this will all be helpful.
We can gather other necessary evidence and medical experts that will help you make a successful claim.
Once we have everything we need, we will file the claim paperwork for you, negotiate with the insurer about their offer and take the whole burden off your shoulders.
Claiming for property damage
You can’t claim damage to your vehicle through CTP, as this insurance only covers injury to a third party (a person).
If you want to make a claim for property damage against the other driver, you need to know who they are. If you can’t identify them, you may be unable to claim.
If you’re in this situation, contact our car accident lawyers to find out your options.
When the other driver isn’t at fault
Unfortunately, there are times when a person injured in a car accident can’t claim compensation; for example, when they’re totally at fault or if the accident is no one’s fault.
If you’re in this situation, you may need to find other sources of income to live on and pay for medical treatment while you recover. Perhaps Centrelink or Medicare, or other insurance like income protection if you have it.
Some insurers have additional benefits to cover at-fault drivers in the event of serious injury or death.
Additionally, Queensland has the National Injury Insurance Scheme (NIIS), a no-fault scheme that provides ‘necessary and reasonable lifetime treatment, care and support to those who sustain eligible serious personal injuries in a motor vehicle accident in Queensland’.
You may be eligible for support through the NIIS for injuries like permanent spinal cord injuries, brain injuries, amputation, burns and blindness. Contact us to find out more if you’re in this situation.
Is it time to get professional legal help?
At Main Lawyers, our medical negligence lawyers will work to get you everything you’re entitled to as quickly as possible. Claiming for death due to medical negligence can often be a complex process that requires expert knowledge.