Medical negligence · Failure to warn
Injured by a medical risk you were not warned of? We will run your claim.
Before treatment, a doctor must tell you about the risks a reasonable person in your position would need to know, and any risks they know, or should know, you’d want to hear about. If a risk you should have been told about happened, you may be able to claim.
- No-obligation first consultation
- No win, no fee*
- We set out our costs in writing at the start.
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The specialist’s report.
A medical claim needs a specialist’s report on the care, but the report doesn’t have to address a failure to warn. (PIPA s 9A(10)) The test for warnings is different too: what respected peers would do doesn’t decide it. (Civil Liability Act 2003 (Qld) s 22(5))
Three questions
Three questions decide a medical claim.
You don’t need the answers yet. A first consultation, your records and a specialist’s report help work them out.
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Should you have been warned?
A doctor must warn you of risks a reasonable person in your position would need to know to decide, and any they know, or should know, you’d want to hear about. (Civil Liability Act 2003 (Qld) s 21)
What helps
- A specialist’s review of your records
- What you were told, and when
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Did it cause your injury?
The care, or the delay, must more likely than not have caused the harm. (ss 11, 12) A lost chance of a better outcome isn’t enough on its own.
What helps
- Records from before and after
- Your treating doctors’ reports
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Are you in time?
A medical claim starts with an initial notice, due within 9 months of what happened (or of first symptoms, if later), or 1 month after you ask a lawyer to act for you and the doctor or hospital is identified, whichever comes first. (PIPA s 9A)
What helps
- Writing down the dates
- Getting advice early
Good care can still go wrong
A bad outcome isn’t always negligence.
Can happen with good care
- A known complication, despite careful treatment
- A condition that couldn’t reasonably have been found sooner
- A treatment that didn’t work as well as hoped
May point to care below the standard
- Symptoms or results that weren’t followed up
- A test or referral that should have happened and didn’t
- A risk you should have been warned about, and weren’t
- A complication that wasn’t picked up in time
This week
Four things you can do now.
- Write down what happenedDates, names, what you were told, and when symptoms started.
- Ask for your recordsA public hospital charges no application fee for documents only about you. A private doctor should respond within 30 days.
- Keep your receiptsTreatment costs caused by the injury may be claimable, so keep receipts and referrals.
- Think about a complaintThe Health Ombudsman can look at what happened. It can’t award compensation.
Your records
How to get your medical records.
From a public hospital
Ask the hospital for your records, or apply under the Right to Information Act 2009 (Qld). There’s no application or processing fee for documents only about you.
From a private doctor or hospital
Ask, ideally in writing. They should respond within 30 days, and any charge for access mustn’t be excessive. (Privacy Act 1988 (Cth))
After an initial notice
The doctor or hospital must send copies of their records about your care within 1 month. (PIPA s 9A(8))
Who can help
Who does what.
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The Health Ombudsman
For a complaint
- Can lead to an explanation, an apology, a change in practice, a refund of out-of-pocket costs, or action on a practitioner’s registration.
- Can’t award compensation for pain, suffering or lost income.
- Best made within 2 years of becoming aware. (Health Ombudsman Act 2013 (Qld) s 44)
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A lawyer
For a compensation claim
- Seeks damages for the injury and what it has cost you.
- If a doctor was involved, it starts with an initial notice and needs a medical specialist’s report.
- Strict time limits apply.
- There’s no obligation to go ahead after your first consultation, and costs are set out in writing before we start.
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Your treatment
What it costs you
- Treatment costs caused by the injury may be claimable.
- Keep referrals, receipts and letters.
- Travel to appointments can count too.
You can do both. The Ombudsman can act on a complaint even while a claim is under way. (Health Ombudsman Act 2013 (Qld) s 43)
How it happens
How a warning gets missed.
A warning isn’t just a signature. These are the patterns that can point to a failure to warn.
- A form, not a conversationA consent form signed without the risks being explained.
- A serious risk left outA risk that was rare but serious, and not mentioned.
- A question not answeredYou asked about a risk and weren’t told about it.
- Alternatives not mentionedOther options, including waiting, not explained.
- No time to decideAsked to agree at the last minute, without a real chance to consider it.
Who may be responsible
Who looks after each part of your care.
More than one may be responsible. A claim can be made against each.
The treating doctor
Explaining the risks before you agreed to treatment.
Ask for: Consultation notes and the consent form
The surgeon or proceduralist
The consent discussion for the procedure they performed.
Ask for: Pre-operative notes and any leaflets you were given
The hospital or clinic
Its consent processes and information for patients.
