Medical Negligence

Sometimes things go wrong in a medical context. In some cases, it may be because a health practitioner (for example a doctor) has fallen below the standard of care expected of a reasonable professional in their position.

The health practitioner will not have intended to do so, but a person may have suffered some kind of harm or loss as a result.

The person may wish to claim compensation to help them pay for extra medical expenses, for any care they need, for loss of income, for the pain and suffering, or other type of loss they have experienced.

Such a claim would be made in the law of negligence.

This page provides an overview of the major considerations necessary for a claim in negligence.

More detail about the major elements of a claim can then be found on the Health Law Central pages on:

duty of care, breach of duty, causation, defences and compensation .

The Claim

To be successful in a claim in negligence, certain elements must be satisfied.

A claim in the law of negligence requires that:

* there was a duty of care owed to the person who has suffered harm or loss;
* the duty of care was breached ; and
* the breach caused the harm or loss suffered.

Note: There may be defences that may reduce the amount of compensation payable, or defeat the claim.

Preliminary Matters

Limitation Periods

In each state and territory of Australia, there is a specific period of time in which a claim must be lodged before the Court.  If a Plaintiff is out of time, they may not be able to bring a claim in the law of negligence at all. For example, in Victoria, the Limitation of Actions Act 1958 (Vic) states that a legally competent adult must commence proceedings in personal injury within three years from the date that the person becomes aware of the loss or harm they have suffered (and not more than 12 years after the injury occurred). 1

Similar legislation exists in all Australian states and territories, although the rules regarding when time begins to run vary slightly. 2

There are also circumstances in which a longer period may apply. For example, if a person has a mental disability or is under the age of 18. 3 The Court may also extend the time limit if the circumstances of the case warrant an extension. 4

It is best to seek legal advice as soon as a person discovers that they have suffered some kind of harm or loss that they think may have been caused by medical negligence.

Who is the claim against?

In a health law context, depending on the facts of the case, a Plaintiff may claim compensation from:

* the health practitioner directly; and/or

* the employer for vicarious liability; and/or

* the employer directly.

It is important to consider at the beginning of the claim who might be held legally responsible for the the injured person’s (the Plaintiff) harm or loss. This will determine who the Plaintiff brings a Court case against to claim compensation. The person against whom a court case is brought is called ‘the Defendant’. There may, of course, be more than one defendant.

In a health/medical context, a person may bring a cause of action in negligence against the health practitioner directly for the acts or omissions that are alleged to have caused harm.

If the health practitioner is an employee (eg. of a hospital), then the employer might be ‘vicariously liable’. An employer may be held responsible for their employee’s negligent actions if the employee was acting in the scope of his/her employment and the elements of a negligence claim against the employee can be satisfied. (See below for more on the elements).

There are also some duties that an employer cannot delegate, and so the employer might be directly responsible for any damage caused. For example, a hospital may have a non-delegable duty to take care of patients who go directly to the hospital for treatment.

The Plaintiff’s legal representative (lawyer/solicitor) will be able to advise about who any claim should be brought.

Nb. Health practitioners and their employers are generally required to have ‘professional liability insurance’.

The insurance company will most likely be in charge of defending any legal action.

Elements of a Claim in Negligence

Once it has been established that the Plaintiff is in time, and it is determined who might be legally responsible for any harm or loss suffered, a claim for compensation may be made. This is often made by lodging papers with a Court (sometimes referred to as ‘filing’) that set out the Plaintiff’s claim.

If the Defendant contests the claim, and/or does not wish to make an agreement for settlement of the claim outside of court (that is by offering some sum of money in compensation), the action will be heard by the Court.

In proving an action in negligence, certain elements must be satisfied. An overview of the elements relevant to a cause of action in negligence are set out below. You will find more detail on each element/issue on the pages accessible via the buttons in this section, and in the menu at the side of this page.

In bringing a claim in negligence, a plaintiff must establish that:

1) the defendant owed the person a duty of care

Duty of care refers to the legal obligation of a health practitioner (for example a doctor) to take reasonable care when doing something (or not doing something) that could foreseeably cause harm or loss to a particular class of people (eg. patients), who the defendant should reasonably have in contemplation. 5

A duty of care is generally easily established in most relationships between health practitioners and patients – and relates to examination, diagnosis, treatment, and the giving of information or advice.

