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If you believe you have received negligent medical treatment, you need expert advice on whether you can bring a claim. Our team of experienced lawyers have for many years been helping people with difficult, but deserving claims. Recent cases we have been involved in include settlements for children suffering cerebral palsy as a consequence of negligent treatment at the time of delivery at hospital; people suffering from delayed diagnosis of cancer and others who have been victims of mistakes during surgery.
We pride ourselves on being able to provide clear and practical legal advice. In most cases, you are not charged for our time unless and until you succeed in your claim. A first appointment is free and you are not obliged to instruct us after that.
In order to succeed in a medical negligence case there are several set criteria that you would need to prove. These criteria are:
- that the person treating you owed a duty of care
- that they failed to provide care of a reasonable standard
- that this failure caused you to sustain an injury or loss that is a significant injury.
The Law
Duty of Care
The doctor/patient relationship is well established as one where a duty of care is owed. Other than doctors, there are a number of heath care professionals and providers who owe patients a duty of care. These include:
- hospitals
- nurses
- physiotherapists
- chiropractors
- dentists
Negligence
In order to prove negligence, a patient needs to show that the care provided to him/her was below the standard that would reasonably be expected by a medical practitioner. It is important to remember that just because a patient is not happy with the result of his/her treatment or he/she was not warned about every possible risk related to his/her treatment it doesn’t automatically mean the patient will succeed in a medical negligence claim.
The law places great weight on what is considered reasonable by the medical profession. Recent changes to legislation provide that a doctor will be able to defend a case if the doctor can establish that a significant number of respected doctors would have practised medicine in a similar way, with a similar level of care.
Causation
The patient must also prove that he/she suffered an injury that was caused by the alleged negligent treatment.
Causation does not require that the negligence is the only cause of injury but a patient does need to show that the medical practitioner materially contributed to his/her injury.
While this may sound like a simple task, it is often the most difficult part of the case. For example, in cases where there is late diagnosis of cancer due to the negligent treatment of the medical practitioner, it can be difficult to unravel which role the delay in diagnosis had on the patient’s original condition and what effect it has had on the patient’s prognosis.
Types of Claims
As the treatment of medicine is extremely complex and varied, so too are the circumstances in which medical negligence is alleged. Some common examples include:
- inadequate surgical treatment
- misdiagnosis
- delay in diagnosis
- failure to refer to appropriate specialists
- obstetrics including prenatal and post natal care
- dentistry and orthodontics
- failure to warn or informed consent – where a patient needs to prove that if he/she had been told of the risk of injury that ultimately eventuated, he/she would not have consented or agreed to have the medical treatment
- wrongful birth – where a patient has lost the opportunity to have an abortion as a result of negligent treatment, or a patient has a baby and incurs costs associated with raising that child
- lost chance – where a patient has lost the opportunity to avoid a particular medical condition/injury
Assessment of Claims
The law in Victoria requires a patient to suffer a significant injury before he/she will be able to claim for pain and suffering damages. A significant injury is defined as:
- for a physical injury arising out of medical negligence, a patient needs to show that he/she is more than 5% whole person impaired. Such an assessment is made in accordance with American Medical Association ‘Guides to the Evaluation of Permanent Impairment’, 4th Edition that determines, medically, the patient’s level of impairment.
- for a psychiatric injury arising out of medical negligence, a patient needs to show that he/she is more than 10% impaired
- loss of a breast
- loss of a foetus
Limitation Period
An adult patient has 3 years in which to bring a claim for medical negligence. If the patient is a child and has capable parents there is a 6 year limitation period. The limitation period starts from the date that he/she becomes aware of the negligence that caused his/her injury. This is known as the date of discoverability.
As it is often difficult to be precise as to what a patient’s date of discoverability will be, it is therefore important that the patient speaks to a lawyer as soon as the patient believes he/she may have a case.
For all claims there is a maximum period of 12 years from the date of the alleged act or omission in which to bring a claim.
The Process and our Service
Advice Line Lawyers has lawyers with many years experience in handling complex medical negligence claims. These lawyers will ensure that a patient’s claim is investigated thoroughly in order to give considered and realistic advice as to the chances of success. The following is an indication of the process that a patient will go through, in conjunction with a lawyer, to prepare a medical negligence claim.
- the patient would have a preliminary interview with a lawyer who would obtain the patient’s personal and medical history, the information as to the alleged medical negligence, and the names and contact details of the patient’s medical practitioners.
- if we recommend a patient proceed with investigating a claim, he/she would then sign medical authority documents allowing access to his/her medical records.
- once the medical records are received, the patient’s lawyer would go through them with him/her and in most cases would then recommend that an independent expert medical report be obtained from someone who practices in the same field as the doctor complained of. The patient’s lawyer would prepare specific questions that need to be answered to determine the merits of his/her claim. This opinion is provided based on the patient’s medical records and would not usually involve a medical examination unless it was considered necessary.
- the patient will then be assessed as to whether the injury he/she sustained amounts to a significant injury. This will require a medical examination to gauge his/her level of impairment according to the thresholds mentioned above. If there is any dispute as to the level of the assessment, the case could be referred to a Medical Panel for determination. (For further information on what is meant by significant injury, see p. 42.)
- once the independent medical expert report has been received and the assessment of impairment is determined, the patient will have a further discussion with his/her lawyer and will decide whether to issue proceedings based on the investigations that have been conducted.
If you want to be represented by an expert Melbourne lawyer, experienced in medical negligence claims, please contact us on:
t: (03) 9321 9988
e:
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