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Injured by a medical professional? Here’s everything you need to know about making a medical malpractice claim, from proving your case to how much compensation you could receive.
Medical malpractice, also known as medical negligence, happens when a doctor, hospital, or other medical professional provides treatment that falls below a reasonable standard, and you’re injured as a result.
If you’ve been affected by medical malpractice, you can make a claim against your medical professional. Depending on your situation, you could receive a substantial, lump sum payment — enough to cover lost wages, medical bills, domestic help, and the ongoing impact of the injury on your life.
Common examples of medical malpractice
In our 25 years of experience, we’ve handled hundreds of different medical malpractice claims. These are just some of the most common:
Surgical errors: this ranges from leaving surgical instruments inside a patient to operating on the wrong body part or performing the wrong procedure.
Misdiagnosis or delayed diagnosis: this occurs when a healthcare provider fails to correctly diagnose a condition or delays making an accurate diagnosis.
Prescription or medication errors: this includes mistakes in prescribing medications, such as incorrect dosage, administering the wrong medication, or failing to consider potential drug interactions.
Pregnancy complications: errors during prenatal care, childbirth, or postnatal care, e.g. failure to monitor foetal distress during labour or improper management of complications during pregnancy.
Anaesthesia errors: for example, administering too much or too little anaesthesia, or failing to monitor a patient's vital signs properly during surgery.
Premature discharge of patients: releasing patients from the hospital too early without ensuring they are stable and adequately cared for.
Inadequate post-operative care: failing to monitor patients after surgery can lead to infections, unmanaged pain and improper healing.
Improperly inserted implants: errors in the placement of medical devices or implants, such as joint replacements or contraceptive devices.
Failure to advise of medical risks: failing to provide adequate information before a patient undergoes a procedure or treatment.
Dental care errors: these can include botched procedures like root canals or extractions, or failure to diagnose oral health issues.
GP errors: failing to diagnose conditions or make appropriate referrals to specialists.
These are just a few examples of medical malpractice cases we’ve won over the years — there are numerous other situations where you may have grounds to claim.
If you’re uncertain about your eligibility for a claim, contact one of our specialist medical malpractice lawyers today. In a free consultation, we’ll assess whether you have a claim and how much compensation you may be entitled to.
Start your free online claim check
Find out if you’re eligible for medical malpractice compensation today.
To prove medical malpractice, you’ll need to establish 3 elements:
This might happen through a negligent act or a failure to act. A negligent act involves careless actions, such as an error during surgery. In contrast, a failure to act occurs when a medical professional doesn’t fulfil expected duties, like your doctor failing to diagnose a condition.
The ‘reasonable standard of care’ test determines if a breach of duty has occurred. This test assesses whether another qualified medical professional, facing the same circumstances, would have acted similarly. It’s based on what a competent and prudent medical professional (with similar qualifications and experience) would typically do.
The assessment takes into account several factors, such as:
Whether your medical professional followed established professional standards and guidelines.
Testimony from other medical experts in the same field.
The circumstances surrounding your case, including the specific treatment and its context.
Your health status, pre-existing conditions, and overall treatment plan.
You must show that the medical professional’s breach of duty led to your injury or illness. This involves proving two critical points:
Your injury or illness directly resulted from the actions (or inactions) of your medical professional.
Your injury was a ‘reasonably foreseeable’ consequence of the treatment (or lack of treatment) provided by your medical professional.
You need to demonstrate that you have suffered injury and loss, which can include medical expenses, lost wages, or pain and suffering (the negative impact of the injury on your life).
Proving medical malpractice is complex, that’s why our lawyers undergo extensive training in both medicine and law. Their specialised skills enable them to establish medical malpractice even in the most challenging cases.
What compensation am I entitled to?
There is no set amount of compensation for medical malpractice claims — it all depends on the unique details of your case.
While some claims are limited to $100,000 to $200,000, there are cases where the compensation exceeds $10 million.
Depending on your situation, your compensation may cover:
Lost income: both now and in the future, including superannuation.
Pain and suffering: how your injury affects you physically and mentally.
Cost of care and support: whether from family or friends. This also includes if you can no longer care for someone who depends on you.
Other expenses related to your injury: medical bills, travel costs, or modifications needed at home or to your car.
Mother and daughter win $2.5million for childbirth negligence
Nadia suffered oxygen deprivation at birth, leading to a later diagnosis of Cerebral Palsy. Our team started assisting Nadia and her mother when she turned 13.
After conducting thorough investigations, we found that the midwife and hospital staff were negligent during Nadia’s birth. We also had a child psychiatrist assess Nadia's current and future requirements. At this time, we initiated legal proceedings in the Supreme Court of NSW.
