What evidence is needed to prove Medical Negligence?

Often we are called upon to assess the poor outcome from a medical procedure or treatment so as to advise a client as to whether there is a claim available against the healthcare provider.

The mere fact that there has been a poor outcome from a medical procedure or treatment is not in itself sufficient to establish a claim in medical negligence. Far more needs to be proven.

As with all negligence claims, the court must ultimately be satisfied that the party bringing the action has established:

  • that there was a duty of care owed

  • that the duty of care was breached

  • injury, loss or damage was occasioned as a result of the breach of duty of care.

    There is of course no argument that a duty of care is owed by any healthcare professional to a patient. The issue with respect to all medical negligence claims is whether there has been a breach of that duty and whether such breach was causative of injury, loss or damage.

    As to the breach of duty of care, reliance is placed on the expert evidence that can be adduced by the party. The Civil Liability Act provides that the question of negligence of a healthcare provider, or any other professional, is to be adjudged by reference to peer professional opinion. In those circumstances it is necessary to elicit expert medical evidence from appropriately qualified specialists to determine whether in the particular circumstances of any case, there was a breach of duty of care on the part of the healthcare professional. As I have said, the standard of care required is adjudged by reference to peer professional opinion which is widely accepted in Australia as competent professional practice.

    The law provides that where there are differing peer professional opinions accepted in Australia concerning a particular matter, one or more or all of those opinions could be relied upon for the purpose of establishing a breach of duty of care on the part of the healthcare professional. Furthermore, peer professional opinion does not have to be universally accepted to be considered widely accepted.

    Once breach of duty of care has been established the question then arises as to whether said breach was causative of any injury, loss or damage. Invariably the losses suffered as a result of the breach of duty can be readily established. In some cases it is far more difficult.


Accordingly, expert opinion may also be sought on the question of “causation”. That is, evidence needs to be elicited to establish, again to the satisfaction of the court, that the breach of duty of care did result in injury, loss or damage being sustained.

As to the expert evidence itself, it must be proffered by a “peer professional”. That is, the expert must be similarly qualified and experienced as the healthcare professional whose conduct is being considered. For example, it is only appropriate for an orthopaedic surgeon to provide peer professional opinion as to competent professional practice when considering the conduct of an orthopaedic surgeon against whom the complaint has been made.

Medical negligence claims can be complex and complicated. Strict time limits apply. If you, a family member or friend are concerned with respect to any medical procedure or treatment then legal advice should be sought without delay. Brydens Lawyers are the experts in the prosecution of all medical negligence claims. For a free, one-on-one consultation with one of our medical negligence experts, contact Brydens Lawyers on 1800 848 848 or at brydens.com.au. At Brydens Lawyers – #WE DO medical negligence claims.