Medical negligence exists when a medical practitioner breaches their duty of care towards a patient by failing to take reasonable care to avoid causing harm to them. When a patient suffers harm as a result of medical care, they may (but do not necessarily) have a medical negligence claim against the doctor or healthcare provider. This page outlines the law on medical negligence in New South Wales.
Legislation
In New South Wales, medical negligence claims are governed by the Health Care Liability Act 2001 and the Civil Liability Act 2002.
Duty of care
Medical providers have a duty of care towards their patients.
A duty of care is owed by one person to another in a range of situations. Established duty of care relationships include employer and employee, school and student, and solicitor and client. Members of the public also owe a duty of care to other members of the public when they are engaged in an activity that may endanger others – such as driving a vehicle on a public road.
However medical professionals owe a higher duty of care to patients due to their specialized knowledge, the degree of expertise and skill that is expected of them, and the particular vulnerability of patients.
What is medical negligence?
When a person claims medical negligence, they must show:
- that the medical professional had a duty of care to them;
- that the professional failed to exercise a reasonable standard of care;
- that the patient suffered injury or damage;
- that the breach of duty of care caused a foreseeable injury to the patient.
Examples of conduct that have been found to amount to medical negligence are:
- failure to diagnose accurately or on time;
- failure to carry out a surgical procedure to a professional standard;
- failure to adequately inform a patient of a significant risk involved in a medical intervention.
Competent professional practice
Under section 5O of the Civil Liability Act 2002, a professional will not be found to have acted negligently if they acted in a manner that at the time was widely accepted as competent professional practice by their peers in Australia (unless the court considers that opinion to be irrational).
Peer professional opinion need not be universal but only widely accepted.
There are many situations where a patient may be unhappy with the medical care they have received. Medical treatment usually involves some degree of risk. However, if the patient was warned about the risks involved and the medical provider carried out the treatment with reasonable care, the patient will not have a claim in medical negligence, even where the desired outcome was not achieved.
A person who is unhappy with medical treatment they have received in New South Wales can complain to the Health Care Complaints Commission.
Making a claim for medical negligence
Medical negligence claims are often settled out of court through negotiations with the health service provider or their insurer.
If a matter cannot be settled out of court, a claim can be filed in the Supreme Court of New South Wales. Expert evidence will need to be adduced as to the correct procedures and safety measures that ought to have been followed and what risks the patient ought to have been warned about.
In matters that go to trial, the court will usually have to hear competing expert testimony and decide which is the most. persuasive.
Causation
One of the most difficult aspects of a medical negligence claim is often proving causation.
Causation requires that the claimant’s injury is the result of the defendant’s negligent conduct. In other words, the plaintiff would not have suffered the injury but for the defendant’s negligence.
Compensation
A plaintiff in a medical negligence claim may seek compensation for some or all of the following:
- loss of earnings
- ongoing medical expenses
- pain and suffering
- psychological damage
- disfigurement
- loss of life expectation
The amount of compensation that is awarded will depend on the extent of the damage. However, there are also statutory limits that apply to medical negligence claims in New South Wales.
Limitation period
An adult who suffers as a result of medical negligence must initiate a claim within three years of the date of the injury or of the date that symptoms first manifested.
A child who suffers as a result of medical negligence must initiate a claim within three years of their eighteenth birthday.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
