Medical professionals are bound to provide you with ‘duty of care’ that is exercised through skill set, judgement and reasonable care in the areas of examination, diagnosis, treatment in condition and advice. In the event of a breach, you may be eligible to make a claim against medical providers if there is evidence of harm or injury caused by a medical misdiagnosis.

However, all medical professionals are legally obliged to have Professional Indemnity Insurance (PII) in cases such as negligence or misdiagnosis. Medical professional insurers are liable for the costs of compensation, rather than the medical providers or facilities.

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

Medical Misdiagnosis 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.

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.

Receiving a misdiagnosis for cancer can be catastrophic to you or a loved one, whether it’s physically, mentally, or financial. You may be entitled to claim for cancer misdiagnosis if the misdiagnose meets any of the following:

Delayed diagnosis: If a medical professional did not notify you or your loved one for early signs of cancer at an adequate time which resulted in delayed treatment.

Incorrect or wrongful cancer diagnosis: If your condition was wrongfully diagnosed as cancer, and as a result underwent unnecessary treatment or therapy. Or if your cancer had been misdiagnosed and a critical window of opportunity to treatment was missed as a result.

Failure to diagnose cancer: If the initial medical professional failed to diagnose your cancer when another medical professional or specialist was able to diagnose and confirm cancer after onset of severe symptoms, indicating advanced stages of your condition.

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.

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

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.

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.

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.