Medical negligence exists when a medical practitioner fails to take reasonable care to avoid harming a patient. A person may take action for medical negligence because they have suffered a physical or psychological injury or an illness as a result of the actions or inactions of a medical practitioner. This page deals with medical negligence in Queensland.
Duty of care
There are many situations where a person owes a duty of care to another person. A duty of care is owed by a school to its students, by a lawyer to their clients, and by an employer to its employees. A duty of care also exists between members of the public in situations where their actions may affect others. For example, when a person drives a car on a public road, they have a duty of care towards other road users.
In Queensland, the principles of duty of care are set out in the Civil Liability Act 2003. Under section 9 of that Act, a person breaches their duty of care if they fail to take precautions against a risk of harm and:
- the risk was foreseeable;
- the risk was not insignificant; and
- in the circumstances, a reasonable person would have taken precautions.
In a medical context, a higher standard of care applies than in other duty of care relationships. This is because of the expertise and skill expected of doctors and the vulnerability of their patients.
However, medical treatment usually involves some degree of risk even when the medical practitioner acts with due care. A practitioner is not guilty of medical negligence when a procedure does not have the desired outcome so long as they acted with due care. There are many situations where a patient may be unhappy with the medical treatment they have received, but where they do not have a cause of action against the provider.
Complaints to the Office of the Health Ombudsman
A person who wants to complain about medical treatment they have received in Queensland can lodge a complaint with the Office of the Health Ombudsman (OHO).
Outcomes of complaints to the OHO include:
- an acknowledgement, apology, explanation, policy change or refund from the health service provider;
- the health service provider being subject to disciplinary action.
Was the treatment negligent?
In order to establish medical negligence, a plaintiff must show that:
- the defendant did not behave as a reasonably competent professional would have in the same circumstances;
- the defendant’s negligence caused the plaintiff personal injury;
- the damage is of a type that is compensable.
Examples of medical treatment that have been found to amount to medical negligence include:
- performing a procedure on the wrong person or on the wrong part of the body;
- leaving a medical implement inside a patient’s body after surgery, causing pain and harm;
- failing to adequately warn a patient about the risks or possible adverse effects of a treatment or procedure;
- misdiagnosis of a condition leading to adverse effects.
It is relatively rare for a court to make a finding of serious medical negligence.
One of the biggest challenges when bringing a medical negligence claim is often establishing causation. In order for a claim to succeed, the court must be satisfied that the plaintiff would not have suffered the harm or injury but for the medical practitioner’s negligence. In other words, the breach of duty of care must have directly led to the harm or injury.
Making a medical negligence claim
The process for initiating a medical negligence claim against a doctor is set out in section 9A of the Personal Injuries Proceedings Act 2002.
Before making a claim, a person must give written notification to the defendant of:
- the claimant’s details
- the details of the medical service that is alleged to have given rise to the injury;
- the name of the doctor who provided the service (if known)
- where and when the service was provided
- the nature of the injury alleged to have been caused.
This notice must be given within nine months of the date of the medical incident or of the date that symptoms of the injury appeared or within one month of the date that the plaintiff first instructs a law firm to act for them (whichever is sooner).
The claimant must then obtain a report from an expert who is suitably qualified stating that:
- the treating doctor or medical facility failed to meet the appropriate standard of care;
- the claimant suffered an injury as a result of that failure.
If a report to this effect cannot be obtained, the claim for medical negligence cannot proceed.
An adult who is making a medical negligence claim must initiate proceedings within nine months of the date of treatment.
If the claimant was a child when they received the medical treatment, they must initiate proceedings within three years of their eighteenth birthday.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.