If you have sustained an injury from medical treatment you have undergone with a medical practitioner, dentist, orthopaedic surgeon, neurosurgeon, psychologist, psychiatrist, medical specialist, physiotherapist, chiropractor, or any other medical provider, then you may have a claim for personal injury compensation.
Palmers Compensation Lawyers are experts in medical negligence claims
Palmers Compensation Lawyers specialise in medical negligence, or medical malpractice claims as they are also known, and are experts in this area of personal injury law. We can assist you in identifying whether you have a valid claim to pursue and pursuing that claim for you.
Your Medical Provider Owes You A Duty To Use Reasonable Care & Skill & To Warn Of Risks
All medical providers owe a duty of care to use reasonable care and skill when providing medical advice or treatment to patients for any injury or medical condition, and they also have a duty to warn patients of any risks associated with the treatment they are providing.
Your medical provider has a duty to use reasonable care and skill not to expose you to a reasonably foreseeable risk of injury when providing you with medical treatment or medical advice. If your doctor, medical specialist, dentist etc., breaches this duty of care and you suffer injury because of it, then you will have a right to claim personal injury compensation for the loss and damage you sustain and are likely to sustain in the future.
Duty of Medical Providers to Warn of Risks Associated with Medical Treatment
The duty of care that a medical provider has when providing treatment and advice to a patient is a duty at law, but it is also governed by the provisions of the Civil Liability Act 2003 (“CLA”), which applies to medical malpractice claims in Queensland. The CLA deals with the duty of care a medical provider has to warn patients of the risks involved with any medical treatment or medical advice that they are providing to a patient. A medical provider has a duty to provide the following information about any risks associated with medical treatment or advice they are providing:
- Information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice;
- Information that the medical provider knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.
If a medical provider fails to provide this warning to their patient, and the risk of injury eventuates during the treatment or whilst the patient follows the medical advice of the medical provider, then the medical provider will have been negligent in failing to warn, and liable to compensate for the injury resulting from the risk.
There is however, a defence for medical providers when accused of failing to warn of risk, and that is where it can be shown the patient would have most likely proceeded with the treatment or following the medical advice in any event, whether advised of the risk or not.
For example, a man with a very serious and debilitating back injury is told by his treating GP that surgery may cause him more problems than he already experiences, and the man responds that he does not care, he will try anything. If this man is then not given appropriate pre-surgery warnings by his surgeon, and suffers an injury during surgery he should have been warned of, then the pre-surgery mind-set of the man will be used in defence of a claim against the surgeon for failure to warn. The defence will be that, even if the man had been given warning that the injury could result from the surgery, he would still have, more than likely, continued with the surgery and been willing to take the risk in the hope of improving his medical condition.
Of course, if his injury was caused by the surgeon acting without due care and skill, then he would also have a claim against the surgeon for this breach of duty of care.
Medical Negligence is a Complex Area of Personal Injury Law
Medical negligence claims can be quite complex matters and as such, not many personal injury firms in Queensland are willing to take on the running of these claims. The reason for this complexity is because in most cases, when a person is receiving treatment for an injury or medical condition, they are usually already disabled to some extent by that medical condition, and because of this, the increased injury sustained may not impact that significantly on the patient’s pre-injury lifestyle and employment, to make the claim worthwhile pursuing.
Difficulties differentiating between pre-existing injury & injury from the medical malpractice
Also, it is often difficult to differentiate between what symptomatology relates to the pre-existing injury for which treatment was being prescribed, and injury sustained from the medical malpractice. This is an issue of what we call, ‘causation of injury’.
For example, Joe has a very disabling back injury, and because of it, he cannot work and is virtually bed-ridden. He undergoes surgery to assist with chronic pain, but he has been told, it will not improve the disability he suffers from his injury. During surgery, there is a surgical mishap by his surgeon. When considering what further impact the medical malpractice has had on Joe’s life, a Court will look at what increased impairment in his everyday living, employment and general functioning has occurred due to the surgery. Given Joe was already severely restricted in what he could do and was unable to work because of his previous back injury and his medical and care needs had not increased, then the damages he would be looking at for a medical malpractice claim would most likely be so minor that his claim would not be worth pursuing.
Further, with his pre-existing degenerative condition, it will be difficult to distinguish between what symptomatology relates to his pre-existing back injury and any further injury sustained from his surgeon’s negligence.
A Court will consider the position of the claimant if the medical malpractice had not occurred and the treatment had been successful
But, it is important to note, that when assessing what loss and damage should be accorded to further injury sustained from incidence of medical malpractice, a Court will take into account the likely improvement to the pre-existing medical condition, had the medical provider not been negligent in providing the medical treatment and the treatment had been successful.
Another reason why medical negligence claims are complex cases, is because it is not always straight forward whether the injury is from the negligence of the treatment provider, due to the inherent risks involved when undertaking medical treatments.
