Guide to Medical Negligence Claims

If you’ve suffered an injury or harm from a medical treatment because your healthcare professional did not provide you with a reasonable standard of care, you might be able to make a medical negligence claim.

In this article, we’ll answer a variety of questions about medical negligence, including how to claim for compensation. These are the key points that will be covered:

• How medical negligence is defined
• The process of making a medical negligence claim
• What kind of injuries and conditions can be claimed as medical negligence
• Ways that medical negligence can be proved
• The amount of time it can take for a medical negligence claim to be settled
• Examples of medical negligence payouts
• How LHD Lawyers can help you make a medical negligence claim 

Although medical negligence claims can be complicated, help is at hand. Keep reading to find out more about medical negligence legislation in Australia, and learn how to maximise your chances of making a successful claim. 

What is medical negligence?

When you undergo any kind of medical treatment or procedure, your healthcare professional is legally obligated to provide a reasonable standard of expertise and skill. Known as ‘duty of care’, this extends to all aspects of your medical treatment. If your medical practitioner breaches their duty of care towards you, and you are harmed in some way as a result, you might be eligible to make a medical negligence claim. 

Also known as malpractice, medical negligence can occur in a variety of healthcare settings, including hospitals, medical centres and dental surgeries. Medical negligence is not the same as a ‘bad outcome’; for your medical negligence claim to be successful, there needs to be sufficient proof that the healthcare professional did not act in accordance with the strict standard of care that all medical providers must follow. 

‘Harm’ in the context of medical negligence can be physical, psychological or financial. If you have suffered harm as the result of medical negligence, you may be liable to lodge a claim for compensation. A skilled medical negligence lawyer can help with this process, and improve your chance of making a successful claim. 

What are some examples of medical negligence?

Some of the most common medical negligence examples include:

• Failure to provide appropriate medical treatment
• Failure to report test results correctly
• Failure to perform surgery with care and adequate skill
• Failure to provide proper postoperative care
• Failure to properly diagnose a medical condition

In many circumstances, medical negligence happens when a healthcare provider fails to obtain the proper informed consent of the patient before performing a medical procedure. Legally, patients need to be adequately informed about any possible risks of undergoing a medical treatment, so they can make an informed decision about whether it’s in their best interest to proceed. For instance, many botched plastic surgery lawsuits arise because the surgeon failed to explain the procedure properly, and therefore didn’t make it possible for the patient to provide their fully informed consent. 

Other examples of medical negligence can be found in our articles about stillbirth compensation and cauda equina syndrome. 

What medical professionals can medical negligence apply to?

The most common medical services that negligence claims apply to are:

• General Practitioners
• Emergency services
• Medical surgery
• Cosmetic surgery
• Administration or provision of drugs
• Paediatrics
• Obstetrics
• Gynaecology
• Orthopaedics
• Dentistry
• Chiropractic services

The area of medical negligence law is extremely complex, which is why it is important to seek advice from a specialist Medical Negligence Solicitor. The Medical Negligence Lawyers at LHD have years of experience and have successfully settled compensation claims against many medical services such as General Practitioners, Dentists and Chiropractors.

What is the medical negligence claim process?

Can you sue a hospital for negligence? The short answer is yes, but we recommend that you seek advice from an experienced medical negligence lawyer before making a claim. Medical negligence cases require a solid understanding of both legal and medical matters.

Here’s a general guideline that will give you an idea of what to expect when you team with LHD Lawyers to make a medical negligence claim:

1. Free Initial Consultation: This is a meeting with one of our medical negligence lawyers to discuss your case. You would provide information about the medical care you received, the outcome, and why you believe there was negligence. We would assess the viability of your case based on this information.
2. Investigation: If your case is deemed to have merit, your lawyer will carry out an in-depth investigation. This could involve obtaining and reviewing medical records, interviewing witnesses, and seeking expert opinions.
3. Filing a claim: If the investigation supports a claim of medical negligence, your lawyer will prepare and file a claim on your behalf. The claim would detail what happened, how the medical professional or institution was negligent, and the impact this negligence has had on your life.
4. Negotiation: The defendant (the medical professional or institution you’re claiming against) will have a chance to respond to the claim. There may be a period of negotiation where both sides try to reach a settlement. This could involve mediation or other forms of dispute resolution.
5. Court Proceedings: If a settlement cannot be reached, the case may go to court. You would be represented by your lawyer in these proceedings. The court would hear the evidence and make a decision on the case.
6. Settlement or Judgement: If the case is settled or if the court rules in your favour, you will receive compensation. The amount would depend on the severity of the negligence and its impact on your life.

Who can make a medical negligence claim?

If you have suffered physical or psychological harm because a medical professional breached their duty of care towards you, you might be eligible to make a medical negligence claim. 

In Australia, there aren’t any age limits for making a claim, however Australian law requires that the person must have the legal capacity to bring a claim. What this means is that they must be capable of understanding the nature and consequences of the claim. If the person is under 18 years of age, they might need their parent or legal guardian to bring the claim on their behalf. 

While it’s not necessary for you to be an Australian citizen to make a medical negligence claim, the medical treatment must have happened in Australia. In situations where the person making the claim is not an Australian citizen or permanent resident, it’s especially important that they seek legal advice from an expert in Australian law. 

Please note that there are time limits around making a claim, so it’s recommended that you consult with a lawyer as soon as you can. 

What can I claim for medical negligence?

