Medical Negligence Fact Sheet

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.

Medical Negligence

Medical negligence is a complicated issue you should seek professional advice about immediately.

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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.


Medical Negligence Lawyers Help Improve the Standards of Australia’s Medical Profession

Victims of medical negligence can feel like docors are constantly getting away with poor professionalism but medical negligence cases and lawyers are actually helping to create new medical standards as well as improve existing ones, according to speakers at a recent conference in Sydney.

medical negligence

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There’s an unfair and untrue belief that medical negligence cases are forcing doctors to now act in a defensive manner, so as to best protect themselves from any future lawsuits, without actually treating the patient as effectively as they could. In reality, legal cases in the medical world are often published in well-read medical journals meaning that there’s more discussion and awareness of what acceptable practice is. This discussion has led to improvements in the quality of care patients are receiving.

Part of this improvement in the quality of care provided for patients is that doctors are more aware of the importance of discussing with and getting patients more involved with their own health care. These discussions also included better explanation and counselling about side-effects and risks of treatments. Previously, many doctors had felt too busy to become engaged with each individual patient to this level, including making detailed histories, but the rise of medical negligence cases has made it apparent to doctors that this time needs to be made if they wish to continue in the profession.

Detailed histories are highly crucial in medical cases, particularly those that could be seen as negligent, as keeping documents that including patient histories, diagnoses, other potential diagnoses (including rare but dangerous conditions), management plans and a follow-up plan as they are in fact Medicare consultation requirements. Already a doctor’s case looks shaky if they are shown to not be following required procedures, but these documents are what form the basis for a doctor’s defense.

Though medical negligence is extremely horrible, a successful medical negligence case can definitely have far-reaching consequences to how the Australian medical world operates. To find out more about medical negligence take a look at Obesity and Medical Negligence: Where’s the Line?.

Obesity and Medical Negligence – Where’s the Line? | BPC Lawyers Blog

Almost one quarter of Australians are overweight but you wouldn’t blame their doctor for it, would you? Surely obesity is an issue for the individual and not something that a medical negligence lawyer needs to become involved with. Surprisingly, one Sydney doctor recently faced charges of medical negligence because of the obesity of his patient.

Medical Negligence

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Late last year, a court awarded Mr Luis Almario $350,000 as a payout in a medical negligence case. According to Almario his GP, Dr Varipatis, had failed in his duty of care for him by not referring him to bariatric surgeon who could perform a lap-band surgery or weight loss clinic to reduce his weight.

When Almario started seeing his GP in 1997 he already weighed over 120kg, well above what the average man should. But it’s not just the man’s weight that the case is concerned with.

When Almario started seeing Dr Varipatis he had a form of liver disease. Over the course of their patient-doctor relationship this liver disease progressed to cirrhosis, liver failure and then liver cancer.

The theory was that if the doctor had referred Almario to some form of weight loss treatment he wouldn’t have experienced liver failure.

However, Dr Varipatis appealed the decision and was successful. A three-judge panel decided that the initial ruling was nonsense and that a doctor’s duty of care only extends to discussing weight-loss options with a patient.

They believed that if he’d referred Almario to a weight-loss clinic it wouldn’t have been successful, as it really is only the individual who can make the decision and commitment to lose weight.

Questions were also raised as to the pointlessness of trying to convince Almario to lose weight.

Medical negligence can certainly cover some tricky ground and no two cases may have similar results.

If you’d like to read more about medical negligence and the work of medical negligence lawyers, see Medical Negligence: When It’s Worse Than It Seems.

Additional source:

Are Medical Boards Too Soft When It Comes to Negligent Doctors? | BPC Law Blog

There are over 500,000 medical professionals working in Australia and with such a huge number you can be sure that there’s at least a small percentage of healthcare workers who aren’t up to scratch. Medical negligence is often only ever talking about in hushed voices and it can be extremely frustrating and upsetting for both victims and their lawyers when the perpetrator is allowed to continue to work or even gets completely away with it.

Medical Negligence

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When a doctor or healthcare professional is accused of being negligent in their duty of providing the utmost of care to their patient the wheels of the review system can turn very slowly indeed. It’s normally only a small percentage of doctors who are complained about, but these doctors are the ones who are complained about all the time. There’s even been estimates that out of all the complaints made about medical professionals in Victoria, three percent of the total number of health workers in state are responsible for more than half of the complaints received, yet these people still continue to work in this industry.

The big problem is when it comes to punishing doctors for cases of medical negligence it’s the fact that to prove medical negligencea supporting argument must also be made by another practicing doctor. In fact in NSW, a medical negligence case cannot begin without this crucial support. Unfortunately the community of medical professionals is well-established from university and beyond and it can be extremely difficult to find a doctor who will support your case within Australia. So what can you do?

In the case of medical negligence, to achieve any sort of improvement in the treatment of victims and the subsequent punishment of offending doctors it’s important that everyone who has suffered speaks up and attempts to get their case to court. There’ve already been successes, for instance, in the case of Dr James Peters who infected 55 women with Hepatitis C, Dr Peters was jailed for 14 years.

