Medical Negligence in NSW: How It Works and What You Can Claim

‘Duty of care’ is a legal concept that requires certain people to protect your safety and well-being. Some relationships automatically come with this legal responsibility, like doctor and patient, or teacher and student. This means that if you received treatment from a registered medical professional, it’s very likely that they owed you a duty of care.

A breach of duty of care can happen in two main ways: either by doing something negligent, or by failing to act when action was needed.

For example:

• A negligent action could be a surgeon accidentally leaving a surgical instrument inside your body.
• A negligent failure to act might be a GP not referring you to a specialist, even when there are clear warning signs of a serious condition.

To work out whether your doctor breached their duty, we apply what’s called the ‘reasonable standard of care’ test. This involves asking: Would another competent medical professional have acted the same way in the same circumstances? If the answer is no, it’s likely your doctor breached their duty of care.

Proving medical negligence in NSW involves more than showing a duty of care was breached. You also need to prove that the breach caused your injury. This is known as causation, and it’s a crucial part of any successful medical negligence compensation claim.

To establish causation, you’ll need to meet two key criteria:

1. Your injury or illness must have directly resulted from the medical professional’s actions or failure to act, and
2. The harm you suffered must have been a ‘reasonably foreseeable’ outcome of that treatment (or lack of treatment).

In other words, it’s not enough that something went wrong — you have to show it wouldn’t have happened if you’d received proper care.

The final step in a medical negligence claim is proving that you suffered a loss because of your injury or illness. This could include lost income, out-of-pocket medical expenses, ongoing care costs, or non-economic loss like pain, suffering, and reduced quality of life.

In your free consultation, you’ll speak directly with one of our expert NSW medical negligence lawyers about what happened and how it’s affected you. We’ll assess whether you’re likely to have a valid claim, give you an idea of what your medical negligence compensation could look like, and talk through your chances of success — all in plain, honest terms.

There’s no pressure to proceed. But if you choose to move forward, you’ll be fully protected by our No Win No Fee guarantee.

Your lawyer will start by carefully reviewing your medical records and history to pinpoint exactly what went wrong. If needed, we’ll bring in one of our trusted independent medical experts to assess your condition. These expert reports are critical to building a strong case — and we cover all the costs upfront. You won’t pay anything unless we win.

We’ll also notify the medical professional involved (and any others relevant to your care) and formally request a full copy of their records to support your medical negligence claim.

We work closely with trusted medical experts — including GPs, surgeons, and liability specialists — to gather detailed reports and evidence that strengthen your claim. If your injury has affected your ability to work or reduced your hours, we’ll also engage vocational experts to assess the impact on your current and future earning capacity.

Once we’ve gathered strong expert evidence, we’ll begin formal court proceedings by filing the necessary documents and providing your evidence to the insurer. From there, your medical negligence claim typically moves to mediation, where our experienced lawyers negotiate strategically to secure the maximum compensation possible — without the stress of going to trial.

Most medical negligence claims in NSW are settled at mediation, without the need to go to court. At this stage, your lawyer will handle all negotiations on your behalf, using the expert evidence we’ve gathered to fight for the best possible outcome.

If a fair settlement isn’t reached, we won’t hesitate to take your claim to court.

If you’ve been injured by a medical professional (or even suspect that something wasn’t right with your treatment), it’s important to speak with a medical negligence lawyer as soon as possible.

Medical negligence claims in NSW are complex and time-sensitive. While there’s a general three-year time limit, waiting to start your claim can seriously impact your chances of success. Over time, evidence becomes harder to obtain, medical records can be lost or destroyed, and witnesses may forget key details.

If you believe your doctor or healthcare provider may have acted negligently, don’t wait. Our experienced medical negligence lawyers in NSW offer free consultations — so it costs you nothing to find out where you stand.

Building a strong medical negligence claim starts with solid evidence. The more detailed and well-documented your case is, the better your chances of success. At Monaco, we always say: when it comes to evidence, more is more.

Here are some of the key documents that can support your claim:

• Medical records: such as GP notes, hospital records, scan and test results, prescriptions, surgical notes, and discharge summaries.
• Timeline of events: a clear log of what happened, including when symptoms started, what treatment you received, and how things progressed.
• Independent medical reports: expert opinions from professionals in the same field as your treating doctor, explaining how the care you received fell short of accepted standards.
• Psychological assessments: if your injury has affected your mental health or day-to-day life, these reports can show the broader impact of the negligence.
• Payslips and tax returns: to help calculate lost income and demonstrate how the injury has affected your ability to work.
• Receipts and invoices: for out-of-pocket costs such as medications, rehab, travel, and hospital stays.
• Photos or videos: visual evidence of your injury, recovery process, or any changes you’ve made to your home to accommodate your condition.

Importantly, you don’t have to gather all this yourself. Our experienced medical negligence lawyers in NSW know exactly what’s needed, and we’ll take care of the entire process for you. We’ll request the right records, arrange expert assessments, and deal directly with hospitals, doctors, and government bodies. That way, you can focus on your recovery while we build you a compelling medical negligence claim.

