Doctors and other health care professionals must take reasonable care when treating you. This is called “owing you a duty of care”.

The law does not require that you receive perfect care. But the care you receive must be reasonable in all the circumstances. If your health care provider fails to take “reasonable care” then he or she (or in the case of a hospital, it) has breached his/her/its duty of care to you. Failing to take reasonable care, in circumstances where the health care provider could or should have foreseen that their actions could injure you, is Negligence.

If you are injured as a result of treatment or your health care provider failed to diagnose your illness, failed to advise you of the risk of treatment or did not provide appropriate treatment you may have a claim for medical negligence.

This is not to say that medical treatment must be beneficial or successful. If medical treatment turns out not to be beneficial or successful you are not necessarily able to sue your doctor for negligence. Many treatments are appropriate, but not successful and it is up to the Courts to determine whether unsuccessful treatment was, in fact, in breach of the duty of care your doctor owes you.

If you have suffered harm and your action for medical negligence is successful the harm you have suffered is compensated by awarding you an amount of money called damages.

Damages will not only cover your medical expenses or future medical expenses. Damages are also designed to compensate you for your pain and suffering and loss of enjoyment of life, as well as for any loss of income you have suffered and any decrease in your ability to earn income in the future.

DO I HAVE A CLAIM?

In order to establish whether you have a claim it is necessary to prove the following things:

Duty of Care

The common law recognises that people and organisations that provide health care owe their patients a “duty of care”. Some of the health care providers that owe you a duty of care are:

• Doctors
• Hospitals
• Physiotherapists
• Chiropractors
• Dentists
• Alternative Health Care Providers

If you have sought treatment or advice from a health care provider then it is likely that the provider has a duty of care towards you. The duty that is owed to you is a duty to take reasonable care.

Standard of Care/Reasonable Care

The law does not require that you receive perfect care. However, the care you receive must be reasonable in all the circumstances. If your health care providers fail to take reasonable care then they have breached their duty of care to you. Failing to take reasonable care, in circumstances where the health care provider could or should have foreseen that their actions could injure you, is negligence.

The question of whether the standard of care is adequate is one which a judge or magistrate must determine based on the evidence that is put before him or her.

It used to be that the standard by which “reasonable care” was judged was that of what was standard within the medical profession. It is no longer the case that the standard of care is judged solely by what other doctors say is reasonable. It is now for the court to determine what is reasonable after hearing the evidence. Clearly, however, what other doctors say will hold considerable weight in determining what care is reasonable.

Causation

Having shown that the treatment you received was negligent it is then necessary to show that the negligent treatment is the cause of the injuries you are complaining of.

In medical negligence it is often the case that people have underlying health problems. After all you have gone to a doctor for some ill health or you would not be complaining of medical negligence. These medical problems may be worsened by the treatment that is given by the doctor. If that is the case then it is only the worsening of the problem that is able to be compensated not the underlying problem itself. This is because the doctor did not cause the underlying problem; there is no causation.

It is often difficult to establish what exactly is the harm that was caused by the negligent treatment.

Of course it is also true that in some cases treatment causes entirely new problems. In those cases it is relatively easy to identify the injury caused by the negligent treatment.

Damages

In order to have a right to compensation it is necessary to show that you have suffered harm. The harm you have suffered is compensated with moneys referred to as damages.

Damages are designed to compensate you for your pain and suffering and loss of enjoyment of life, as well as for any loss of income you have suffered and any decrease in your ability to earn income in the future. You are also entitled to compensation for any expenses you incur such as further medical treatment and medication. In addition, if other people such as family members have to assist you by caring for you, you are entitled to recover compensation for that assistance.

ACCESSING YOUR MEDICAL RECORDS

In order to establish the elements of a claim it is usually necessary to investigate the claim. That means obtaining as much information as possible about the treatment you received. This information includes your medical records, the names of treating doctors or other people involved in your care, a diagnosis of your problems, the extent of those problems and their effect on your life.

The first step in any medical negligence claim is to try and obtain your medical records.

