Medical Negligence (Vic)

A failure by a doctor or healthcare provider to take reasonable care to avoid harming a patient is known as medical negligence. When medical negligence results in physical harm or psychological harm, the patient may want to consider making a claim against the person or agency responsible. This page deals with medical negligence claims in Victoria.

Duty of care

Doctors and healthcare professionals have a duty of care towards their patients. This means that they have a duty to provide medical care and carry out procedures with a reasonable level of competence and diligence. A breach of duty of care is known as negligence.

Negligence is a tort and in Victoria, torts are regulated by the Wrongs Act 1958 as well as by common law.

Claiming medical negligence

A person who is injured as a result of another party’s negligence can claim compensation. A court that awards compensation in favour of an injured party seeks to put the person back in the position they would have been in if the negligent act had not occurred. It may do this by awarding compensation to cover loss of earnings and medical bills as well as for pain and suffering.

To establish that an act of medical negligence has occurred, a plaintiff must establish that:

• they were owed a duty of care;
• that duty of care was breached;
• the breach of the duty of care caused them an injury;
• damages should be awarded.

A medical negligence claim will be successful if the court finds that the actions of the healthcare provider fell short of the accepted medical standard of care.

Situations where courts have found instances of medical negligence include:

• where the wrong medication was prescribed;
• where the diagnosis was incorrect or delayed;
• where a procedure was carried out on the wrong patient or on the wrong body part;
• where a foreign object was left inside a patient after surgery
• where a patient was not adequately warned about the risks of a procedure or a medication

Causation

One of the most difficult elements to prove in a medical negligence case is causation. In order the find a defendant guilty of medical negligence, the plaintiff’s injuries must have resulted from the defendant’s breach of duty of care. In other words, the plaintiff would not have suffered the injury but for the breach of duty.

Expert evidence

Courts hearing medical negligence claims rely heavily on expert testimony to assess the level of care the plaintiff ought to have received and the warnings they ought to have been given about potential risks of the treatment. Courts assess whether the harm suffered by the plaintiff was the result of a breach of a duty of care based on expert testimony.

Compensation

A person who is successful in a medical negligence claim may be awarded compensation on a number of different bases. The plaintiff may be awarded special damages for specific items such as medical costs, or they may be awarded general damages for pain and suffering. In rare cases, a court may award exemplary damages. These are damages that are awarded on a punitive basis, where the defendant has acted with disregard for the patient’s safety or rights.

Limitation period

An adult in Victoria must make a medical negligence claim within three years of the date they discovered the injury, the date they discovered that it was serious enough to warrant a claim or the date they discovered it was caused by the medical practitioner.

A child or person who is under a disability must make a medical negligence claim within six years of the date they discovered (or should have discovered) the injury.

A claim will never be accepted more than 12 years after the date of the injury, regardless or the circumstances.

What is not medical negligence?

It is common for a patient to be unhappy with the medical treatment they have received. Medical care usually comes with some level of risk and procedures do not always bring about the intended outcome.

However, if the medical provider has carried out the treatment with reasonable care and the patient gave their informed consent to the treatment, there is unlikely to be a potential medical negligence claim. Any person who is unhappy with the medical treatment they have received in Victoria can complain to the Health Complaints Commissioner.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.