Medical Negligence Compensation in NSW: What You Can Claim

Entitlement To Medical Negligence Compensation In NSW

If you are living with an ongoing injury because of medical negligence in NSW, it is essential to seek legal advice so you can understand your entitlements to compensation, specifically the different categories of compensation, how compensation is calculated, and the factors that affect the compensation that is paid to you.

You will be entitled to compensation for your injuries if you can establish that your injuries were caused by negligence. Your compensation claim ultimately depends on the nature, extent and severity of your injuries and how those injuries impact you and your life.

The law recognises that if a person sustains injury or loss as a result of someone else’s negligence, that person is entitled to be compensated to restore them to the position they would have been in had the negligence not occurred.

How Medical Negligence Compensation Is Calculated in NSW

If a person proves negligence, that person is entitled to claim compensation for past out-of-pocket expenses on account of medical expenses, allied health expenses, medications and disposables or consumables. Similarly, a person can claim the costs of future out-of-pocket expenses arising from treatments or medications that they are likely to require because of the injuries caused by the alleged negligence. This includes medical review and treatment, surgical treatment, psychological and psychiatric treatment, physiotherapy, occupational therapy, speech therapy, aids and equipment and assistive technology.

If the injury caused by negligence gives rise to a requirement for care and domestic assistance, the injured person can claim the costs of past and future care and domestic assistance. If care and domestic assistance had been provided on a commercial basis, the costs would be claimed as out-of-pocket expenses. If the injured person received care and domestic assistance from a family member or friend, the injured person can claim the cost of that care based on average weekly earnings, provided the requirements for care were six hours per week for a period of six months. An injured person can also claim the costs of future care and domestic assistance on a commercial basis if those services are required because of the injury caused by negligence.

Medical Negligence Economic vs Non-Economic Loss

An injured person can also claim economic loss arising from a loss of, or reduction in, earnings or earning capacity. For example, lost earnings due to time off work resulting from the injury. Similarly, compensation is claimable for the anticipated loss of earnings if the injured person’s vocational capacity is impaired. If the injured person has a reduced capacity to work, they are entitled to claim the difference between their pre-injury and post-injury earning capacity. For example, Sam worked 5 days per week before the injury. As a result of injury, Sam’s vocational capacity is reduced to three days per week. In this scenario, Sam is entitled to claim compensation for his future loss of earnings of two days per week that he would have been able to earn had the negligence causing his injury not occurred.

In addition to economic loss, an injured person can claim non-economic loss, commonly referred to as pain and suffering. In New South Wales, to be entitled to claim compensation for pain and suffering, the injured person must be able to prove that their pain and suffering is at least 15% compared to the pain and suffering of the most disabled person imaginable. A sliding scale is used between 15% and 100%. The assessment of pain and suffering depends on the nature, extent, and severity of the injuries, as well as the prognosis. For example, the pain and suffering of a person living with an injury for two years would be assessed at the lower end of the scale compared to an injured person who must live with an injury for the remainder of their life.

Factors That Affect Medical Negligence Payouts

Many factors affect the value of compensation awarded to an injured person. The most significant factor is the ability to substantiate the loss and prove that the alleged negligence caused the injury and the resulting needs. If an injury cannot be attributed or a loss cannot be substantiated, compensation cannot be awarded for that injury or loss. For example, lost earnings cannot be claimed if the loss is not substantiated by payslips or tax documents. Receipts of the expenses claimed must support past out-of-pocket expenses that would not have been incurred but for the injury caused by the negligence.

Other factors include the age of the injured person, their pre-injury function, pre-injury qualifications and vocational capacity, the nature, extent and severity of the injuries, the impact of the injuries on all aspects of their lives, their needs arising from the injuries and associated costs and prognosis. For example, if an injured person was unable to work before the alleged negligence due to pre-existing non-negligent health conditions, it would be challenging to claim economic loss in the circumstances. Similarly, if the injured person had been receiving care and assistance before the negligence-caused injury, it would be difficult to recover the costs of that care and assistance, unless the negligence-caused injury gives rise to additional care requirements. In those circumstances, compensation could be claimed for the costs of the extra care and assistance.

Additionally, the complexity of the medical and legal issues affects the amount of compensation payable to an injured person. Litigation is inherently risky, and compensation is reduced due to the risks inherent in litigation and any additional liability issues specific to each case.

Example Medical Negligence Compensation Amounts in NSW

Examples of compensation:

Example 1: Delayed diagnosis of cancer resulting in invasive surgery and prolonged and aggressive chemotherapy treatment, but excellent prognosis: $600,000

Example 2: Delayed diagnosis of cancer resulting in a significantly reduced life expectancy and years of ongoing medical and surgical treatments to prolong life: $900,000

Example 3: Delayed diagnosis and treatment of viral encephalitis resulting in mild cognitive impairment and vocational incapacity but preserved physical function: $2,100,000

Example 4: Delayed diagnosis of cardiac condition resulting in hypoxic brain injury with associated cognitive impairment and hemiplegia: $3,500,000

Example 5: Hypoxic brain injury sustained during labour and delivery resulting in severe disabilities: $12,000,000

Example 6: Delayed diagnosis and treatment of post-operative infection resulting in sepsis and multiple surgical procedures to debride the infection, prolonged intravenous antibiotics and hospitalisation with subsequent complete recovery: $160,000

Why Expert Medical Negligence Legal Advice Matters

It is important to seek legal advice on prospects of success, the statutory caps and thresholds applicable to calculating compensation and the factors that affect the value of compensation. Once expert evidence in support of the negligence claim has been secured, an experienced lawyer will take detailed instructions from an injured person to enable the quantification of the compensation claim. The lawyer must ensure that all aspects of the injury and its impact have been captured. If this information is incomplete, there is a risk that some injuries would be missed and compensation not captured.

Expert medical evidence is required to connect the injury to the alleged negligence and substantiate and quantify the compensation claimed. This involves gathering evidence such as receipts, payslips, and tax documents. The lawyer must arrange medical assessments to ascertain the nature and extent of the injury, the needs arising from the injury, and the associated costs in the past, present, and future.

Contact Garling and Co Today

Don’t navigate this complex process alone—if you believe you have a claim for medical negligence compensation, reach out to the experienced team at Garling and Co, leading NSW medical negligence lawyers. Garling and Co are renowned for their expertise in medical negligence claims, deep understanding of NSW laws, and their commitment to achieving the best possible outcomes for their clients. By choosing Garling and Co, you’ll receive personal attention, clear guidance, and a strategic approach to maximise your medical negligence payouts and ensure all aspects of your injury and its impact are thoroughly addressed. Take the first step toward the compensation and justice you deserve—contact Garling and Co today and put your medical negligence damages and compensation claim in trusted hands.

Please find more Medical Negligence resources and articles here –

• Medical Negligence Lawyers Sydney
• Hospital Negligence
• Surgical Error Claims
• Blog – Am I Suffering Because of Medical Negligence?

Contact Garling and Co today!