Can You Sue a Doctor For Giving Wrong Medication?

Proving medical negligence in medication error cases requires establishing three key elements. However, unlike what many think, it’s not just about showing that something went wrong.

The process is more nuanced, and understanding this can make the difference between a successful claim and a dismissed case.

1. Doctor-Patient relationship

The doctor-patient relationship extends beyond mere visits to a healthcare provider. The landmark case of Varipatis v Almario (2013), along with subsequent Court of Appeal decisions, underscores that this relationship must involve direct medical care and advice. The ruling clarifies that a patient cannot hold a doctor legally accountable for failing to follow medical advice. Once a patient is adequately informed by their doctor about investigation results and treatment options, it is the patient’s responsibility to decide whether to adhere to that advice.

The law acknowledges both “informed consent” and “informed refusal” as legally valid concepts. For example, in cases of medication errors, if a pharmacist incorrectly fills a prescription based on a valid order from a doctor, both the doctor and the pharmacist may have distinct duties of care toward the patient.

2. Breach of professional standards

Australian courts use what’s called the “peer professional opinion” test, as outlined in Section 50 of the Civil Liability Act 2002 (NSW). This means comparing your doctor’s actions against what a reasonable body of medical professionals would have done in the same situation.

3. Causation and damages

Here’s where many cases become complex. You must prove that the medication error directly caused your injury or condition to worsen.

We often see cases where multiple factors contribute to a patient’s deterioration. The challenge is isolating the impact of the medication error from other medical conditions.

For example, if you’re prescribed the wrong heart medication and subsequently develop complications, your legal team will need to demonstrate that these complications wouldn’t have occurred with the correct medication. This often requires expert medical testimony and detailed medical records.