Medical negligence

Tuesday 30 September, 2008

Developed with lawyers from Maurice Blackburn Cashman

On this page: What is medical negligence? ι What's NOT medical negligence? ι Negligent treatment but no injury? ι Types of medical negligence ι Negligent treatment or faulty follow-up ι Failure to advise you of risks ι Claiming medical negligence ι Time limits ι Compensation ι Alternatives to litigation ι Access to medical records

Claims can be made against health care providers such as public and private hospitals, general practitioners, specialists such as surgeons or gynaecologists, nurses, physiotherapists, chiropractors, naturopaths and pharmacists, if they have been negligent. There are also other types of complaints procedures.

What is medical negligence?

Where a doctor or hospital fails to provide advice or treatment with 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, 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 failure to diagnose or treat promptly
  • negligent treatment including failure to follow up after treatment
  • a failure to advise you of risks of procedures or treatment.

What's NOT medical negligence?

There must be negligence in order to claim against a doctor or hospital. Many treatments have risks and people often choose to have a treatment despite the risk.

You cannot make a claim just because a known risk becomes a reality. Medical negligence is when you can prove a lack of
reasonable skill and care on the part of the doctor.

Negligent treatment but no injury?

You have to prove that the negligence caused you to suffer injury or harm, or contributed to this. Generally, if you have been treated negligently but no injury or harm was caused to you, then you are not entitled to compensation. However, there are other complaints procedures you can pursue. See the Alternatives to Litigation section.

Types of medical negligence  

Delay in diagnosis

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 would depend on the type of cancer you have. 

Example A

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 6 weeks earlier.

Example B

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 is most probably harmless and not to worry.

The patient is not completely satisfied with this advice, and visits another doctor 6 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.

Negligent treatment or faulty follow-up

Complaints about treatment or follow-up cover a 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.

Failure to advise you of risks

Your doctor must advise you of all ‘material' risks associated with treatment or a procedure. This means whether a reasonable person in your situation would attach significance to the risk (i.e. whether a reasonable person would think the risk was significant enough that they would consider not going through with the treatment or procedure).

If a reasonable person would attach significance to it, then the risk is material and your doctor must advise you of it. 

Example A

A woman has a biopsy to remove cancerous and pre-cancerous cells of the cervix (part of the womb). She has a general anaesthetic, which means she is unconscious for the operation.

There is a 1 in 1,000 chance of someone having a complication due to the anaesthetic, and she is not warned of this chance before the operation. Unfortunately, the woman suffers a stroke due to the anaesthetic.

It may be difficult to make a legal case that she would not have had the surgery even if she had been warned of the 1 in 1,000 risk. 

Claiming medical negligence

Lawyers begin by:

  • requesting hospital records or medical reports
  • researching the medical issues
  • getting the opinion of an independent medical expert in the relevant field about whether the treatment was below an acceptable standard of care.
  • Once supporting medical evidence has been gathered, a letter of demand may be written or court proceedings issued.

Time limits

There are time limits for bringing a claim. Adults have 3 years and children have 6 years to start legal proceedings. These time periods begin from the date the injury or possible negligence was ‘discoverable'. This can be tricky to work out. If you are concerned about medical treatment you have received, obtain legal advice promptly.

Compensation

The amount awarded for medical negligence is usually made up of compensation for:

  • pain and suffering and loss of enjoyment of life if you can show that your injury is permanent and of a certain degree of severity
  • out-of-pocket expenses for health care, medication and other aids,
  • for past expenses and expected future expenses
  • loss of income, past and future
  • the cost of care provided to you either by paid assistance or by family members or friends in some circumstances.
      

Alternatives to litigation: complaints procedures

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 care 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 commissioner passes on your formal complaint to the health care provider and seeks a written response. If this does not resolve the complaint, the commissioner will investigate.

Following the health care provider's response to the complaint or the investigation, the parties may attend a conciliation with
staff from the Health Services Commissioner. Conciliations are confidential. They may result in further discussion, explanations
or in a compensation payment to the patient.

Organisations such as the Medical Practitioners' Board of Victoria or the Nurses Board of Victoria regulate health care providers and hear complaints against individual providers.

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.

Contact the Health Services Commissioner on 8601 5200 or toll free on 1800 136 066.

Access to medical records

Legislation in Victoria 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 (Cwlth).

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 enquiries.

If you were treated as a private patient, you can access your health information under the Health Records Act 2001 (Vic). 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 to records must be provided within 45 days.

Fees can be charged for providing access to and photocopying your records.

For further information, visit the Health Services Commissioner or call 8601 5200 or toll free on 1800 136 066.

This information is brief, and may not be relevant to every claim. Medical negligence is a complex area of law for which specialist advice is essential. If you think you have a claim, you should speak to a lawyer.

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