Medical Malpractice in Brisbane / QLD
Medical malpractice, also sometimes called medical negligence, happens when a medical professional doesn’t practice in a way that meets acceptable standards in Australia. To succeed in an action for damages in medical matters, negligence must be established, and the patient must be harmed or injured through that negligence.
Medical malpractice usually falls within one of the following classes:
- Failure to diagnose at all or failure to diagnose in a timely manner
- Failure to treat appropriately
- Failure to provide or counsel appropriate follow-up
- Failure to refer for specialist diagnosis/treatment
- Failure to warn as to complications
- Failure to perform treatment/surgery with the appropriate skill.
Simply having a bad result from treatment does not necessarily mean there is a case for medical negligence.
Speak to our medical negligence lawyers Brisbane and QLD wide at Carter Capner Law. We can help determine whether there may be grounds for a claim.
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Most procedures and treatments come with an element of risk, no matter how minor. It is a doctor’s responsibility to warn patients of that risk. Duty to warn covers this area, and it is relevant to all risks that a reasonable person would regard as being important to warn about. They must also warn about risks which are particularly relevant to your circumstances.
If you suffer injury from a medical complication, and you were not warned about that complication as a potential risk, you may have grounds for a claim. It’s important to note you must also prove that had the warning been given, you would not have gone through with the treatment.
For example, if a doctor advised a patient of a serious risk for a certain treatment, and the patient accepts that risk, then it may be difficult to prove that disclosure of a less serious risk would have resulted in the patient refusing the treatment.
Wound infection following treatment does not necessarily establish any medical malpractice. It must be shown that the infection was as a result of neglect, such as sewing up a dirty wound, treating the injury site with a contaminated instrument, or performing surgery without following proper hygiene procedures. If it can be proven that the medical professional caused the infection through poor treatment standards, then there may be a case for medical malpractice.
When it comes to medical negligence litigation, it can be difficult to prove the extent to which the negligence has contributed to your overall condition. Expert evidence is needed to establish the difference between:
- The original condition you sought treatment for
- and the condition you were in after that treatment.
Like many personal injury claims, time limits apply for medical negligence.
An “Initial Notice” must be sent to the at-fault party (the negligent doctor or hospital) within:
- One (1) month after the day the claimant first consults a law practice for the personal injury and the at-fault party is identified
- Nine (9) months from the date of injury (or first appearance of symptoms).
The time limit is determined by whichever date occurs first.
The at-fault party then has one (1) month to provide all relevant records and documents about your medical treatment.
From the date they provide the documents you have a further twelve (12) months to complete and deliver to the at-fault party:
- The detailed Personal Injuries Proceedings Act Notice of Claim (NOC) Part 1
- A medical report supporting the claim
The insurer then has six (6) months in which to investigate your claim and to determine whether they will admit or deny liability.
If you fail to lodge the NOC-1 within 12 months of at-fault party supplying the documents, you must have a reasonable excuse for the delay. Speak to us today to see if we can help.
For children, a Notice of Claim Part 1 (NOC-1) must be delivered to the at-fault party before the earlier of:
- Six (6) years after the day a parent knew or ought reasonably have know that the injury had occurred; or
- Eighteen (18) months after the day a parent consults a lawyer about the possibility of making a claim.
If the Notice is not given as required, then the claim is not automatically barred but the at-fault party may seek a Court Order preventing the claim proceeding further.
If the Court allows the claimant to proceed, you may still be prevented from recovering expenses incurred before giving the notice including:
- Medical and other expenses
- Legal costs
- Any entitlement in respect of gratuitous domestic service you have provided.
To complicate matters further, if you receive at any stage from another party a written “Notice of Adverse Event Arising out of Treatment” then the requirement for you to give the NOC-1 within the time limits referred to above is more important. Rather than the at-fault party being able to obtain a Court order to stop the claim, the onus shifts to you to prove why you should be entitled to proceed with the claim. Even if the court gives you permission, the above consequence relating to recoverable expenses will apply.
The eighteen (18) month time period is therefore absolutely critical.
Do you need professional advice on your circumstances? Speak with one of our experienced Brisbane-based medical malpractice lawyers today.
There are many factors that contribute to the amount you can claim for medical negligence compensation. For more information, consult our compensation claims and payout guide.