Claiming Medical Negligence For Lack Of Warning For Medication Side Effects

Each year in Australia, 250,000 people are hospitalised due to issues relating to medication. In its Medicine Safety report, the Pharmaceutical Society of Australia estimates that this costs the country around $1.4 billion dollars year.

Medication errors can cause serious harm, ongoing suffering and even death. Yet at least half of these errors are preventable.

If you have suffered physical or psychological harm from medical negligence, you may be eligible to claim compensation for medical negligence for medication side effects. In this article, we’ll specifically look at lack of warning about medication side effects.

Medical negligence and duty of care

Every medical professional has a duty of care towards their patients. They must meet a higher standard of care than other professionals because of their ‘expertise, knowledge, and skills, and because of the special vulnerability of patients.

This duty of care covers a range of areas, including treating and providing information to patients. When a health professional fails to tell a patient about potential side effects or provides the wrong type or dose of medication, they may be in breach of their duty of care – and guilty of medical negligence (also known as medical malpractice).

For that reason, if you’ve suffered negative effects due to a medication error or lack of warning about side effects, you might be eligible to make a claim for compensation.

However, these cases are difficult to prove and can be complex and time-consuming. So you should talk to an experienced legal professional about your options before making a claim.

As every person is different, the effect of a medication can also be different for every person. Some side effects:

• occur strongly in some people but not at all in others
• occur in every person who takes them to some degree
• have a higher risk of occurring at larger doses (and not occur at all at lower doses)
• depend on a person’s age, gender, ethnicity, level of health, and other individual characteristics and background
• occur only when a person mixes the medication with other medications
• get worse when they’re combined with other substances, like alcohol.

For this reason, you must always tell your medical professional about any medications you’re already taking, so they can figure out how the medications will work together and any potential side effects.

If you don’t give them this vital information and then you suffer serious side effects, you may not be able to claim medical negligence.

What if my doctor doesn’t disclose the side effects?

As each medication has different risks and side effects, doctors and, often, pharmacists must make sure you have all the information you need before you take the medication. For example:

• an anaesthetist must tell you about the risk of being given general anaesthesia before surgery
• a GP must tell you the possible side effects of taking medication based on your specific condition and characteristics (such as age, gender, etc.).
• a pharmacist must provide available warning information with the medication, such as a sheet listing all possible side effects.

Without this information, you can’t give ‘informed consent’ to the treatment being offered to you.

Your doctor, surgeon, dentist and other professional must disclose the full risk of the treatment so you can agree to take on that risk. That’s the basis of informed consent and it’s key in a medical negligence claim.

If they don’t make you reasonably aware of all the risks involved and possible side effects, you’re unable to give that consent. This is also the case if a patient isn’t competent to give consent, or they’re coerced or given misleading information by the medical professional.

However, there are situations where a medical professional may not have to or be able to disclose medication side effects to a patient. For example, in an emergency, they may not have time to disclose all the risks and need to act quickly to save the patient’s life. Or the patient may be unconscious and need the medication immediately.

Each situation is different, so it’s essential to discuss your situation with a lawyer with years of experience in medical negligence cases, like our expert team at Main Lawyers.

Claiming medical negligence for illness caused by side effects

The physical and psychological impact of medication side effects can be life-changing in some cases. If you have suffered due to a medication mistake by a healthcare professional, you may be able to claim compensation.

To prove medical negligence, you need to show that:

• you were owed a duty of care by that health professional
• the professional failed in their duty of care to you
• you suffered a loss, injury or illness directly because of that failure.

In some cases, you may be partly responsible for the injury, illness or loss – perhaps by taking the medication incorrectly or not informing your doctor about a condition that could affect how the medication works.

But don’t assume you don’t have a case at all! Instead, chat with our team who will look at the whole scenario and decide if you have a case.