Just because a patient sustains injury from medical treatment or advice provided to them, it does not always mean they have a personal injury claim. For example, it is widely accepted that there is a certain inherent risk involved when undergoing surgery, and there are cases where mishaps occur, even where the surgeon has used due care and skill. In such case, no matter how significant the further injury sustained, the patient will not be entitled to compensation for that further injury because the surgeon did not breach their duty of care. This is often termed, “medical misadventure”.
Not all medical mishaps result in a personal injury claim
Unfortunately there are certain risks that will always be associated with undergoing medical treatment, and complications can occur even where the medical provider applies due care and skill. Suffering further injury from a medical treatment, will not always mean that there is a personal injury claim to pursue.
Of course, if you undergo treatment and there are risks associated with that treatment, of which you are not forewarned by your treatment provider, and you then sustain that risk of injury, you may have a personal injury claim for your doctor’s failure to warn of that risk of injury prior to you undergoing treatment.
Pursuant to the Civil Liability Act 2003, medical providers do have certain defences against claims of medical malpractice. One is as referred to above, where they meet their duty to warn of risks. Another is where a medical provider can establish that the prescribed medical treatment or advice that caused the injury was widely accepted by a significant number of respected and competent professionals in the relevant medical field as an appropriate treatment. If the doctor, surgeon, physiotherapist, chiropractor, dentist etc., can establish this, then, unless a Court considers that the professional opinion relied upon was irrational or contrary to law, the medical provider will not be found negligent in prescribing that medical treatment or advice.
However, that does not take away from a claim that the treatment, although appropriate, was performed or provided in a negligent manner, and without the use of due care and skill. And it is also not a defence where there was a breach by the medical provider of their duty to warn of risks associated with the treatment, prior to the treatment commencing.
What Compensation am I Entitled to in a Medical Malpractice Claim?
If you are the victim of medical malpractice, then you will be able to claim compensation or damages for the injury sustained because of that medical malpractice, and any resultant loss and damage suffered as a consequence. The heads of damages which you can claim for in a medical malpractice claim include:
- Compensation for pain & suffering & loss of amenities of life ;
- Reimbursement for past lost income, and for the loss of future income;
- Loss of past and future superannuation benefits (associated with past and future lost income);
- Reimbursement for past medical expenses and out of pocket expenses, as well as compensation for the likely expenses you will incur in the future for medical treatment, medical aids & devices, pharmaceuticals, home & vehicle modifications, surgery & hospitalisation, dental treatment, as well as any other therapeutic remedies you reasonably require because of the injury sustained from the medical malpractice;
- Compensation for care & assistance you have required and are likely to continue requiring into the future (assistance with domestic duties, vehicle & yard maintenance, nursing care etc);
- Interest on past lost income & superannuation and out-of-pocket expenses.
But, as we have discussed above, your claims will only be in relation to the loss and damage arising due to the injury sustained from the medical malpractice and not any pre-existing injury.
As stated above, the Civil Liability Act 2003 applies to medical negligence claims, and therefore the restrictions on damages under that Act apply. The most significant restrictions relate to claims for pain & suffering, which are accorded damages pursuant to a Schedule set out in the Regulations to the Civil Liability Act 2003. There are also thresholds for claiming care and assistance as well as restrictions on claims for interest on past medical expenses & out of pocket expenses, past income loss and past care claims.
It can often be difficult in medical negligence cases to distinguish between symptomatology and restriction caused by a pre-existing injury and further injury sustained from the medical malpractice, and where the pre-existing injury is significant, then it may be that a personal injury claim is, unfortunately, not worth pursuing (see further information on this issue above).
However, when a Court takes into account what compensation should be paid for the further injury sustained as a result of the medical malpractice, it will consider any likely improvement in the pre-existing injury or medical condition had the malpractice not occurred and the surgery been successful.
Case Example
An example of damages achievable in a medical malpractice claim is a recent case handled by the Principal of Palmers Compensation Lawyers, where a young woman who had a serious pre-existing lower back injury, requiring two previous surgeries, sustained further injury when the wrong lumbar disc was removed during surgery. This lady already suffered quite significant symptomatology, and was not in any employment due to her previous back injury, but she was able to achieve damages of $565,000 for the increased pain and debilitation she suffered due to the incorrect disc level surgery.
Where the medical malpractice occurs whilst receiving treatment for injury already the subject of a personal injury claim
This actually is quite a common occurrence in personal injury claims. For example, a car accident victim suffers further injury due to the negligent treatment received at a hospital following the accident. In such case, unless the negligent medical treatment amounts to “gross negligence”, then the car accident victim will be able to claim for all injuries sustained consequential to the motor vehicle accident in their motor accident claim, including those injuries arising from the negligent medical treatment.
