Can I make a Medical Negligence claim against a Doctor or Hospital?
A medical mistake does not necessarily mean that a Doctor or Hospital are negligent. The patient will need to prove, among other things, that the health professional’s conduct fell below a reasonable standard of care appropriate to the particular circumstances.
Sometimes a patient may not have been warned of the risks associated with a particular surgery, treatment or procedure. That is, a patient must provide informed consent to any risks associated with a particular surgery, treatment or procedure. In some cases, a patient has not provided informed consent as they were not warned of the risks associated with a particular surgery, treatment or procedure.
A Doctor or Hospital will regularly use the Defence that the surgery, treatment or procedure was completed in a matter that is widely accepted in Australia (at the time the service is performed) as a competent professional practice. If this Defence is correct, then it is unlikely a Doctor or Hospital will be found negligent.
Patient’s are not medical practitioners. Often, a patient has little or no idea that a Doctor or Hospital has been negligent. Other times a person has done some basic research on Google and believes an error was made. Ultimately, a patient cannot know and only a Doctor (of the same or similar specialty to the treating Doctor) has the training or knowledge to know whether the conduct of the Doctor or Hospital constituted medical negligence.
How do I know if a Doctor or Hospital has been negligent?
Very rarely will a Doctor or Hospital admit to making a mistake or being negligent.
Sometimes, a patient will have suspicions of medical negligence as the outcome from surgery, treatment or procedure might be very different from that which the Doctor or Hospital had informed the patient. This is sometimes confirmed through research on the internet.
The most common method a patient discovers if a Doctor or Hospital may be negligent is from a second medical opinion (usually with an alternative Doctor or Hospital of the same or similar specialty). Some Doctors and/or Hospitals can be very forthright when they see medical negligence and advise patients. Others are more conservative.
Our advice to patients who suspect a Doctor has been negligent is usually to seek a second opinion from the same (or a similar) specialty.
How long do I have to proceed with a medical negligence action?
In Queensland, there are requirements to give an initial notice to a Doctor or Hospital within one (1) month of consulting a Lawyer or nine (9) months of the negligent act. Saying that, if you are outside of one (1) month of consulting a Lawyer or nine (9) months of the negligent act, you must provide a reasonable excuse for any delay to the Doctor or Hospital.
You will have three (3) years from the date that the negligent act occurred to commence Court proceedings. Saying that it is important to seek legal advice and commence proceedings as soon as possible to ensure any evidence that may exist is secured.
If the negligent act by the Doctor or Hospital occurred more than three (3) years earlier, it does not automatically mean you cannot pursue an action. There are several limited exceptions whereby you may be allowed to commence Court Proceedings outside of three (3) years. To check if you might have one of these special exceptions, please contact us to discuss.
What are the most common types of medical negligence?
In our practice, we most commonly see people who may have medical negligence actions from:
- Surgical errors;
- A lack of informed consent given by patients before surgery. That is, a patient was not warned of risk or outcome before surgery that, if they were warned, a patient may not have proceeded with the surgery. That risk or outcome then eventuates.
- Misdiagnosis. That is, a failure to diagnose or test for a particular condition.
Should I make a complaint about the Doctor or Hospital?
Yes, if you believe the Doctor or Hospital has acted below the standard expected of a reasonably competent medical practitioner you should complain. Initially, this might be to the medical practice, specialist or Hospital. If the response given is unsatisfactory, then you should make a complaint to the Health Care Ombudsman in your state.
Simply because the Health Care Ombudsman does not take any action against the Doctor or Hospital does not mean there is no medical negligence. It simply means the Health Care Ombudsman does not, based on the information before them, believe that any disciplinary action is needed. Often, the Health Care Ombudsman does not have any medical evidence save for the Doctor or Hospital’s evidence or version of events.
Who can I make a complaint about?
You can lodge a complaint with the Health Care Ombudsman about any health practitioner whether they are registered or not. This typically includes Specialists and Doctors. It can also include Nurses, Dentists, physiotherapists, massage therapists and/or optometrists. Complaints can also be made about Public or Private Hospital’s or health care facilities, ambulance services, pharmacies and the like. If you are in doubt, please contact the Health Care Ombudsman to discuss.
What is the process for pursuing a medical negligence claim and how do I proceed?
To pursue a medical negligence claim, you will require expert evidence that supports medical negligence. We have an extensive list of medical experts who are prepared to write reports about whether, or not, there has been medical negligence and will advise you whom we recommend after gathering your details and information.
If it appears there has been medical negligence in your matter and a medical expert supports this, it will usually take between 9 – 18 months to resolve your matter. If the matter proceeds to Court and/or a trial, a matter could take about 18 months to two years before a Judgment by a Judge.
If you have evidence of medical negligence, or simply wish to discuss whether a Doctor or Hospital might have been negligent, please contact us to discuss. Any initial discussions and/or consultation are confidential and free.