Most people assume that records held by doctors or hospitals in relation to their health and treatment are automatically available to them.

Unfortunately, in Australia that is not true. Under Australian law a patients medical records are the property of the doctor or hospital that made them. Not only that, but the information in them belongs to the doctor.

However, in the A.C.T. this situation has been remedied by the introduction of the Health Records (Privacy and Access) Act 1997 which entitles you to obtain access to your medical records on request. Although not strictly necessary it is recommended that you make your request in writing. You may also obtain a copy of the records or ask for an explanation of the health information from your doctor. This last option can be useful if records are difficult to read or are technical in nature.

The fees for documents provided by The Canberra Hospital are:

• Under 80 pages - $ 30.00
• Over 80 pages - $100.00

Your doctor or other relevant health professional has thirty (30) days to provide your health records or seven (7) days after payment of a record access fee, whichever is the longer period. Your doctor can require proof of identity before you access the documents.

Access can be denied where your doctor believes, on reasonable grounds, that the provision of information would constitute a significant risk to your life or your physical, mental or emotional health or that of another person. Where a doctor refuses to give access to your health records then you may make a complaint to the Community and Health Services Complaints Commissioner. The Commissioner can be contacted as follows:

Community & Health Services

Complaints Commissioner

1 Moore Street

CANBERRA CITY

Telephone: 6205 2222

Generally the complaint must be in writing, must provide your name and address and must be signed. The provisions of the Community and Health Services Complaints Act 1993 apply to the Commissioner’s investigation of a complaint. The Commissioner will give written reasons for his/her decision in respect to the complaint. The Commissioner’s decision may be reviewed in the Magistrate’s Court but you should instruct a solicitor without delay if you are dissatisfied with the decision.

The Commissioner can also investigate a claim for medical negligence on your behalf but he is not able to make an award of compensation.

MEDICAL REPORTS

In order to prove medical negligence it will be necessary to obtain medical reports. Medical reports can address two main areas.

One is the nature and extent of your injury. Included in that is the issue of what will happen in the future and what treatment if any may be required in the future. This information can be provided by your current health service providers, although it may be necessary to obtain opinions from independent experts.

The other area that medical reports are required to address is liability (ie. was the treatment reasonable in the circumstances). This information can sometimes be obtained from current treating doctors, although you may find that they are reluctant to comment on treatment provided by others. This is not least of all because they will probably be called upon to testify on your behalf and may have to justify their opinions in court under cross examination.

Most often, therefore, it is necessary to obtain an independent medico-legal opinion. Such doctors have experience in the writing of medical negligence medical reports and testifying in court. In these circumstances the person providing the opinion is accepting the responsibility of commenting on the treatment provided by others and accepts that he or she may have to justify his or her opinion in court.

Costs

Medical report costs are difficult to predict with reports from treating doctors ranging from around $100.00 up to $400.00 or $500.00. The costs of independent reports is also variable and depends on the amount of material, such as medical records, that must be examined, as well as the complexity of the issues that are being considered. Costs range from around $400.00 to over $1,000.00. You should ask your doctor for an estimate of the cost of a report.

TIME LIMITS

In the Territory a person has six years from the date they become aware of an injury caused by the act or neglect of another person in which to issue proceedings. Failure to issue proceedings within this time will result in your action being statute barred, that is, any action brought outside this time can be defeated by arguing that the action is outside the time limits set by the Limitation of Actions Act 1958.

If you are concerned that your claim is “out of time” it is strongly recommended that you seek legal advice.

Extensions of Time

If you wish to commence an action after the expiry of the limitation period then it is possible to make an application to the Court for an extension of time. However, the Court will only grant an extension if it believes it is fair and reasonable to do so and that the other party will not be significantly prejudiced by the delay.

Persons under Disability

There are some exceptions to the six year limit. These apply to injuries to children and to persons that the law considers to be of unsound mind. These persons are said to be under a disability. For persons under a disability the limitation period does not apply until the disability ceases.

