Failure to Warn of Medical Complications

If you suffer injury from a medical complication the risk of which you had no prior warning, you are entitled to claim under insurance and may have grounds for a damages claim. Our Medical Injury lawyers Brisbane and QLD can handle insurance and compensation claims for a wide range of medical errors such as Failure to Warn claims.

Do you have a claim?

Check to see if you are entitled to compensation. If you have a question, please get in touch with our team.

Do you have a potential Failure to Warn Claim?

Make an enquiry

What is Failure To Warn Medical Complication?

Most procedures and treatments come with an element of risk, no matter how minor. It is a doctor’s responsibility to warn patients of all risks that a reasonable person would regard as being essential to be informed of. They must also warn about dangers which directly applicable to the circumstances of the particular patient.

If you are unable to work due to sickness, disability, or a permanent injury as a result of a “failure to warn” medical complication, you may be entitled to claim compensation through your super as a Total and permanent disability (“TPD”) or income protection claim.

Damages may also be able to be claimed in respect of a medical complication, the risk of which you were not made aware if it is objectively likely that had the warning been given, you would not have gone through with the treatment.

If for example a a patient accepts the risk pointed out by their doctor of a serious risk for a specific treatment it may be challenging to prove that the non-disclosure of a less severe risk would have prompted the patient to refuse the treatment.

Simply having a bad result from treatment does not necessarily mean there is a case for medical negligence. Speak to our medical injury lawyers Brisbane and QLD wide at Carter Capner Law. We can quickly help determine whether there may be grounds for a claim.

We have offices across Brisbane and service all of Queensland. Clients can stay connected via our 24/7/365 password-protected client portal, LawSpace.

1

Schedule your initial consultation

At our initial consultation, we can give you more information about the claim process and chat with you about the viability of an insurance or compensation claim. We will also confirm your eligibility for no win no fee terms to pursue your case.

2

Investigation & gathering evidence

We will investigate and gather evidence while you recover from your injuries. This includes collecting medical treatment records prior to the medical event and subsequent to it.

At the same time, we will also collect employment and income records so that a complete before and after pictures can be painted.

3

Get Independent Medical expert's opinion

Once we obtain all relevant medical records, including reports from your treating doctors, we’ll then get an independent medical expert opinion as to the extent of your injury and also to clarify whether or not the treatment provided to you met or fell short of the requisite standard of care.

From those reports, we will formulate how the medical event has impacted you and your family at work and at home.

4

Lodge your claim

If the investigation results satisfactorily, we will then lodge your insurance claim where possible and if the circumstances allow, a compensation claim for the physical and psychological deficits you have sustained as a result of the accident.

5

Attendance at informal settlement meeting

We will formulate your damages demand if applicable and appoint an out of court meeting to negotiate the resolution of your claim settlement.

6

Claim settlement or court proceedings

Statistically, more than 97% of compensation claims are settled out of court. In many cases, the claim is resolved successfully during the informal settlement meeting, and you will receive compensation to which you are entitled.

If your claim has not been resolved at this stage, we will file proceedings in court to help you get the compensation to which you are entitled according to law.

Do wound infections count as a medical treatment injury?

Wound infection following treatment does not necessarily establish any Medical Failure to Warn. It must be shown – for compensation – 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 compensation case for Medical Failure to Warn.

How do you establish the causation between the substandard treatment and the resulting symptoms?

It is essential to prove the extent to which the negligence has contributed to your overall condition. This is established on the basis of expert medical opinion.

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.

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.

What sort of damages are payable in Medical Failure to Warn compensation?

It all depends on the proportion of liability attributable to the at-fault medical professional, the extent of your resulting injury and the quality of your evidence. The amount of compensation to which you are entitled is also based on a comparison of how your life was before and after the accident.

If someone whose injury has had a significant effect on their quality of life (work, psychological, physical) is entitled to higher compensation than someone whose injury has had a minor impact on their lives.

The amount of compensation also is determined by:

  • General damages (loss of enjoyment in life due to suffering);
  • Out of pocket expenses (medical bills, rehabilitation costs);
  • Any loss of income and superannuation contributions;
  • Potential medical or personal care costs that is likely to occur due to the injury; and
  • The interest from the loss of earnings.

What are the fees for insurance and compensation claim for Medical Failure to Warn?

It is essential to always speak to an expert compensation lawyer about your situation. Your financial position should not prevent you from seeking legal advice in regards to your injury you suffered that you are ‘not-at-fault’ for.

Medical bills and taking time off work or even worse, potentially not being able to return to work can be costly. Carter Capner Law offers a ‘no win no fee’ arrangements in many cases.

With a ‘No Win, No Fee’ agreement, your lawyer takes on the financial burden of pursuing your case, you can focus on your recovery and in the meantime on how best to care for your family.

We have offices across Brisbane and service all of Queensland.

What evidence do I need to keep and collect?

