Have you suffered injury or other loss as a result of inadequate medical
treatment?
If that treatment (or failure to treat) was negligent you can claim against
the doctor or other medical provider.
Negligent medical treatment can involve any of the following:
- failure to act with reasonable care or skill in the performance of a
medical procedure;
- failing to provide any or appropriate treatment at the right time;
- failing to warn the patient of risks or side effects associated with
treatment;
- failure to properly diagnose a condition;
- provision of inappropriate treatment;
- provision of treatment or aspects of treatment without the consent of the
patient.
Medical negligence claims are complex and can be difficult. Unlike most other
injury cases, potential claims usually require careful and detailed
investigation before a decision to proceed can be made.
WHAT IS NEGLIGENCE? WHAT IS MEDICAL NEGLIGENCE?
WHAT IS NEGLIGENCE?
The concept of negligence arises out of a general duty on all members of
society to take reasonable care to avoid injury or damage to other people. If
you suffer injury or damage through another person’s failure to fulfil this
duty you can take action in negligence.
A claim in negligence requires the following three elements:-
- The existence of a Duty of Care
- Breach of the Duty of Care
- Loss or Damage resulting from the breach of Duty of Care
WHAT IS MEDICAL NEGLIGENCE?
These same principles apply to medical practitioners who are required to
exercise reasonable care and skill in the treatment of patients. This duty
extends to all aspects of the medical practitioner’s involvement with the
patient including the process of diagnosis, warning the patient regarding risks
and side effects, administering appropriate treatment in a timely manner as well
as acting with reasonable care and skill in the performance of medical
procedures. Each of these aspects is dealt with separately in the following
paragraphs.
FAILURE TO ACT WITH REASONABLE CARE AND SKILL
Medical practitioners are under a duty to act with reasonable care and skill
in administering treatment. Sometimes adverse outcomes result from medical
treatment even where reasonable care and skill has been exercised by the
practitioner. In these cases the medical practitioner will not be found to be
negligent, provided that appropriate advice has been given to the patient
regarding the risks associated with the treatment. The requirement for
disclosure of risks is detailed separately under the heading Duty to Warn of
Risks Associated with Treatment.
Whether there has been a departure from reasonable standards of care and
skill in any given circumstance is usually a complex question. Investigations of
the issue require the complete medical history and record up to that time to be
analysed by an independent medical specialist consultant. In some cases it
becomes apparent that a clear medical “bungle” has occurred. In these cases
the medical mistake is often obvious and negligence may not be difficult to
prove or liability may be admitted. These cases are rare.
More commonly a dispute will arise as to whether the treatment in question
was consistent with the exercise of reasonable care and skill by the medical
practitioner. This question can only be determined by detailed analysis of all
of the circumstances at the time. In any given set of circumstances it is not
uncommon for there to be conflicting medical specialist opinions. In such cases
the Court is required to decide which of the competing medical specialist
opinion is to be preferred.
Alternatively, there can be agreement between the medical experts but a
dispute can arise between the patient and the medical practitioner as to the
history of events, usually concerning the patient’s complaints and/or
development or symptoms during the course of treatment. In these cases the
history recorded in the doctor’s medical notes is a critical and frequently
determining factor although it is not uncommon to find that the medical notes
are incomplete or contain inaccuracies. In those cases the Court is required to
hear all the relevant evidence and determine the factual history issues in
dispute between the parties. This may not involve any medical questions if the
dispute relates entirely to the history of events.
DUTY TO WARN OF RISKS ASSOCIATED WITH TREATMENT
Medical science is imperfect and all treatments are accompanied by some
degree of risk. The law requires medical practitioners to exercise reasonable
care, not only in diagnosis and treatment, but also in the provision of advice
about appropriate forms of therapy. A doctor has a duty to warn a patient of all
material risks inherent in proposed treatment. These can be risks of “side
effects” arising, or the possibility that the proposed treatment may fail or
result in some other adverse outcome.
