The importance of records in medical negligence claims

Australian nurses and doctors are some of the best in the world, but sometimes they make mistakes.

When the unthinkable happens and you are forced to file a negligence claim, how you keep records will be extremely important to winning the case.

When the unthinkable happens...

When the unthinkable happens…


In most medical negligence cases, medical records play a massive part in being able to establish (during the investigation stage) whether you have a strong case or not.

Most cases rely on the careful analysis of the claimant patient’s medical records to determine the eventual failure or success of the case. Without a complete understanding of your records, there is a very real danger that the case will not be properly recognised or let alone succeed.

Here are two things to remember:

Ensure the medical records are a full set.

Often records are frequently missing and from hospitals in particular.  In most cases, especially the more complex ones, documents are missing. We recommend you press for the entire set and pressure the hospital to look for missing files. It can be surprising how records eventually turn up when pushed for them.

Press for additional records.

Another class of documents that can assist with a negligence case is internal inquiry/complaints documents. Although not strictly speaking medical documents, these often contain internal witness statements and reports. These type of documents often hold absolutely vital information for the investigation of a potential claim.

Remember, the content of your medical records is fundamental to the success of your potential negligence case.  Hold onto everything and don’t be afraid to put the pressure on.

It’s the key to claim success.






Medical Negligence Sees QLD Woman Loose Kidney

Imagine being operated on then having the wrong organ removed.

You wake up groggy and sans Kidney.

How would you react? How should the surgeon be punished? And what’s fair?

These were questions raised after a recent case of medical negligence struck at Queensland’s Rockhampton Hospital.

Is surgery safe from negligence?

Is surgery safe from negligence?

Queensland Health announced recently that Doctor Antonio Vega Vega had stood down after mistakenly removing the wrong kidney from a patient. What was even more worrying is that Vega Vega was also involved in three other incidents over the past 18 months.

The Spanish-trained urologist has voluntarily stepped down from his position at the Rockhampton Hospital.

Health Board Chairman Charles Ware was forced to reassure patients the hospital was doing everything to rectify the situation: “We have gone through the surgeon’s records and we have located a total of four adverse clinical incidents,” Charles Ware was quoted as saying.

The Member for Keppel Bruce Young defended the Central Queensland Hospital and Health Board, which took over management of Rochampton Hospital two years ago.

“The board has been very effective in Rockhampton where they’ve made in-roads into public health and that’s one of the things that I am concerned about,” he told the ABC’s Jacquie Mackay.

“My concern is that the long term ramifications of this incident; I hope it doesn’t put a stigma on Rockhampton where people may think, there’s good surgeons who may not want to come here.”

However the Member for Rockhampton Bill Byrne says locals have the right to be worried about the safety standards of the hospital.

“It really is now a matter for the board and the Health Minister to get on the front foot, finalise these matters as rapidly as possible and start, what I believe, is going to be a substantial journey to rebuild public confidence in the hospital,” he said.

It is reported that the woman who had her kidney unnecessarily removed will be on dialysis for the rest of her life.

Failure to Warn: A recent case of medical negligence

What duty does a doctor have when warning their patients about possible medical risks?

A recent case has made law-makers question what is required by our doctors and what grounds patients have to claim.

medical negligence lawyers

What happens when it all goes wrong? Image via Shutterstock


Hospitals, doctors and health care providers have a duty to take proper care when treating patients. If a patient were to suffer injury that came as a direct result of inadequate skill or care then the patient (or family) may be able to make a claim for financial compensation.

Medical negligence claims are also extremely complex. Not every outcome results in a claim and it’s crucial to demonstrate a connection between the error and negative outcome.


When Ian Wallace underwent a surgical procedure involving his lumbar spine, there were two risks Mr Wallace never got told about. These were:

1. A temporary local damage to the nerves (Neurapraxia) caused by lying face down on the operating table for a lengthy period; and

2. A one-in-20 chance of permanent paralysis which would result in damage to his spinal nerve.

When the procedure was unsuccessful and Mr Wallace did in-fact suffer Neurapraxia, Mr Wallace attempted to sue his surgeon for negligence. The court found that Mr Wallace’s doctor failed to provide sufficient warning but the claim failed because Wallace would still have undergone the surgical procedure despite the risks. It was found that there was no causal connection between the failure to warn and Wallace’s Neurapraxia. The trial judge declined to make any findings in relation to the surgeon’s failure to warn of the surgery’s risk of paralysis, and about whether or not Mr Wallace would have gone through with the procedure if he had known of this risk, on the basis that this wasn’t relevant since the risk did not materialise.


This decision reinforced the principles that medical practitioners have a duty to warn a patient of all material risks involved but in order for a medical practitioner to be held liable, the patient (and plaintiff) must prove the breach was causative of the harm that eventuated.


Then contact a lawyer. It’s important that you communicate with someone who has experience in medical negligence cases as they are extremely complex. Time limits also apply so early investigations are essential.

