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Our experienced medical negligence lawyers will help you navigate the complexities of putting in a successful medical negligence claim.
Expert Medical Negligence Lawyers
We Australians put our trust in our healthcare system and rely on our medical practitioners not to fail us when we need them most – majority of the time, they do not disappoint.
However, unfortunately, we still come across a large number of medical negligence cases in Australia where there has been medical malpractice or a breach of duty of care in the medical treatment provided by medical professionals.
No Win No Fee
Medical Negligence claims are run on a no win no fee basis which means that you will not pay for our legal fees unless we have successfully resolved your matter.
Generally, compensation claims are run on a No Win No Fee basis which means that you don’t pay a cent on legal fees if you are unsuccessful, however, some solicitors still charge for disbursements.
At Jameson Law, we have a guaranteed No Win No Fee Agreement including any legal costs and disbursements we incur to run your case. This means that if your claim is not successful, we do not charge you anything. This allows us to maintain a high rate of success as we will let you know upfront if we feel that your case will not win.
Any costs payable to Jameson Law will be deducted from, and will not exceed, any compensation that you are entitled to receive meaning you will not pay anything out of pocket.
Medical Negligence and Duty of Care
Negligent medical treatment is not necessarily surgical errors or unsuccessful medical procedures. Medical negligence law considers whether a healthcare professional or medical expert has failed to meet the required standard of care in providing medical care to a patient.
General practitioners and other medical professionals are required to exercise reasonable care when treating patients. Medical negligence occurs when the acceptable standard is not met; that is the duty of care is breached. Examples of medical negligence include misdiagnosis or delayed diagnosis of a medical condition, failure to make an appropriate referral, misinterpreting or delaying in the interpretation of blood test results, failure to maintain any or adequate medical records. Any of these acts or omissions which result in injury or even death are a basis for seeking medical negligence compensation.
A critical element of a medical negligence claim or any compensation claim for that matter is ‘causation’. This literally refers to the cause of the injury. In order to commence legal action against an insurance company, you must prove that the injury was sustained as a result of the accident/incident. The incident must be due to the fault of their insured in order for liability to be accepted. In medical negligence claims, doctors would be indemnified by professional indemnity insurance.
There are other hurdles that must be overcome in order to bring a claim. Another essential part of making a claim is time limits. Generally speaking, a limitation period of 3-years applies across all types of claims. However, the complexity in determining whether the 3 years have lapsed is trying to ascertain when they commence. The reformed Limitation Act 1969 has since 2002 altered the date on which these 3-years commence. The time limit within which to bring a claim in accordance with the 2002 Act is 3-years from the date of discoverability and not necessarily the date of accident or incident. The meaning of ‘discoverability’ is also covered in the act. For example, in a medical negligence claim, the 3-years do not necessarily commence from the date that you were provided with the misdiagnosis but rather the date you discovered that you were provided with a misdiagnosis and/or the date you suffered the effects of that misdiagnosis.
Medical Negligence Claims
The loss that is incurred as a result of the injury is referred to as ‘head of damage’. In NSW, anyone who has been harmed by medical malpractice may seek compensation under the Health Care Liability Act 2001. Damages awarded to a successful medical negligence claim are limited by the amendments within the Civil Liability Act 2002. The following are the potential entitlements that you may be able to claim:
Non-economic loss refers to the injury you sustained that has resulted in the loss of enjoyment of life. This is also sometimes referred to as pain and suffering compensation. Simply, you are entitled to this component purely as a result of the injury you sustained and the loss that transpired which is not financial in nature.
In order to claim this head of damage, you must be assessed in accordance with the relevant guidelines by an approved medico-legal doctor who ascertains that the severity of the non-economic loss is at least 15% of a most extreme case. This requirement is set out in section 16 of the Civil Liability Act NSW. It also states that the maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.
If you do not exceed the threshold, this does not mean that you are not entitled to compensation. You are still able to proceed with a claim for compensation for economic loss only however your are not entitled to claim non-economic loss.
Your Solicitor should refer you to a medico-legal doctor for an assessment of your whole person impairment. If the assessment satisfies the legislative requirements, your solicitor should serve the of the report of the doctor on the insurer asking they concede that your whole person impairment as a result of the injuries sustained in the subject incident is at least 15% of a most extreme case or a certain percentage. The insurer will generally refer you for an assessment with their medico-legal doctor before making a decision. If the parties agree that your impairment satisfies the requirements, this component of the claim should be factored into your final settlement amount.