It becomes a little less clear whether or not a duty of care is owed by a health practitioner to third parties. For example, does a doctor owe a duty of care to a person who is not the patient of a doctor but calls for help; the parents of a patient who are nonetheless making decisions about their child’s care; or someone harmed by a patient of the doctor who he/she knew as dangerous?

Read more about duty of care here:

2) the defendant breached the duty of care owed

‘Breach of duty’ is about falling short of the standard of care expected of the health practitioner.

It is determined by a number of factors, including whether the risk of injury was reasonably foreseeable (‘not far-fetched or fanciful’), whether the risk was ‘not-insignificant’; and by considering what a reasonable person (professional) would have done in the circumstances. 6

Determining what a reasonable person would have done in the circumstances requires weighing a number of factors against each other. This includes consideration of how likely the risk of harm was, how serious the harm/loss would be, whether there was any benefit in what the person was doing, and the burden of taking precautions against harm.

In medical contexts evidence may also be considered concerning what other health practitioners would have done. (NB. Such evidence may be led as a ‘defence’ to the claim).

Breaches of duty of care in a medical context may include, for example:

  • failure to examine;
  • failure to treat (adequately or at all);
  • failure to diagnose;
  • failure to advise or warn a patient of material risks associated with treatment;
  • failure to give information to a patient about their condition. 7

The above broad ‘wrongs’ might include more specific failures such as:

  • failure to follow up (after consultation or discharge);
  • failure to adopt recognised precautions;
  • failure to communicate with other professionals;
  • failure to refer to a specialist where appropriate;
  • not keeping up to date with the current state of knowledge;
  • failure to supervise junior health practitioners/students;
  • poor delegation;
  • failure to check understanding;
  • failure to explain information at a level the person can understand. 8

The above list is not exhaustive. The ‘breach(es)’ alleged will be particular to the circumstances of the case, but basically, the question to be asked in identifying the breach(es) is ‘what did the health practitioner do wrong’?

Read more about breach of duty here:

3) the defendant caused the harm/loss suffered

Once established that a health practitioner breached their duty of care by falling below the expected standard of professional behviour, the plaintiff must prove that the harm or loss suffered was caused by the defendant’s breach. That is, there must be a direct causal link between the wrong committed by the health practitioner and the harm suffered by the person claiming negligence.

Causation is frequently at issue in medical negligence cases.

Causation must be proven according to the civil burden of proof, which is on the balance of probabilities (that is, it is ‘more likely than not’ that the wrong caused the harm/loss). 9 In this sense, the Court is concerned with probabilities and not possibilities.

The Court is also concerned with causation at law (and not philosophy or science), which is ultimately about liability (that is, holding someone financially responsible for another’s harm/loss). There are therefore legal tests that need to be satisfied.

Civil liability legislation in all states and territories of Australia addresses the issue of causation as involving two distinct inquiries:

1) factual causation which requires the determination of whether the breach of duty (or negligence) was ‘a necessary condition for the occurrence of harm’ 10. If the answer is yes, the Court will proceed to the second inquiry:

2) scope of liability which entails consideration of whether it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused. 11 Here we will ask questions about  whether anything else may have intervened to cause the patient’s harm and severed the chain of causation; or whether the damage suffered was too remote a consequence and could not have been foreseen. If either of these questions are answered positively (i.e. with a ‘yes’) then the claim will fail.

Find out more about causation here:

Defences to a Claim in Negligence

A defendant may argue in his/her defence to a Plaintiff’s claim in negligence.

The defendant may of course attempt to counter the Plaintiff’s arguments about duty of care, breach and causation in his or her defence. If a Defendant can show that there was no duty of care, or no breach of duty,  or causation was not satisfied the entire cause of action will be defeated.

There are also specific defences that may be pleaded.

When a defence is raised, the Defendant must prove that it is satisfied.

Defences can be absolute — and therefore defeat a claim; or they may be partial, and lead to a reduction in damages.

Specific defences that may be raised include that:

  1. the Plaintiff is out of time;
  2. the Plaintiff contributed to his/her own injury/loss/harm (and therefore compensation should be reduced);
  3. the Plaintiff ‘voluntarily assumed the risk’ (and therefore the claim should be defeated); and
  4. the Defendant did not breach his/her duty of care as he/she acted in accordance to what his/her reasonable peers would have done in the circumstances. (This again will defeat a claim unless the actions are deemed unreasonable/irrational by the Court).

