In Australia, we’re lucky to have a high-quality health system. However, the Royal Commission into Aged Care Quality and Safety showed us that problems do occur in the aged care system.
The aged care sector has a duty of care to prevent harm to our elderly and vulnerable. Unfortunately there are still cases of medical negligence. What are the common negligence claims and what should families look for when considering aged care for a loved one?
What is medical negligence in aged care facilities?
Medical negligence (or medical malpractice) occurs when a healthcare professional or provider fails to provide an expected level of care to a patient. This causes physical or mental harm as a result.
In Queensland, aged care facilities and staff have a duty of care to reduce the risk of harm to their residents. This includes healthcare professionals such as:
- GPs who assess conditions, provide advice and warnings, and provide treatment
- nurses who assess conditions and health, provide advice or treatment and escalate issues to a treating doctor, GP or ambulance.
Aged care facilities must also comply with the Charter of Aged Care Rights, which includes:
- treating wounds promptly
- providing the right dose and type of medication
- ensuring resident eat and drink the right amounts
- ensuring more at-risk residents receives appropriate supervision
- providing enough staff and systems to ensure quality medical care.
They may breach their duty of care if they don’t consider a foreseeable and significant risk, and cause injury to a resident as a result.
Common types of medical negligence in aged care
Medication errors
This includes:
- providing the wrong medication type or dosage
- administering the medication incorrectly
- mixing different medications incorrectly
- providing medication at the wrong time
- not recording medication they provide correctly.
Surgical and aftercare errors
Errors during surgery can cause disability or even death. But aged care facilities often provide care after surgery, which is where medical negligence can occur if systems and processes fail. Issues like infection and sepsis are common.
Failure to adequately treat infections
Even minor infections can become life threatening. Failure to treat an infection is a common type of medical negligence in aged care.
Failure to diagnose and refer residents
Aged care facilities must be vigilant in accurately diagnosing potentially life-threatening illnesses and referring them to medical specialists promptly. Failure to do this can cause unnecessary illness or death.
How the COVID-19 pandemic affected medical care in aged care
The Australian Government’s National statement of expectations on COVID-19 management in aged care settings outlines how the aged care sector should respond to COVID-19.
It advises how to:
- provide safe and quality aged care services
- manage risks and impacts on residents wellbeing
- stay prepared to respond to COVID-19 infections
- conduct early and regular testing
- treat COVID-19 infections
- protect staff as they deliver safe and quality care
- communicate with residents, staff and families about an outbreak.
Facilities also need a workforce management plan for managing a COVID-19 outbreak (when two or more residents test positive to COVID-19 within 72 hours). This includes infection prevention and control measures to protect workers if a worker tests positive.
Many aged care facilities have a robust COVID management plan and have addressed outbreaks efficiently to protect residents and staff. But some have failed in this duty of care, and affected people have made successful medical negligence claims as a result.
When residents and families suspect medical negligence
If you or a loved one has suffered harm due to inappropriate medical treatment in an aged care facility, you may be eligible to claim compensation. This could also include payment for treatment costs, extra care, and pain and suffering.
If your loved one has passed away due to a facility’s neglect, you may be able to sue them for psychological injury (mental harm).
In a medical negligence case, the facility is usually held responsible, rather than an individual staff member.
For a successful claim, you need to prove that:
- the facility breached its duty of care
- that breach caused the injury or death.
The amount of compensation you may be awarded depends on factors such as:
- the severity of the injury
- the resident’s quality of life in the long term, including ongoing medical care, rehabilitation and support required
- any lost wages and reduced earning capacity where relevant
- pain and emotional distress (non-economic damages).
Preparing to make a claim
Before making a medical negligence claim, you should collect information to prove your case.
Record all incidents: Record all signs and incidents of negligence, including poor care, unexplained injuries, medication errors, poor hygiene, and elder abuse.
Keep records: File all correspondence, emails or other communication with the facility about negligence. Also take photos or videos of any injuries, poor conditions and other evidence to support your claim.
Obtain medical records and experts: Ask the facility for the resident’s medical records to help see the type of care being provided and any deviation from the standards. You may need medical experts to review the records and give a professional opinion on the level of care and whether negligence occurred. (Your lawyer can do this task for you.)
Collect witness statements: Ask other residents, their families and staff who may have seen or know of negligence occurring. Record their statements and contact details.
Meet with a lawyer: You should find a medical negligence lawyer who specialises in medical negligence cases involving aged care facilities, such as our team at Main Lawyers. We will consider your case and advise you throughout the legal journey.
How we can help
If you or a loved one has suffered harmed due to medical negligence by an aged care facility, you may be able to claim compensation. While this process isn’t always easy, doing so could prevent other residents from future harm.
At Main Lawyers, we offer a no-win, no-fee arrangement, so you won’t pay legal fees until settlement. And we can take on the burden of finding experts and collecting documentation for you. We’ll be with you all the way through the process.
Contact us today to find out how we can help.