Medical Negligence FAQs.


What are the legal requirements for a successful medical negligence claim?

For a successful medical negligence claim in Australia, you need to prove that: there’s a duty of care (which almost always exists for medical practitioners), that the medical practitioners beached that duty (i.e. their behaviour or omissions did not meet the standard of care which a ‘reasonable person’ would meet in the circumstances), that damage was caused by the breach of duty and that a foreseeable injury/loss has been suffered.

For more information, see Legal Requirements for Medical Negligence


How Much Compensation Will I Receive?

Except for statutory caps, there are no set payout amounts for medical negligence claims in Australia. The payout amount you receive (known as ‘damages’) involves a custom calculation of your loss, considering: out-of-pocket expenses, lost income (before and after negligence), your level of pain and suffering, any loss of enjoyment of life, and the cost of care/domestic assistance and home modifications.

It’s worth noting that a 2010/11 report on Australia’s medical indemnity claims by the Australian Institute of Health and Welfare found that: 53% of medical negligence payouts were less than $10,000, 25% where between $10,000 and $100,000, 16% where between $100,000-$500,000 and 6% where for $500,000 or more.


Can I make a claim for the death of a loved one?

Under Australian negligence law, family members are able to launch a claim of medical negligence where the alleged negligence has resulted in death. These claims are restricted to recognised psychologically or psychiatrically conditions (not normal grieving) and for the financial benefit dependants would have received from the deceased had the deceased lived.


How long do I have to bring a claim?

If you’re unhappy with medical treatment you or a loved one has received, you must commence a claim for medical negligence within set time limits (known as ‘statutes of limitations’). These time limits vary within each jurisdiction, however most impose a 3-year limitation for adults, a 6-year limitation for children and place no limitation period for disabled people.

For a full overview of time limitation for medical negligence, see “time limitations


How do I get access to medical records?

All hospitals in Australia are required to provide access to personal medical records, unless the disclosure would have an adverse effect on your physical, mental or emotional state. If you require access to your medical records for a medical negligence claim, you simply need to ask the hospital for a ‘Freedom of Information’ request form.


What are ‘no win no fee’ lawyers?

‘No win no fee’ lawyers are medical negligence lawyers who do not charge legal costs unless your claim is successful. For a full overview of no win no fee lawyers / arrangements see no win no fee medical negligence lawyers.


How much do medical negligence claims cost?

Each medical negligence case is different and it’s impossible to calculate exactly how much your claim will cost. The bad news is that medical negligence claims can be very expensive. The good news is that if you have a claim worth pursuing, most lawyers will act on a ‘no win no fee’ basis and you will not be charged legal fee (excl. disbursements and court ordered costs) unless you succeed.


What are medical negligence lawyers?

Medical negligence lawyers (also known as personal injury lawyers, medical negligence solicitors, malpractice lawyers, medical lawyers, medical malpractice lawyers, etc) are plaintiff lawyers specialising in medical negligence litigation. These lawyers are experienced in successfully running medical negligence claims – offering you understanding of the law, expertise in gathering evidence, access to medical experts and strong negotiation skills.


Can I make a medical negligence claim for a near miss?

Talk to any medical negligence lawyer or medical practitioner and they’ll tell you many stories of near misses – with wrong limbs scheduled for operation and another patient’s details on the bed the most frequent complaints. Although traumatic and frightening, these near misses are unlikely to lead to a medical negligence claim, as you have suffered no damage. In this situation, it’s recommended that you make an official complaint.


How long do medical negligence claims take to finalise?

According to the most recent Australian Institute of Health and Welfare (AIHW) statistics, the average length of time between an incident and a claim is 1-2 years and 3-4 years between an incident and the claim being closed. If you have a medical negligence claim the time to ‘settle’ will depends on the strength of the claim, court delays, access to evidence and the willingness of both parties to make a negotiated settlement.


Will I have to go to court?

In Australia, 97% of medical negligence claims are ‘settled’ before trial, with the medical practitioners ‘malpractice insurers’ usually offering a lump sum payment in exchange for giving up the right to sue. Only in situations where a settlement cannot be negotiated or there’s a fervent defence will a case involve court proceedings.


What should I be looking for in a lawyer?

The lawyer you choose has a huge impact on your medical negligence claim journey – not just the final payout figure. What you’re looking for is someone who’s a medical negligence expert (not a generalist litigation lawyer), a skilled negotiator and who is committed to supporting you over the many years of your claim.

To help choose the best lawyer for you, see 15 Questions to Ask a Potential Lawyer.

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