Click on the button below, or the links on the side of this page to read more about the above defences.

What Compensation may be Claimed?

In order for a person to claim compensation for loss or harm a person has suffered, it must be established that the injury:

  • has destroyed/diminished an existing capacity (for example, a person may not be able to work into the future; or they might need to change to employment that pays less, because they can no longer work doing what they did before);
  • has resulted in some loss of amenities (for example, they may have a shortened life expectancy, or cannot play sports that they once enjoyed playing);
  • creates needs that would not otherwise exist (for example, a need for medical care (past and future) and special equipment; and/or
  • produces pain and suffering. 12

If they are successful in their claim of negligence, a plaintiff will be awarded a sum of money to put them back in the position they would have been if they had not sustained injury. 13

However again, there are special rules about what may be awarded and when.

Read more about compensation here:

Notes:

  1. Limitation of Actions Act 1958 (Vic) s5(1A) and s27D.
  2. Limitation of Actions Act 1958 (Vic) s5(1A); Limitation of Actions Act 1936 (SA) s36; Limitation Act 2005 (WA) s 14; Limitations Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (QLD) s 11; Limitation Act 1969 (NSW) ss 18A(2) and 50C; Limitation Act 1985 (ACT) s 16B; Limitation Act 1974 (Tas) s 5A.
  3. For example see, Limitation Acts: (Vic) s27E; (SA) s45 and 45A; (WA) ss 30-37; (NT) s36; (QLD) s29; (NSW) s52; (ACT) s30; (Tas) s26.
  4. For example see Limitation Acts: (Vic) s 27K; (SA) s 48; (WA) Part 3, Division 3; (NT) s 44; (QLD) s 31(2); (NSW) s 19; (ACT) s 36(4); (Tas) s5A(5) and s26.
  5. Donoghue v Stevenson [1932] AC 562 (House of Lords); Chapman v Hearse (1961) 106 CLR 112.
  6. Civil Liability Act 2002 (NSW), s 5B(1); Wrongs Act 1958 (Vic), s 48(1); Civil Liability Act 1936 (SA), s 32(1); Civil Liability Act 2002 (WA), s 5B(1); Civil Liability Act 2003 (Qld), s 9(1), Civil Law (Wrongs) Act 2002 (ACT), s 43(1); Civil Liability Act 2002 (TAS), s 11(1).
  7. Sonia Allan and Meredith Blake, The Patient and the Practitioner: Health Law and Ethics in Australia (2014), p 200.
  8. Sonia Allan and Meredith Blake, above n 7.
  9. Civil Liability Act 2002 (NSW), s 5E; Wrongs Act 1958 (VIC), s 52; Civil Liability Act 1936 (SA), s 35; Civil Liability Act 2002 (WA), s 5D; Civil Liability Act 2003 (Qld), s 12; Civil Liability (Wrongs) Act 2002 (ACT), s 46; Civil Liability Act 2002 (TAS), s 14.
  10. Civil Liability Act 2002 (NSW), s 5D(1)(a); Wrongs Act 1958 (VIC), s 51(1)(a); Civil Liability Act 1936 (SA), s 34(1)(a); Civil Liability Act 2002 (WA), s 5D(1)(a); Civil Liability Act 2003 (Qld), s 11(1)(a); Civil Liability (Wrongs) Act 2002 (ACT), s 45(1)(a); Civil Liability Act 2002 (TAS), s 13(1)(a).
  11. Civil Liability Act 2002 (NSW), s 5D(1)(b); Wrongs Act 1958 (VIC), s 51(1)(b); Civil Liability Act 1936 (SA), s 34(1)(b); Civil Liability Act 2002 (WA), s 5D(1)(b); Civil Liability Act 2003 (Qld), s 11(1)(b); Civil Liability (Wrongs) Act 2002 (ACT), s 45(1)(b); Civil Liability Act 2002 (TAS), s 13(1)(b).
  12. Teubner v Humble (1963) 108 CLR 402.
  13. Todorovic v Waller (1981) 150 CLR 345.