How do I prove medical negligence?
To prove medical negligence, you must show that your doctor, hospital, or other medical professional breached their duty of care. This involves meeting four basic criteria:
1. The medical professional owes you a duty of care
‘Duty of care’ is a special legal relationship that requires your medical professional to act with reasonable regard for your safety. It exists because medical professionals are highly skilled and trusted in society. If you were treated by a registered medical professional, they probably owe you this duty.
2. The medical professional breached their duty of care
To sue for medical negligence in Australia, you’ll need to prove that the medical professional breached their duty of care. This could be through a ‘negligent act’ or a ‘failure to act’.
A negligent act is where your doctor does something careless or irresponsible, like an error during surgery. In contrast, a failure to act occurs if the medical professional doesn’t do something expected of them. For example, a GP fails to investigate your symptoms appropriately.
The ‘reasonable standard of care’ test is used to determine whether a breach of duty of care has occurred. That is, would another medical practitioner in their field have acted (or failed to act) as they did?
3. The breach caused your injury or illness
You must show that the medical professional’s breach of duty caused your injury or illness. That is, there is a ‘direct link’ between your current health condition and what the medical professional did (or didn’t do). This means you’ll need to prove:
- The medical practitioner’s actions or inactions caused your injury or illness, and
- This harm was ‘reasonably foreseeable’ to them.
‘Reasonably foreseeable’ means that another similar medical professional would have expected your injury to happen.
4. You suffered a loss as a result
Finally, you must prove that the injury or illness caused you ‘loss’. This includes economic losses such as lost income, medical expenses and ongoing care costs. You’re also entitled to claim for non-economic losses like pain, suffering and loss of opportunity.
Can I sue a hospital for negligence?
If you were treated in a hospital, you might be able to sue the hospital for negligence instead of the individual doctors, nurses, or other medical staff involved in your care.
The key is figuring out whether your injury stems from a systemic issue within the hospital — like understaffing, faulty equipment, poor procedures, or failing to monitor patients properly — or if it was caused by a specific mistake made by one person. Essentially, hospital negligence occurs when the hospital itself has failed in its duty of care to you as a patient.
Even if you can prove this, you’ll still need to follow the same four steps to prove medical negligence.
Thinking about suing a hospital? It’s crucial to get advice from an expert medical malpractice lawyer before you begin. Hospital negligence cases are highly complex, and hospitals have large legal teams ready to defend against claims. Having the right lawyer on your side makes all the difference in winning your case.
What are examples of medical negligence?
From our experience, case studies make it much easier to understand how to prove medical negligence. Let’s look at Jenny’s story to see how the process works.
Jenny visited her GP numerous times over several months, complaining of severe headaches. The GP tells Jenny to take Panadol and does not further investigate the headaches. Jenny then suffers from a cerebral aneurysm which results in major surgery and lifelong complications.
In this scenario, we need an expert GP to comment on Jenny’s treatment and care. They would also provide an opinion on whether or not that care fell below the standard expected of a GP. If it did, Jenny would be entitled to substantial compensation.
What evidence do I need to prove medical negligence?
To prove medical negligence, you must provide evidence of your injury and its impact on your life. This includes whether you’re unable to work, need domestic help, or require ongoing medical treatment. You must also provide evidence that your medical professional was negligent and that their negligence caused your injuries.
Generally speaking, you need the following evidence to prove medical malpractice:
- Medical records: compile all injury-related documents, such as assessments, test results, treatment plans, and prescriptions. This is essential for proving negligence and will help secure the maximum compensation for your injuries.
- Medical expert reports: commission written reports from medical experts to prove your doctor’s behaviour fell below a reasonable standard of care. Expert reports are also key to establishing a direct link between the medical professional’s actions and your injuries.
- Financial documents: keep documents showing the financial impact of your injury. This includes your lost income, medical expenses, and the cost of home accessibility upgrades, domestic care, and rehabilitation. You can also engage a forensic accountant to assist with this process.
- Medical assessments: get a second opinion from an independent medical expert after the insurer’s medical assessment. This ensures the insurer’s assessment is accurate. If the second opinion differs from the first, you can use it as compelling counterevidence against the insurer’s claims.
- Statement of case: write down a summary of what happened in your own words. This is crucial evidence of your injury and its effect on your life, and it can also assist your legal team (if you choose to work with one).
- Witness statements: collect statements from all witnesses, including staff present when the Medical Negligence occurred and family members who can discuss how the injury affects your day-to-day.
- Communication records: preserve all communication records between you and your medical professional, such as emails and messages. This is especially relevant if you’ve already lodged a complaint about your medical professional.
How can a lawyer help me prove medical negligence?
An experienced lawyer uses specialist knowledge and detailed evidence to prove medical negligence.
Our strong background in both law and medicine will ensure your claim meets all duty of care requirements. At the same time, we use our national network of doctors, psychologists, and other medical experts to provide compelling evidence for your claim. Their testimony also helps us challenge the evidence your medical professional and their insurer present.
As a bonus, we cover the cost of all evidence and you’re fully covered by our No Win No Fee guarantee. This means you get the support of leading experts without paying a cent upfront.
Contact our medical negligence lawyers today to learn more about what we can do for your claim.
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