Medical Negligence (Qld)

Medical negligence occurs when there is a failure by a medical professional to take reasonable care to avoid causing injury or loss to another person. Such a professional has a duty of care to a patient and a breach of that duty can give rise to a claim for damages.

Medical negligence cases are often complex, partly because many medical treatments involve highly specialised and technical skills, and extensive evidence about correct procedures and safety measures is needed by a court before a decision can be reached. Often there are conflicting opinions from medical experts and the court has to decide which opinions to accept. The court also has the difficult tasks of assessing whether the patient would have had the treatment if warned of the risk, and assessing the damages, which are restricted to the medical problems that result from the negligence and not the prior medical condition.

Duty of care

A duty of care must exist between the parties before a negligence claim can be made. A doctor-patient relationship is a recognised category that gives rise to a duty of care.

Whether a person has breached their duty of care is assessed by asking two questions:

• Would a reasonable person in the defendant’s position have foreseen the risk of injury to the person arising from their conduct?
• What would a reasonable person have done in response to that risk?

The Civil Liability Act 2003 provides a person does not breach a duty unless the risk was foreseeable, not insignificant, and in the circumstances a reasonable person in that position would have taken the precautions. In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider:

• the probability that harm would occur if care were not taken;
• the likely seriousness of the harm;
• the burden of taking precautions to avoid the risk of harm;
• the social utility of the activity that creates the risk of harm.

Under the law, a medical professional is deemed to owe a higher standard of care to a person than others because the professional has special skills, knowledge and expertise.

What needs to be proved

To prove medical negligence, it must be demonstrated that:

• the medical professional did not behave in the way a reasonably competent medical professional would have behaved in the circumstances; and
• the negligent conduct caused damage to the person;
• the damage suffered is in a category for which the law allows compensation to be paid.

Making a claim

The Personal Injuries Proceedings Act 2002 sets out the procedures for making a claim. There are specific steps which must be taken to make a valid claim, and strict time limits apply.

Written notice must be given to the medical professional against whom a claim is made. This “initial notice” must contain details including a description of the medical services alleged to have given rise to the claim, the name of the doctor, the date and place of the treatment, and the personal injury alleged to have been suffered. It must be given on the earliest of:

• within 9 months of the medical incident, or if the symptoms of the personal injury arising from the incident were not immediately apparent, the first appearance of symptoms;
• within 1 month of the day the person instructs a law firm to act on their behalf to seek damages for the personal injury.

Within 1 month of receiving the notice, the medical professional or their representative, such as a lawyer or insurer, must give the person a written response stating whether documents are held and providing copies of all documents held.

The person then, within 12 months, must give a notice of claim which includes a written report from a medical specialist that states that in the specialist’s opinion there was a failure to meet an appropriate standard of care in providing medical services, the reasons for this, and that as a result of the failure the person suffered personal injury.

The medical professional or their representative has 1 month to accept or reject the claim. Within 6 months, they must inform themselves of the incident, and give the person written notice:

• stating whether liability is admitted or denied, and if contributory negligence is claimed, the degree of contributory negligence as a percentage;
• stating whether a settlement offer has been accepted or rejected, or if an offer has not been made, inviting the person to make one;
• giving a fair and reasonable estimate of the likely damages to which the person would be entitled if the claim went to court;
• making an offer or counter offer of settlement, setting out the basis on which the offer is made.

An offer or counter offer of settlement must include medical reports; assessments of physical, cognitive or vocational capacity; assessments of economic loss; and any other material so the recipient to make a proper assessment of the offer.

Claim for damages for a child

The procedure and time limits for a medical negligence claim for a child differ slightly.

A parent or legal guardian must give a notice of claim before the earlier of:

• 6 years after the day the parent or legal guardian knew, or ought to have reasonably known, that the personal injury occurred;
• 18 months after the day the parent or legal guardian consulted a lawyer about seeking damages for the personal injury.

A medical professional is permitted to give the parent or legal guardian of the child a “notice of an adverse event”. It can be an offer to remedy any harm suffered as a result of the incident, an expression of regret, or both. It is not an admission of liability and is inadmissible as evidence in any subsequent court proceeding.

Insurance

Most medical professionals take out professional indemnity insurance against the risk of being found liable in negligence. Some ask patients to sign a document that waives the right to sue the professional for negligent conduct. The courts are reluctant to give effect to such waivers.

For advice or representation in any legal matter, please contact Armstrong Legal.