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When you visit a medical professional, you are trusting that practitioner to provide you with the best care possible. Sadly, this is not always the case as the healthcare system is not always perfect. In fact, statistics show that from 2011-2017, the NSW government paid out $931 million - over 3800 claims. That said, the medical field is incredibly technical and proving negligence is not always easy.

What is medical negligence?

Medical negligence (or malpractice) occurs when the patient has suffered an injury as a result of negligent treatment from the healthcare practitioner. Although this is most commonly doctors, other healthcare professionals include:

  • Surgeons
  • Hospital staff
  • GPs
  • Allied health professionals (such as physiotherapists).

Of course, not all instances of a “bad outcome” from a medical procedure are not always negligent. It is important to recognise that errors can sometimes occur and that doctors do not always act perfectly. Where negligence does occur is when the healthcare professional has not taken “reasonable care” when advising or treating the patient.

What is “reasonable care”?

Medical mistakes or errors in judgement do not automatically mean the practitioner was negligent. The standard of reasonable care is based on the understanding that the medical practitioner has taken steps to avoid any acts or omissions that are likely to harm the patient. Because the definition of reasonable care is open to interpretation, medical negligence cases are often assessed on a case-by-case basis.

How do you prove medical negligence?

As stated previously, proving medical negligence is no easy task. In order to be successful in a claim, you will need to prove that:

  • The healthcare provider owed you a duty of care
  • The healthcare provider acted in a manner that was negligent and breached the duty of care
  • Your injury was directly caused by this negligent behaviour

Proving that a breach of duty of care occurred in the first place as difficult as the burden is on you (the patient) to show this has happened. Furthermore, the Peer Professional Opinion defence means that professionals can defend their claim if their conduct has been endorsed by a body (not necessarily a majority) of their peers.

Even after you have proven negligence, you must still show causation. That is, that the injuries you have suffered have been solely and directly caused by the doctor’s action or inaction. Again, this is not as easy as it seems. Healthcare practitioners, hospitals and insurers will often state that your injury is a result of an underlying illness or medical condition - that is, a pre-existing condition. Therefore, it can be tricky to prove that you would have had a better outcome if the doctor had acted differently. Furthermore, you then need to prove that you have suffered at least 15% permanent impairment, and this needs to be done within three years of you noticing the issue.

When it comes to medical negligence, it’s important to get the advice of a lawyer who is familiar with this highly technical area. Get in touch with our team of expert legal practitioners today to find out whether you have an eligible claim.