Medical Negligence (WA)

When a patient suffers harm as a result of a medical professional’s failure to exercise reasonable care, they may want to consider making a claim in medical negligence. In Western Australia, medical negligence is governed by the Civil Liability Act 2002. This page deals with what must be established to succeed in a medical negligence claim in WA.

Duty of care

Doctors and other medical providers have a duty of care to their patients to carry out procedures and provide treatment with a reasonable level of professionalism and diligence. A failure to take reasonable care is a breach of this duty of care.

If a patient suffers harm because of a breach of duty of care, they may have a claim in medical negligence. If a breach of duty of care occurs, but the patient does not suffer harm or an injury as a result, there is no potential claim.

Peer professional standard

Under section 5PB of the Civil Liability Act 2002, a health professional is not negligent if they act in a way that is widely accepted by their professional peers as competent professional practice. This is the case even if there is another different professional practice that is also widely accepted by their professional peers.

A practice does not have to be universally accepted but only widely accepted.

Causation

One of the most difficult elements to prove in a medical negligence claim is often causation.  Causation requires that the plaintiff’s injuries are the result of the defendant’s breach of its duty of care. If causation is established, the plaintiff’s injuries would not have been sustained but for the defendant’s negligence.

Making a medical negligence claim

To succeed in a claim for medical negligence, a person must show:

• that the medical provider owed them a duty of care;
• that the medical provider breached its duty of care;
• that they suffered injury or damage;
• that the injury or damage was a foreseeable result of the breach.

The following situations have been found to be instances of medical negligence:

• failure to carry out surgery to a professional standard;
• failure to diagnose accurately or on time;
• carrying out a procedure on the wrong patient or on the wrong body part;
• failure to adequately warn a patient of the risks involved in a medical treatment.

Damages

If a court finds that a defendant has breached its duty of care, it may award damages to the plaintiff on a number of bases.

Firstly, damages can be awarded for non-pecuniary losses. This includes pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.  There are statutory limitations on the amount of non-pecuniary damages that may be awarded.

Secondly, damages can be awarded for loss of earnings. Loss of earnings includes past loss due to impairment of earning capacity and future economic loss because of reduced earning capacity. For the purposes of calculating these damages, any earnings that would have been accrued at a rate of more than three times the average weekly earnings will be disregarded.

Thirdly, damages can be awarded for home care services such as nursing and attendant care where these are required as a result of the injuries sustained.  However, these damages will not be awarded if the plaintiff would have required the care even if they had not sustained the injury. There are statutory limitations on the amount of damages that may be awarded for home care services.

What is not medical negligence?

Medical treatment usually involves some degree of risk. There are many situations where a medical intervention does not have the outcome that was desired and where the patient is unhappy with the treatment. However, this does not always mean that an act of medical negligence has occurred.

If a doctor or medical provider has acted with a reasonable standard of care, they have not breached their duty of care, even where the outcome of the treatment is poor.

Any person who is unhappy with medical treatment they have received in Western Australia may complain to the Health and Disability Services Complaints Office.

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