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What's NOT medical negligence? Negligent treatment but no injury? |
This section is about possible medical negligence claims against a range of health care providers including public and private hospitals, general practitioners, specialists such as surgeons or gynaecologists, nurses, physiotherapists, chiropractors, naturopaths and pharmacists. It also informs you of complaints procedures other than taking legal action.
All doctors owe patients a duty to exercise reasonable skill and care.
Where a doctor or hospital fails to provide advice or treatment which meets the required standard of reasonable skill and care, their actions may be negligent (careless). To make a claim, you must show that you suffered an injury or a worsening of a pre-existing condition because of this negligent treatment.
To obtain compensation for pain and suffering, you must also show that the injury is permanent and of a certain degree of severity.
You can make a medical negligence claim where there has been:
a) a failure to diagnose or treat promptly
b) negligent treatment including failure to follow-up after treatment, or
c) a failure to advise you of risks of procedures or treatment.
There must be negligence in order to run a claim against a doctor or hospital. If treatment has known risks and you choose to continue with that treatment, just because this risk becomes a reality does not mean that you can necessarily make a claim. This is because the doctor has exercised his or her duty with reasonable skill and care. Medical negligence is when you can prove a lack of reasonable skill and care on the part of the doctor.
Generally, if you have been treated negligently but no injury was caused to you, then you are not entitled to compensation. However, there are other complaints procedures you can pursue. See Alternatives to Litigation - Complaints Procedures.
To make a claim for a delay in diagnosis of a condition, you must show that the delay made your condition substantially worse and therefore caused you damage. Often it depends on the type of cancer.
A doctor sends a patient for chest x-rays and mistakenly advises the patient that the x-ray is clear. In fact the x-ray identifies a tumour which indicates advanced lung cancer. Six weeks later the doctor realises that the wrong x-rays were reviewed. The doctor then makes the correct diagnosis. The effect of the delay in the correct diagnosis in this case probably makes no difference to the patient's outcome, as the course of the cancer would have been the same whether or not it had been found six weeks earlier.
A patient consults her local doctor, concerned about a small raised mole on her shoulder that she thinks may have recently grown. The doctor examines the mole briefly and reassures the patient that, while it could be cut out, it was most probably harmless and not to worry. The patient is not completely satisfied with this advice, and visits another doctor two months later. This time the doctor recommends having the mole removed, and pathology reveals that it is a melanoma. Because early diagnosis of melanoma greatly increases the chance of successful long-term treatment, the delay in diagnosis has caused an injury.
Complaints about treatment or follow-up cover a wide range of problems. For example, a surgeon might leave a drainage tube in the patient's abdomen which leads to infection and other complications. Damage might be caused to body organs during keyhole surgery. Sometimes the main complaint is that the doctor failed to promptly diagnose the complication.
Your doctor must advise you of all 'material' risks associated with treatment or a procedure. The test of whether a risk is material is carried out by the court. The court asks whether a reasonable person in your circumstances would attach significance to the risk. If the court finds that a reasonable person would attach significance to it, then the risk is material and your doctor must advise you of it.
A man undergoes plastic surgery to improve the appearance of his nose. He has not been warned that there is a risk that the cartilage (tissue) in his nose might collapse. After the operation, the cartilage collapses. Provided that he can prove that he was not warned about this problem, the man should be able to make a claim for failure to advise about a risk of the procedure. He must also show that he would not have undergone the procedure or treatment if he had understood the risks.
A woman undergoes a biopsy to investigate and remove cancerous and pre-cancerous cells of the cervix (part of the womb). The surgery is performed under a general anaesthetic, which means the woman is unconscious throughout. There is a 1 in 1,000 chance of someone having a complication due to the anaesthetic, and she was not warned of this chance before the operation. Unfortunately, the woman suffers a stroke due to the anaesthetic. It may be difficult, however, to convince the court that she would not have undergone the cancer surgery even if she had been warned of the 1 in 1,000 risk of an anaesthetic complication.
