Medical negligence can have a devastating and long-lasting effect on your health.
While most claims relate to physical injuries, it’s also possible to make a claim for ‘pure psychological injury’. This means you’re claiming for your psychological condition alone, rather than a combination of physical and psychological injuries. It’s also called ‘emotional distress’ or ‘nervous shock’.
What psychological injuries can I claim compensation for?
The laws are different in every state, but you can generally make a claim if medical negligence causes you to develop a recognised psychiatric condition. This may include, but is not limited to:
- Anxiety.
- Depression (Major Depression Disorder).
- Post-Traumatic Stress Disorder (PTSD).
- Adjustment Disorder.
Over the years, we have dealt with many claims for pure psychological injury. If you believe you’re suffering from a recognised psychiatric injury, speak to one of our expert lawyers today.
What you can claim
You may be eligible to claim for ‘non-economic losses’, ‘economic losses’, essential medical treatment and equipment, and the cost of ongoing care and assistance.
Economic loss
- Lost income (past and future).
- Lost superannuation (past and future).
Non-economic loss (general damages)
Non-economic loss compensates you for the negative impact of the injury on your life. This includes:
- Pain and suffering.
- Loss of enjoyment of life.
- Loss of opportunity.
Medical treatment and equipment
- Medical treatment (past and future).
- Travel between your home and medical appointments.
- Home and vehicle modifications.
Care and assistance
- Professional care or unpaid care from a loved one. This also includes if you’ve lost the capacity to care for someone who depends on you.
If you have suffered an injury because of medical negligence, you’re generally entitled to compensation for medical treatment and equipment. If you’re unable to work, you may also receive compensation to cover your economic losses.
However, to receive compensation for non-economic loss, care and assistance, you must meet the specific criteria in your state.
Below, you’ll find out state-by-state guide to making a medical negligence claim for psychological injury.
In NSW, you can make a medical negligence claim for psychological injury if:
- You’re injured by a medical professional and subsequently develop a recognised psychiatric illness or
- A close family member dies because of medical negligence and you develop a recognised psychiatric illness as an emotional response or
- You directly witness medical negligence which causes you to develop a psychological injury and
- The psychiatric illness was caused by a medical professional’s negligence.
Proving negligence
To prove that the medical professional was negligent, you must establish three elements:
- That a duty of care exists: Your medical professional must owe you a ‘duty of care’. Most registered medical professionals owe you this duty, including doctors, dentists and hospitals.
- The medical professional breached their duty of care: Their conduct needs to have fallen below an acceptable standard, meaning no reasonable medical professional would have done the same thing.
- Their negligence caused your injury: You must show that the medical professional’s action (or inaction) directly caused you to develop a recognised psychiatric injury.
Types of compensation you can claim
The types of compensation you can claim depend on the severity of your injuries. To determine this, your condition will be assessed by psychiatrist. The court will then use this assessment, along with all other relevant evidence, to compare your injuries to the ‘Most Extreme Case’ (MEC) and give you a percentage of MEC.
The Most Extreme Case (100% of the MEC) is generally considered to include paraplegia, quadriplegia, brain damage, and other catastrophic injuries.
If your MEC is 15% or greater, you can claim:
- Medical treatment and equipment.
- Economic loss (if you’re unable to work).
- Non-economic loss.
- Care and assistance.
If your MEC is under 15%, you cannot claim for non-economic loss. Your compensation is limited to economic loss (if you’re unable to work) and medical treatment and equipment.
Determining your non-economic loss compensation
In NSW, $722,000 is currently the maximum compensation for non-economic loss. This amount applies to claims as of 1 October 2023 and increases yearly with inflation. Your exact compensation is calculated by comparing your injuries to the Most Extreme Case.