Remember, whether you are entitled to non-economic loss will impact on the amount of compensation you receive. You will receive a greater settlement or verdict if it includes a component for non-economic loss.
If you are working at the time of the incident or had intended to commence working, you are entitled to claim loss of earning or earning capacity. Reference to the loss of earning capacity takes into account potential loss. For example, if you had been completing the course at the time of the accident that would have enabled you to have your own business and were unable to complete that due to the injuries sustained in the incident, your loss would be calculated on the basis of your potential earnings as a business owner.
This lump sum factors in actual past out of pocket expenses and proposed future treatment expenses even they are will not be incurred immediately. For example, if your doctor has recommended surgery in the future, the cost of the surgery and related treatment expenses will be accounted for as part of this component.
Personal care and domestic assistance may be provided on a gratuitous or commercial basis.
In order to be entitled to claim compensation for past gratuitous personal care and domestic assistance, you must satisfy the threshold imposed by the civil liability act.
The Act states that no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.
This limitation does not apply to future care and assistance which is generally claimed on a commercial basis.
Compensation to Relatives
There are also unfortunate incidents where medical negligence results in the death of a relative. Immediate family is entitled to claim compensation for the injury they have suffered as a result of the sudden or untimely death of their loved one.
Generally speaking, claims that are made by a relative will involve psychological injuries rather than physical. In order to establish a claim, your injury must be considered a diagnosable psychological condition certified by a professional psychiatrist. Once you are able to establish this, you must then satisfy the elements for each of the above heads of damages as required by the Civil Liability Act in order to be entitled to that component of the claim.
The Medical Negligence Claim Process
Generally, Medical Negligence compensation claims are run on a No Win No Fee basis which means that you don’t pay a cent on legal fees if you are unsuccessful, however, some solicitors still charge for disbursements.
At Jameson Law, we have a guaranteed No Win No Fee Agreement including any disbursements we incur to run your case. This means that if your claim is not successful, we do not charge you anything. This is testament to our confidence in taking on and succeeding in complex matters. It also allows us to maintain a high rate of success as we will let you know the prospects of your matter up front if we feel that your case will not win.
Any costs payable to Jameson Law will be deducted from, and will not exceed, any compensation that you are entitled to receive meaning you will not pay anything out of pocket.
Disclaimer
The above process is only an indication of the main steps in bringing a claim. This is not the entire process nor is it intended as a guide for making a medical negligence claim. The process of making a claim is much more complex and riddled with complications. Some complications may include denial of liability by the insurer, disputing your injury, disputing your entitlements, requesting further evidence of your employment, financial loss, etc. Further, it is noteworthy that each case is unique and its complexity will revolve around its distinct facts. Please contact our office for a more accurate indication of the process and for legal advice relating specifically to your case.
Our experienced Lawyers will consider all aspects of your claim and advise you of the prospects of success, complications that we may be faced with, the strategy moving forward, your potential range of damages, which components of compensation (heads of damages) you may be entitled to claim, and how to maximise your compensation within your entitlements.
Remember, your initial consultation is free so book now to find out whether you have a potential medical negligence claim. Ensure you bring with you all relevant documents that would assist in considering the success of your claim.
Frequently Asked Questions.
Medical negligence occurs when a medical professional or medical provider fail carry out their duty of care to a patient and an injury is sustained. This duty of care can be breached by:
- misdiagnosis,
- medication errors,
- failure to obtain informed consent
- surgical mistakes
- mistakes during childbirth or pregnancy where unreasonable mistakes are made by your obstetrician, gynaecologist, doctor, midwife or hospital staff,
- negligent medical treatment causing death often means there is an avenue for compensation to relatives.
If you have suffered psychological or physical injury as a result of medical negligence you may be eligible for a medical negligence claim. To prove this you need to show that there was a negligent medical treatment that caused an injury or harm that would not otherwise have occurred. You may also be eligible if a loved one has passed away as a result of malpractice via compensation to relatives.
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Contact Us
Jameson Law Offices
- PO Box 73
Parramatta NSW 2124 - info@jamesonlaw.com.au
- 02 8806 0866
- 02 9052 0840
Contact Us
- PO Box 73
Parramatta NSW 2124 - info@jamesonlaw.com.au
- 02 8806 0866
- 02 8046 6477
Jameson Law Offices