For injuries that occur to children this means that they have three years from the day they turn 18 in which to commence legal action in their own name.

Litigation Guardians

Of course it is not necessary to turn 18 in order to commence a claim. Children can sue for injures that have occurred to them, but it must be done for them by a person called a ”next friend”. A next friend, usually a parent, is the person responsible for the decision making in the litigation and is also the person who is liable for any costs associated with the litigation.

Any adult who is under a disability is also able to sue via a ”next friend”.

LEGAL PROCEEDINGS

Once your claim has been investigated and a decision made that you have a case that is likely to be successful, a decision has to be made as to how the matter should proceed.

The options are to:

• Send a letter of Demand.
• Issue proceedings in a Court.

Letter of Demand 

A letter of demand is simply a letter to the party you believe to be negligent setting out the basis of your claim and seeking compensation for it. The letter would usually invite the other party to contact you or your representatives to discuss resolution of the issues. 

A letter of demand may lead to negotiations that resolve the claim, however, there is no obligation on a person receiving a letter of demand to negotiate or even to respond to the letter. 

Usually a letter of demand will only be of use in a situation where the damage suffered as a result of the negligent action is not significant. For example, if your dentist poorly fills your tooth and you need to get the job done again, your letter may seek the cost of the further work required to be done. 

If you wish to do more than recover the cost of minor rectification work, or to claim for “pain and suffering”, you should consult a lawyer.

Issuing proceedings in a Court 

If you decide to issue legal proceedings the first question is in what Court the proceedings should be commenced. It will be a question of the nature of the claim, the likely size of any award of damages and the complexity of the matter that will determine which Court the claim should be issued in. The damages that can be awarded in the Magistrates Court cannot exceed $50,000.00. Claims above that must be commenced in the Supreme Court.

COSTS

Legal proceedings for any negligence claim can be complicated and medical negligence claims more so than most. The amount of work done and the need to obtain medical reports and the opinions of barristers add to the costs. 

In any claim there are two types of costs that might apply to your action. The first are what are called party/party costs and the other costs are solicitor/client costs. 

In addition, there are disbursements which include court filing fees, medical report fees, barristers fees, government charges and stamp duty, witness fees and any other amounts that have been paid out to third parties on your behalf to prepare and run your case. 

If you are successful in your claim, or it is settled in your favour, it is usual for the other side to pay the majority of your professional costs and disbursements which are calculated on the appropriate Court scale. These are referred to as the party/party costs. The party/party costs represents what the Court considers the minimum amount of work that was needed to prepare and run your case. 

There is a portion of your costs (called solicitor/client costs) which are not recoverable from the Defendant. These costs are also calculated on a Court scale and represents payment for things that were appropriate to do in the preparation and running of your claim, but which in the opinion of the Court do not form part of the party/party costs. 

The majority of your disbursements are also recoverable from the other side if you are successful. The amount which is not recoverable will form part of your solicitor/client costs. 

If you are unsuccessful, that is you lose your case, the Defendant is entitled to claim its costs and disbursements from you on a party/party basis. 

“No Win No Fee” Agreements 

Some law firms, particularly those that specialise in personal injury work, will act for you on what is called a “no win no fee” basis. That is, they will not charge you for their professional costs unless you are successful, either by settling your claim prior to trial or winning your case at trial. Such fee arrangements usually require you to pay the costs of disbursements no matter what the outcome of your claim. They are premised on the basis that your claim has good prospects of success (ie. the judgement of the lawyer is that you are likely to win). Usually the agreement is also dependent on you following reasonable advice at all times. The “no win no fee” agreement relates to your law firm’s professional costs only. If you lose you will probably still be liable for the Defendant’s party/party costs. 

CONCLUSION 

The key to a successful medical negligence claim is thorough preparation and clear advice. 

If you decide that you wish to investigate a claim then you should seek the opinion of a lawyer who specialises in medical negligence claims. 

Remember, not all problems that arise out of medical treatment are due to negligence. Only thorough investigation by an expert will help you to determine if your problem is due to negligence and what you should do about it.