A risk is material where a reasonable person in the patient’s position, if
warned of the risk, would be likely to attach significance to it. Alternatively,
if the doctor knows (or should have known) that a particular patient would be
likely to attach significance to the risk, it should be disclosed regardless of
whether a reasonable person would have attached significance to it.
It is important to understand that where the patient is properly advised of
the risks associated with proposed treatment and the treatment is competently
carried out but results in an unfavourable outcome, the patient has no right to
claim in negligence. This is because no breach of duty of care by the medical
practitioner arises in these circumstances, regardless of the severity of the
loss or damage suffered. However, where the treatment is associated with risks
of potentially severe loss or damage, the extent and requirements of the duty to
warn are correspondingly increased.
Alternatively, if the adverse risks associated with the treatment are so
remote (unlikely) as to be insignificant, the medical practitioner may not be
under any obligation to warn the patient in the absence of special circumstances
such as specific concern expressed by the patient regarding the risks issue. An
interesting example of a case where a patient expressed such specific concern
giving rise to a duty to warn of a remote or unlikely risk arose in the case of
Rogers v Whitaker decided by the High Court in 1992.
FAILURE TO DIAGNOSE OR TREAT EXPEDITIOUSLY
The medical practitioner’s obligation to act with reasonable care and skill
includes the duty to diagnose and administer treatment with reasonable and
appropriate care, skill and expedition.
Failure to diagnose in a timely manner can lead to failure or delay in the
provision of medical treatment with potential adverse medical consequences. In
other cases appropriate diagnosis can be made but there may be failure to
administer necessary treatment or inappropriate delay in the administration of
treatment resulting in loss or damage.
In these circumstances, to prove negligence it is necessary to show that the
failure to diagnose or provide appropriate timely treatment was due to lack of
reasonable care and/or skill on the part of the medical practitioner. It is not
sufficient simply to establish that the medical practitioner’s diagnosis or
treatment was incorrect. It must be shown, in addition, that the error or delay
would not have occurred had the medical practitioner exercised reasonable care
and skill. Independent specialist medical advice based on the full medical
record is usually required to assess this question. It is critical to understand
that a mistaken diagnosis, or a failure or delay in the administration of
treatment, may not be found to be negligent if the same error would have been
committed by a competent medical practitioner exercising reasonable care and
skill in the same circumstances.
The second critical issue which often arises in these cases is the matter of
causation. That is, proving that loss or damage resulted from failure to
diagnose or delay in treatment. This loss or damage must be separately
identified and additional to any medical problems which would have arisen anyway
in the event of competent medical treatment.
Identifying the “additional” loss or damage attributable to a failure to
diagnose, or delay in treatment, is often difficult particularly in progressive
medical conditions which may have been likely to advance even with appropriate
treatment. In assessing the extent of compensable injury in these cases it is
necessary to identify the likely progress of the condition had appropriate
treatment been administered. The claimant is then compensated for the additional
medical loss or damage over and above this level caused by the negligent
treatment.
Establishing the extent to which a medical condition may be attributable to
negligent treatment in these circumstances requires expert independent medical
opinion and is frequently a contentious issue. Further comment on this aspect is
set out under the heading “Causation – Proving that the negligence caused
loss or damage”.
CAUSATION – PROVING THAT THE NEGLIGENCE CAUSED LOSS OR DAMAGE
In addition to establishing that treatment failed to comply with reasonable
standards of professional care and skill (negligence), it is necessary to
establish that this failure resulted in harm or loss which would not otherwise
have occurred. Hence it is necessary to identify the medical problems which the
patient would have suffered in any event had the treatment or procedure been
competently performed or had appropriate risk warnings been given. Any claim is
limited to the additional loss or damage which has been sustained over and above
that which would have arisen had negligence not occurred in the course of
treatment.
In the case of failure to warn of risks, it is required the patient establish
that had the appropriate warnings been given beforehand, he or she would not
have proceeded with the proposed treatment or procedure, or would have obtained
other medial treatment or advice which would have resulted in a significant
reduction in risk. Failing this, it may be found that the outcome would not have
differed had the warning in question been given. In such a case although the
failure to warn may have been negligent, the claim would fail for lack of
establishing that loss or damage was caused by the failure to warn as the
ultimate outcome would have been the same in any event.
