For decades, Australian medical professionals worked according to the principle of ‘first, do no harm’. These days, the Declaration of Geneva has replaced the 2500-year-old Hippocratic Oath, but their commitment remains the same – to consider any potential harm that their intervention might do and take steps to avoid it.
While we’re lucky to have a high quality of medical care in Australia, sometimes health professionals fail in their duty of care and cause physical or mental harm to patients. This is called medical negligence or medical malpractice.
Injury from medical negligence or malpractice can be life changing. Therefore, affected patients can make a claim for compensation – but psychological injury can be much harder to prove than physical injury.
For this reason, it’s usually best to engage an experienced medical negligence lawyer if you need to make a claim.
What is medical negligence?
When a medical professional fails to take reasonable care and causes physical or mental harm to a patient, this is medical negligence.
This professional might work in a hospital, aged care facility, dental clinic or anywhere else where you might get medical treatment. They may be dentists, chiropractors, physiotherapists, doctors, nurses or anaesthesiologists.
The important factor is that the healthcare professional owes you a duty of care – a legal obligation to take reasonable steps not to cause foreseeable harm.
To claim compensation for medical negligence, you must show that:
- that professional did not behave the way that another competent medical professional would in the same situation
- the behaviour caused injury, loss or a worsening of an existing condition.
This harm or loss could be either a physical injury or a psychological injury.
How medical negligence impacts mental health
Physical injuries are usually easy to see, but a psychological injury might not be as visible. An incident of medical negligence – perhaps a breach of trust or a traumatic event – can cause psychological trauma.
This trauma could occur due to:
- physical injury caused or exacerbated by medical negligence – such as mistakes during surgery, misdiagnosis or incorrect medication
- negligent behaviour – such as insufficient anaesthesia, lack of proper consent or inappropriate actions
- witnessing injuries or death suffered by a loved one.
This mental harm could lead to psychological illness, including anxiety, depression, anger, guilt, fear, self-loathing, grief, stress and more.
In some cases, the incident could cause post-traumatic stress disorder (PTSD) to develop. This anxiety disorder can include flashbacks, nightmares, detachment, sleep issues and more. The patient might even lose their trust in medical advice or develop a fear of taking medication.
Every case of psychological injury due to medical negligence is different. Some injuries will heal over time, while others will be life long. A patient might suffer chronic pain, which could lead to depression and loss of quality of life over time.
Claiming for psychological damages
Someone who has suffered mental harm from medical malpractice may need compensation to pay for treatment, rehabilitation and lost income. So it’s important to understand the different types of mental harm you can claim for.
- Consequential mental harm: A psychological injury that arises as a consequence of a physical injury (caused by medical negligence). In this case, you can make a claim for psychological damages in conjunction with a claim for personal injury.
- Pure mental harm: Can be caused by incidents like misdiagnosis, inappropriate behaviour (e.g. sexual advances) or incorrect medication. Alternatively, you might witness harm to someone else due to medical negligence, which could cause you to suffer mental harm.
Compensation for mental harm caused by medical negligence could cover your pain and suffering, ongoing psychiatric treatment, any home care you might need and lost income if you’re unable to work.
Proving mental harm due to medical negligence
The process of proving psychological injury can be more difficult and complex than proving physical injury, as physical harm is easier to see and quantify. This is where it’s worth engaging an experienced legal professional who has helped many people make successful claims.
One complexity is that a medical professional isn’t necessarily negligent just because treatment goes wrong. Similarly, if a routine procedure goes wrong or a patient’s illness worsens, it may not necessarily be considered medical negligence.
Several factors are considered in deciding whether your claim is medical negligence. An important one is whether a reasonable person would’ve been able to foresee that psychological harm would occur if they didn’t take reasonable care.
For the best chance at a successful claim, you need to prove that:
- you have suffered a recognised psychiatric injury
- the medical professional could’ve foreseen it
- they had a duty of care for you
- they breached their duty of care
- the breach directly caused your psychiatric illness.
Basically, you need to show a clear link between your injury and the negligent treatment.
Note: There’s a difference between normal grief or emotional distress and a recognised psychiatric injury (like depression, anxiety and adjustment disorders). An expert psychiatrist would need to assess you and make a diagnosis to show proof of this.
Starting a claim for medical negligence
Before you make a claim, first document everything you know and can recall about what led to your psychological injury. Even if you think a detail is small or irrelevant, write it down as it might be important later. Consider what evidence you already have, including receipts, photos, video, medical reports, etc.
A medical negligence lawyer, like Main Lawyers, can engage expert assessments, gather evidence and assist you through the process of making the claim. We make sure nothing is missed to give you the best possible chance of a successful outcome.
How your claim is assessed
Once you’ve submitted your claim, we continue to support you through the process. Factors such as the nature and severity of your injury, your life expectancy – how long you will have to live with the injury – and the impact on your daily life are all considered.
It can take up to two years to get an outcome in a medical negligence claim due to the many complexities. Figuring out exactly what caused your psychological injury may take time, as experts might have different assessments.
A court might have to make a determination, which can extend the time frame for getting an outcome. Of course, not every case goes to court – many are resolved quickly through mediation. But mediation fails or isn’t possible and the case does go to court, the time frame could be a lot longer.
Medical negligence compensation amounts
Every medical negligence case is different, and so is every person’s experience of psychological injury. So there’s no one-size-fits-all when it comes to compensation payouts.
Ultimately the amount you may be entitled to will depend on the strength of the evidence. That’s why it’s so important to get the best advice to help you gather the right expert evidence.
Be aware that your payout wouldn’t be paid by the medical professional themselves. Their hospital or practice will have medical indemnity insurance to cover themselves for these types of claims. This might pay their legal costs as well as any damages awarded to you. So an insurance company is more likely to pay your damages than an individual.
Getting professional help
As you can see, proving that your psychological injury was a result of medical negligence is key to claiming compensation – but it’s not a simple process and every case is different. Cause and effect can be difficult to prove (i.e. that your psychological symptoms were definitely caused by negligent actions).
There are also strict time frames for submitting claims and specific documentation. Most Australian states have a three-year time frame from either the incident of medical negligence or when the harm was first discovered. You may be able to make claims outside these time frames (i.e. if the injury or harm became obvious later).
You shouldn’t try to do it all yourself – especially if you’re unwell and the effort involved in the claim process would threaten your recovery. You need experts on your side.
How Main Lawyers can help?
At Main Lawyers, our specialist medical negligence lawyers will assess your case and advise you about your entitlements. Then we’ll work on your behalf to get you everything you deserve – so you can just focus on your recovery.
First, we provide a confidential, obligation-free consultation to assess your case and help you understand the process.
If we proceed, we start collecting all the necessary documentation and evidence to support your claim, and then negotiate settlement on your behalf. Of course, we also keep you informed the entire way. And if you need to go to court, we’ll be there.
Our No Win, No Fee basis means you only pay our professional fees once we’ve got a successful outcome. Your legal costs will depend on the amount of work we need to do to resolve your claim. (We’ll give you a clear and transparent document that explains all this to you.)