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How to Prove Medical Negligence

There are a number of core elements that must be satisfied for you to be successful in your medical negligence / medical malpractice claim.

Your lawyer will establish by way of expert evidence, that the procedure/care undertaken was not widely accepted as competent peer professional practice. This means that a professional in the same position as the defendant would not have acted as the defendant did.

If you can establish both negligence and causation it is likely that you are eligible to make a medical negligence claim and obtain compensation for your injuries.

What is medical negligence and is there a difference to medical malpractice?

The terms medical negligence and medical malpractice describe the same type of claim. In Australia we use the term Medical Negligence.  In the USA the term used is Medical Malpractice.

At the end of the day, both terms describe the same thing, that being:

  1. An act or omission by healthcare providers.  This includes doctors, nurses or midwives that causes an injury to a patient or someone under their care, and;
  2. The act or omission represents a departure from reasonable standards of care.

Ways to Prove Medical Negligence

  • Duty Of Care

To prove medical negligence, you first need to establish that a healthcare provider or medical facility owed you a duty of care. This is a requirement for bringing a medical negligence claim. You do not have legal standing to seek compensation from a healthcare provider or medical facility if you cannot establish that they owe you a duty of care.

A duty of care normally arises from the doctor-patient relationship. Duty of care is the responsibility of the healthcare provider or medical facility.  They must provide care and treatment to a patient with the exercise of reasonable care and skill as to ensure your safety and well-being as a patient.

This duty of care extends to the initial examination, management, diagnosis, medical and surgical treatment and referral for further management of a patient. Medical facilities such as hospitals or medical centres also owe patients a duty of care.  If the allegedly negligence treatment was provided at the facility and/or by healthcare professionals who are employed by those facilities or act as servant or agents of the facility.

  • Breach of duty of care

Once a duty of care has been established, the next step is determining whether the healthcare provider or medical facility breached their duty of care to you, the patient. The question of whether a healthcare provider or medical facility breached their duty of care to a patient is ultimately subject to determination by the courts. However, before a court can determine the question of breach of duty of care, the applicable standard of care must be ascertained.

  • Standard of care

The standard of care is determined by ascertaining if the services provided to the patient were provided in a manner that was consistent with the accepted standard of care at that time. This is determined by having regard to peer professional opinion in Australia as to whether the healthcare provider acted in a manner that was widely accept as competent professional practice at that time.

For example, if it is alleged that an obstetrician breached his or her duty of care by failing to provide reasonable care to a patient in 2001, the standard of care applicable is the one that was widely accepted by peer professional opinion in Australia as competent professional practice in 2001.

Suffering an injury or an unsatisfactory prognosis or treatment outcome is not in, or of, itself proof of negligence.  A healthcare provider is not liable in negligence if he or she can establish that they acted in a manner that was consistent with competent professional practice as widely accepted by peer healthcare providers in Australia at the time that the medical service was provided. Usually, the courts are assisted by expert medical opinion on the standard of care applicable. Professional opinions cannot be relied on if the court considers the opinion to be irrational. Medical expert opinion usually also identifies the wrongful acts or omissions that represent departures from competent professional practice.

  • Failure To Warn

The standard of care set out above does not apply to failure to warn claims.  Failure to warn claims arise when the plaintiff alleges that the medical professional omitted relevant information about treatments and practices that has caused them harm. Failure to warn includes the omission of any advice, information, or warning about a procedure or a treatment. A medical professional must advise patients of the risk of treatment. The type of information that should be given to the patient include the following;

  • Extent and severity of the potential injury
  • Likelihood of injury occurring
  • Necessity of the operation
  • Alternative treatments
  • Fears or concerns of the patient that are known to the practitioner.

The medical professional must provide such advice, information, or warning in a manner that the patient can understand. For example, if a patient did not speak English, or could not understand it, the practitioner would need to be satisfied that they have successfully conveyed the information and risks of the surgery to the patient.

To successfully argue the failure to warn, the plaintiff needs to prove whether the omission of any advice, information or warning caused the patient any harm. For example, if the patient wasn’t advised about an alternative surgery that had more risks and a higher chance of failing, it would be difficult to prove that the inclusion of this information would have resulted in the patient electing to have any different treatment.

An expert medical opinion needs to be obtained in any medical negligence claim to prove breach of duty of care.

  • Negligent Treatment

Negligent treatment is one where the medical professional’s actions or omissions cause harm or injury to the patient during treatment. Examples of this include:

  • Botched surgery
  • Misdiagnosis
  • Medication errors
  • Failure to refer a patient to a specialist
  • Misreporting test results

A medical professional is not negligent if they acted in a manner that was widely accepted at the time of the treatment as competent medical practice. This means that a similar doctor would not have acted differently provided with the same information, and therefore the medical professional’s actions or omissions cannot be negligent. To prove this, an expert opinion should be consulted. The expert will testify on whether the medical professional acted within competent professional practice given the circumstances of the case.