It is necessary to consult lawyers for an expert preliminary (early) assessment of a potential claim. The lawyers may then begin an investigation by:
Medical negligence claims are usually heard in the County Court which has a specialist Medical Division. This division deals only with claims against doctors and hospitals. Where the injury is catastrophic and the amount of compensation is likely to be large, such as negligence causing someone to become a paraplegic, the case will be started in the Supreme Court.
Once the doctor has filed his or her defence to the claim, the case is given a timetable by the court, including a date for compulsory mediation (a formal conference) and a trial date. The mediation takes place after the person making the claim and the doctor have done the following:
At the mediation, the strengths and weaknesses of each party's case is tested. The mediator is an independent person, who encourages the parties to be realistic about their prospects of success at a hearing. Most claims are settled at this time or soon after. A small number of claims are not resolved at mediation and continue to a hearing.
You may find this process quite stressful. If you have a medical negligence claim, you should always take good care of your health and allow the lawyers to deal with the legal matters with your clear instructions.
To find a lawyer who specialises in this area, you can call the Law Institute of Victoria Referral Service on (03) 9607 9311.
There are limits for bringing a claim.
Adults have 3 years and children have 6 years to start legal proceedings.
These time periods are taken to begin from the date the injury or possible negligence is 'discoverable'. The concept of when an injury or negligence is discoverable is a difficult one. Therefore, if you are concerned about the medical treatment you have received, you should immediately obtain legal advice.
The settlement sum or judgment award for medical negligence is usually made up of compensation for:
A man has signs and symptoms of a clotting problem with his blood. The doctor and specialist who treat him do not diagnose his condition, and so fail to put him on the medication needed to limit the risk of having a stroke. He has a stroke and is physically and mentally incapacitated. His wife leaves her work to care for him. When the man's claim is settled, part of his settlement will be compensation for the eight hours of care each day that his wife has provided to him in the past and will continue to provide until his expected date of death.
A woman's bile duct is damaged during an operation to remove gallstones. As a result, she must undergo regular stretching of the duct to prevent further blockage. It is painful, and requires her to be admitted to hospital for one to three nights on an annual basis. Her compensation should include something to compensate her for this continuing pain and suffering and the future costs associated with it.
Often concerns about health care are a result of poor communication between the doctor and the patient. If you have concerns you should speak with your doctor or, if available, hospital staff counselling or advocacy services. You should continue to ask questions until you have enough information to understand the treatment and/or how it may impact on you.
The Health Services Commissioner tries to resolve complaints and claims made by individuals against health providers. Health care providers are doctors, hospitals, dentists, nurses, physiotherapists, pharmacists, chiropractors and others. Usually the Health Services Commissioner investigates claims within one year from the date of the complained-about treatment.
The procedure is:
Most professions in health care have organisations, such as the Medical Board or the Nurses Board, which regulate practitioners and hear complaints against individual practitioners.
Hospitals usually have an officer who deals with complaints, including claims for compensation. These officers can be particularly helpful in sorting out communication problems between health care providers and patients and their families.
In the case of negligent treatment causing death, the matter may be referred to the Coroner's Court for investigation.
There is legislation in Victoria which gives patients rights to access their medical records.
If you were treated as a public patient, you can request a copy of your medical records under the Freedom of Information Act 1982. The Freedom of Information Act sets out time limits for providing copies of medical records, fees for providing medical records and general rights to seek an amendment to the records. There is usually an application fee, and then a small fee per page for photocopying. Most large public hospitals will have a Freedom of Information Officer to help with inquiries.
If you were treated as a private patient, you are also entitled to access your health information under the new Health Records Act 2001. This Act gives private patients a right to obtain a summary of the records and, in some cases, a right to obtain a copy of them. The Act states that a response to a request for access should be provided within 45 days. Regulations made under the Act set out the fees which can be charged for providing access and photocopying.
The information contained in this chapter is necessarily brief, and may not be relevant to every claim. Medical negligence is a complex area of law for which specialist advice is essential.
Updated June 2004
