Making a Medical Negligence Claim

Medical Negligence Claim

Risks are an inherent part of surgery. The decision to go ahead with a surgical procedure will involve weighing up possible dangers with known benefits and achievable outcomes. A patient, in consultation with their doctor, should enter into surgery with all the necessary information, and while Australians have access to high quality healthcare, even standard procedures can go wrong. In some cases, unavoidable complications may arise, but in other cases, a negative outcome could have been completely avoidable. In these situations the patient may be eligible to make a medical negligence claim.

What is Medical Negligence?

Medical negligence occurs when a medical professional, performing surgery, fails to take ‘reasonable care’ resulting in a surgical error. Common surgical errors include: When surgery is conducted on the wrong body part or organ

  • When surgery is conducted on the wrong body part or organ
  • Surgical equipment is left inside the patient
  • If surgery is undertaken unnecessarily or without properly advising the patient
  • Unsanitary equipment leads to an infection
  • Another internal organ is damaged during surgery
  • Nerve damage as a result of a surgeon’s physical error or anaesthesia
  • Failure to complete surgery properly, for example, removing a tumour.

Negligence can also arise when a patient has not been made fully aware of the possible risks associated with the surgery and enters into surgery they otherwise wouldn’t have entered into had all the risks been disclosed. For example, a patient entering into brain surgery isn’t advised that the procedure carries a high risk of permanent brain damage. If the undisclosed risk occurs then the medical professional or hospital may be liable.

Making a Claim

Medical negligence claims for compensation can be made under provisions of the Civil Liability Act.

Healthcare professionals owe their patients a duty of care. In order to make a medical negligence claim, a patient or family member must show they have breached that duty of care.

To determine negligence, a court will consider if the standard of care given was below that of a reasonable professional in their position. This means that healthcare professionals do not have to be perfect, but they should show a fair, reasonable and competent degree of skill whilst carrying out their work.

In most jurisdictions, proving that the standard of care given was below that of a reasonable professional in the same position, requires expert evidence, such as a report or opinion, from an independent specialist. Unfortunately, Australia has a close medical community and doctors willing to provide this support are sometimes hard to come by.

In addition, a claim must prove that damage occurred as a result of the medical negligence and such damage could have been avoided if the healthcare professional had exercised reasonable care before, during, or after surgery. This is called ‘causation’. In some cases it is relatively easy to prove, for example when surgical equipment is left inside a patient leading to infection. In other situations, it can be difficult to prove, especially when the outcome of surgery is unpredictable or a patient has an underlying illness and multiple health conditions.


If a claimant is successful, compensation can be awarded for loss of earnings, medical expenses, rehabilitation, pain and suffering and even loss of life. This compensation may be invaluable to a patient who has been permanently injured or spent long periods in rehabilitation as a result of a medical error.

Unfortunately much needed compensation can be hard to obtain and claims for medical negligence are difficult to prove. To avoid paying claims, big insurance companies, representing the medical professional or hospital, will often try and prove that damage is the result of a pre-existing condition and as such, not caused by negligence.

Injury or damage as a result of medical negligence can be particularly traumatic and you want someone who will fight hard on your behalf. At Taylor & Scott Lawyers we don’t shy away from cases against big insurance companies or even cases that seem difficult. In the past we have successfully fought for clients, obtaining medical opinion from overseas when Australian medical professionals have been reluctant to comment.

If you’re looking for a compensation lawyer who will provide support, understanding and the best expertise, arrange an obligation-free case assessment with a Taylor & Scott lawyer. In many cases we’ll work for you on our no win/no fee guarantee.

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