In the end, we successfully secured Nadia and her mother a settlement of $2.5 million plus legal costs. This substantial compensation means Nadia will get the care and support she needs for the rest of her life.
While you can make a medical malpractice claim on your own, we strongly advise speaking to a specialist lawyer before starting. Medical malpractice is an extremely complex area of law, and you’ll need a knowledge of both negligence and medical law to build a successful claim.
A skilled medical malpractice lawyer will:
Assess whether you have a claim and how much you could receive.
Gather compelling evidence of your medical professional’s negligence.
Challenge any evidence provided by your medical professional’s insurer.
Our medical malpractice lawyers are trained to take on major healthcare insurers, using strong negotiating tactics and expert evidence to secure the compensation you deserve.
Plus, with our No Win No Fee Guarantee, your claim is completely risk-free. There are no upfront fees and you only pay if we win your case.
Meet the team
Our team use their extensive experience to increase your chances of success. We’ve won many awards for our work, including ‘Compensation Law Firm of the Year 2020 GBM Global Awards.’
Leon Monaco
Managing Partner
English, Russian
Workers Compensation, TPD, Motor Vehicle Accidents, Public Liability
Every medical malpractice claim is covered by our genuine No Win No Fee guarantee. This means:
No financial risk to you: there’s nothing to pay unless we win your medical malpractice claim.
No upfront costs: we cover all upfront expenses, including medical reports and expert evidence.
Reduced legal fees: we typically recover our fees from the other party, meaning you keep more of your total compensation.
90-day risk-free trial: evaluate our services for 90 days to see if we’re the right fit for you. If you choose to cancel during this period, there's absolutely no charge.
Making a medical malpractice ‘complaint’ differs from filing a compensation claim. Instead of seeking financial compensation, it involves submitting a written complaint about negligent medical treatment to an independent government body or commission. In NSW, for example, complaints can be lodged with the Health Care Complaints Commission.
Importantly, you can still make a compensation claim in addition to filing your complaint.
Once the commission receives your complaint, they will review it within 60 days. If they find that your complaint raises significant concerns regarding public health or safety, they may initiate disciplinary actions against the medical professional.
Frequently asked questions
Time limits apply to every medical negligence case. The exact limit depends on the state you’re in.
State
Time limit
NSW, VIC, SA
3 years after discovering your injury.
QLD, WA
3 years from the date of the medical malpractice.
ACT
For physical injuries, 3 years from the date of the medical malpractice.
For diseases or disorders, 3 years after:
• Discovering the disease or disorder, and
• That it was caused by medical malpractice.
If you’re outside the time limit, you’ll need to apply to the court for an ‘exception’. When determining whether you qualify, the court will look at factors like:
Whether you had access to proper legal counsel.
Your efforts to seek medical or legal advice.
The length of your delay.
How severely you’re injured.
Whether your medical professional tried to prevent you from claiming.
Before filing a delayed claim, we recommend consulting a lawyer. A medical malpractice specialist can identify the most appropriate exception for your case and lodge an application on your behalf. Over the years, we’ve successfully resolved numerous delayed claims for our medical malpractice clients.
To learn more about time limits and exceptions in medical malpractice claims, head to our complete guide.
You can file a medical malpractice claim against any medical professional or institution registered to practice in Australia, including:
The duration of your case depends on its complexity and how long it takes for your condition or injuries to stabilise. Generally, most medical malpractice claims are finalised within 12 to 18 months.
Once we have the specifics of your situation, we’ll be able to provide a more accurate timeline.
While each case is unique, your claim will likely go through the following steps:
In your free consultation, you’ll discuss your case with one of our expert medical malpractice lawyers. We’ll assess the viability of your claim, as well as estimating your potential compensation and outlining your chances of success. There’s no obligation to proceed, but if you do, you’re covered by our No Win No Fee Guarantee.
Your lawyer will review your clinical notes and medical history to build your case. You may also undergo an assessment by our medical professionals to confirm your condition and its impact. We cover all these upfront costs and there’s nothing to pay unless we win your case.
We work closely with our network of medical professionals to gather evidence supporting your claim, including expert reports and testimonies.
Armed with strong expert evidence, we’ll initiate court proceedings. This involves filing court documents and exchanging evidence with the other party. Your claim then moves to mediation, where your lawyer will handle all negotiations with your medical professional’s insurer and work to get you the maximum possible compensation.
The vast majority of cases are resolved during mediation and don’t go to court. However, if your case doesn’t settle, we’re prepared to proceed to court and fight for your full compensation.
For anyone facing medical negligence issues, I highly recommend Monaco.
