What To Do If You Think You’re A Victim Of Medical Negligence

Whilst the standard of our healthcare is one of the best in the world, there’s no denying that there are cracks in the system.

Australia has lost more than 400 bulk-billing GP clinics in the last year, while data from the ABC found that people are waiting years for specialist appointments to see neurosurgeons, ear, nose and throat surgeons, and immunologists due to demand. 

When healthcare systems are under strain, medical negligence may occur. This is when a healthcare professional doesn’t take reasonable care to avoid harming a patient.

Isabelle McCombe, a Senior Associate at law firm Slater and Gordon, notes that medical negligence can occur due to a lack of skill and care, or due to systematic errors in a healthcare setting. 

“In Australia, every healthcare provider owes a duty of care to their patients. Every patient is entitled to expect a reasonable standard of care.” 

According to McCombe, examples of medical negligence may include: a misdiagnosis (or delay in diagnosis), surgical errors, injuries sustained during birth, (including stillbirths and neonatal deaths), dental malpractice, prescription and medication errors, defective medical products, and more. 

Once you realise what has occurred, it’s important to surround yourself with friends and family who will support you through this chapter.

Next, McCombe recommends that you seek legal advice. According to the Associate, there are several options available to you, so getting professional help may take the pressure off decision making.

“[Lawyers] can provide you with the information to help you decide on the best course of action.” At Slater and Gordon specifically, the initial appointment is free and the lawyers can act on a “No Win, No Fee*” basis. 

“What this means is if you don't win [the claim], you don't pay the fees for the work we perform on your case,” McCombe told Refinery29 Australia. 

Services like this are important when you consider the financial cost of even considering taking legal action against medical negligence.

It’s also important to note that any compensation is paid by the healthcare provider's insurance, not by the healthcare professional themselves – so you're not endangering people's individual livelihood by pursuing justice for yourself.

Once you’ve had an initial chat with a lawyer about your experience, they may then obtain medical records and reports from independent medical experts to understand more about your injury and its impact on your life. 

If there’s enough evidence for a claim, a lawyer may then lodge court proceedings on your behalf and help to resolve the case. 

While the thought of a courtroom with a judge and all may be intimidating, McCombe notes that “most cases” settle without needing to step foot in one.

According to McCombe, if you (and your lawyer) successfully prove that your injury was “caused by negligent medical treatment", then you would have an entitlement to seek compensation for the losses you have suffered.

Compensation is made up of ‘‘economic loss” and ‘‘non-economic loss”. 

Economic loss may look like: past and future wage losses, the cost of further medical treatment and the cost of past care provided by family and friends, as well as the cost of future care needs.

“Generally speaking,” says McCombe, “the legal calculation of ‘‘economic loss” is straightforward. Of course, the precise amounts of these claims is often the subject of dispute between the parties depending on the strength of the evidence supporting the claimed loss.” 

McCombe notes that it’s the “non-economic loss” that may be harder to claim for. 

“This is because the law limits the entitlement to claim compensation for non-economic losses, (namely: pain and suffering and loss of enjoyment of life as a result of the injury), to those people who are able to [prove to] a court that they have suffered ‘significant injury’.” 

The legal definition of 'significant injury' can vary from what the average person may think, so it's always best to check with a lawyer.

If you believe that you've been injured as a result of the medical negligence of a healthcare professional, it’s important to know you have rights. And while financial compensation won’t take back the pain and trauma caused by medical negligence, it’ll hopefully help you on your road to recovery through rehabilitation, therapy, or care.

“Financial compensation won’t give you your health back, but it will help to improve your quality of life,” says McCombe. 

Compensation means that you’ll be able to access adequate care and support to help you in your road to recovery and help to prevent other people going through the same (often traumatic) situation. 

*NWNF conditions apply. See site for details. This content is intended for VIC and NSW audiences only.