What is a ‘duty of care’ in a medical negligence claim?
When you visit your doctor or healthcare professional, you expect to receive a high standard of treatment. In fact, because our society places such a high level of trust in medical professionals, they have a special responsibility to act in your best interests. This is known as their ‘duty of care’.
If your medical professional fails their duty of care and you’re injured as a result, you may have a medical negligence claim. This means you could get compensation for things like lost income and medical expenses, as well as your pain and suffering.
In this post, we’ll dive further into what duty of care means and how it impacts your medical negligence claim. If you’d prefer to speak with a lawyer about your situation today, simply get in touch. Our expert medical negligence team are always ready to provide free advice.
What types of medical professionals owe me a duty of care?
All registered medical professionals owe you a duty of care. This includes (but is not limited to):
Don’t worry if your medical professional isn’t listed here — these are just some of the most common ones we’ve dealt with. If you were treated by a registered medical professional, it’s likely they owed you a duty of care. To confirm whether you have a claim, chat with one of our specialist lawyers today.
What does a duty of care involve?
When it comes to medical professionals, duty of care involves several key responsibilities, such as:
- Delivering treatment that meets the established standards in their field.
- Ensuring patients understand the risks and benefits of treatments.
- Communicating clearly with patients, addressing concerns and providing relevant information.
- Taking steps to avoid causing foreseeable harm to their patients.
Examples of medical professionals failing their duty of care
While there are many ways a medical professional could fail their duty of care, here are some of the most common:
These are just a few examples we’ve seen over the years — there are plenty of other situations that might qualify as a breach of duty of care.
If you’re not sure whether you have a case, get in touch with one of our medical negligence lawyers today. We offer free consultations to help you figure out if you have a claim and what kind of compensation you could receive.
How does duty of care affect my medical negligence claim?
Duty of care is vital for proving your medical negligence claim. Read on to learn the four main criteria you need to meet and how duty of care affects each one.
1. Your medical professional owed you a duty of care
All medical professionals owe a duty of care to their patients. It’s known as a ‘non-delegable’ duty similar to the relationship between teachers and students.
However, if the person who performed your medical treatment wasn’t a registered practitioner with the Australian Health Practitioner Regulation Agency (AHPRA), you’ll need to prove that a duty of care existed. For instance, if you got Botox injections from an unregistered cosmetic injector, you’d need to provide expert evidence to demonstrate what the typical duty of care is for someone in that role.
2. The medical professional breached their duty of care
To prove that a medical professional breached their duty of care, you’ll first need to show that they were negligent. This can occur either through a negligent action or a failure to act. For example, a mistake during surgery is a negligent act, while failing to inform you about the risks of a procedure is a failure to act.
The court applies the ‘reasonable standard of care’ test to determine if a medical professional’s negligence amounts to a breach of duty. Basically, they ask: would other medical professionals in a similar situation have acted the same way? If the answer is yes, the medical professional probably didn’t breach their duty of care. That said, there are still exceptions.
In some cases, the court can decide that what’s usually considered ‘acceptable’ by medical professionals is actually unreasonable or doesn’t fit your specific situation. This means there are times when the court may find that your medical professional breached their duty of care, even if others in the same situation would have done the same thing.
3. Their failure to treat you properly caused your injury
You need to prove that you developed an injury or illness because the medical professional breached their duty. This involves establishing three main points:
- You developed an injury or illness (or your existing condition was worsened).
- Your injury or illness directly resulted from the medical professional's action or inaction.
- Your injury or illness was a 'reasonably foreseeable' consequence of the treatment (or lack of treatment) provided by the medical professional.
4. You suffered injury and loss
At this stage, you’ll need to show that you’ve suffered injury and loss because the medical professional breached their duty. This can include medical bills, lost income, or pain and suffering (how the injury has negatively impacted your life).
Case study: Esther wins $1.5mil settlement after hospital fails to find cancer
When Esther visited a public hospital with groin pain, the hospital failed to detect a suspicious mass, delaying her diagnosis of a rare cancer. This led to extensive treatment and long-term health issues.
We proved that the hospital breached its duty of care by not providing proper treatment, and that a more thorough investigation should have been done based on her symptoms. Our lawyers also gathered evidence that the hospital’s failure to act on suspicious imaging caused the delay, worsening Esther’s prognosis. In the end, we secured a $1.5 million settlement for Esther, covering medical expenses, lost earnings, and her future needs.
Common challenges in medical negligence claims
Medical negligence cases are notoriously complex, and it’s common for people to run into hurdles while trying to prove their claims. Based on our experience, here are some of the biggest challenges you might encounter:
- Changing standards of conduct: with conditions like cancer, there are often multiple treatment options, and medical experts don’t always agree on the best approach. This can make it tricky to prove that your medical professional breached their duty of care, as you’ll need to show they went against the accepted standards in their field.
- The inherent risk of medical treatment: every medical procedure comes with risks, and an unsuccessful outcome or health complication doesn’t automatically mean there’s a negligence case. For a claim to stand, there must be proof that your medical professional’s actions directly caused harm beyond the accepted risk.
- Multiple parties involved: in cases where multiple medical professionals are involved, figuring out who’s liable for the breach of duty can get complicated. If you suspect that more than one medical professional may be responsible for your injuries, it’s a good idea to get legal advice before starting your claim. While going after multiple parties can increase your potential compensation, it also makes the whole process a lot more complex. You’ll need a skilled medical negligence lawyer to help you put together compelling evidence for each of your claims.
- Insurance company pushback: medical professionals’ insurers are often large and well-resource, using their size and financial power to fight back against claims and challenge evidence. This can make the process lengthy, stressful and very expensive. That’s why it’s so important to have an experienced lawyer in your corner. They know the ins and outs of how insurers operate and can effectively counter their tactics, helping you secure the compensation you’re entitled to. Plus, if you work with No Win No Fee lawyers like Monaco, we’ll cover all upfront costs, so there’s absolutely nothing to pay unless we win your claim.
To sum up
Duty of care is a complex legal topic that is central to making a successful medical negligence claim. Unfortunately, it’s not enough to simply show you were injured or your condition worsened — you need solid evidence directly tying your health issues to your medical professional’s mistakes. You’ll also need detailed proof of all the losses you’ve suffered, from physical and emotional pain to medical bills and lost income. Given the challenges involved, it’s essential to have an expert medical negligence lawyer on your side.
With over 25 years’ experience, we’re skilled at handling even the most complex cases of negligence. Our lawyers know the ins and outs of duty of care and will build you a strong, evidence-backed claim. Plus, we’ll handle all negotiations with the medical professional’s insurer to ensure you receive maximum compensation for your injuries. For free advice on your case, contact us today. Find out whether you have a claim and the best strategy for proving your medical professional breached their duty of care.
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