Medical Negligence

Before you consider the questions set out in this section we recommend that you first read the introduction to medical negligence claims under OUR EXPERTISE.

I have sustained an injury. Am I eligible to receive compensation?

Provided that the physical or psychological injury sustained by you as a result of the negligence (or fault) of a health professional or hospital employee significantly impaired your ability to lead a normal life for a period of at least 7 days after the incident and/or you have incurred medical expenses of a prescribed amount (for example, $3,730.00 for accidents occurring in 2012), then you may be entitled to claim compensation.

What factors might limit my claim and therefore result in a reduction to my compensation?

Medical treatments and surgical procedures are often complex and, notwithstanding adequate care and skill on the part of a health professional, involve a certain amount of risk. If these risks were explained to you and you consented to proceed with the treatment or procedure, then you may not have a claim if the risk eventuated.

How do I lodge a claim for compensation?

If we are of the view that you have a claim then, on your instructions, we will notify the health professional and/or their insurance company on your behalf. Thereafter, we will gather medical evidence in relation to your injury and, if there is a dispute regarding liability (that is, whether the health professional’s negligence caused your injury), we will investigate the circumstances of the incident which resulted in your injury. This often involves obtaining copies of clinical records and expert medical opinion. It may also be necessary to interview witnesses. Finally, we will enter into negotiations with the insurer with a view to finalising your claim as soon as possible.

Is there a time limit for lodging a claim?

If you are over the age of 18 years then you have 3 years from the date of the incident to lodge and settle a claim with the insurer. If the claim fails to settle, court proceedings must be filed before the 3 year anniversary of the incident. This is known as the “statute barred date”. If you are late in filing proceedings you will not be able to claim compensation without making an application to the court which may, in certain circumstances, grant an extension of time.

If you are under the age of 18 years at the time of the incident then you have 3 years from the date of your 18th birthday to issue court proceedings in relation to your claim. However, at any time after the incident your parent or guardian can instruct solicitors to bring a claim for compensation on your behalf. It is not always necessary to wait until you are 18 years old. Much depends on the nature and long term consequences of your injuries.

What might I be paid by way of compensation?

The categories of compensation are also known as “heads of damages”. Not all of the heads of damage may be applicable to you and will depend on your personal circumstances. Therefore, your entitlements may or may not extend to the following:

  • An amount for pain, suffering and loss of the amenities of life (that is the extent to which your ability to engage in sport, leisure activities and so on has been restricted). This amount will be based on a scale between 0 and 60, where 0 represents the most trivial injuries and 60 represents the most serious, short of death.
  • Where you have been incapacitated for work then, with the exception of the first week, you will be entitled to an amount of money equivalent to any past loss of earnings (excluding any taxation which would have been paid) and (if appropriate) an amount to cover any future loss of earnings or loss of future earning capacity.
  • Treatment expenses reasonably incurred at the recommended rates including the cost of hospital admissions, medical treatment, chiropractic therapy, physiotherapy, pharmaceuticals and rehabilitation, and an allowance for future medical treatment.
  • Where as a result of your injuries, a spouse, domestic partner, child or parent has been obliged to carry out domestic and personal services on your behalf then you will be entitled to make a claim for compensation for the voluntary services that were provided.
  • Where domestic services may be required as a result of any incapacity resulting from your injuries, then an award may be made for past and future paid services.
  • Likewise, if you required and/or will require the services of a personal carer, then an award may be made for the costs of such services.
  • In circumstances where you require equipment, aids and appliances, vehicle or home modifications by reason of your injuries, then you will be entitled to an award to cover the associated costs, together with the costs of future replacements, if applicable.
  • You are entitled to be reimbursed for travelling expenses incurred directly as a result of travelling to and from appointments for medical treatment.
  • A contribution towards your legal costs.

How is compensation assessed?

Your compensation will be assessed with reference to the evidence supporting your claim. Therefore, in the initial stages of a claim, time is taken to collect the evidence required.

We will need to obtain a copy of the clinical records of the health professional who treated you or from the hospital where you were admitted for treatment. Depending on the nature of the injuries, it may be necessary to obtain specialist reports which address the question as to whether or not the health professional treated you, or administered the procedure, with the required care and skill. Medical opinion may also be required in relation to the nature and extent of your injuries, whether your condition has stabilised and is capable of final assessment, and whether you have been left with permanent disabilities which may affect your work and/or domestic capacity. Copies of all medical reports obtained are then forwarded to the health professional or their insurer, which is also entitled to arrange for you to attend independent medical examinations for the purpose of obtaining further medical reports. It is not advisable to settle a claim when the full consequences of your injuries are not yet known.

If you have sustained financial loss then it may be necessary to obtain copies of your taxation documents, pay advices, sick certificates and other information which your employer may be able to provide to assist you in progressing your claim.

How long does it take for a claim to be settled?

This will depend on how long it takes for your injuries to stabilise to the point where it is possible to assess the loss flowing from the injuries and any residual impairments. Only when your injuries have stabilised is it possible to assess your future medical treatment needs, any future domestic services which may be required and future economic loss arising from a reduced earning capacity. If your injuries are not serious then it would be reasonable to expect that your claim would resolve within a period of 12-24 months.

If liability is in issue the finalisation of your claim may be further delayed. Liability becomes an issue when the health professional or hospital, or the insurer, does not accept responsibility for the incident which gave rise to your injuries. In such a situation we will investigate the circumstances of the incident by interviewing witnesses, and if required, obtaining a report from an appropriate expert. The insurer may undertake similar investigations.

How much will my claim cost?

Upon the successful conclusion of your claim the insurer will pay a contribution towards your legal costs. However, there will be a gap between your actual legal costs and the contribution to costs.

If you would like to meet with us to discuss whether you might have a claim for compensation and the chances of succeeding in that claim, and it is our opinion that your claim would not succeed and you proceed no further, then you will not be charged in relation to this initial interview. The advice provided to you on that occasion will be free.

Centrelink, Medicare and private health insurance benefits: Will these need to be repaid if I receive compensation for my injuries?

If you received Centrelink benefits subsequent to the incident and your compensation includes an amount for economic loss, then Centrelink will be entitled to recover some, and possibly all, of the post injury benefits paid to you. If your award is substantial you may also be precluded from claiming benefits for a period after the conclusion of your claim.

Likewise, if Medicare has paid certain medical services associated with your injury, or if you have claimed the costs of treatment from your private health insurer, you will need to repay these benefits on receipt of compensation.