Issues of causation can be complex and difficult. An interesting example of a
case of failure to warn of risks of surgical treatment involving difficult
causation questions is the case of Chappel v Hart decided by the High Court in
1998.
NEGLIGENCE OF OTHER MEDICAL PROVIDERS
The advice outlined in this Information utline generally relates to the
negligence of medical practitioners. However the negligence concepts are
generally applicable to all medical providers such as hospitals, pharmacists,
physiotherapists, chiropodists, podiatrists and others, and are not limited
solely to medical practitioners. In each case, the medical provider is required
by the law to provide treatment to the standard of reasonable competency within
their professional field. Failure to comply with this standard of care resulting
in injury or loss can be the subject of a negligence claim in accordance with
the principles outlined in this information.
LIABILITY FOR TRANSMISSION OF HIV/AIDS
In South Australia and most other Australian States legislation has been
enacted protecting the Red Cross Society, hospitals, persons administering blood
transfusions and blood donors from claims regarding the transmission of HIV/AIDS
through blood transfusions.
The protection from negligence claims provided by the legislation arises
where the blood has been supplied by the Australian Red Cross Society or other
approved supplier, in accordance with certain specified requirements. These
include a statutory declaration from the donor prior to donation of blood and
sample testing of blood in accordance with approved test procedures.
These statutory defences to claims are not applicable however where the Red
Cross Society or the hospital has not taken reasonable steps to prevent the
administration of blood or blood products which it has reasonable grounds for
believing may be contaminated with the AIDS virus, or if the hospital or medical
practitioner has been informed of likely contamination of the blood before
administration.
The blood donor is protected from liability except where he or she has
knowingly made a false statement in the statutory declaration.
Claims in respect of blood transfusions occurring prior to the commencement
of the relevant legislation giving rise to HIV/AIDS are subject to the general
principles of negligence outlined here. The essential issues for consideration
will be the extent of the known or knowable risk involved in the blood
transfusion and the availability of appropriate tests at the time of the
transfusion to establish the safety of the blood or blood product.
HOW IS THE AMOUNT OF COMPENSATION CALCULATED?
The first step in the calculation of compensation is to establish the extent
of loss or damage caused by the medical negligence. This issue is discussed
under the heading “Causation – Proving that the Negligence Caused the Loss
or Damage”. Once the extent of this loss or damage has been identified,
compensation can be awarded in the following categories:
- Pain and suffering.
- Medical treatment expenses incurred up to the present and anticipated
future care and treatment expenses.
- Travel expenses.
- Loss of income up to the present and future anticipated loss of income.
- Loss of superannuation benefits.
- Compensation for loss of life expectancy.
- Compensation for voluntary services/assistance provided by immediate
family members.
It is essential to ensure that all loss and damage claimed is directly
attributable to the medical negligence and that the loss and damage would not
have resulted had appropriate treatment been provided. Medical problems which
would have eventuated in any event are not compensable and must be excluded from
consideration. In some cases negligence can be proven but only minor loss or
damage may be able to be shown to have resulted. It may not be practical to
pursue a medical negligence claim in these circumstances if negligence is in
dispute, because the cost and difficulty of pursuing the claim may out-weigh the
compensation recoverable.
TIME LIMITS FOR BRINGING A CLAIM
In South Australia, all medical negligence claims must be instituted within
three years of the date of the cause of action arising. The cause of action
arises when a negligent act occurs which results in loss, damage or injury. In
the case of negligent treatment, this is likely to be the date on which the
treatment occurred. However, the date on which the cause of action arises can be
a complex issue and requires consideration in each case by a legal practitioner.
It is our strong recommendation that you obtain legal advice at the earliest
opportunity should you wish to pursue a medical negligence claim. This is highly
advisable to allow sufficient time for extensive preliminary investigation of
the claim to be undertaken before legal proceedings are required to be
instituted.
