Maurice Blackburn

What is medical negligence / medical malpractice?

Medical negligence (also known as medical malpractice) occurs when the treatment provided by a health service provider (such as a hospital, doctor, dentist, pharmacist, etc.) falls below an acceptable standard. Medicine is a complicated practice and health service providers are not expected to be perfect. Medical treatment is sometimes unsuccessful and injuries can sometimes result but that does not necessarily mean that there has been any negligence. Negligent treatment is that which goes beyond being a simple reasonable mistake or error.

Negligent treatment may involve the following:

• failing to or delay in diagnosing a condition
• failing to or delay in providing the appropriate treatment or referral for
  the condition
• failing to perform surgery with reasonable care and skill
• failing to report correctly on test results, or
• failing to provide post-operative care with reasonable care and skill.

Medical negligence  / malpractice claims

The law relating to medical negligence varies between States and Territories within Australia but broadly the law in Australia allows a person to claim compensation if they have suffered physical, psychological or financial harm as a result of negligent medical treatment. This is known as a medical negligence claim.

Broadly speaking, two requirements must be shown in order to bring such a claim:

• that there was negligent medical treatment, and
• that this treatment caused an injury or some harm that would not have otherwise occurred.

This means that even where a person receives negligent treatment, they cannot bring a compensation claim if they have not suffered a harm or injury as a result of that treatment. Furthermore, the law sets a threshold determining how severe or significant an injury must be, before a person is entitled to claim damages for the pain and suffering sustained as a result of this injury.

Medicine is a complicated practice and health service providers are not expected to be perfect. Medical treatment is sometimes unsuccessful and injuries can sometimes result but that does not necessarily mean that there has been negligence. Negligent treatment goes beyond being a simple reasonable mistake or error.

Medical negligence / medical malpractice claims can involve:

• Obstetrics
• Paediatrics
• Gynaecology
• Emergency medicine
• Surgery
• Orthopaedics
• Misdiagnosis of medical conditions
• Drugs and drug reactions
• Cosmetic surgery
• News coverage

How long do I have to make a claim?

The time limits and pre-litigation requirements for making a compensation claim vary between States and Territories.

In Queensland, generally Court proceedings must be commenced within three years of the date of the injury.  The Court also has a discretion to extend this period to one year from the date of knowledge of a "material fact of a decisive character". However, this is only a discretionary power and will depend on the circumstances of each particular case.  If Court proceedings are not commenced within the relevant time limit then you are likely to be prevented from ever bringing a case.

Additionally, under the Personal Injuries Proceedings Act, a person intending to bring a claim for compensation must notify the "respondent" by sending them a special form within the earlier of nine months after the date of the injury or one month after instructing a solicitor to seek damages for personal injury.  It may be possible to extend this time limit in exceptional circumstances.

The time limits for injuries to children are different, for both Court Proceedings and under the Personal Injuries Proceedings Act.

Time limits are extremely complex and this information is simply a general guide.  The situation will vary from case to case and it is essential to obtain specific legal advice about the time limits in your case as soon as possible.

Getting help

Medical negligence litigation requires specialist knowledge and experience. The law relating to medical negligence varies between states and territories within Australia. For example, time limits vary in each jurisdiction and are extremely complex.

Call 1800 072 464 to speak to one of our Medical Negligence experts.