Medical Negligence

If a patient or the dependants of a deceased patient find that the outcome of medical treatment or advice causes an injury and damage then proceedings may be taken against the health professional or the hospital for compensation. Health professionals can cover not only medical doctors but also other allied health professionals including anesthetists who play some part in the treatment or procedure provided to a patient.

Medical negligence cases will involve considerable skill in their preparation and this will include medical research, use of appropriate medical and other experts and processes to discover information held by the doctor or hospital concerned.

In order to be successful in a case involving medical negligence, negligence must be proven. The test of medical negligence is stated in the case of Bolam -v- Friern Hospital Management Committee (1957), namely, whether the "Defendants, acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular area" – "the test is the standard of the ordinary skilled man exercising and professing to have that special skill".

Generally in order to be successful in a medical negligence claim it must be established:

• That a duty of care was owed to the Plaintiff;
• That there was a breach of the duty owed to the Plaintiff;
• That the breach of duty of care resulted in damage and loss.

At law a provider of medical services owes a duty of care to their patient. There are numerous ways in which a breach of duty of care can occur, some examples have included:

• Failure to terminate pregnancy;
• Failure to carry out a biopsy or mammography;
• Failure to diagnose a ruptured appendix;
• Failure to detect or diagnose a malignant melanoma;
• Severing of nerve during surgery;
• Delaying diagnosis;
• Failure to remove swabs or packs left in the abdominal cavity;
• Failure to diagnose an ectopic pregnancy.

Pursuant to Section 50 of the Civil Liability Act 2002 there are restrictions on the right to recover for liability. Section 50 provides that a person practicing a profession does not incur a liability in negligence for a professional service if the professional:

• Acted in a manner that (at the time the service was provided) was widely accepted in Australia by "peer professional opinion as competent professional practice". The previously applied test in Bolam’s case has in fact been reinstated by Section 50 of the CLA 2002. However, Section 5P provides that this restriction does not apply to a liability to warn or advise.

  In 2007 the Court of Appeal considered the application of Section 50 in a case of Dobler -v- Halverson (2007). The Court held that the wording of the relevant section was such as to provide a defence. As stated earlier, the restriction does not apply to a liability to warn or advise. In Rogers -v- Whittaker (1992) the High Court considered the question of choice on the part of the patient is meaningless unless he or she is provided with information to make a reasonable decision. In Rogers -v- Whittaker the Court was satisfied that had Mrs Whittaker been informed of the risk of total blindness she would have not have agreed to an operation with minor benefits which carried a risk of a potentially disastrous outcome. Section 5(d)(3) of the Civil Liability Act NSW 2002 provides that if it is relevant to the determination of factual causation to determine what a person who suffered harm would have done if a negligent person (Doctor or Hospital) had not been negligent then the matter is to be determined subjectively in light of all relevant circumstances and subject to any statement made by the person after suffering the harm about what he or she should have done being inadmissible except to the extent that the statement is against his or her interests.

  The patient must therefore rely upon other matters to convince a Court that he or she would not have undergone the negligent medical treatment. Factors which maybe considered relevant include:

• Any previous or post surgical procedures undertaken;
• Religious belief and social circumstances;
• The patients desire for treatment;
• The knowledge of the patient;
• The social circumstances of the patient;
• The economic circumstances of the patient;
• Significance of the therapeutic benefit arising from the treatment;
• The prospects of success of the treatment etc.

The decision as to whether or not to proceed with a medical negligence claim should be made carefully. At nsw compensation lawyers we will assist you in making a decision as to whether or not a claim can be made and/or whether you should proceed. nsw compensation lawyers have at their disposal resources and appropriate experts to support any claim and to determine whether there is a reasonable prospect of success.

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