Ask for: Its consent policy and your hospital chart
Your time limits
Medical claims have their own steps.
A claim against a doctor or hospital starts with an initial notice, not the usual notice of claim. These are the dates, in order.
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9months
Initial notice Due first
Tell the doctor or hospital in writing within 9 months of what happened (or of first symptoms, if later), or 1 month after you ask a lawyer to act for you and they’re identified, whichever comes first. (PIPA s 9A)
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1month
Your records
They must send you copies of their records about your care within 1 month of getting the notice. (s 9A(8))
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12months
Notice of claim
Part 1 of the notice of claim is due within 12 months of getting the records, with a medical specialist’s report on your care. (s 9A(9))
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3years
Court action
Generally within 3 years of when you were first harmed, even if you didn’t know it then. (Limitation of Actions Act 1974 (Qld) s 11)
If it happened to a child
For a child, if a doctor was involved, the initial notice is still due within the usual time. (PIPA s 9A(4)) A parent must also give the notice of claim within 6 years after they knew, or should have known, of the injury, or 18 months after first seeing a lawyer about it, whichever comes first. (PIPA s 20C) Court action is due within 3 years after the child turns 18. (Limitation of Actions Act 1974 (Qld) s 29)
Missed the deadline?
The notice can still be given, with a reasonable excuse for the delay. A Health Ombudsman complaint made within 2 years of becoming aware counts, if the notice follows as soon as practicable after the complaint ends. (s 9A(6A))
Learned something late?
A court may extend the 3 years to 1 year after a decisive fact came to light late. (Limitation of Actions Act 1974 (Qld) s 31)
Compensation
What you can claim.
- Pain and sufferingSet on the Injury Scale Value, from 0 to 100. (Civil Liability Act 2003 (Qld) s 61)
- Past and future lost earningsWages and super you’ve lost, and what the injury will cost you in future.
- Treatment costsMedical, hospital and rehabilitation costs, past and future, including further surgery.
- Care from familyIf it’s needed for at least 6 hours a week for at least 6 months. (s 59)
- Paid care and aidsHelp at home, equipment and changes you need because of the injury.
- Travel and other costsGetting to appointments, and other out-of-pocket costs.
Medicare and Centrelink may need to be repaid from a settlement. What you can claim depends on your injury and your circumstances.
How a claim runs
From the first call to court, if it’s needed.
No-obligation first consultation
We look at what happened, which notice applies, and your time limits.
Initial notice and records
The doctor or hospital is told in writing, and must send your records within 1 month.
A specialist’s report
An independent specialist in the right field reviews the records and reports on the care.
Notice of claim
Part 1, with the report, within 12 months of getting the records.
Conference and offers
A compulsory conference, then written final offers if it doesn’t settle. (PIPA ss 36, 39)
Court, if needed
If the claim hasn’t resolved, proceedings start within the time limit.
If your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing before you sign.
No-obligation first consultation
You decide whether to go ahead once you know your options and the likely costs.
Everything in writing
Fees and outlays are set out in a costs agreement before we start.
Capped at 50%
Our professional fees are capped at 50% of what you recover, after refunds and outlays. (Legal Profession Act 2007 (Qld) s 347)
Specialist reports
A specialist’s report is an outlay. Your costs agreement sets out how it’s paid.
Questions
Questions people ask.
Possibly. A signed form doesn’t by itself show you were told about the risk that happened. What matters is what you were actually told, and whether a reasonable person in your position would have needed to know it. (Civil Liability Act 2003 (Qld) s 21)
No. Even a rare risk may need to be mentioned if a reasonable person in your position would need it to decide, or if you asked about it. (Civil Liability Act 2003 (Qld) s 21)
That if you had been warned, you wouldn’t have gone ahead, or would have done something else. What you say now about that is generally not admissible unless it’s against your interest. (Civil Liability Act 2003 (Qld) s 11(3))
The initial notice is due within 9 months of what happened (or of first symptoms, if later), or 1 month after you ask a lawyer to act for you and the doctor or hospital is identified, whichever comes first. (PIPA s 9A) Court action is generally due within 3 years of when you were first harmed. Different rules apply to children.
Yes. A complaint and a claim can run at the same time. The Ombudsman can’t award compensation, and complaints are best made within 2 years of becoming aware.
Something not right about your care?
Tell us what happened and when. We’ll tell you which notice applies, your time limits, and what to do this week.
General information only, not legal advice about your situation. No win, no fee*: if the claim doesn’t succeed, you pay no professional fees; whether outlays are payable depends on your costs agreement. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs.