As much as we would like to wish otherwise, doctors and the healthcare system are not perfect. Errors in diagnosis, treatment and follow-up can and do happen. Few people realise it, but the human toll in death and injury from medical mistakes in Australia is reported to be more than ten times higher than the road toll.

As distressing as this statistic may be, there is a legal system in place to support the people whose health and well-being compromised is compromised by medical negligence. We explore here the sort of compensation that is available for them and their families.

Medical compensation

If you’ve had to go to hospital due to a medication error or have been permanently injured as a result of a medical mistake – or if this has happened to a member of your family – you may not have to bear the whole financial burden yourself.

Any serious health problem can cause a massive disruption to your life. You’ll potentially be dealing with pain, inconvenience and worry, not to mention the mounting medical bills; if your work is disrupted, you’re possibly contending with loss of income too. This is bad enough on its own, but if it was caused by someone else’s negligence, compensation could help ease the burden.

Negligence explained

A medical mistake is not necessarily the result of negligence. The practice of medicine involves a lot more sources of uncertainty than most people realise. A doctor or other healthcare practitioner can make an error of judgement, even while doing their best to advise and treat their patient correctly.

It is only considered ‘negligent’ if the practitioner did not take ‘reasonable care’. The law recognises that health care professionals cannot be expected to be perfect, but they must demonstrate a fair, reasonable and competent degree of skill.

When to sue for negligence

If you believe your healthcare provider has been negligent and that you’ve been injured as a result, talk to an experienced legal professional as soon as you can.

Suing for medical negligence is not at all straightforward. To succeed, you must be able to prove that the healthcare provider’s mistake was negligent, that they failed in their duty of care, and that the mistake or its consequences caused your injury.

Healthcare professionals or organisations will often argue that your injury resulted from your underlying health conditions, rather than from any shortcomings on their part. They could insist that the decisions they took about the diagnosis or treatment were consistent with competent professional practice, in accordance with what was widely accepted as reasonable, at the time the service was provided.

In addition, the level of impairment resulting from the mistake has to meet the threshold of at least 15% permanent impairment, for you to make a claim. Moreover, if you’re going to claim medical negligence, you need to embark on this process within three years of the time you realised, or should have realised, that medical negligence caused your problem.

A lawyer with experience in medical negligence cases can talk with you about your situation, consider the evidence from a legal point of view, and advise you on whether the medical mismanagement would be considered negligent by a court. It’s vital to get sound legal advice before making a decision to sue, because unrealistic expectations can mean your case fails, and that could result in you being left with the legal costs of the healthcare provider you sued.

Successful medical compensation cases

A successful medical compensation case could result in a payment to cover any or all of the following:
• costs associated with your medical treatment, rehabilitation and related services
• income that you’ve lost because of the medical mistake
• pain and suffering.

Compensation awarded in such cases is in the form of ‘damages’, that is, a sum of money to compensate the person for the harm or injury they suffered.

Awards of damages for medical negligence are not always very high – more than half of them result in payouts of less than $10,000. About one in six successful claims result in damages of over $100,000, and only about one in twenty cases receives more than $500,000.

Going to court

Fortunately, the vast majority of medical negligence cases do not end up in court. Such cases are typically settled before there is any need to go to trial, with the insurers of the healthcare providers offering a lump sum, in exchange for an agreement not to sue. Here again, you’ll need the services of an experienced lawyer to advise you as to whether the lump sum you are offered is adequate.

There is no substitute for the support that a good lawyer can give you, at all stages of the process.