If you’re interested in learning more about the prominence of medical negligence take a look at Medical Negligence Claims on the Rise for GPs.

Speaking Up About Medical Negligence Can Make a Change | BPC Law Blog

Victims of medical negligence can feel that no matter how much they speak up that their voices are never heard. A good lawyer will encourage them, however, as speaking up against health professionals and organisations can lead to changes in the system. Cases of medical negligence certainly aren’t rare in Sydney nor the rest of Australia but some small grains of hope can come out of them.

Medical Negligence

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It was few years ago now, back in 2011, when the WA Northam Hospital was caught up in a medical negligence scandal that would have great impact on the way that hospitals in the state must operate. Andrew Allan was 14 when his parents took him to the hospital as he was having difficulty breathing and had a temperature of 40ºC. A nurse examined Allan before declaring him fit to go home. He died in bed some hours later.

Allan’s case was reviewed and it was found that the nurse who’d seen to him was inexperienced and by viewing CCTV footage it was obvious that Allan was severely unwell. Footage showed that the 14-year-old struggled to walk and collapsed onto a sofa upon entering the hospital.

It’s a small relief to Allan’s grieving parents that some changes have come out of their son’s unfortunate death. For starters the nurse who discharged Allan was fired because of the seriousness of the incident and because he refused to co-operate with a Health Department review into the case. State-wide changes were also made after reviewing Allan’s case. Now every patient must be seen by a qualified triage nurse before any secondary assessment in the emergency department, anyone with a high temperature must be seen by a doctor and if a patient is to be discharged from a rural hospital without being seen by a GP, the case must be very carefully and closely reviewed by an experienced emergency nurse.

It can be extremely difficult to speak up about medical negligence but it’s also extremely important that you do so that other people don’t have to suffer unnecessarily. If you’d like to know more about medical negligence have a look at Is Medical Negligence Sydney’s Silent Scourge?

E Street Band Saxophonist’s Family Says Death was Due to Medical Negligence | BPC Law Blog

Clarence Clemons was the saxophonist for E Street Band for nearly 30 years. However, in 2011, he died of a stroke. Nearly two years on, his death became a medical negligence case that made worldwide headlines, unlike the many cases that are presented before Sydney courts each year. But why did the family think a medical negligence lawsuit was in order?

Medical Negligence

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Before Clarence ‘The Big Man’ Clemons died he was being treated for a number of different medical problems. However, the real concern in this medical negligence case is the treatment of his carpal tunnel syndrome. Playing saxophone was what made Clemons who he was and had seen him tour the world with Bruce Springsteen, but carpal tunnel syndrome could very well have been the undoing of all that.

In the months leading up to Clemons stroke and death he had an operation to treat his carpal tunnel syndrome after he suddenly lost feeling in his index finger and thumb. Prior to that operation, Clemons had been taking blood-thinning medication, a common treatment for unhelpful blood clots that could’ve developed as a result of previous surgeries for things like joint replacements and spinal fusion that Clemons had undergone. When his doctor was preparing Clemons for the carpal tunnel syndrome operation, he was taken off this blood thinning medication but he was not prescribed anything to replace it.

His family believe that the doctors and clinics involved in Clemons carpal tunnel syndrome operation were negligent in their care for him as they didn’t prescribe an alternate blood thinning medication that would have in fact prevented Clemons from suffering a stroke, a direct result of a negative blood clot forming.

As you can see, anybody can be affected by medical negligence, and such a simple thing as forgetting or refusing to provide a replacement medication can lead to disastrous complications and consequences.

Medical Negligence Claims on the Rise for GPs | BPC Law Blog

When it comes to medical negligence, it’s not just surgeons in hospitals that are at risk of being taken to court. Over the past few years there’s been a dramatic increase in the number of patients who are filing medical negligence claims against their local GPs. There are literally hundreds, if not thousands, of GPs in the Sydney area, but only a handful find themselves face to face with a medical negligence lawyer, which raises the question of why are people filing for medical negligence against their GP?

Medical NegligenceImage sourced from Shutterstock

More than half of the medical negligence claims against GPs are due to wrong or missed diagnoses. We’ve all been to one doctor or another and felt that they haven’t really listened to what we’ve said about our symptoms, or they haven’t been as rigourous in their testing as they could be. Most people then choose to see another doctor to get a second opinion, but is this really the best thing you can do?

This is where claims of medical negligence come in. The NHS in the UK recently suggested that it would create a database accessible to patients that would record important data about their GPs and relevant practices. This database would allow patients to look up their local medical practice and GP and see what percentage of errors they make within a certain time period meaning they can find a quality GP. Realistically, it would be very easy for the media to abuse and manipulate the facts of this database, and it was shouted down by medical organisations.

At present the best way, all around the world, to make sure that a GP who provides poor care is properly handled is to file a medical negligence claim. This is why we’re seeing such a huge rise in medical negligence claims across the world. For the meantime the onus is on the patient to make sure that GP doesn’t continue to get away with poor service.