As patients, we all have the right to place our trust in medical professionals to look after us properly and give quality care. However, despite our reliance upon these professionals, there are times when they have caused their patients to suffer more harm or injury because of negligent medical treatment. If you believe this has happened to you, read on to find out more about what constitutes as medical negligence, and what you should do if you are a victim of medical negligence.
What is Medical Negligence?
Medical negligence (also known as medical malpractice) occurs when a medical professional causes injury or harm to a patient under their care through an act or a failure to act. This act or failure to act, such as treatment or failure to provide treatment, must be below the acceptable standard of practice in the Australian medical community, and harm must be reasonably foreseeable by the medical professional.
How do I establish that Medical Negligence has occurred?
To establish that there has been medical negligence, the following must be proven:
- Duty of care: It must be established that there was a duty of care owed to the patient by the medical professional. The law has now deemed that medical professionals owe their patients a duty of care. Legally, this duty of care requires that the medical professional must exercise reasonable medical care in treating their patients and should use their professional skill and judgement to provide competent medical treatment and advice.
- Standard of care: In proving that a medical professional’s treatment was negligent, it must be proven that their treatment did not meet the standard of care. What courts consider as the acceptable standard of care is whether the medical professional did or did not reasonably meet the Australian standards of the medical community. This judgement is based on the opinion of a large number of other respected medical professionals in the same field.
- Causation and Damages: The medical professional’s actions or omissions must have caused the patient to suffer physical or psychological harm, and this harm was reasonably foreseeable by the medical professional. It must also be established that any harm or injury the victim suffered was caused due to the negligent medical treatment and if the medical professional’s negligent treatment had not been performed, the patient’s injuries would have been avoided.
What are some examples of Medical Negligence?
Some examples of Medical Negligence include:
- Performing medical treatment or surgery without reasonable care or skill
When the medical professional’s treatment causes a patient further injury, when such an injury should not have occurred in the first place
- Errors in prescriptions or medications
When the medical professional has given the patient the incorrect prescription or medication
- Failure to correctly diagnose (misdiagnosis)
When the medical professional has failed to consider all of a patient’s symptoms or medical history and, as a result, fails to provide a correct diagnosis
- Providing a correct diagnosis, but in an untimely manner
When the medical professional has correctly diagnosed the patient’s condition, but the diagnosis did not occur in a timely manner
- Failure to warn or advise of all associated risks
When the medical professional has failed to warn the patient of all the risks and, had the patient known of the risks, would not have gone ahead with the treatment and therefore, suffered an injury
- Medical product liability
When a patient’s medical product or device is faulty
What should I do if Medical Negligence has happened to me?
If you have suffered an injury or harm due to medical negligence, you may be entitled to make a medical negligence claim. This claim allows for victims of medical negligence to be compensated for the negligent actions of their medical professionals.
A medical malpractice claim can be brought against an array of medical professionals such as doctors, surgeons, nurses, dentists, pharmacists, midwives or radiologists. These medical professionals are required to have professional indemnity insurance in the event of a negligence lawsuit, and therefore, their insurance company will usually pay the patient’s compensation.
How much compensation you can receive for these damages will vary depending on your individual circumstances, and are calculated based on the amount of harm or loss you have suffered, rather than on the degree of negligence.