Medical Negligence

Compensation (also known as damages) is made for physical injuries and psychological injuries resulting from the negligence of health professionals. Compensation is intended to put you in the position you would have been in had the negligence not occurred. To put it another way, compensation is to compensate you for losses you have suffered as a result of the medical provider’s negligence.

Medical negligence might occur for errors in cosmetic surgery procedures, mistakes made during surgery, errors when prescribing medications (such as wrong dosages), mistakes made during pregnancy and labour, errors made during treatment by a chiropractor. It is important to discuss the claim with Lindbloms at the earliest opportunity as time limits may apply when making a claim.

Lindbloms will address the three crucial aspects of a claim:

1. Was the health care provider negligent? Keep in mind that not every error made will necessary show negligence
2. Did the negligence lead to the injury?
3. Did the treatment cause or contribute to the injuries.

Pain and Suffering

This legal terminology describes compensation for the non financial consequences of your injury or illness. Examples are pain, discomfort, anxiety, impairment of your enjoyment and quality of life, loss of or reduced enjoyment of social and recreational activities and, in more serious cases, loss of career.

Economic Loss

When your earning capacity is affected by your injury or illness you may be entitled to damages to compensate you for your loss of earnings. If you can no longer perform all of the duties required for your occupation or you have had to change jobs or cannot work at all then compensation may be available for loss of earning capacity. When it comes to assess this compensation it will be necessary to investigate the extent which your injuries will affect your capacity for work over the rest of your working life. These are complex and sometimes difficult calculations. Lindbloms has extensive experience in the field of claims for economic loss and you will benefit from our expertise and desire to fight for your proper compensation.

Superannuation Losses

Where an entitlement for economic loss can be established, damages for loss of superannuation payments over the anticipated pre-injury life of your employment is also available.

Medical Expenses

As a result of your condition you will require further medical treatment and therapy. There will also be the costs of medicines, equipment and aids, home modification and vehicle modifications.

Voluntary Services

When there are injuries people often need assistance from family to perform household and domestic tasks such as household cleaning, grocery shopping, household maintenance and gardening. Where there are serious injuries, assistance with dressing and undressing, showering, toileting and mobility may be necessary. Compensation may be sought to cover these needs. The compensation is calculated by reference to the cost that would be incurred if someone were paid to give those personal services.

Paid Services

Family and friends may not be able to provide the personal services required as a result of the injury. It will then be necessary to pay for the services. The cost of such services is often recoverable as part of your compensation claim. An insurer may agree to pay for someone to provide such assistance while your claim is being processed. We will fight for such payments on your behalf so that you will be able to have the necessary personal assistance before the final compensation is paid. You may be able to be compensated for future paid services that you will require.

Compensation in case of death / Loss of Financial Support

Where the negligence results in death dependents may be entitled to compensation for psychological injury suffered resulting from the death. When a person was financially dependent on the deceased he or she may be entitled to damages for loss of financial support. Damages for loss of household assistance and other services may also be payable.

We will advise you whether your claim has a reasonable chance of leading to a positive outcome for you. We will indicate the amount of damages that might be awarded. We will inform you as to a likely cost of taking the action and how long the claim is likely to take to be resolved.

New clients often ask how we can prove that the medical advice or treatment they are concerned about was negligent.

One of the critical requirements of a successful medical negligence claim is having the right expert.

Ultimately, it is up to the Court to decide whether or not the health professional or hospital involved was negligent. However, to assist the Court to determine whether there was negligence or not, they will hear evidence from experts ie people who are trained and experienced in the field of medicine which the case concerns. Those experts will inform the Court whether they consider the health professional involved in your case acted in accordance with a reasonable standard of care or not.

Consequently, selection of the appropriate expert to comment in your case is one of the most important steps in your claim. At Lindbloms Lawyers, our experienced medical negligence lawyers will be able to recommend independent, well respected experts who are not afraid to be critical of poor medical treatment and advice, allowing you to make a decision about whether to pursue the matter with confidence.

The vast majority of personal injury claims, including medical negligence claims, settle without the need for there to be a trial.

Our focus is to work with you to achieve a reasonable and fair settlement that properly compensates you for your injuries so that the emotional stress, cost and delay associated with a trial can be avoided.

A crucial part of this process is ensuring that the right evidence is obtained to justify your claim. You can rely on our experienced and dedicated solicitors to advise you and guide you through this process so as to achieve the best result possible.

Compensation claims for physical and psychological injuries resulting from the negligence of health professionals can be described as either medical negligence claims or medical malpractice claims.

There is no difference between a medical negligence claim and a medical malpractice claim.

Both are based on allegations that the health provider involved failed to exercise reasonable skill and care in the circumstances.

For compensation to be payable in a negligence claim, the claimant must prove that they have suffered injury, loss and damage as a result of the negligence.  Sometimes the compensation payable is therefore described as damages, and the different categories of compensation payable are referred to as “Heads of Damage”.

Civil claims, as distinct from criminal proceedings, usually involve a claim for compensation or wrongdoing. Most personal injury claims can be described as civil claims.

Civil claims in Australia are generally determined by reference to both legislation and the common law.

The concept of being able to recover compensation for injury, loss and damage caused by the negligence of another was established in the famous case of Donoghue –v- Stevenson [1932] AC 562.

Mrs Donoghue was injured as a result of drinking a ginger beer in Paisley, Scotland. She had almost finished her drink, and was emptying the remains of the bottle in to her glass when to her horror, a badly decomposed snail floated out of the bottle and into her glass. She later became ill and developed severe gastroenteritis.

As Mrs Donoghue’s friend had purchased the drink on her behalf, she was unable to pursue a claim in contract against the manufacturer.

However, the English House of Lords determined that despite the absence of any contract between them, the manufacturer owed Mrs Donoghue, as the consumer, a duty of care which had been breached and she was therefore entitled to damages for the gastroenteritis and shock she had suffered.

The principles of negligence that we apply today were first established with this important case, over 85 years ago, and the body of case law through which the principles of negligence have been expanded and refined is referred to as the common law.

The common law position with respect to negligence has however been modified to some extent by the Civil Liability Act 1936.

Consequently, determination of medical negligence claims involves a consideration of both the common law and legislation.