Medical Negligence (Qld)
When does a medical mistake become medical negligence in Queensland?
We have excellent medical care in Australia, but nothing is perfect 100% of the time, and it doesn’t always produce the outcomes that patients hope for. A procedure might be unsuccessful, a diagnosis might be delayed, or a patient might experience unexpected complications despite receiving appropriate care.
Unfortunately, there are also times when the problem is more than just an unfortunate outcome and, instead, is the result of negligence. And for the patient and their families, understanding the difference between a recognised medical risk and negligent treatment is often the first step in determining whether they might be owed some compensation.
So when does a medical mistake become medical negligence in Queensland, and when can a compensation claim be made? Let’s start with the duty of care.
Duty of care in medical negligence
Under common law negligence principles and the Queensland Civil Liability Act 2003, a duty of care must exist between the parties before a negligence claim can be made. But a doctor-patient relationship is a recognised category that gives rise to a duty of care, and this includes doctors, surgeons, nurses and other health professionals.
When that duty is breached, and a patient suffers injury, illness or financial loss as a result, the patient may have a claim for medical negligence.
Determining whether a person has breached their duty of care
In Queensland, a court determines whether a person has breached their duty of care in general by asking two questions:
- Would a reasonable person in the defendant’s position have foreseen the risk of injury to the person arising from their conduct?
- What would a reasonable person have done in response to that risk?
How does a court decide whether a doctor was negligent?
Under the law, a medical professional is deemed to owe a higher standard of care to a person than others because the professional has special skills, knowledge and expertise. Nonetheless, not every poor medical outcome amounts to negligence. So the question for the court is whether the medical professional acted reasonably in the circumstances.
Under the Civil Liability Act 2003, a medical professional will not be found to have breached their duty of care unless the risk of harm was foreseeable, the risk was significant enough to require attention, and a reasonable person in the same position would have taken steps to avoid it.
In deciding whether a reasonable medical professional would have taken precautions against a risk of harm, the court will consider things like:
- the probability that harm would occur if care were not taken;
- the likely seriousness of the harm;
- the burden of taking precautions to avoid the risk of harm;
- the social utility of the activity that creates the risk of harm.
In the case of medical professionals, a ‘reasonable person in the same position becomes a ‘reasonably competent practitioner with that special skill’, not just an ordinary person. So the general benchmark still applies, but it’s adjusted upwards to reflect their expertise.
Medical negligence claims can be complex because medical treatments involve highly specialised and technical skills, and are rarely black and white. Courts often need to consider competing expert opinions and extensive evidence about correct procedures and safety measures. They also need to understand whether a different treatment should have been provided and assess the damages, which are restricted to the medical problems that result from the negligence and not the prior medical condition before it can reach a decision.
Making a medical negligence claim
If you believe you have a medical negligence claim, there are some steps you need to take. In Queensland, these claims are governed by the Personal Injuries Proceedings Act 2002, which sets out the procedures. The legislation sets out a pre-court process that generally must be followed precisely before legal proceedings can begin.
There are also strict time limits in place. In many cases, an initial notice must be given within nine months of the incident or within one month of engaging a lawyer to pursue a claim, whichever occurs first. So it’s important to get legal advice as soon as possible if you believe you’ve suffered an injury as a result of negligent medical treatment.
Before a claim can proceed, the injured person must also give formal, written notice to the medical professional against whom a claim is made, which sets out the details of the treatment that allegedly caused the injury. The medical professional or their representative, such as a lawyer or insurer, is then required to respond and provide relevant documentation.
Importantly, a medical negligence claim must generally be supported by an independent medical expert. That expert must be able to provide an opinion that the treatment fell below the appropriate standard of care and that this caused the injury complained of.
Once the parties have exchanged information and investigated the claim, they are required to participate in a pre-court settlement process. It’s during this stage that liability, damages and any settlement offers can be considered. If the matter can’t be resolved, then it may need to proceed to court.
Medical negligence claims involving children
The law is slightly different when the injured person is a child. Because children can’t bring claims on their own behalf, Queensland law allows for a longer timeframe so that parents and guardians can take action on their behalf.
Generally, a parent or legal guardian must give a notice of claim within six years of becoming aware of the child’s injury, or within 18 months of consulting a lawyer about seeking compensation, whichever occurs first.
The legislation also allows a medical professional to provide a parent or guardian with a ‘notice of an adverse event’. This may include an expression of regret, or an offer to remedy any harm caused by the incident, or both.
Importantly, because the courts don’t want to undermine a medical professional’s ability to provide medical services unnecessarily, this notice of adverse event will not be considered an admission of liability. And it generally can’t be used as evidence in any court proceedings.
Understanding the difference between a complication and negligence
Medical treatment doesn’t come with a 100% guarantee, but even when things don’t go quite to plan, that doesn’t automatically mean that a doctor, surgeon or other health professional has been negligent. But where they fail to provide the standard of care they owe to their patients, then you may be entitled to file a medical negligence claim.
If you believe you or a family member has suffered harm as a result of negligent medical treatment, contact Armstrong Legal. Our litigation lawyers can assess your circumstances, explain your rights and help you understand whether you may have a medical negligence claim under Queensland law. The sooner you get answers, the better. And we’re here to help.