To have breached the duty of care in a medical negligence case, the medical professional must have acted outside of peer professional opinion, and such an action or omission led to directly to harm or injury to the patient.

  • Causation

While it is necessary to prove a breach of duty of care, it is also necessary to prove that such a breach was the cause of harm or injury to the patient. In medical negligence cases the plaintiff bears the onus of proof and needs to prove causation.

Causation is the requirement that negligence is a necessary condition for the harm occurring. It is the notion that if there was no negligence, the harm would have been avoided. If the medical professional’s negligence materially contributes to the injury, then there is causation. If there are multiple factors contributing to a patient’s harm, as long as one of the factors is caused by the medical professional’s negligence, factual causation is met.

  • Damages

Depending on the extent and severity of injuries, a successful plaintiff may be able to claim compensation for:

  • Past and future medical expenses
  • Past loss of income
  • Future loss of income and/or loss of earning capacity
  • Past care
  • Future care
  • Pain and suffering
  • Loss of enjoyment of life.

How hard is it to prove medical negligence?

It is very difficult to prove Medical Negligence. In Medical Negligence cases, there is a high standard of proof, involving complicated medical documents and reports and expert opinions. That is why it is important to consult an accredited specialist to assist you in your medical negligence claim.

What happens once I can prove medical negligence?

To prove medical negligence you need to establish that the medical professional or hospital breached their duty of care. This will always involve obtaining expert medical opinion related to the failure or omission of the medical practitioner or hospital which caused your injury.

If you do have an arguable claim for medical negligence, you are entitled to claim damages, which is a form of compensation. Damages a payable in respect of;

  1. Payment for pain and suffering loss of enjoyment of life
  2. Payment of past and future medical treatment
  3. Payment in past and future loss of income and for
  4. Payment of care past and future care and assistance.

Damages are payable as a once off lump sum amount to compensate you for both past and future losses and it is a once-off payment of compensation. You are not entitled to return and claim any further compensation once the amount has been agreed or determined by a court. The majority of claims for medical negligence need to be commenced in the District or Supreme Court of NSW and it takes between one and two years from the commencement of the claim for it to be settled either by way of negotiation with the insurance company or a determination by a judge.

When do I contact a lawyer?

If you think you have a claim for medical negligence you need an Accredited Specialist in Personal Injury Law to act on your behalf.

Compensation claims arising from injuries caused by medical negligence, also known as medical malpractice, are highly complex and to achieve the best outcome, you need the support of an accredited specialist in personal injury law. Victims of medical negligence face life-changing injuries and disabilities, that at their worst are catastrophic, but all significantly impact  all aspects of their lives, their quality of life and even the lives of their families.  We’ve successfully helped people just like you to receive the financial compensation they deserve due to the negligence of doctors, hospitals, nurses, midwives and allied health professionals including physiotherapists.

We understand that living with an injury or a serious medical condition usually involves endless medical appointments and makes it difficult to even perform basic activities of daily living. You may suspect that your medical condition or disability were caused by negligence on the part of your treating doctors but do not have the time to investigate those suspicions.  You might not know which avenues to pursue to investigate your suspicious or understand conduct that amounts to medical negligence.

Although information is widely available these days, it might be difficult for you to find information that describes your individual circumstances. This makes it difficult for you to determine if the circumstances leading to your injuries amount to medical negligence. Similarly, you might not understand your legal rights and you might not realise that you are entitled to compensation for your injuries. We have included a selection of medical negligence cases that highlight the highly diverse nature of medical negligence claims and some of the compensation amounts that we are able to secure for those claims.

Our selection of medical negligence cases studies will help you understand the following:

    • The different types of medical negligence
    • If your injuries are likely to arise from medical negligence
    • The injuries and losses that are compensable
    • How compensation is calculated

At Garling & Co, we work on a no win no fee basis to ensure that everyone has the means to fight their legal case. To learn if you are eligible, please fill out our free, no-obligation confidential case assessment form.  We will respond within 24 hours alternatively, you can give our friendly team a call today at 02 8329 9500.

Professional woman typing on laptop

Joelle Matar

Joelle is an expert in Medical Negligence Law, with over 15 years experience working exclusively in Medical Negligence since 2007. She is also an Accredited Specialist in Personal Injury Law, Law Society of NSW. Her deep...
Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
READ ALL TESTIMONIALS

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Complete our free, no obligation confidential case assessment form and we’ll get back to you within 24 hours.

Alternatively, we are available to talk through phone and email. Please contact our experienced workers compensation lawyers to find out how we can help.

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Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
The law society of nsw professional standards scheme logo.
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