Do I have a medical negligence claim?
We asked Thuto Disele, one of the legal experts in our medical negligence team, to explain medical negligence claims. Here is what she had to say.
Unfortunately, when seeking health-related treatment and advice, patients can suffer injury, losses or damage. Of course, this is sometimes unavoidable, due to the complexity of the human body and medicine. On other occasions, it occurs because the health service provider has done something negligent, or failed to do something a reasonable provider ought to have done.
Your health is important, and when you or your loved one has suffered such an injury, identifying whether the injury has been arisen through mere bad luck or through negligence may assist you in protecting your individual rights or the rights of your loved ones.
What is medical negligence?
It’s when the actions of a health service provider result in a patient suffering actual physical and or psychiatric harm. This can take the form of a new loss in the form of a fresh, new injury or health condition, or the aggravation or worsening of a pre-existing one.
For the patient to be entitled to compensation for the injury, three main elements need to be proved by the patient:
- The health service provider owed the patient a duty of care;
- There was a breach of that duty by the health service provider; and
- The injury was caused by, and is not too remote from, the breach.
When all three elements are accounted for, liability is established and the patient can seek compensation for their injuries and losses.
When acting for a person making a claim in medical negligence, the MEJ team works closely with medical experts, to build up the evidence to demonstrate liability and claim value.
It is not enough to show that a treatment provider’s advice or service fell short of perfection or an ideal standard, rather it has to be demonstrated that the treatment or advice was not reasonable in the circumstances.
In some cases, a person close to the patient, such as a spouse or parent, suffers psychological injury through witnessing the negligent treatment of their loved one. This is called “nervous shock” and may also give rise to a right to compensation.
What do you do if you suspect that you or a loved one has been injured through medical negligence?
The first thing to do is to consider what sort of resolution you are after, whether that is monetary compensation, an acknowledgment or disciplinary action.
Monetary compensation:
To explore the option of seeking compensation, you will need legal advice from a solicitor who specialises in personal injury claims like MEJ. Specifically, you need advice from someone who has a lot of experience developing medical negligence claims, which can be legally complex. MEJ has a team specialising in this area of practice.
MEJ operates on a “no win no fee” basis for our legal professional fees, and provides complimentary consultations with members of the community who need fast preliminary advice, usually booking you in within 48 hours. MEJ can help you understand whether you have a right to compensation, just contact us to speak with one of our team.
Most claimants have only three years from the date of injury to pursue a legal claim, so it is important to explore your options as soon as possible. There are also earlier notification requirements, and the timeframes can differ depending on the particular circumstances of the claimant and the events they are complaining about, so it is important to get early expert legal advice specific to the case. As part of your consultation, MEJ offers preliminary guidance about the likely timeframes that apply for you.
Other avenues for raising concerns
You may also wish to consider raising a concern against your health services providers via:
- Australian Health Practitioner Regulation Agency (APHRA); and the
- ACT Human Rights Commission (Health Services Commissioner) or comparable entities in other jurisdictions.
These actions can be taken alongside a compensation claim, though it is always best to speak to a legal expert to work through whether it is appropriate for you.
