What is a claim for medical negligence? An easy guide for Tasmanians
Published on December 11, 2023 by Lucinda Gunning
Medical negligence, also known as medical malpractice, occurs when a medical provider’s actions or omissions deviate from the accepted standard of care, resulting in harm to you as a patient. In Tasmania, as in other parts of Australia, individuals who believe they have been the victims of medical negligence have the right to seek compensation for their injuries and their losses. This article will provide an overview of what a medical negligence claim is and outline the steps to take if you suspect you have a claim.
What is medical negligence and what type of scenarios mean I may have a claim?
Medical negligence happens when you are injured because a medical provider failed to uphold their duty of care resulting in injury or harm to you.
Medical negligence can encompass a wide range of scenarios, and examples of medical negligence you can claim compensation for include:
i. delayed diagnosis or misdiagnosis;
ii. prescription errors;
iii. dental malpractice;
iv. anesthesia errors;
v. providing inadequate post-operative care;
vi. injuries sustained during birth, including stillbirth and neonatal deaths;
vii. surgical errors or improper insertion of implant or device; or
viii. failure to warn and disclose medical risk. (It is important to note that in Tasmania, a medical provider has a proactive duty to warn their patients of the risks of certain procedures.)
The standard of care to establish liability in a medical negligence claim is provided by section 22 of the Civil Liability Act 2002 (Tas).
Establishing that medical negligence has occurred requires proving that the treatment you received fell below the standard of professional care and skill of a medical professional, and that your injury could have been avoided if your care had been appropriate and reasonable.
To successfully pursue a medical negligence claim in Tasmania, you must establish several key elements:
Liability
i. Duty of Care – you need to prove that a medical provider owed you a duty of care. In most cases, this duty exists when you are a patient under their care.
ii. Breach of Duty – you must demonstrate that the medical provider breached their duty of care by failing to meet the accepted standard of care, which a reasonable practitioner in their position would have provided. Just because something has gone wrong in your medical procedure does not necessarily mean that a duty of care has been breached – in some cases the adverse event could simply be the manifestation of one of the recognised risks of the procedure you underwent. Whether or not there has been a breach of duty is a complex question that requires advice from an experienced personal injury lawyer.
iii. Causation – you need to establish a direct link between the breach of duty and the harm you suffered. In other words, you must prove that the negligence directly caused your injury or loss.
iv. Foreseeability – in the context of a medical negligence claim this is rarely in issue, however, an element of liability in a successful claim is questioning whether it was foreseeable that the breach of duty would in fact result in the harm caused to you, the patient.
v. Damage – you must have suffered actual damage as a result of the medical negligence. This can include physical injuries, emotional distress, additional medical expenses, or loss of income. Click here to read more about the’ heads of damage’ you can claim.
Are there time limits for making a claim?
In Tasmania, there is a statute of limitations which prevents you commencing court proceedings after 3 years from the date the cause of your action is discoverable. In some cases, this time limit can be extended to 6 years. So, what does ‘discoverable’ mean?
A cause of action is ‘discoverable’ on the first date that you know or ought to know each of the following facts:
a) the fact that the injury or death concerned has occurred;
b) the fact that the injury or death was caused by the fault of the defendant;
c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
Generally, it is best to take all steps to commence your proceedings within 3 years of the date of your accident or injury and it is important to obtain legal advice as soon as possible.
If you believe you may have a medical negligence claim, it is essential to seek legal advice from an experienced personal injury lawyer promptly. It is important to gather all of your relevant information including any medical records in your possession, test results, and any correspondence you have received or sent to your medical providers. These documents will serve as essential evidence for your lawyer to review the merits of your case and advise you if you may have and can make a valid claim.
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 a 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.
