In Queensland, the law accepts that medical practitioners may need to make difficult medical decisions under significant pressure. However, medical negligence is more than just a simple mistake in diagnosis or treatment provision. There are three general elements that need to be proven in a negligence claim.
Duty of Care
A medical practitioner such as a doctor has a duty to exercise reasonable care, skill and judgment in providing treatment to patients. This also includes examinations, diagnosing and providing information to their patients. Many consent forms specify an acknowledgement of the stated risks and complications that may arise from the provision of a given treatment or operation. However, this does not relieve the medical practitioner from their responsibility to provide reasonable care, skill and judgement.
Thus, to prove medical knowledge, a critical element that is required is evidence that the medical practitioner’s actions fell below the standard of care that is reasonably expected from a similar medical professional. In other words, if the medical practitioner’s actions are considered to be acceptable according to the opinion of a large number of respected medical practitioners in a similar field of practice, it may be difficult to prove the claim.
Causation
Another element to prove in a medical negligence claim is that the doctor’s performance caused the harmful result on a balance of probabilities. In other words, you need to establish to the courts that more likely than not, the doctor’s actions were responsible for the injuries that you sustained.
Damages
A victim of medical negligence must be compensated for their losses and the harm suffered by their medical practitioner’s negligence. Compensation for medical negligence is usually awarded as a lump sum payment to cover the costs of past, present and future expenses and losses. Calculating damages as a result of a medical practitioner’s negligence is a very difficult aspect of a medical negligence claim that should be left to an accredited specialist in personal injury. Some of the damages that may be awarded can include:
– Loss of income and earning capacity
– Medical expenses, prescriptions, equipment aides, etc.
– Attendant care or domestic assistance
– General damages such as pain and suffering (loss of enjoyment of life)
– Death claims. Relatives of a person who died from medical negligence may be able to make a claim for compensation for loss of reasonable expectation of future pecuniary benefits, mental/nervous shock or mental illnesses (anxiety disorder, major depression, adjustment disorder, etc.) caused by the loss of the person.
Limitation Periods Apply – Do Not Delay!
In Queensland, the “discovery rule” applies for medical negligence claims where the time limit to make a negligence claim starts from the time the plaintiff knew or ought to have known of the medical practitioner’s negligence and lasts until three years from that date. There are also special rules that may apply to children who claim medical negligence.
If you have been a victim of medical negligence, it is imperative that you contact an accredited specialist in personal injury to protect your legal rights and be advised of your legal rights to compensation. This area of law is extremely difficult to interpret and apply to individual cases and should never be attempted by someone who has no specialized experience in personal injury law.