To assist your lawyer with the investigation, it is important to try to do the following:

  • Make notes of your recollection of all events relevant to the accident
  • Record names and addresses of witnesses
  • Take photos and video of the place where you were injured. “A picture tells a thousand words”. Sketches are also helpful
  • Take photos and video of any product, equipment or object that injured you
  • Take photos of your injuries
  • Keep any defective product which caused an injury
  • Keep details of your absences from work caused by the injury
  • Make a list of visits to doctors, physiotherapists, chiropractors etc for treatment and follow-up visits
  • Keep all invoices and receipts for medical, chemist etc expenses
  • Record details of assistance provided by friends and family members
  • Collect contractual records.
  • Collect documents showing your loss of earnings and earning capacity including wage slips, group certificates, income tax returns (for 6 years prior to the accident and each year after), references and resumes

Is my claim worthwhile?

Whether your claim is worthwhile depends on the seriousness of your injury and how that affects your employment and lifestyle.

There are some claims that are not worthwhile such as those for trivial injuries where there is no insurer or the party at fault does not demonstrate significant assets against which a judgment can be enforced.

If you are not sure if your compensation claim is worthwhile, please contact us, and we will help assess your needs and eligibility for our no-win no-fee service.

Carter Capner Law offers specially tailored services in connection with severe brain injury and spinal injury accidents for children and adults to help formulate comprehensive loss statements that include individualised damages components that make up multi-million dollar claims.

Are children eligible to claim for Medical failure to warn?

For children, a Notice of Claim Part 1 (NOC-1) must be delivered to the at-fault party before the earlier of:

  1. Six (6) years after the day a parent knew or ought reasonably have know that the injury had occurred; or
  2. 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 permits you, 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? Please speak with one of our experienced Brisbane-based medical malpractice lawyers today.

What happens if the NOC-1 is submitted outside of the applicable time limit?

If you fail to lodge the NOC-1 within 12 months of the 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.

Are there any time limits for making a Medical Failure to Warn claim?

Yes.

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

OR

  • 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:

  1. The detailed Personal Injuries Proceedings Act Notice of Claim (NOC) Part 1
  2. 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.

Court proceedings must be commenced within 3 years of the medical event.

Common types of negligence claims

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.

Amputation due to medical negligence.

Spinal injuries and cauda equina.

Anaesthesia errors.

Bowel and oesophageal perforation.

Brain infections.

Cardiac injuries.

Head injuries.

Medical misdiagnosis.

Birthing injuries.

Plastic and cosmetic surgery negligence.

The CCL method

Our compensation lawyers will quickly review the circumstances of your case to determine your prospects of a successful personal injury claim. And once we have approved your case the claim process can be promptly started following the CCL method

Process

Assemble the initial information you are able to provide

Proper case preparation demands meticulous attention to detail. That's why right from the start, we collect all the facts and continuously verify them with you and other sources. Constant updates to your comprehensive statement will ensure everyone - you, us, medical specialists and barristers - stay precisely on the same page.

Process

Prepare initiating Claim Notice.

Once sufficient facts have been collected and the identity of the at-fault party confirmed, and initial Claim Notice can be completed in a way that persuasively asserts the basis and extent of your compensation request.

Process

Keep collecting the facts.

Diligent claim preparation requires a comprehensive understanding of your medical income and employment histories. We will obtain records from accident related treatment provided as well as from health professionals who have treated you for any prior conditions. Employment and income records asked also be collected and diligently examined .

Process

Medical investigation of injury.

The extent of accident related injury must be independently verified by medical experts. Because compensation is paid for the permanent effects from an injury, specialist medical assessment is deferred until 9 – 12 months post injury. We'll arrange examinations with appropriate specialists and the insurer of the at-fault party is entitled also to have you examined by its specialists.

Process

Formulation

Once all information has been collected and medical specialist reports obtained, we will carefully formulate the "damages" components of your claim demand. The CCL Method requires that every component - general damages, lost wages, expenses you have incurred, the value of past and future domestic care and the value of loss of future earning capacity - is based on authoritative evidence.

Process

Negotiation

After the insurer has considered your damages ask, a settlement conference is arranged to attempt to negotiate a resolution. Although informal, the success of the conference depends on the extent of preparation that has gone before it. Offers will be exchanged and if the insurer is being reasonable, the conference offers a good opportunity to finalise the claim.

Process

Settlement not reached: heading to court

If you are unable to reach an agreement within 60 days after the conference, a Claim and Statement of Claim must be filed in court in relation to your accident. The defendant may then file a Defence and the court process then continues until the dispute is listed for a trial where witnesses are called to give oral evidence and a judge makes a final determination.

What fees do you pay a solicitor for failure to warn medical complication claims?

Carter Capner Law's No-Win No-Fee terms affords fairness to those seeking compensation for personal injury including loss of income and future loss of income earning capacity. No-Win No-Fee - sometimes called "no-win, no-charge" and "no-win no-pay," allows legal representation to a level equivalent to that of the insurance company that will be resisting your payout. Essentially No-Win No-Fee terms provide that fees and case expenses are only payable when the claim is finalised and only if it is successful.

  • Court Filing Fees

  • Medical specialist consultation & report fees

  • Medical records collection fees

  • Expert report fees

  • Claim investigation

  • Barristers

    We will secure the services of a barrister who will also offer No-Win No-Fee terms

  • Document production

  • Police Report Fees

  • Government agency search fees

  • Freight & courier

  • Office charges

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