Seeking compensation for medical negligence: What to consider

Medical negligence can cause devastating and long-lasting health problems for victims. Suffering medical negligence is likely to have a serious effect on you, your loved ones and your quality of life – especially if your injuries result in total and permanent disability.  If you believe that any adverse outcome following medical treatment was a result of medical negligence, you may be entitled to compensation.

It’s important to know you are not alone and you have a number of rights and options for getting justice.

What is medical negligence?

Medical negligence arises when a health practitioner fails to take reasonable care and their patient suffers an injury as a result.

It can include:

• Delayed or a missed diagnosis, resulting in crucial treatment time being lost. In the most serious cases, this can mean a treatable condition becomes incurable.
• Misdiagnosis, meaning failure to spot signs of an illness.
• Informed consent, in which not enough information was given to a patient to allow them to give permission to undergo a treatment.
• Surgical error, this can involve a surgeon, anaesthesiologist or other healthcare provider injuring a patient in a way that could have been avoided.
   

What are my options for redress?

If you suspect you’ve been a victim of medical negligence, you have a number of options; make a complaint or issue a claim for compensation, or both.

If your injuries have resulted in total and permanent disability, in addition to a complaint or a claim for compensation, you may also have insurance benefits that can be accessed under your superannuation policy.

Making a medical negligence complaint

Complaints are often a means of getting an explanation, apology, access to health records or in some scenarios, can result in reimbursement of expenses. By making a complaint of medical negligence, the relevant complaint body will investigate the treatment provided to you and advise you of the outcome.

If you are making a complaint for an explanation, apology, access to health records, reimbursement of expenses or because of a change in policy, then you can complain directly to the hospital/medical practice.

You can also raise the matter with the regulator in your state.

• Queensland: Office of the Health Ombudsman.
• Victoria, Tasmania: Health Complaints Commissioner.
• New South Wales: Health Care Complaints Commission.
• Northern Territory: Health and Community Services Complaints Commission.
• Western Australia, ACT, South Australia: Medical Board of Australia.
   

Each state may have slightly different processes, but these organisations review complaints for all issues, in particular those involving a systemic failure, a break-down in communication and administration issues. They can also forward the complaint to the Australian Health Practitioner Regulation Agency (AHPRA) for further consideration.

If you think a practitioner’s behaviour is placing the public at risk, they’re practising in an unsafe way or their ability to make safe judgments about patients might be impaired, you may also be able to complain directly to AHPRA, depending upon the State or Territory you reside in.  

AHPRA can take action against practitioners to keep the public safe including disciplinary action, retraining, education or order that they be supervised until their skills have improved to a sufficient level.

Seeking compensation for medical negligence

In addition to making a complaint, you may wish to investigate a claim for compensation for your pain and suffering and past and future expenses.

What do I need to prove to seek medical negligence compensation?

To be successful in a claim for compensation, it must be demonstrated that a health professional breached their duty of care and the treatment provided fell below a reasonable standard of care or was negligent.

Once that has been shown, it must also be established that the negligent treatment caused you an injury, loss and damage. Each of the above elements needs to be supported by independent expert evidence. 

Are there time limits to making a complaint or bringing a claim?

Yes. You should act as quickly as possible in order to ensure evidence isn’t lost or destroyed, memories of events haven’t faded and there is enough time to prepare a case.

Complaints should generally be lodged within 2 years from the date of the incident.

Strict time limits apply for bringing a claim for compensation and there are different time limits in each State and Territory, so it's important to seek legal advice as soon as possible. In most cases, a person has three years from the date of the incident to commence a claim for medical negligence. 

Do your own research

If suspect you’ve been the victim of medical negligence, take time to consider all your options and what’s best for you. But if you are unsure on what you should do, it is worth getting expert advice on your rights and options. There are time limits which apply to some action, so find out where you stand as soon as possible.

Next steps

While compensation cannot reverse the harm that has been done, it can provide financial support for medical expenses, lost income, and other damages caused. Getting back on track after suffering medical negligence can seem daunting, but with the right guidance, you can make it through the process.