Below are some examples of what you may be entitled to based on your MEC:
| Percentage of MEC | Percentage of the maximum compensation you will receive |
| 15% | 1% |
| 16 – 20% | 1.5 – 3.5% |
| 21 – 30% | 4 – 23% |
| 21 – 33% | 4 – 33% |
| 34 – 100% | 34 – 100% |
For more detail on MEC percentages and compensation, head to Section 16 of the Act.
In Queensland, you can make a medical negligence claim for psychological injury if:
- You’re injured by a medical professional and develop a recognised psychiatric illness as a result or
- A close relative dies due to medical negligence and you develop a recognised psychiatric illness as an emotional response or
- You directly witness medical negligence which causes you to develop a psychological injury and
- The psychiatric illness was caused by a medical professional’s negligence and
- You have a minimum Injury Scale Value of 1.
Proving medical negligence
You need to establish three elements to prove that the medical professional acted negligently:
- That a duty of care exists: The medical professional must owe you a ‘duty of care’. Most medical professionals, such a doctors, dentists and hospitals, owe you this duty.
- The medical professional breached their duty of care: Their conduct must have fallen below an acceptable standard. This means no reasonable medical professional would have acted as they did.
- Their negligence cause your injury: You must show a direct link between your condition and the action (or inaction) of the medical professional.
Injury Scale Value (ISV) assessments
A registered psychiatrist will determine your Injury Scale Value. As part of this assessment, they will look at several factors, including:
- The Psychiatric Impairment Rating Scale (PIRS).
- Age and life expectancy.
- Whether you have ‘reduced insight’ e.g. if you are aware of your own abnormal behaviour.
- Pain and suffering.
- Loss of amenities of life.
- The likelihood that you would have experienced these difficulties regardless of the accident.
Understanding the PIRS
The PIRS is one of the biggest factors in determining your Injury Scale Value. It breaks down your injuries into six main areas of ‘impact’:
- Self-care and personal hygiene: if you’re able to carry out essential activities without assistance, such as cooking, showering, and using the toilet.
- Social and recreational activities: whether you can go to a cinema, restaurant or other recreational venue without a support person.
- Travel: your ability to travel to new places without assistance.
- Social functioning: your capacity to maintain existing relationships and build new ones.
- Concentration, persistence and pace: whether you can sustain focus long enough to carry out basic tasks and hold conversations.
- Adaptation: also known as ‘deterioration’, this measures your capacity to attend work on a regular basis and perform work tasks without supervision.
The psychiatrist will give you a rating for each category. A rating of one means you have no impairment, whereas a rating of five means your injuries have caused extreme impairment.
To read more about the PIRS scale and its use in psychological injury claims, see Schedule 5 of the Act.
Determining your ISV
The court will look at your PIRS ratings (coupled with the other factors above) to assign you an ISV between 0 and 100. The lower your ISV, the less severe your injuries:
- 0 – 1 ISV: minor mental disorder with a PIRS rating of 1 – 3%.
- 2 – 10 ISV: moderate mental disorder with a PIRS rating of 4 – 10%.
- 11 – 40 ISV: serious mental disorder with a PIRS rating of 11 – 30%.
- 41 – 65 ISV: extreme mental disorder with a PIRS rating of 31 – 100%.
Calculating your general damages
Your ISV determines your general damages, as well as your compensation for care and assistance. The exact amount is calculated by adding your base and variable compensation amounts. Both of these amounts are determined by your ISV and increase every year with inflation.
For example, if you were injured after 1 July 2023 and have an ISV of 15, you would be entitled to:
- $19,300 (base amount) +
- (ISV – 10) x $2,440 (variable amount).
In this case, your variable compensation is (15 – 10) x $2,440 = $12,200. That means you may receive up to $31,500 in total compensation.
How we can help you
Our expert medical negligence lawyers have decades of experience with psychological injury claims. We have an extensive understanding of both law and medicine, and will ensure you meet all state-specific negligence requirements. To further strengthen your case, we use independent reports and other evidence from our network of experts.
Speak to us today for free, comprehensive legal advice. Find out where you stand and how to get the most from your claim.
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