The term ‘negligence’ is a relatively common legal term, which can have a number of different meanings, depending on what type of claim you’re pursuing or which state you live in.
In this article, we want to give you a better understanding of the term ‘medical negligence’ so that you can better determine whether you – or someone you know – may be eligible to pursue a medical negligence claim.
What is medical negligence?
Perhaps the best way of defining medical negligence to someone who may be considering making a claim is to describe the legal test, or process, used in these cases (a legal test is a standard way of evaluating a legal case to ensure there is consistency and fairness across cases).
To prove medical negligence, you and your legal team must be able to demonstrate that:
- A duty was owed to you. A health professional or institution (your doctor or your hospital, for example) owed you a duty of care.
- A breach of duty took place. To prove that a breach of duty took place, you need to show that the medical professional or hospital acted in a manner that would be considered outside competent practice. Only an independent expert can make this judgement. As your lawyer, we would contact such an expert on your behalf, determine whether they support your claim and then ask them specific questions about your case.
- Causation. In addition to showing that the doctor or hospital breached their duty of care, you need to establish that this breach caused, or materially contributed to, an injury. This is where things can become a little bit complex. For one, it can be difficult to obtain evidence relating to certain injuries or diseases.
- Damages. Once a breach of the duty of care has been proven to have caused your injury, the question of what you can claim for arises. Different jurisdictions (states of Australia) have quite stringent tests associated with qualifying for pain and suffering damages. In addition to pain and suffering, you may be able to seek compensation for medical expenses, loss of wages and future wages, loss of superannuation and future superannuation, and your future care costs.
Who can I make a claim against?
Medical negligence claims can be brought against healthcare professionals including GPs, specialists, surgeons, dentists, nurses and allied health professionals such as physiotherapists and podiatrists. Many individuals will be covered by the medical institutions they work for, in which case you will end up pursuing a hospital or healthcare clinic rather than a specific person.
What does medical negligence cover?
If you’ve suffered because of a defective prosthesis or medical product, you may need to pursue the manufacturer of the product rather than the healthcare provider. This is different from medical negligence, but a medical negligence lawyer can help you determine where the legal line is drawn and who can help you with your case.
It is also important to note that there is an important difference between a medical negligence claim and an unsatisfactory experience. A doctor simply being abrupt almost certainly doesn’t qualify as medical negligence.
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Slater and Gordon
Posted on 11 Apr. 2018
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