Posted on 30 Oct 2024

Duty of Care and Medical Negligence: Understand Your Rights

Who has a duty of care to me?

All registered medical professionals owe you a legal duty of care. This includes (but is not limited to):

Hospitals.
Pharmacists.
Oncologists and other specialists.
Nurses.

Radiologists.
Surgeons and General Practitioners (GPs).
Midwives.

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.

What does duty of care involve?

‘Duty of care’ in healthcare 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.

Duty of care is just the first step

If you’re ready to go further, our medical negligence claims guide explains how everything fits together — and how much compensation you could receive.

See how medical negligence claims work in Australia

Examples of doctors 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:

Mistakes during surgery.
Misdiagnosis or delays in diagnosis.
Not prescribing the right medication.
Pregnancy issues, like failing to monitor foetal distress during labour.
Errors with anaesthesia.
Discharging patients too early.
Poor post-operative care.
Not informing patients about medical risks.
Failing to refer patients to a specialist when necessary.

These are just a few common scenarios, but medical negligence can take many forms. If you feel like your treatment wasn’t right, you don’t need to have the legal answers figured out yet. We help people who feel unheard by the medical system get an objective legal view of what happened. Have a free claim eligibility chat to better understand your rights.

See how 'duty of care' works in the real world

Explore real case studies and find out how much compensation our clients received when their doctors breached duty of care.

Read real case examples now

How does duty of care affect my medical negligence claim?

To make a successful medical negligence claim, you’ll need to prove four elements:

A duty of care existed: All registered doctors, nurses, and hospitals automatically owe you this duty. If your provider wasn’t registered with AHPRA, a lawyer can help you establish that a legal responsibility still existed.
The duty was breached: You must show the professional was negligent, either by a mistake during treatment or a failure to act (like not warning you of risks). The court asks: Would a competent professional in the same situation have acted differently?
The breach caused your injury: It isn’t enough that a mistake happened; the error must have directly caused your injury, illness, or a significant worsening of your condition.
You suffered measurable loss: Finally, you must have suffered an injury or loss, such as medical expenses, lost income, or pain and suffering (the negative impact of the injury on your quality of life).

Still not sure if your doctor breached their duty of care?

Get a free medical negligence claim assessment to find out today.

See whether you have a case

Esther wins $1.5mil for improper hospital treatment

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

In 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: If multiple medical professionals are involved, it’s complicated to figure out who’s liable for the breach of duty. 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.
Insurance company pushback: Since medical negligence payouts can be so big, insurers fight hard against claims. That’s why it’s so important to have an experienced lawyer in your corner. We know how insurers operate and can effectively counter their tactics, helping you secure the compensation you’re entitled to.

What to do next

It’s one thing to understand the legal definition of duty of care, but it’s another to know if it applies to what you’re going through. If you think something went wrong with your treatment, here’s what to do next:

Don't worry about proving the 'breach' yourself: Sorting out whether a doctor actually met their legal obligations is complicated. That’s our job — we compare your experience against clinical standards to see if you have a case.
Keep an eye on the clock: In Australia, medical claims have strict time limits. Even if you aren't sure you want to go ahead yet, it’s worth checking your eligibility early so you don't lose the option later.
Think about the 'big picture' impact: The law looks at how your life has changed since the error: things like extra medical bills, time off work, or needing more help at home.

We know how overwhelming this can feel. If you’re looking for some clear direction, get in touch for a free claim eligibility chat today.