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Medical malpractice cases are among the most complex and emotionally challenging legal matters in Australia’s personal injury landscape. When patients seek medical care, they place their trust in healthcare professionals to provide treatment that meets established standards. However, medical errors can occur, and when these mistakes result from negligence or intentional misconduct, they may qualify as medical malpractice.
For Australians who have suffered harm due to medical malpractice, understanding the legal framework surrounding these cases is essential. This guide provides comprehensive information on medical malpractice claims in Australia, including what constitutes malpractice, common examples and how to prove such claims.
If you or a loved one has experienced harm from suspected medical malpractice, this resource will help you navigate the potential pathways to seeking compensation and justice.
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Medical malpractice in Australia is governed by specific legal principles that distinguish it from other forms of professional negligence. Understanding this distinction is important for anyone considering a claim.
Although the terms ‘medical malpractice’ and ‘medical negligence’ are often used interchangeably, they hold important legal differences in Australia.
This distinction is significant, as proving medical malpractice typically involves demonstrating that the provider’s actions went beyond negligence and highlights a deliberate departure from established practices.
In Australia, medical malpractice claims are governed by:
Each Australian state and territory has enacted its own legislation governing medical negligence and malpractice claims. For example, New South Wales operates under the Civil Liability Act 2002 (NSW), while Victoria follows the Wrongs Act 1958 (VIC). These statutes outline the procedures and limitations for pursuing such claims.
Australian courts have established precedents that define the duty of care owed by healthcare providers to patients. These common law principles are integral to understanding and proving medical negligence cases.
This national Australian Open Disclosure Framework encourages healthcare providers to be open and transparent about adverse events, which can impact how medical malpractice cases proceed. It emphasises open and timely communication, acknowledgment, apology or expression of regret, and support for both patients and healthcare staff.
In the context of a medical malpractice claim, the Open Disclosure Framework can be pivotal. It encourages healthcare providers to disclose errors, which may provide key evidence such as admissions of fault or acknowledgment of deviations from accepted standards. This transparency can strengthen your (the plaintiff’s) case.
To pursue a medical malpractice claim in Australia, claimants must prove four key elements, all of which are rooted in common law principles:
The healthcare provider had a duty to care for the patient, which is usually clear in doctor-patient relationships.
The healthcare provider failed to meet the standard of care expected. This is judged by comparing their actions to what a reasonable professional would have done in the same situation.
The provider’s breach of duty directly caused the patient’s harm. This means proving that the injury would not have happened ‘but for’ the provider’s actions.
The patient experienced harm or loss as a result of the breach, which could include physical injuries, emotional distress, financial losses, or reduced quality of life.
Medical malpractice can happen in any healthcare setting and involve practitioners across all specialties.
The following examples highlight common scenarios that have led to successful malpractice claims in Australia.
Surgical malpractice remains one of the most visible forms of medical error and can include:
Bile Duct Injury (BDI) during gallbladder surgery is a common cause of medical malpractice claims.
According to one medico-legal study, laparoscopic cholecystectomy (a widely performed procedure for gallbladder removal) carries a two to three times higher risk of BDI compared to open cholecystectomy, with an estimated risk of around 0.5%. BDI can result in severe complications, including long-term health issues or even death.
Because of this, BDIs are often a key factor in medical malpractice claims in Australia. Patients frequently pursue lawsuits due to the significant impact on their health and the need for extensive corrective surgeries.
Failure to correctly diagnose a condition, especially when symptoms are present and observable, is a significant category of medical malpractice claims in Australia. These cases often involve serious errors where a healthcare provider fails to meet the accepted standard of care, leading to severe consequences for the patient.
Delayed diagnosis can include:
In 2019, our client began experiencing abdominal pain and diarrhoea. Despite these symptoms, he was diagnosed with diverticulitis and treated with medication, but his condition worsened. By 2021, after experiencing significant GI bleeding, a CT scan revealed primary bowel cancer with metastasis. By this time, the cancer had become terminal, having spread to the lungs, and requiring extensive treatment.
Experts in the case believed there was a clear breach of duty in the healthcare provider’s failure to order a colonoscopy and to investigate the symptoms earlier. If diagnosed sooner, the cancer would have been potentially curable. Due to the delayed diagnosis, the client suffered a reduced life expectancy, severe health deterioration, and significant financial loss.
As a result of this malpractice, our client received a settlement of $300,000, inclusive of legal costs.
Medication-related malpractice can occur at various stages of treatment, including:
Vanessa Anderson died in 2008 after being given the wrong medication following treatment for a head injury. A coronial inquest revealed multiple failures in care and communication (including a doctor misreading her chart), which contributed to the medication error.
This case led to significant reforms in the New South Wales healthcare system, improving medication safety and communication protocols. It serves as a clear example of how individual cases can drive broader system-wide changes in patient care.
Learn more: Can you sue a doctor for giving wrong medication?
Obstetric malpractice can result in particularly devastating outcomes.
Birth injuries can occur due to:
In 2019, the Western Australia District Court awarded $2,190,000 in damages to a family after their child suffered brain injuries during birth, resulting in lifelong developmental and cognitive impairments. The negligence occurred when forceps were improperly used during delivery, despite the mother’s pelvis being too narrow for the head and the baby’s position requiring specialist intervention in a theatre. Evidence showed that the use of forceps in this situation was inappropriate and contributed to the child’s severe injuries.
