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Medical Law

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Doctors, hospitals and other health care providers have a duty to take proper care when treating their patients. If a patient suffers injury as a result of inadequate skill and care – medical errors – the patient or their family may be able to make a claim for financial compensation.

As well as claims for medical negligence (sometimes called clinical negligence or medical malpractice), claims may be made for ‘failure to warn’ or lack of informed consent, where a doctor has not fully explained the risks of a procedure or medication, which the patient would then have refused.

Medical negligence claims are quite complex. Not all poor outcomes will result in a claim – there must be a lack of reasonable care, and it is crucial to demonstrate a connection between the error and the poor outcome.

How do I know if I am eligible to make a claim for medical negligence?

Negligence is a very specific concept, and not every failure or error made by a health care provider will be negligent. The key question will be whether the care or advice fell below a level which was widely accepted as competent treatment by a peer opinion at the relevant time, in Australia.

How is medical negligence proved?

It is essential to prove that the negligence caused or contributed to the injuries for which compensation is being claimed. This is often the most difficult aspect of a claim. Treatment may have been provided in a negligent way but if no harm or injury results a claim will probably not be viable.

What does compensation cover?

Compensation is intended to reimburse a patient for losses. The amount calculated is based on the damage or harm and loss suffered. It does not relate to the degree of the provider’s negligence.

Compensation payments may include the following:

  • past and future medical treatment expenses
  • past wage loss with interest, and future wage loss
  • damages for pain, suffering and loss of enjoyment of life
  • personal care or nursing assistance provided by agencies or sometimes without charge by family or friends

If I believe I have a medical negligence claim, what should I do next?

It is important that you contact a lawyer in Western Australia with experience in medical negligence as soon as you can to make sure your interests are looked after.

Medical negligence claims are among the most complex compensation claims. Strict time limits apply, so early investigations are needed. The medical issues accompanying claims are often complex, as is the calculation of fair compensation.

Whatever your circumstance, time is of the essence – early investigation and action may be critical to the success of your claim.

Additional lump sum benefit

Many superannuation funds provide coverage for a disability insurance benefit, often referred to as a Total Permanent Disability (TPD) benefit. This insurance cover, if provided under your superannuation, is a benefit additional to the contributions that you and/or your employer have made to your superannuation fund during the period of your membership. Most people are unaware or forget that this insurance cover is in place. 

Depending on the terms of the insurance cover, a TPD benefit may be significant and may help ease the financial burden you face during the difficult times that follow a disability. 

Generally it does not matter how your injury or illness came about;  just that you are suffering from a total and permanent disability or illness. Many people on workers’ compensation, motor vehicle injury compensation or the Centrelink Disability Support Pension can claim as well as people who suffer an unexpected illness that prevents them from working.

Whether you can make a claim for a superannuation disability benefit will depend on a number of factors - particularly, whether this insurance cover is provided under your superannuation. If you suffer from any injury or illness that prevents you from working in your normal occupation and would like more information about how Slater & Gordon can help you, please contact us via the form on this page or by calling direct on 1800 555 777. 

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