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Surgical Error claims

Surgical Error claims

Surgical and procedural treatment errors are quite possibly the most common area in which medical negligence claims arise.

Surgical errors are when a preventable mistake occurs during, or even after, surgery which could reasonably have been avoided had the surgeon exercised an accepted standard of care and skill.

Examples of surgical errors would include, but certainly are not limited to:

  • • performing unnecessary or contraindicated procedures;
  • • leaving behind surgical equipment such as clips and sponges;
  • • causing unnecessary disfigurement or nerve damage;
  • • damaging other parts of the body not related to the underlying surgery;
  • • post-operatively allowing infection to occur at or near the surgical site; and
  • • where certain risks of the surgery were not communicated and, had the patient been aware, they would not have proceeded with the surgery (that is, a failure of informed consent).

The difficulty in this particular area comes from the fact that all surgery involves an element of risk that, even with the application of accepted care and skill, complications may still arise. These inherent risks are considered to be recognised complications of the procedure and would not be actionable as medical negligence. Therefore, it is critical to understand the accepted standard of surgical care and skill and then differentiate those recognised complications from any injuries that may have resulted from surgical error.

Once a failure to provide care of an acceptable level of care and skill is established, injured patients can claim compensation for those injuries that could have been avoided had the accepted standard of care and skill been implemented.

ARE YOU ELIGIBLE
TO MAKE A CLAIM?

If you have suffered an injury, loss or damage as a result of the negligent treatment provided by a doctor, dentist, hospital or other health care provider you may be entitled to a claim for damages.

A poor outcome resulting from your treatment does not in itself establish an entitlement to claim. What needs to be proven is that your treatment was provided in a negligent manner and that the treatment provider breached their duty of care to you.

WHY ARE BRYDEN’S LAWYERS THE RIGHT REPRESENTATION FOR YOU?

Brydens Lawyers are the experts in the prosecution of surgical error medical negligence cases with a dedicated medical negligence department and panel of medical experts available to give evidence in court against doctors, hospitals or other health care practitioners who have been negligent in the treatment of their patients.
Brydens Lawyers specialise in reviewing medical records, liaising with medical experts and explaining complicated legal and medical issues to our clients in a way that they will understand. This is to ensure that clients of Brydens Lawyers are kept fully and properly informed every step of the way so that they can understand the process and what is involved in the bringing of a successful medical negligence claim.

Brydens Lawyers operates as a ‘No Win – No Fee”, policy which, simply put, provides that if a personal injury or compensation client is unsuccessful in their claim then Brydens Lawyers will not raise a tax invoice for having acted on behalf of the client. That is, if the claim is unsuccessful we do not get paid. More information about how this works can be found on our No Win – No Fee page.

WHAT ARE YOU
ABLE TO CLAIM?

The types of damages available in medical negligence claims can include:

  • • Non-economic loss which includes damages for pain and suffering;
  • • Past and future medical expenses and out of pocket expenses;
  • • Loss of income and any damage done to your ability to earn an income in the future;
  • • Past and future loss of superannuation benefits;
  • • Past and future paid services such as home cleaning or nursing assistance;
  • • The value of services provided to you by family and friends without charge;
  • • Past and future medical aids and equipment such as wheelchairs;
  • • Home modifications such as those required to make a home wheelchair accessible;
  • • Vehicle modifications;
  • • Additional costs incurred in connection with continuing disabilities, for example, additional cost of holidays due to special needs;
  • • A contribution towards your legal costs and disbursements.

Damages are very specific to each individual’s situation and assessing your claim for damages will be a central part of the service provided to you by our medical negligence team.

WHEN SHOULD YOU CONSULT A LAWYER ABOUT MAKING A CLAIM?

If you have suffered from any form of medical negligence then you need to engage proper legal advice and representation. There are strict time limits around lodging a medical negligence claim, so even if your treatment is ongoing, you must consult a legal representative early to ensure your claim is lodged within the allowed timeframe.

WE DO MEDICAL INJURIES LAW WELL. HERE ARE SOME EXAMPLES:

• Our client sustained a serious right wrist fracture which required surgical treatment. The surgeon who performed the surgery failed to perform the correct procedure, resulting in multiple further surgeries being required. Our client was permanently incapacitated for work as a result of the mismanagement of his fracture and was entitled to claim pain and suffering, past and future out of pocket expenses, past and future assistance as well as his past and future loss of income.

• Our client underwent a lumbar spine fusion. The screws placed during the surgery subsequently broke. She was entitled to claim pain and suffering, past and future out of pocket expenses, past and future loss of income as well as past and future care and assistance.

• Our client had a venous fistula created on the basis that she may need dialysis in the future. She subsequently learned that the fistula was unnecessary. The fistula resulted in complications which left our client with limited hand movement and sensation. She was entitled to claim for her pain and suffering, past and future loss of income, past and future out pocket expenses as well as past and future care and assistance.

• During surgery to our client’s cheek antiseptic used to prepare the cheek for surgery entered our clients eye, causing a chemical burn resulting in corneal damage and blindness. He was entitled to claim for his pain and suffering, past and future out of pocket expenses, past and future loss of income as well as past and future care and assistance.

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An article published by insurancenews.com.au on 22 November 2019 references a reported $876 million net loss by NSW State owned Icare for its workers compensation Nominal Insurer scheme last financial year amid rising medical costs and falling bond yields.

It is reported that gross premiums were in the order of $2.5 billion while net claims expenses/scheme costs were just over $4 billion. That is, there was a reported underwriting loss of almost $2.4 billion while Icare received a net investment revenue of just over $1.6 billion.

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