Mistakes in anaesthesia can result in serious and sometimes life-threatening consequences.
Common anaesthesia errors include:
A study published in 2009 highlighted the severe impact of awareness during surgery, which is a significant concern for both anaesthetists and patients. These incidents account for around 2% of all legal claims made against anaesthetists.
Patients who experience intraoperative awareness often describe the ordeal as deeply traumatising. The combination of pain, anxiety, and the inability to move due to muscle paralysis can lead to lasting psychological effects, including post-traumatic stress disorder (PTSD). Because of this, many patients require ongoing psychiatric support to manage the emotional and mental toll of an anaesthesia error.
Healthcare providers must ensure patients fully understand the risks and alternatives associated with a procedure.
Key issues include:
In the landmark Australian case Rogers v Whitaker (1992), the High Court held surgeon Dr. Rogers liable for failing to disclose a small but significant risk that led to serious harm. Mrs. Whitaker underwent eye surgery with Dr. Rogers, who neglected to inform her of the rare but serious risk of sympathetic ophthalmia. Consequently, she developed the condition and lost vision in both eyes.
Although the risk was low, the Court ruled Dr. Rogers at fault, establishing that healthcare providers must disclose all material risks that a reasonable person would consider significant when deciding whether to proceed with treatment. This case solidified the principle of informed consent in Australian medical law.
To understand the broader context of medical malpractice in Australia, it’s important to consider the scale and frequency of medical errors.
These statistics highlight the significant impact on both patients and the healthcare system:
Certain medical specialties are more prone to malpractice claims due to the complexity, high stakes, and volume of procedures or patients involved. These specialties consistently account for a higher proportion of claims.
High-risk areas include:
In medical malpractice cases, the burden of proof rests with the claimant.
Successfully proving a malpractice claim requires specific types of evidence and expert support to demonstrate that the standard of care was breached and that harm was caused as a result.
Expert testimony is a critical component in most successful medical malpractice cases in Australia.
These professionals must assess the case and provide their opinion on whether the standard of care was met. Experts must be qualified in the same field as the healthcare provider involved in the medical malpractice claim. Their testimony typically addresses both the standard of care and the causation of the harm.
The qualifications and objectivity of the expert witnesses are essential in determining the case’s outcome. The courts rely heavily on expert testimony that is objective, detailed, and aligned with current medical standards. Experts may provide written reports, participate in conferences with opposing experts, or testify in court.
In addition to expert testimony, several forms of evidence are crucial in medical malpractice claims.
These are the foundations of most malpractice cases.
It includes:
Tampering with medical records is a serious offence and can strengthen the malpractice claim.
Testimonies from various witnesses can significantly impact a case.
These can be from:
Witness testimony is particularly useful in establishing timelines or communication failures that may not be documented in medical records.
Informed consent plays a critical role in many malpractice cases, as it ensures patients are fully aware of the risks and alternatives before undergoing treatment.
Key forms of evidence include:
Lack of proper consent documentation or evidence that consent was obtained under duress can strengthen a malpractice claim.
Other forms of evidence that may strengthen a medical malpractice case include:
A key distinction between negligence and malpractice is the consideration of intent.
Evidence that may help establish intent includes:
By carefully gathering and presenting this evidence, claimants can strengthen their case and demonstrate that medical malpractice occurred.
To have a valid medical malpractice claim in Australia, you typically need evidence showing:
At GMP Law, we offer free initial consultations to all potential claimants, allowing you to assess your case and receive tailored guidance specific to your situation. Reach out to book an appointment.
In Australia, there are strict time limits (limitation periods) for filing medical malpractice claims:
The timeline for medical malpractice cases varies significantly based on:
Simple cases might resolve in 12 to 18 months, while complex cases can take two to four years or more. Our attorneys work diligently to move your case forward as efficiently as possible while still ensuring thorough preparation.
Not every adverse medical outcome constitutes malpractice.
Remember:
In medical malpractice cases, damages are calculated based on factors such as the severity of the impact, the claimant’s age, and the specific circumstances of the injury.
Damages you may be entitled to include:
Your family members may also be entitled to make a claim for their pain and suffering through a nervous shock claim.
At GMP Law, we collaborate with medical experts to ensure every aspect of your damages is accurately calculated and effectively presented.
Medical malpractice claims can be brought against hospitals and healthcare systems, not just individual practitioners:
Learn more: Hospital negligence
With 35 years of experience, we have successfully represented clients in personal injury cases across Australia, including:
We recognise the physical, emotional, and financial toll that injuries have on individuals and their families.
Our commitment to our clients includes:
We are the only Australian firm that stands behind our service with a written cost reduction promise, offering you complete peace of mind with your claim. We are committed to delivering expert legal guidance with empathy and care, and will work tirelessly to achieve the best possible outcome for our clients.
In the spirit of reconciliation GMP Law acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respects to their Elders past, present, and emerging, and extend that respect to all Aboriginal and Torres Strait Islander peoples today.
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