The Use of Photographic Evidence in a Medical Negligence Claim: will they be admissible in court?

Medical Negligence claims are harrowing experiences at the best of times. A medical negligence claim is only going to come across our desk when someone has or is suffering, perhaps, due to the fault of another. Evidence in these cases is crucial, but what is admissible in a court of law?

Medical Negligence

Proving medical negligence isn’t as simple as a snap of the lense.

Image from Shutterstock

Photographic evidence is a court staple when it comes to criminal and civil proceedings. But when it comes to medical negligence claims the area around photographs is a little more grey. Photographs will often appear in court during the course of a medical negligence case. They are displayed to the jury in an effort to support the claimant’s testimony. In the past, these photographs would have typically been taken by members of the police force rather than a forensic physician. In as such, it’s arguable that they are not as good or accurate evidence as a detailed medical record when it comes to proving the extent of injury or illness in an individual.

Move on a bit, and we have a proliferation of affordable camera devices on hand at all times — your Macbook, your smartphone, etc. All these devices come with amateur photo-editing suites, apps and software that a large amount of the populace are highly familiar with and feel comfortable using.

Whilst the accuracy of photographic evidence when images were not taken by a forensic physician was hard enough to prove when factors like shadowing, light and saturation came into play, legal teams now have to prove filters or effects haven’t been transposed over an image causing injury to appear worse than it it/was.

In the end, a physical examination is always considered to have more weight in court that photographic evidence. In cases when it is suspected death was the result of medical negligence the autopsy of a body, even one that has been buried, is considered preferable to photographic evidence.

A case of medical negligence?

In the case of Masters bht Masters v Sydney West Area Health Service[1], Justice Davies of the Supreme Court of New South Wales dealt with an interlocutory application by the defendant to remove the plaintiff’s expert medical opinions on the basis the experts had relied on photographs of the plaintiff where authenticity could not be established.

In this case, the plaintiff, an infant, was born at the Blue Mountains Hospital following a normal birth. The child seemed to be suffering from jaundice some days after the birth. Clinical notes included entries, commentary on the skin tone of the child, made by midwives who were taking care of her. Eventually a blood test was performed finding elevated levels of bilibrium – a finding consistent with the a diagnosis of untreated jaundice. The allegations of negligence focused on the hospital’s delay in diagnosing and managing the condition, leading to brain damage and cerebral palsy, and whether better management and earlier intervention would have avoided the infant’s horrific injuries.

Expert testimony was given on behalf of the plaintiff by both a neonatologist and and a midwife.

The neonatologist initially formed his opinion on the case based on the medical notes made by the staff at The Blue Mountains Hospital. In a later report he also viewed the photos, taken on a standard digital camera by the plaintiff’s father, purported to show a worsening of the child’s condition. The midwife saw both the clinical records and the photographs at the same time.

The defendant argued that neither the neonatologist or midwife had any prior knowledge of portrait photography or editing. Their argument relying on the testimony of the purported expert photographer to cast doubt on the ability of the plaintiff’s father to accurately depict her skin tone at the time the photographs were taken. Consequently they argued that if the plaintiff was unable to authenticate these photos than their expert testimony was inadmissible as they believe the photographic evidence played a significant role in forming their medical opinions.

However, the “expert” photographer proved to be less than erudite in his profession. Justice Davies noted that the defendant’s expert seemed to be inexperienced in the preparation of expert reports and didn’t seem to grasp how the photographs were important to the plaintiff’s claim. He also failed to produce a C.V and failed to define a range of specific photographic terms. His evidence  was ultimately ruled inadmissible by Justice Davies.

The photographs and expert testimony of the plaintiff were allowed to pass before the trial judge; the accuracy of the photographs was to be a matter for he/she to determine.

The plaintiffs were lucky their medical expert’s had already formed their opinions based on the clinical notes rather than on the viewing of the photographic evidence. Rather, the photographs of the plaintiff had only served to reinforce their opinions that delayed treatment was responsible for the degree of her injuries.

What does it mean?

When it comes to medical negligence cases lawyers need to consider that their expert witnesses are not legal professionals. In such, they need to assist their witnesses in the proper preparations of expert reports, ensuring that they are compliant with the requirements of the UCPR and relevant case law. Furthermore, legal professionals must be aware that the use of photographic evidence in medical negligence cases may be inadmissible if expert medical testimony can’t be proven to stand on its own. Photographic evidence is highly susceptible to interpretation and therefore should only be used to support an expert’s testimony, not form the backbone of it.

If you have photographic evidence you feel would be beneficial to your medical negligence claim seek legal help immediately. if you have taken the photos yourself, or they have been taken by a friend or family member, ensure that they are taken in good lighting and have not been edited in any way.

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.

Image from Shutterstock

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

 Image sourced from Shutterstock

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

Image sourced from Shutterstock

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.

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