Personal injury / Medical negligence
Medical negligence claims
A poor outcome is not the same as negligence. Medicine involves risk, and complications occur without anyone having done anything wrong. A medical negligence claim is not about whether the result was bad. It is about whether the care fell below the standard reasonably expected, and whether that failure caused harm.
That distinction is the whole of these claims, and it is why they are harder and slower than other personal injury matters.
What has to be shown
Two things, and the second is usually harder than the first.
That the care fell below a reasonable standard.
Judged against what a competent practitioner in the same field would have done, not against an ideal or against hindsight.
That the failure caused the harm.
This is where most claims fail. It is not enough that the treatment was substandard. It has to be shown that a different course would have produced a materially better outcome. Where someone was already seriously unwell, establishing that is genuinely difficult.
Failure to warn
A separate line of claim, and one people are often unaware of.
A practitioner is required to warn of material risks in a proposed treatment. Where a risk that should have been disclosed was not, and it eventuated, there may be a claim even though the procedure itself was performed competently. The question becomes whether you would have proceeded had you known.
Where claims commonly arise
Delayed or missed diagnosis, particularly of cancer and of cardiac and neurological conditions. Surgical error. Medication and prescribing error. Birth injury to mother or child. Failure to act on test results. Inadequate post-operative care or monitoring. Failure to obtain informed consent.
Why these claims take longer
Three reasons, and it is better to know them at the outset.
Records first.
Nothing can be assessed until the complete clinical file has been obtained and reviewed, often from several providers, and rarely quickly.
Independent expert opinion is essential and expensive.
These claims turn on the evidence of specialists in the same field as the practitioner concerned. Sometimes more than one, where several disciplines are involved. Obtaining a supportive opinion on both breach and causation is the real threshold, and it is reached before anyone knows whether there is a claim at all.
They are defended firmly.
Practitioners and their insurers contest these claims more vigorously than most, and there is a professional reputation in issue as well as money.
What that means for how we take them on
We assess medical negligence enquiries carefully before agreeing to act, and we may need to obtain records and an initial opinion before we can tell you whether you have a claim worth pursuing. That is not evasion. It is that nobody can responsibly tell you otherwise.
The outlay position on these matters can differ from our other personal injury work.
If what you want is an explanation
Not everyone who comes to us wants to sue. Some want to know what happened, or want to make sure it does not happen to someone else. There are other avenues for that: the health service’s own complaints process, and the health regulators. They operate separately from a damages claim. If that is what you are after, we can point you in the right direction.
This page is general information about how the law works in Queensland. It is not legal advice, it does not take account of your circumstances, and it should not be relied on as a substitute for advice about your own claim.