If you’ve lost a loved one due to medical negligence, you may be entitled to compensation. While standard medical negligence claims are only for the person actually harmed, there are three other types of claims you may have:

• Dependency claims: if you depended on the deceased for financial support (e.g. income, rent, or household expenses).
• Nervous shock claims: if the loss caused you to develop a recognised psychiatric illness, such as anxiety, depression, or PTSD.
• Loss of services claims: if the person who passed away regularly helped with unpaid tasks like cooking, cleaning, or caring for children.

These claims can provide real financial support during one of the most difficult times in your life. In the sections below, we’ll break down how each claim works and how our medical negligence lawyers in NSW can secure the compensation you deserve.

Dependency claims

If you relied on your loved one’s income, you may be eligible to make a dependency claim. This type of claim helps replace the financial support you’ve lost due to their death.

You may be eligible for a dependency claim if you’re the deceased’s spouse, de facto partner, child, parent, or sibling. In addition, other people who were financially dependent on the deceased may also qualify.

The amount of compensation you receive will depend on several factors:

• Your relationship to the person who passed away.
• Their income and earning capacity before their death.
• How much financial support they provided to you.
• Any future needs, such as school fees, housing, or ongoing care.

Essentially, the goal of a dependency claim is to help ease the financial burden of your loved one’s passing.

Nervous shock claims

If losing your loved one caused you to develop a recognised psychiatric condition, you may be entitled to make a nervous shock claim.

This type of claim is designed to support people who’ve suffered serious mental health impacts — like PTSD, depression, or anxiety — as a result of witnessing or learning about a traumatic loss.

It’s important to note that while grief and emotional distress are natural, they aren’t enough on their own. To be eligible, you’ll need a formal diagnosis from a medical professional.

A successful nervous shock claim may include compensation for:

• Psychological treatment and ongoing counselling.
• Lost income if your condition affects your ability to work.
• Pain and suffering caused by the psychiatric injury.

If you think you may have a claim, our medical negligence lawyers in NSW can guide you through the process with care and compassion.

Loss of services claims

If your loved one regularly helped with unpaid tasks like cooking, childcare, or school drop-offs, you may be able to claim compensation for the loss of those services. These are known as gratuitous services.

To determine what you’re entitled to claim, the court will consider:

• How many hours your loved one spent helping each week.
• The type of support they provided (e.g. were they the primary caregiver?).
• Whether their absence now requires paid help or puts extra pressure on others in the household.

Not sure what kind of claim applies in your situation? We’re here to help. Our experienced medical negligence lawyers will listen with care, explain your options clearly, and guide you through every step of the process.

Medical negligence and medical malpractice mean the same thing — just with different names. In NSW and across Australia, the term ‘medical negligence’ is more frequently used, while ‘malpractice’ is more common in the US. But both refer to the same situation: when a healthcare provider fails to deliver proper care and someone is harmed as a result.

No matter which term you use, the legal test is the same. To make a successful claim, you’ll need to prove that:

• The medical professional breached their duty of care.
• That breach directly caused your injury.
• The injury resulted in physical, emotional, or financial loss.

If you think your treatment may have fallen short, our experienced medical negligence lawyers in NSW can assess your situation and explain your options — completely free of charge.

Failure to warn (or lack of informed consent) is a specific type of medical negligence claim. Unlike most cases, which focus on what a doctor did wrong, these claims centre on what your doctor didn’t do.

To succeed in a failure to warn claim, you generally need to show:

1. The doctor didn’t tell you about a material risk: this must be one that a reasonable person in your position would want to know about, such as the chance of a serious complication or the availability of alternative treatments.
2. You would have made a different decision: if you’d been properly warned, you would have delayed the procedure, chosen a different option or changed your decision in another way.
3. The risk occurred: the risk you weren’t warned about actually happened, and you were harmed as a result.

These claims can be more complex than standard medical negligence cases in NSW because they rely on hypotheticals: what your doctor failed to explain, and what you would have done differently if you’d known. Proving this often requires additional evidence, expert testimony, and a careful legal strategy.

If you’ve been injured after a medical procedure and weren’t properly warned of the risks, you may be entitled to compensation. Speak to one of our experienced medical negligence lawyers for a free consultation. We’ll explain your rights, assess your claim, and help you understand how much you could be entitled to.

Medical negligence claims in Sydney and across NSW are governed by the Civil Liability Act 2002 (NSW). This is a key piece of legislation that outlines:

• Whether a healthcare provider failed in their duty of care.
• Whether that failure directly caused your injury.
• How your compensation should be calculated.

Because each state has its own set of rules, it’s essential to have a lawyer who understands the specific legal requirements in your area. At Monaco, every member of our NSW medical negligence team focuses solely on claims within their state.

So, when you come to us for help, you’ll be working with a lawyer who knows NSW medical negligence law inside out. They’ll guide you through your entitlements and fight to secure the maximum compensation available under NSW legislation.