Medical negligence law - gavel next to stethoscope and medical records | Henry Carus + Associates

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Patients who are injured as a result of errors by health care practitioners may be entitled to medical negligence payouts. The amount of compensation available depends on how serious the injury is, as well as your specific losses.

It is important to note that there is no ‘average’ instance of medical negligence. Accordingly, there is no such thing as an ‘average’ payout for these claims.

Henry Carus + Associates is not an average law firm. We strive to maximise our clients’ compensation in medical negligence matters in Melbourne and throughout Victoria. Our lawyers account for all damages to date, as well as any future losses you are likely to face.

Call 03 9001 1318 today for a FREE, no-obligation consultation. Clients pay nothing upfront and only owe fees when we are successful in obtaining medical negligence payouts on their behalf.

What Is Medical Negligence?

Medical negligence is defined as a failure to uphold the standard of care owed to a patient. The standard of care refers to the accepted standards within the medical community. It encompasses the actions a competent health care practitioner should reasonably take in diagnosing and treating patients in a given situation.

Examples of medical negligence include:

Misdiagnosis
Failure to diagnose
Surgical and anaesthesia errors
Emergency room errors
Birth injuries resulting from obstetric or delivery room negligence
Medication errors, including overprescription and overmedication
Laboratory errors
Failure to obtain informed consent or advise patients of the risks of treatment
Hospital negligence

Patients who undergo medical treatment and suffer an injury or decline in their health should seek legal counsel immediately. Knowledgeable medical negligence lawyers can evaluate the claim and determine your legal rights.

Elements of a Medical Negligence Claim

Medical negligence payouts are not automatic. To establish your right to compensation, you will need to prove the following:

First, you need to show that a professional relationship existed between you and the practitioner. This creates a duty of care on the provider’s part.
Next, the evidence needs to show that there was a breach of the duty of care. Your lawyer will review your medical records and consult experts to identify any instances of negligence.
You need to demonstrate causation (i.e., that the medical error was the cause of your injury).
Finally, you must prove that the medical injury resulted in damages.

It is important to note that not all mistakes or unfavourable outcomes are considered medical negligence. For a practitioner to be liable, the error must violate the standards of the medical profession.

How Serious Is Medical Negligence?

Medical negligence can have very serious consequences for patients. UNSW Sydney found that approximately 50,000 people in Australia are seriously injured and 18,000 people are killed each year as a result of medical errors.

Given the terrible consequences involved, providers need to be held accountable when patients are harmed because of their negligence. This is easier said than done, unfortunately, as doctors and other practitioners aggressively dispute these claims and insurance companies try to avoid medical negligence payouts whenever possible. Having a skilled personal injury lawyer represent you is critical, especially if you were seriously injured or a member of your family has died.

How Are Medical Negligence Payouts Calculated?

The compensation you are due for a medical negligence-related injury depends on the specifics of your situation. Important factors that go into calculating a payout include:

Age and life expectancy
The type of injury
How serious the injury is, including whether it has led to permanent impairment
Your earnings prior to the injury
Whether you have the capacity for work after being injured
Your ability to live independently and care for yourself
The impact on your dependants, including loss of financial support, household services, etc.

Insurers will try to pay less than you deserve. At Henry Carus + Associates, we believe You Deserve More. Our specialist lawyers can advocate for maximum compensation on your behalf, representing you in settlement negotiations and—if necessary—at trial.

Potential Entitlements for Medical Negligence

There are two categories of damages that you can pursue in a medical negligence claim: economic loss and non-economic loss. Below, we explore what is included in these damages and the criteria you need to meet for obtaining full compensation.

Economic Damages

Damages that may be recovered for economic loss include:

Loss of earnings to date
Deprivation or impairment of earning capacity
The cost of medical treatment, supports, and equipment
Attendant care services, including domestic assistance, nursing, and more
Travel expenses for medical care
Loss of capacity to care for dependants

In Victoria, the Wrongs Act 1958 is the legislation governing common law claims for personal injury. The Wrongs Act limits compensation for loss of past and future earnings to ‘3 times the amount of average weekly earnings’ (as determined by the Australian Statistician).

Non-Economic Damages

Common law damages that may be recovered for non-economic loss in a personal injury claim in Victoria include:

Pain and suffering
Loss of amenities of life
The loss of enjoyment of life

The maximum compensation available for non-economic loss is $577,050. Furthermore, non-economic damages may only be recovered if the claimant suffers a ‘significant injury’.

A significant injury is defined as a physical injury resulting in permanent impairment greater than 5%. Spinal injuries are considered significant if the degree of impairment is 5% or higher, while the minimum threshold for psychological injuries is 10%.

Impairment is assessed by approved medical practitioners in accordance with procedures specified by the Wrongs Act. A knowledgeable medical negligence lawyer can help you navigate the process of impairment assessments and lodging a claim for non-economic damages.

What Percentage of Medical Negligence Claims Are Successful?

The percentage of successful medical negligence claims in Victoria is difficult to determine with any degree of accuracy. According to a report on medical indemnity claims by the Australian Institute of Health and Welfare, approximately 59% of claims were discontinued after their commencement. Legal matters may be discontinued when an out-of-court settlement is reached, but the report doesn’t specify whether the outcome was favourable for the claimant.

A further 35% of claims were settled through the state’s complaints process, by compulsory settlement conferences, or via alternative dispute resolution. This same report notes that no medical negligence claims were resolved via court decision, meaning the likelihood of going to trial is quite low.

These data were released a decade ago, making them an unreliable indicator of how often patients receive medical negligence payouts. Instead of relying on averages or outdated information, it is in your best interest to consult a qualified lawyer about how much your claim may be worth and the likelihood of success.

Get Help with Your Medical Negligence Claim

Some patients are entitled to tens of thousands of dollars, others recover hundreds of thousands of dollars, while others obtain a million dollars or more for injuries due to medical negligence. The wide-ranging results and complexity of these claims illustrate the importance of speaking to an experienced medical negligence lawyer as soon as possible.

At Henry Carus + Associates, we handle claims on a No Win – No Fee basis. Your initial consultation is FREE, we shoulder all costs while the matter is pending, and you only have to pay a fee if you receive a medical negligence payout.

To get started, call Henry Carus + Associates at 03 9001 1318. Our firm has multiple offices in and around Greater Melbourne serving all of Victoria.