The time limitation rules require the issue of legal proceedings in Court
within three years of the date the cause of action arose. An extension of this
time limitation period can be sought in certain circumstances. The granting of
an extension of time remains in the discretion of the Court. As a general rule,
the longer the extension of time required the less likely the Court will
exercise its discretion to grant the extension. If you believe that you have a
potential medical negligence claim which may require an extension of time you
should seek legal advice from an experienced solicitor without delay.
THE INITIAL INVESTIGATION PROCESS
Medical negligence claims generally require extensive preliminary
investigation to ascertain whether negligence can be established. This requires
the full record of treatment and medical history to be obtained and an
independent highly qualified specialist consultant to review the records and
provide a detailed report. The costs of this process are generally significant.
In most cases, it is not possible to express an opinion on the likely success of
the claim until the initial investigation process has been completed.
In some cases, it becomes apparent after the initial investigation that
negligence cannot be proven. In these cases the claim may not be able to
proceed. If on the other hand a decision is made that the claim has potential to
proceed, frequently further investigations and enquiries into the finer points
or further issues raised in the initial investigation will need to be made. It
is necessary to continually monitor the outcome of these further investigations
and proceed on a step by step basis to investigate and build up the evidence
required to support the claim.
This process can take considerable time. Consequently it is our
recommendation that you instruct a solicitor to act on your behalf and commence
the investigation process at the earliest opportunity. Significant difficulties
can arise where parties seek to pursue a claim close to the expiry of the three
year limitation period leaving little time for investigation. Whilst this late
instruction is not fatal to the claim, it can cause additional practical
difficulties in the investigation process and is likely to result in increased
costs and expenses.
HOW CAN MY MEDICAL RECORDS BE OBTAINED?
The first step in investigation of a potential claim is to obtain the
complete medical records. Where treatment has taken place at a public hospital,
the treatment records are available under the Freedom of Information Act. Most
public hospitals have prepared their own application forms for Freedom of
Information requests.
If the treatment took place at a private hospital or a doctor’s private
rooms, the medical records are unlikely to be made available voluntarily. In
these circumstances it is usually necessary to make application to the Court for
an order that a copy of the medical records and notes be provided. This is
called an application for “Pre-Action Discovery”. You will need to retain a
solicitor to act on your behalf to institute such an application in the
appropriate Court.
It is important to retain all documents or records relating to the course of
your treatment, including any diaries containing relevant historical
information. These documents/records may be important to establish historical
events in dispute, or to assist in reconstructing the course of events during
the initial investigation of your claim.
LEGAL COSTS
You may be aware of “no win no fee” (contingency fee) legal costs
arrangements. The basis of these agreements is that your solicitor will not
charge you legal costs if your claim is not successful. If the claim succeeds,
legal costs are paid at a higher than normal rate. In the event that the claim
is unsuccessful you will not be required to pay your solicitor’s legal costs
but you may remain responsible for disbursement expenses (such as medical report
and evidence fees, Court issue fees and related “out-of-pocket” expenses)
and any legal costs which may be awarded against you by the Court in favour of
the other parties. Commonly, solicitors are prepared to act in medical
negligence claims on a “no win no fee” basis after the initial investigation
process has indicated that a claim has the potential for success. The initial
investigation involves the gathering of background material and preliminary
medical evidence. On the basis of that material the solicitor can express a
legal view regarding the prospects of a medical negligence claim succeeding. At
that point, the solicitor may be prepared to back his or her own judgment and
proceed with a claim on a “no win no fee” basis should you wish to do so.
Such arrangements, however, vary from solicitor to solicitor and you will need
to discuss this with your solicitor.
Many solicitors offer a first free no obligation interview. This enables you
to obtain initial preliminary advice regarding any potential claim without
expense or obligation.
Medical negligence claims are generally among the most complex and difficult
of personal injury matters and we strongly recommend you ensure that any
solicitor you instruct is experienced in this area.
