A medical negligence claim is a claim against a medical practitioner, hospital or other allied health care professional in which it is alleged that the medical professional or facility has failed to provide reasonably competent medical treatment or advice. If you have been injured as a result of inadequate or sub-standard treatment or advice, then Marsdens are the medical negligence experts.

What can I claim for?

There are various “heads of damage” for which a claim can be made if you have suffered injury as a result of medical negligence. These damages include pain and suffering, which is determined by comparing your injury to that of a most extreme case of injury. 

You may also be entitled to make a claim for past and future treatment expenses, past and future wage loss including superannuation benefits, past and future personal care and domestic assistance costs, as well as other losses including, for example, the cost of home modifications, assistance with holidays, increased computer needs, modification of motor vehicles and respite care, just to name a few.

What Legislation Applies?

The Civil Liability Act contains provisions which apply to medical negligence claims. Those provisions affect both whether there has been a breach of the duty to take reasonable care, whether the breach has caused the injury complained of and the calculation of the amount of compensation recoverable. 

What do I need to prove?

Analogous to other areas of negligence law, you will need to prove that the medical practitioner, hospital or other health professional owed you a duty of care. In most circumstances, this can be implied on the basis that the doctor/patient or hospital/patient relationship is one which has been recognised as a relationship which requires the hospital and/or doctor to take reasonable care.

Often the most difficult requirement is proving that the duty to take reasonable care has been breached. This will require evidence, usually from expert medical practitioners, to the effect that the treatment provided to the patient fell short of the care and skill required by a reasonably competent medical practitioner.

The final requirement of a successful medical negligence claim is that the patient has suffered injury caused by the failure to take reasonable care. Again, this ordinarily requires expert medical evidence. For example, in cancer cases, where a failure to diagnose or a delay in diagnosis of cancer is alleged, it is necessary to prove that the failure or delay has caused a significant change to the treatment or the prognosis of the patient. In some circumstances, evidence can prove that the delay in diagnosis has led to an otherwise operable or treatable condition no longer being operable or treatable. 

Will I need my medical records?

It is very likely that you will require a copy of your medical records, not only from the medical practitioner or hospital against whom the claim is being investigated, but also from other practitioners or hospitals that have provided medical treatment to you. Marsdens routinely obtain these records when investigating claims. 

Am I entitled to my medical records?

Public hospitals operate under a policy which allows access to hospital records on completion of a request for provision of those medical records and payment of a fee. Some records may not be released if the hospital considers that they contain sensitive material which may harm you. In those circumstances, the documents may be released to a third party such as a medical practitioner. Both the Privacy Act and the Government Information (Public Access)Act entitle you to copies of documentation in certain circumstances. Again, a form will need to be completed and in most cases, a fee paid for access to medical records.

Will I need to attend medical appointments?

It is likely that you will need to attend medical appointments organised by us and by the insurer of the medical practitioner or hospital. These appointments are necessary in order to determine the injuries and disabilities you have suffered and provide evidence of the likelihood that you will incur future losses including wage loss, treatment expenses and the requirement for personal care and domestic assistance.

Is there a claim if someone dies due to medical negligence?

In the unfortunate situation of the death of a family member arising from medical negligence, there are two claims for damages which may survive for the benefit of the family. The first is known as a compensation to relatives claim. Such a claim compensates dependents for the loss of financial benefit. This type of claim requires proof of a total or partial dependency on the deceased or at least the expectation of such a benefit in the future. The claim is usually quantified by assessing a percentage of the deceased’s income (either from employment or other benefits, including Centrelink) which would have been spent on the dependants (including a spouse and/or children). Additionally, if the deceased person provided other benefits such as the care of children, then a claim can be pursued for the loss of those services. 

The second type of claim which can arise on the death of a family member is a claim for psychological injury. This requires proof that as a result of the death, you have suffered a psychiatric condition. It will be necessary to obtain medical evidence confirming that you have suffered from a psychiatric condition due to the death.

Do I have a Case?

Often patients are told by nurses at hospitals or indeed, their general practitioners that they are concerned regarding the treatment provided to them by a hospital, specialist or other health care professional. Alternatively, you may just be very suspicious that something has gone wrong with your treatment and this is now causing you pain and suffering, including in some cases, financial loss. If you have the slightest concern, then we invite you to contact us to discuss your options. 

The need for detailed investigation

The process of determining whether you have a viable medical negligence case requires a detailed investigation process. This commences with obtaining clinical notes and detailed statements from you and any other important witnesses. The next step requires obtaining expert medical evidence both in relation to the liability of the doctor and/or hospital, and the nature of your injuries. Once those reports have been obtained, we will review all of the material and provide you with advice regarding the prospects of success of your claim and its likely value.

What will it cost?

At Marsdens we conduct these cases on a no win/no pay basis in relation to payment of our professional costs. This means that you do not pay our legal fees for the time spent preparing your case until the conclusion of the matter and then only if your claim is successful. 

In relation to expenses, this will primarily relate to the cost of obtaining clinical notes and expert reports. Marsdens have a database of experienced medical and other experts available to provide reports of high quality. We will discuss with you the likely cost of reports and if necessary make arrangements for payment if you are experiencing financial difficulty. 

Are there time limits?

Time limits do apply in medical negligence cases.  Although there is no requirement to provide notice of your claim to the medical practitioner or hospital, there is a requirement to ensure that proceedings are commenced in a Court within 3 years of the date that your cause of action was discoverable. That date may be the date of an operation which has gone wrong or the date on which there was a failure to diagnose a condition. In other cases, the date may be some time after an operation when you became aware of the nature and extent of your injury. 

If proceedings are not commenced within the 3 year limitation period, then you will not be entitled to commence or maintain proceedings. If you are concerned that your claim may fall outside of the 3 year limitation period, then we strongly recommend that you obtain legal advice without delay.

Do I need a solicitor and if so, when?

Whilst you may be able to obtain some of the initial medical records directly from the medical practitioner or hospital, our experience is that even that step can prove difficult. Our advice is that you should seek the assistance of a Marsdens solicitor at an early stage to ensure that important documents are not destroyed and all information which may be able to assist your claim is collected in a timely fashion.

What can I do to help my solicitor with my claim?

One of the most important things you can do is to prepare a detailed statement of the circumstances of your injury. It is also helpful if you keep a diary including dates of appointments with doctors, any specific discussions with those doctors in relation to your injuries and how they were caused. Keep all your receipts for medical treatment. If you have original radiology films or other documents such as discharge letters from hospitals, referrals to doctors etc., keep those documents in a safe place and provide them to us in due course. 

How can Marsdens help?

Marsdens has an experienced team of solicitors, including NSW Law Society Accredited Specialists in Personal Injury Law. Marsdens will listen actively to your story, provide initial advice regarding the steps required to investigate your medical negligence claim, attend to all aspects of preparation in the investigation process to ensure that nothing is left to chance and obtain medical evidence to support your case.