I contacted Monaco in regard to a complex negligence claim. The team at Monaco were both approachable and professional. Their knowledge and commitment gave me confidence and a strong case, which ultimately led to a successful outcome.
I would highly recommend Monaco for any cases of medical negligence.
I am forever thankful! God bless you for being there for me whenever I called.
Monaco Compensation Lawyers are second to no-one. Anthony and his team were there for me every step of the way. When I got disheartened or down, I would make one phone call to the team at Monaco Solicitors, and they were there for me instantly—reassuring me and consoling me.
I was completely surprised and also delighted by the outcome. Thank you so much, Monaco Compensation Lawyers. You changed my life forever; for the better. We were extremely successful and I am forever thankful. God bless this amazing team.
They were always ready to help with paperwork and answer any questions.
The staff at Monaco solicitors are very respectful, courteous, knowledgeable and professional. They were always able to help me with the paperwork on my case and always available to assist with any questions I had. They explained all the details of the process as it came up. I have no hesitation in recommending them to anyone who has a medical issue.
Easy and supportive define my experience with Monaco.
My experience with Monaco Solicitors has been very rewarding. My solicitor was Lucy, who was so easy to communicate with throughout the process. On mediation, she was so supportive. I certainly would recommend Monaco Solicitors to anyone who feels they may have a potential Medical Negligence claim.
Thank you for accomplishing so much in such a short time.
Great communication, empathy and understanding. My case worker Daniella was a saint, understanding and patient and always passing on any updates in record time.
I was at rest in a very stressful situation, a bad situation. It was made to cope with because of the professionalism displayed at every turn by this super supportive team.
A Massive thank you to Daniella from me personally for all that you were able to accomplish in such a short time. To say I owe you is an understatement.
Good result! We had a complicated claim but they got the job done.
My brothers and I had a complicated claim. I found Ben Ralph to be very helpful, himself and Sally Sutton worked hard for just over a year to get through our claim. They achieved a good result and got the monies paid to myself and my brothers.
Their communication was fantastic, and they would always let us know when they had an update or when they expected an update. If I had a question Ben was always happy to answer to the best of his knowledge and do extra research if he was un-sure. We went with Ben because he specialized in super and feel that he did an awesome job with our claim, I would definitely recommend Ben and his team. He was very professional but also had some empathy and understanding which was nice 🙂
I knew it from the very first phone call: I had found a compassionate law firm.
Monaco Solicitors, I have no hesitation in recommending Daniella Dababneh and her team. After I suffered a serious workplace accident, I was in need of legal help.
From the very first phone call, I was treated with respect and I was always kept in the loop of the status of my claims, Early Release of Super & TPD. Both claims have been successful.
They helped me juggle my injury claim and my mum's full-time care.
I highly recommend Monaco Solicitors. I was claiming PI through my superannuation for workplace injuries. They were doing a no win no fee which was great as I am a carer for my mum and don’t earn much.
Everyone I dealt with were so kind and helpful. They helped me where I was finding things difficult due to caring for my mum. They kept me up to date on what was happening.
Monaco Solicitors are very professional and I would recommend them if you are looking for a good solicitor.
Monaco helped me get much more compensation than I expected.
Monaco Lawyers helped me to receive compensation for an ongoing injury I sustained after I was simply driving home from work and was driven into head on by an incompetent and negligent driver who I believe was texting at the time of the accident.
Monaco Lawyers were keen to help me, understanding and easy to work with. I received more than I thought I would get with the help of one of the Monaco Lawyers who knew exactly what she was doing, and fought on my behalf for a very good outcome.
I continue to have problems with my foot, but I feel I have received justice for something that was completely not my fault.
They gave it their all and the result was even better than expected.
At all times during this long process, I felt supported by the solicitors and barrister assigned to me. At mediation, it became clear that my team were doing all they could to get the best possible outcome for me. At settlement, they did better than I expected.
Medical malpractice is a highly complex area of law, so you need a law firm that can rise to the challenge. Our expert medical malpractice lawyers use proven legal strategies and specialised medical knowledge to build your case and ensure you get the compensation you deserve.
We leverage our extensive network of medical experts who provide independent examinations, reports, and testimony to strengthen your case. This evidence is crucial for establishing negligence and liability in medical malpractice claims. Without sufficient evidence, you may miss out on your full compensation.
Voted ‘Compensation Law Firm of the Year in Australia 2020’, we’re industry leaders with the expertise to win even the most complex claims.
Speak to us today for free, comprehensive legal advice. Discover where you stand, how we can assist with your claim and the best strategy to maximise your final payout.
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Use our online claim checker to instantly find out if you have a claim. Alternatively, just give us a ring — our expert lawyers are always ready to answer your questions.
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