What are the requirements for making a medical negligence claim?
If you have suffered injury, loss or damage as a result of treatment provided by a healthcare professional there may be a medical negligence claim available to you.
Medical negligence claims are often complicated and complex. However, they need not be. The elements of a medical negligence claim are easily identifiable. The question arises however as to whether there is evidence available to establish the elements of the claim to the satisfaction of the court thus entitling you to claim damages for the injury, loss or damage which you have suffered.
The elements of a medical negligence claim are as follows:
- It is necessary to establish a duty of care. Of this there is no doubt. All healthcare professionals owe a duty of care to their patients.
- It would then be necessary to establish a breach of that duty of care. For same evidence is required of “peer professional opinion” to prove that the conduct of the healthcare professional in question was not widely accepted in Australia as competent professional practise. Invariably this takes the form of an expert’s report from a “peer professional”, that is someone of the same or similar qualifications as the healthcare professional complained of or acting in a similar capacity. Once the evidence is available to the satisfaction of the court that the conduct of the healthcare professional did not constitute “competent professional practise” in accordance with accepted peer professional opinion, then the breach of the duty of care has been established.
- It then is necessary to show, again to the satisfaction of the court, that the breach of duty caused or materially contributed to the injury, loss or damage suffered by the patient. If this causal connection can also be proven then, with the breach of duty of care, the elements of a negligence claim against the healthcare professional have been sufficiently established. Of course, this presumes that injury, loss or damage has occurred. It is important to note that even if breach of duty of care is established but no injury, loss or damage results from same, then there is no claim.
- It should be noted that the mere dissatisfaction with the outcome of medical treatment or a procedure is not in itself sufficient to establish the entitlements to a claim. As set out above, the patient must prove that the duty of care owed by the healthcare professional was breached and that the injury, loss or damage resulted from same. There can be instances where a less than optimum outcome results from medical treatment or a procedure and that this did not arise as a result of any breach of duty of care.
Once the breach of duty of care and the question of causation have been satisfied the court will turn its attention to the injury, loss or damage suffered by the patient for the purpose of determining the appropriate level of compensation. Compensation can be awarded for non- economic loss (pain and suffering), past and future medical treatment expenses, the value or cost of care that is required by the patient, past and future economic or wage loss as well as a contribution towards the patient’s legal costs.
Brydens Lawyers are experts in the successful prosecution of medical negligence claims. If you have any concerns with respect to treatment provided by a healthcare professional which may have resulted in injury, loss or damage then the matter is worthy of investigation. For a free consultation and initial assessment of any claim that may be available to you, call the experts at Brydens Lawyers. Strict time limits apply so do not delay. Brydens Lawyers #WE DO medical negligence claims.