If you’ve suffered injury or harm as the result of medical negligence, you might be able to claim for the following:

1. Financial loss: this can include a loss of income from not being able to work, the cost of medical expenses, and other economic losses incurred as a result of the injury. 
2. Non-financial loss: includes compensation for pain and suffering, as well as loss of amenities and loss of enjoyment of life.
3. Future loss: included in this is compensation for future medical expenses and loss of future income.
4. Assistance and care: you can also claim compensation for the cost of care that’s provided by family members and professional carers. 
5. Legal expenses: this includes any legal costs you’ve incurred from making the claim.

How long does a medical negligence claim take to be settled?

Every medical negligence case is different, and therefore the time it can take for your claim to be settled can vary. Factors that can affect the time between making a claim and having it settled include the severity of your injuries, the willingness of all parties to negotiate a settlement, and the overall complexity of the case. 

Relatively straightforward cases might be able to be settled within a few months, however, complicated cases can take years. Making a claim can be a long process because it involves gathering evidence (including getting medical reports), and negotiating with the other party and their insurance company. If negotiations are unsuccessful, the case might end up going to trial, which can add even more time to the process. 

To get a better understanding about how much time it might take for your medical negligence claim to be settled, it’s best that you talk directly to your lawyer. 

Are there time limits for medical negligence claims?

If you’ve been the victim of medical negligence and you want to make a claim, please be aware that there are strict time limits, so you should seek legal advice as soon as possible. The time limit for medical negligence claims in Australia varies from state to state – to learn more about the applicable limit in your state, get in touch with our medical negligence team for advice that’s specific to your situation. 

How do you prove medical negligence?

Proving medical negligence is not an easy task. In order to be successful in a claim, you will need to prove that:

• The healthcare provider owed you a duty of care
• The healthcare provider acted in a manner that was negligent and breached the duty of care
• Your injury was directly caused by this negligent behaviour

One example of medical negligence is ‘failure to warn‘ when a healthcare provider does not provide a patient with adequate information about the risks associated with a medical procedure. Another type of medical negligence is a surgical error, where a mistake is made during a surgical procedure which results in injury or harm. The process of proving that the healthcare provider acted in a way that was negligent in instances such as these will be different depending on the specifics of the situation.  

More information about this can be found in our article: How to prove medical negligence in Australia.

How successful are medical negligence claims?

The success rate of medical malpractice and negligence claims in Australia is variable. No two medical negligence cases are the same, so it’s not possible to provide a blanket statement about success rates – even when comparing similar types of claims. Ultimately, the likelihood of whether or not your claim will be successful will depend on how much evidence can be gathered to prove that the medical professional acted in a way that was negligent. The more evidence, the higher your chance of success. 

What happens if I win or lose my medical negligence claim?

If your medical negligence claim is successful, you should receive compensation for your losses. How much compensation you receive will depend on the specifics of your case. 

If your medical negligence claim is unsuccessful, you won’t receive compensation, and you might also be required to pay the other party’s legal expenses. Whether or not you’ll be liable to pay for the other party’s legal costs will depend on whether the court determines that you had reasonable grounds for bringing the claim. 

Can I appeal a medical negligence claim decision?

If you lose your medical negligence claim, it’s possible to make an appeal to a higher court. The appeals process can be complicated and difficult, which is why you’ll need to seek the advice of your lawyer before going ahead with an appeal. 

You also need to be aware that there are time limits for filing an appeal to a medical negligence claim decision. Again, it’s best that you consult your lawyer to make sure that you don’t miss any important deadlines. 

Guide to medical negligence payouts

There are a number of different types of payouts that can be awarded for successful medical negligence claims. These include:

1. General damages: A payout for general damages includes compensation for pain, suffering, and loss of enjoyment of life.
2. Special damages: This covers out-of-pocket expenses such as rehabilitation costs, lost income, and other medical expenses. 
3. Future care costs: This type of compensation is awarded if you require ongoing care or medical treatments. 
4. Loss of earning capacity: It’s possible to receive this type of compensation if your ability to earn an income has been impacted by your injuries. 
5. Interest: In certain cases, you might be entitled to interest on your compensation payout, which will be calculated from the date of the injury.

How much compensation will I receive for a successful medical negligence claim?

How much can you sue a hospital for negligence? This will depend on the specifics of your situation. There isn’t one set amount for medical negligence payouts in Australia, since each claim is considered on a case by case basis. 

Our medical negligence payout case studies provide specific information about payout amounts for our recent wins. 

What’s the average medical negligence payout in Australia?

Payout amounts for successful medical negligence cases in Australia vary greatly depending on the specifics of the case. Generally speaking, medical negligence payouts in Australia can range from thousands to millions of dollars, depending on the extent to which the plaintiff’s life has been affected by their injuries. To get more specific advice based on your own situation, please get in touch with one of our medical negligence lawyers to discuss your case. 

Example of a successful medical negligence settlement

The following is an example of a successful medical negligence claim that was lodged with the assistance of LHD Lawyers:

Client consulted defendant for diagnosis and treatment of symptoms that were consistent with and were caused by bacterial pneumonia. Client was diagnosed with URTI which was incorrect. Defendant did not conduct the appropriate investigations to conclude the correct diagnosis for our client which resulted in unnecessary injuries and severe health complications.

You can read more examples of medical negligence payouts at our medical negligence payout hub. 

Start your medical negligence claim

If you believe you’ve been severely impacted as a result of medical malpractice, we can help. Our expert medical malpractice team will be able to assess your case and help you receive the medical negligence compensation you are entitled to.

We also have you covered with our No Win No Fee policy so you don’t have to worry about not having the finances to have your case heard. Contact us on 1800 455 725 to arrange a consultation with a medical negligence lawyer today.

Original Publish Date: October 25, 2021

Last Updated: December 4, 2023