Medical Negligence (ACT)

Medical professionals owe their patients a duty of care. This means that they are obliged to take reasonable care to avoid causing harm to their patients by performing their work competently and diligently. When a patient suffers harm or injury because of medical care, they may (but do not necessarily) have a claim in medical negligence. This page deals with medical negligence claims in the ACT.

Poor medical outcomes

Patients may be unhappy with the medical treatment they have received for a range of reasons. Medical treatment usually involves some level of risk. Where a medical intervention does not achieve the desired result or where a patient suffers an adverse effect, the practitioner may nonetheless have acted with due care.

In these situations, the patient does not have a claim in medical negligence.

Complaints to the Health Services Commissioner

Any person who wants to complain about medical treatment they have received in the ACT may make a complaint to the Health Services Commissioner.. A complaint to the Commissioner may be made about any health practitioner including a doctor, dentist, psychologist, midwife, pharmacist or radiologist.

The Commissioner usually seeks to resolve complaints through conciliation with the health service or practitioner involved.

What is medical negligence?

Medical practitioners have a duty of care to their patients because of their specialist expertise and because of the vulnerability of patients. A medical professional is expected to take steps to avoid their patients suffering harm that is foreseeable and not insignificant.

To make a claim in medical negligence, a person must show that:

• a healthcare professional had a duty of care towards them;
• the healthcare professional acted in a way that breached their duty of care;
• the patient suffered an injury, harm or damage as a result of the breach.

Examples of where medical negligence has been found include:

• where surgery was not performed to a professional standard;
• where there was a delay in diagnosis or a misdiagnosis;
• where test results were not correctly conveyed to a patient;
• where a patient was not warned of significant risks attached to a medical intervention.

Many medical negligence claims settle out of court. When a matter does proceed to trial, each party will adduce expert evidence and the court will decide which expert opinion has more weight.

Causation

Causation is often the most difficult element to prove in a medical negligence claim. In order for a court to find a defendant has been medically negligent, it must be satisfied that the plaintiff’s injury was caused by the practitioner’s negligence. This means that the plaintiff would not have suffered the injury but for the defendant’s action or inaction.

Informed consent

A central issue in a medical negligence case is often whether the patient gave his or her informed consent to the treatment. Informed consent exists where the patient is aware of the nature and extent of the risks associated with the treatment and consents to it anyway.

Medical practitioners sometimes ask their patients to sign a waiver prior to treatment to seek to limit their legal liability. However, courts have found that these waivers carry little weight when assessing   medical negligence.

Compensation

A plaintiff in a medical negligence matter may seek compensation to cover:

• medical bills
• loss of earnings
• professional carer costs
• pain and suffering.

If a court finds in favour of a plaintiff, it will attempt to put them back in the financial position they would have been in if not for the defendant’s negligence.

If the plaintiff cannot work because of the injury, they may be able to claim Total and Permanent Disability under their insurance or superannuation policies.

If a patient dies as the result of medical negligence, their family can claim financial compensation.

Limitation periods

An adult must initiate legal proceedings for medical negligence within three years of the date of injury or within three years of the date that symptoms first became noticeable.

If the claimant is a child when the cause of action arises, the claim must be initiated within three years of their eighteenth birthday.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.