The car accident victim will not have to bring a separate claim against the hospital or treating doctor for medical malpractice. Compensation for all injuries will be encompassed in the motor accident claim. And the same thing applies for workplace injury claims, and all personal injury claims in Queensland.
This is because the law recognises that, when an accident victim receives treatment for their injuries, it is reasonably foreseeable that this may include poor medical treatment causing them further injury.
“Gross negligence” comprises of treatment that is so negligent that it causes a break in the chain of causation for the original injury, including such things as the wrong limb being amputated, the wrong surgery being performed or a surgeon operating when inebriated. It is where there is a gross lack of reasonable care by the medical provider in the provision of the treatment causing the injury.
In cases of gross negligence, then a separate personal injury claim will need to be brought against the medical provider who was grossly negligent.
The CLA Restricts Damages in Claims for the Failure of Sterilisation or Contraception Treatments
Where sterilisation and contraceptive treatments fail (viscectomy, tubal ligation), and a child is conceived following these procedures, any claim for damages for negligent medical treatment giving rise to the treatments failing is restricted by the Civil Liability Act 2003.
The Act provides that a Court cannot award any compensation for the normal cost of rearing a child when awarding damages in such cases.
Do You Need to Invoke Ryan’s Rule
In Queensland, when a person, or someone close to a person receiving treatment in a Queensland Health Facility, believes that proper treatment is not being provided but their concerns are not being heeded by treatment providers, they can invoke “Ryan’s Rule”. Once this Rule is invoked, the Hospital or health facility involved, must immediately review the case and a second opinion must be provided.
Ryan’s Rule is named after little Ryan Curtis who was hospitalised in Emerald for what was diagnosed by doctors as mumps. His condition deteriorated quickly and within 30 hours of his emergency transfer to Rockhampton Hospital, he passed away. His parents repeatedly told treating doctors that something was very wrong but were ignored. The Coronial Inquest handed down a finding that brave little Ryan was suffering from a serious bacterial infection, and had proper treatment been provided, and the warnings of his parents heeded, his death could have been avoided.
As a consequence, Ryan’s Rule was introduced into Queensland hospitals and health facilities, to hopefully ensure that such a tragedy will not happen again.
The National Injury Insurance Disability Scheme – Your Entitlements
You may be aware that as from 1 July 2016, the State and Federal Governments rolled out the National Injury Insurance Disability Scheme (NIIS) in Australia. The purpose of the Scheme is to aid those who are seriously disabled by injury, a medical condition or disease. The Scheme provides assistance with medical treatment, the provision of medical equipment, aids & adaptive devices, dental, as well as personal, domestic & nursing care needs.
The NIIS provides assistance to anyone who suffers “Catastrophic Injury” under the Scheme, whether it is hereditary or caused by an accident, assault or illness, as it is a no-fault based Scheme. “Catastrophic injury” under the NIIS includes spinal cord injuries, brachial plexus injury, traumatic brain injuries, permanent blindness, severe burns, and amputation injuries.
If you have been catastrophically injured in an accident, then you may be entitled to assistance under the NIIS. The NIIS is not a compensatory body and it does not replace accident compensation via a personal injury claim. You must still bring a Common Law Claim to be properly and fully compensated for your injuries. The NIIS is purely there to ensure those suffering serious disability in Australia have access to the medical treatment and care they need to provide them with a decent quality of life.
To learn more about the NIIS and what services it provides, click on the following link to its website: The National Injury Insurance Scheme.
The NDIS, is another scheme in Queensland providing assistance to the seriously impaired or disabled, who are likely to require ongoing care for their lifetime. This scheme has already been implemented in far North Queensland, and will be rolled out across the rest of Queensland over the next 2 to 3 years. To learn more about the NDIS, go to the following link: NDIS in Qld.
Time Limits Apply in Medical Negligence Cases
As in all personal injury claims, there are strict time limits applying to cases of medical malpractice or medical negligence. If missed, it will only be in exceptional circumstances that you will be able to overcome your delay, and be able to bring a claim. This could mean the loss of significant compensation.
You should not delay investigating whether you have a claim to pursue and taking steps to protect that claim. There are complex procedures required under PIPA that must be complied with in order to protect your claim before the limitation date expires and to proceed with your claim.
If you have sustained an injury through what you think is medical malpractice, you will need the advice of Experts in the area of medical negligence, a very specialised and complicated area of law, strenuously defended by medical insurers. It is because of this specialisation and complexity, that many firms do not handle such claims at all or they refuse to undertake them on a No Win No Fee basis.
Palmers Compensation Lawyers are experts in medical negligence claims and can assist you in receiving the proper advice you need to achieve a successful outcome and all on a No Win No Fee basis.
Contact us today on 1300 388 383, chat with us via our Livechat service or send us an enquiry via one of our FREE Instant Case Appraisal forms on our website. It is FREE, Confidential and there’s no obligation.