What Is The Process For Proving Medical Negligence In Australia?

March 9, 2023    Personal Injury Lawyers Perth
What Is The Process For Proving Medical Negligence In Australia?

The medical professional is responsible for ensuring your safety and well-being. The medical professional must use reasonable care when performing their services, which include the initial examination, diagnosis, and treatment of patients. However, there are quite a few times when medical negligence can affect someone quite badly. Here are some of the processes that prove medical negligence to a great extent.

1. The Duty Of Care

Fore mostly, you must prove that the medical professional or hospital had a duty of care and breached that duty with assistance from a medical negligence lawyer in Perth. The first step in proving medical negligence is proving that a duty of care existed between a medical professional or health care provider and the plaintiff.

The following step is determining whether the medical professional violated their duty of care. This can be divided into two categories: failure to warn and negligent treatment. Since, it is common to practise using an outside expert opinion to prove either.

2. Warning Failure

Failure to warn occurs when a plaintiff claims that a medical professional withheld relevant information about treatments and practices that harmed them. The omission of any advice, information, or warning about a procedure or treatment is considered a failure to warn. Since, a medical professional must inform patients of the risks associated with treatment.

The following types of information should be provided to the patient:

  • The extent and seriousness of the potential injury
  • The possibility of injury.
  • The operation’s necessity.
  • Alternative therapies
  • Fears or concerns of the patient that the practitioner is aware of.

The medical professional must give such advice, information, or warning to the patient in a way that the patient understands. For example, suppose a patient does not speak or understand English. In that case, the practitioner must be satisfied that they successfully communicated the information and risks of the surgery to the patient.

To successfully argue the failure to warn, the plaintiff must demonstrate that the absence of any advice, information, or warning caused the patient harm. For example, if the patient were not informed about an alternative surgery with more risks and a higher risk of failure. It would be difficult to demonstrate that the patient would have chosen a different treatment if this information had been provided.

An expert medical opinion must be obtained to establish a breach of duty of care in a medical negligence claim. Before claiming for medical negligence, it is also important to know what the average payout for medical negligence is.

3. Neglectful Treatment

Negligent treatment occurs when a medical professional’s omissions or actions cause the patient harm or injury during treatment. Here are some examples:

  • Mistaken surgery
  • Misdiagnosis
  • Medication mistakes
  • Inadequate referral of patients to specialists
  • Failure to report test results

A medical professional will not be considered as negligent if they acted in a way widely accepted as competent medical practice at the time of the treatment. This means that, given the same information, a similar doctor would not have acted differently. Thus, the medical professional’s actions or omissions cannot be considered negligent. An expert opinion should be sought to demonstrate this. The expert will testify as to whether the medical professional acted competently under the circumstances of the case.

In such a case, the medical professional might have done something outside the peer opinion, and such action or omission resulted in direct harm or injury to the patient.

3. Causation

While proving a breach of duty of care is required, it is also necessary to prove that such a breach caused harm or injury to the patient. Therefore, in these cases of medical negligence, the plaintiff will bear the burden of proof and must establish causation.

Causation is the requirement that negligence is present for harm to occur. It is believed that the harm would not have happened if there had been no negligence. There is causation if the medical professional’s negligence contributes materially to the injury. If multiple factors contribute to a patient’s harm, factual causation is met. If one of the factors is caused by the medical professional’s negligence.

4. Damages

A successful plaintiff can seek the assistance of medical compensation lawyers in Perth for the following. Depending on the extent and severity of their injuries:

  • Past and future medical expenses.
  • Income loss in the past.
  • Income loss in the future or loss of earning capacity.
  • Previous treatment
  • Care in the future
  • Suffering and pain
  • Loss of enjoyment in living.

How Difficult Is It To Establish Medical Negligence?

It is challenging to establish Medical negligence. Since, there is a high standard of proof in Medical Negligence cases involving complicated medical documents, reports, and expert opinions. That is why it is critical to seek the advice of medical negligence lawyers to assist you with your claim.

What Happens If I Can Establish Medical Negligence?

To establish medical negligence, you must demonstrate that the hospital or medical professional breached their duty of care. This will always entail obtaining an expert medical opinion regarding the medical practitioner’s or hospital’s failure or omission that caused your injury.

If you have a valid claim for medical negligence, you can seek damages, a type of compensation.

Damages are payable concerning the following;

  • Payment for suffering and loss of enjoyment of life.
  • Past and future medical treatment payment.
  • Payment for past and future income loss, as well as
  • Payment for past and future care and assistance.

Damages are paid in the form of a one-time lump sum to compensate you for both past and future losses. And, it is a one-time payment of compensation. Once a court has agreed upon or determined the amount, you cannot return and seek additional compensation. Therefore, it takes one to two years from the filing date for the claim to be settled, either through negotiation with the insurance company or a judge’s decision.

If you believe you have a claim for medical negligence, you should hire personal injury lawyers in Perth to represent you.

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