What can I claim in my medical negligence case? An easy guide for Tasmanians
Published on December 18, 2023 by Lucinda Gunning
The previous article looked at what a medical negligence claim is, and this article will provide an overview of what can be claimed as part of your case.
What can I claim?
It’s important to note that in all claims in negligence you receive damages based on the severity of your injury, and not for the severity of the mistake, or negligence, made by your medical treatment provider. To bring a claim in medical negligence you must have actually suffered damage as a result of the negligence. This can include for example, a physical injury, a psychological injury, additional medical expenses, or loss of your income.
It can be the case that you experienced gross negligence at the hands of a medical treatment provider, but if the outcome of that negligence is that you have not suffered injury, you will not be entitled to much in the assessment of damages and therefore will likely not have a claim worth pursuing. It’s therefore very important when you first meet with a personal injury lawyer that you explain exactly what your injury is. Your lawyer will identify what the likely long-term costs associated with your injury are and tell you if you have a viable claim or not.
There are four ‘heads of damage’ which you can claim. These include:
1. Past and future loss of earning your capacity
If your ability to earn an income has been affected, you can claim damages for your weekly wage loss, including loss of superannuation, from the time of your incapacity potentially up until your retirement age. Wage increases including any likely promotions and CPI adjustments are factored into these calculations. You will be required to provide evidence to substantiate this claim. For example, if the injury has impacted your earning capacity, you will at the very least be required to provide your income tax returns and payslips which show what you were earning before your injury and showing the drop in your earnings post-injury. If you have a loss of earning capacity into the future, your lawyer will need to obtain expert evidence in the form of medical and vocational assessments to substantiate this claim.
2. Past and future medical expenses
This ‘head of damage’ includes expenses for any surgery, hospital admission, rehabilitation, pharmaceutical expenses, and specialist consultations you have required and will likely need into the future. You can also make a claim for future medical expenses which may or may not manifest. If there is a possibility that you might need a surgery in the future related to the negligence, but that surgery won’t be required for 10 years, you can still claim that future expense as part of your claim now without waiting 10 years to see whether you need the surgery or not.
3. Past and future care
There are two areas of care you can claim under this ‘head of damage’. They are commercial care and gratuitous care. If you incur commercial care costs relating to your injury (for example you cannot do the household cleaning anymore because of your injury and have hired a cleaner) you can claim that cost. You can also claim any home modifications required and any gardening expenses or household maintenance that you have had to pay for. In some circumstances you can also claim the personal care provided by your friends or family members who have stepped in to perform the care for you. For example, if you cannot afford a cleaner, but your mother is coming to your home every week to clean your house, you can claim that gratuitous service. There are some restrictions under the Civil Liability Act 2002 (Tas) to claim this head of damage. The total of the gratuitous care provided to you must be provided for at least 6 hours per week for a continuous period of at least 6 months to be entitled to make the claim. In addition, you can also claim for the loss of ability to care for someone, for example a child or grandchild. Again, if that person had an expectation of your care for at least 6 hours for at least 6 continuous months, then the cost of that can be claimed.
4. Non-economic loss / general damages
The final ‘head of damage’ you can claim is for pain and suffering, also known as general damages or non-economic loss. You can claim damages for any reduced life expectancy, the loss of the quality of your life and emotional distress. The value of these damages is decided by the Judge. It can be looked at as damages for all the things you cannot produce a receipt for. It is compensation not just for the physical pain you go through, but for things like no longer being able to play your weekly sport, play with your children or grandchildren, socialise – all the ways your life has been changed for the worse because of your injury.
Medical negligence claims in Tasmania are a complex legal process that require a thorough understanding of the law and widely accepted medical standards. If you believe you have been the victim of medical negligence, it is essential to consult with a personal injury lawyer who can guide you through the process and help you seek the compensation you deserve. You can contact us at Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will assist you. You can also complete our Personal Injury Claim Check here.
