Medical negligence is a serious issue in NSW with reports that claims are perpetually on the rise. Today on the blog we’re breaking down medical negligence into easy to understand terms to help you wrap your head around what can be a confusingly complicated issue.
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Health care providers have a duty of care when it comes to the treatment and health of their patients. If a patient suffers injury or harm as a result of the inadequate care of a health care provider, then the patient, or at times their family, may be able to make a claim for financial compensation.
Along with medical negligence claims, claims may be also made for ‘failure to warn’ or lack of informed consent, this includes instances of when doctors or medical professionals have not fully outlined and explained the risks involved with a medical procedure, medication or treatment, which the patient if aware of possible risks would have refused.
Medical negligence claims are always complicated. It is crucial to the vitality of your claim to prove a connection between medical error and illness or harm.
What is medical negligence?
Not all medical errors are by legal definition negligent. Negligence, in the legal sense, is only considered such when a healthcare practitioner has failed to take “reasonable care”. The law doesn’t require that doctors, hospital staff and healthcare providers be infallible, instead that they take “reasonable care” in advising and tending to patients. You may not have a claim if the standard of care that you received is comparable to that of another medical provider in the same field within Australia.
Who pays medical negligence compensation?
All medical professionals are required by law to have Professional Indemnity Insurance (PII), so in the event of accident, injury or harm it is the insurance provider that will pay the cost of any awarded compensation claim.
What does compensation cover?
Compensation by design is meant to reimburse a claimant for their losses. The amount calculated is based on the extent of damage or harm suffered, not the degree of negligence that occurred.
Compensation payments may include:
past and future medical expenses;
past or future wage loss;
home and car modifications;
loss of life expectancy;
costs associated with a trustee managing your money;
damages for pain, suffering and the loss of enjoyment of life; and
personal care or nursing assistance, either by professional agencies or family members.
Are there time limits on a medical negligence claim?
Like with many areas of the law there are time limits on the time between event and claim when it comes to your medical negligence suit. Most Australian state and territories have a three year time limit in which you can claim for compensation.
The three years runs from the time of the negligence or in some cases, from the time the negligence was first discovered.
Claims may be made outside of the three-year limit if the illness caused from negligence was not found immediately.
BPC recommend you seek legal advice when you first suspect medical negligence in order to not miss out due to liability time frames.