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Medical Negligence

Medical professionals (including health care providers) in Queensland owe a duty of care to their patients/clients to take reasonable care in the provision of treatment so as to avoid injury or harm.
When a medical professional acts in a manner not expected of a reasonably qualified and skilled practitioner in the circumstances, and causes harm to their patient in the process, there is recourse to lodging a claim under the Personal Injuries Proceedings Act 2002.
These claims are known as Medical Negligence claims.
In order to be successful in a Medical Negligence claim, you need to prove that a medical practitioner, or health care provider, has failed in their duty of care to you in the provision of medical treatment.
Medical Practitioners and Health Care Providers include, but are not limited to:-

Breach of Duty

Proving that a Medical Professional or Health Care Provider has breached their duty of care must be done in accordance with the common law of negligence which, in Queensland, is enshrined in the Civil Liability Act 2003 (“CLA”).
Under the CLA, the elements required to be satisfied to prove that a duty of care has been breached include:-
The CLA has incorporated separate provision for the duty owed by Medical Professionals as follows:-
Additionally, the standard of care for professionals is defined (s22 CLA) as:-
If it can be shown that a Medical Professional or Health Care Provider has acted outside the bounds of accepted professional practice, and they have acted in a manner that is not to the standard of what is expected of a reasonably competent practitioner in the circumstances, you may have proven negligence and the grounds for a Medical Negligence claim.
If so, and harm is suffered due to the negligence, then the element of causation may have been satisfied.
It is important to note, for example, that merely being dissatisfied with the outcome of a medical procedure, or if an inherent risk materialises (that you have been warned of), this does not necessarily amount to Medical Negligence and you should seek legal advice prior to lodging a claim for Medical Negligence and commencing the claims process.

The Claims Process

If you believe that a Medical Professional or Health Care Provider has breached their duty of care to you, the claims process is governed by pre-court procedures under the Personal Injuries Proceedings Act 2002 (PIPA).
The initiating document for a Medical Negligence claim is by lodging against the Medical Practitioner or Health Care Provider a Form 2 Notice of Claim (Health Care Claim) which is made under s9A of the PIPA.

Time Limits

It is very important to note that there are strict time limits in lodging a Medical Negligence claim under the PIPA as follows:-

The initial notice must be given within the period ending on the earlier of the following days—

  1. the day 9 months after the day the medical incident happened or, if symptoms of the personal injury arising out of the incident were not immediately apparent, the first appearance of symptoms of the injury; or
  2. the day 1 month after the day the claimant first instructs a law practice to act on the person’s behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.
As a Medical Negligence claim falls within the same time frames to commence Court Proceedings as other personal injury claims, you must file any proceedings with a Court within three (3) years of the date the cause of action (the harm) arose.
If the harm caused by what you consider to be a Medical Negligence claim arose outside of any of the above time limits, you should seek legal advice immediately.

Frequently Asked Questions

Got a question? Get your answer.

If you have received medical treatment or care from a Doctor, Hospital or Allied Health Care Provider (for example a psychologist, physiotherapist or optometrist) that you believe to have been negligent and has resulted in you suffering injury/harm, you may be entitled to bring a claim for compensation.
In short, you have to prove that the medical treatment provider, in the provision of medical treatment and/or care to you, has acted in a way that falls below the standard expected of a reasonably competent practitioner/hospital/provider in the same circumstances and, as a consequence, you have suffered an injury or harm (loss).

Some examples are as follows:-

  • Failure to warn of the inherent risks of surgery or a medical procedure;
  • Misdiagnosis or a failure to diagnose an injury/illness/condition;
  • Failure to perform surgery or a medical procedure with reasonable care and skill;
  • Failure to provide reasonable care and treatment of an illness/injury/condition or provide medical advice; and
  • Failure to provide a referral to a specialist or follow up with a patient to advise of test results.

Medical Negligence claims are possibly the most complex personal injury claims that can be pursued in Queensland.
This is because they require significant resources and expertise to run and assemble the evidence (including expert opinions) required to successfully prove that negligence has caused the injury or loss that is being claimed.

Additionally, there are always inherent risks associated with any type of medical treatment (particularly surgery) and there is always the likelihood that harm or loss could be the manifestation of one of those risks.

By way of example, if you underwent a medical procedure and you are unhappy with the outcome, however, no harm or injury has occurred because of the procedure not turning out the way you wanted, it can be difficult to prove negligence if the outcome falls within an excepted risk of the procedure and you were made aware of that risk.

Additionally, insurers standing behind medical treatment professionals and health care providers defend these claims robustly.

Therefore, it is highly recommended that you consult a lawyer who specialises in personal injury law to appraise the circumstances of your potential claim and advise you accordingly of your legal options.

Lawyers acting in personal injury claims in Queensland (including medical negligence) act on a no win/no fee basis.

This means that law firms will conduct work and spend money on your behalf (for example, obtaining medico-legal reports or other evidence) on a speculative basis which means that you will not be charged unless you get a successful resolution to your claim.

Your can claim the usual components of any personal injury claim in Queensland as part of your claim including:-

  • General Damages (compensation for your pain and suffering);
  • Past Economic Loss;
  • Future Economic Loss;
  • Out of Pocket Expenses (money spent on treatment, medications, rehabilitation);
  • Future Expenses (future treatment, medication and rehabilitation);
  • Past and Future Care and Assistance (care and assistance provided to you by family and friends – if you satisfy the statutory threshold).

Depending on your loss and your ability to prove those losses, in addition to proving that the Medical Professional or Health Care Provider was negligent, the amount you receive will be difficult to determine and will be influenced by the following factors:-

  • Your age;
  • Your employment status;
  • Your income;
  • Whether you have any similar or pre-existing injury/illness/condition and the extent to which it was impacting you prior to your injury/harm;
  • The severity of your injuries and the impact they have on your employment;
  • The potential impact your injuries will have on employment in the future; and
  • Whether or not you have required the need for care and assistance (above a threshold of 6 hours per week, for 6 months).

It is only once the above are determined that the quantum (value) of your claim can be estimated with any accuracy. To access our compensation calculator, click here.

You should seek legal advice on these issues.

The Limitations of Actions Act 1974 provides a three (3) year time limit for bringing Court proceedings for personal injury claims (including medical negligence) in Queensland.

Therefore, you need to commence Court proceedings within 3 years of the date of the injury/harm occurring.

As Medical Negligence claims in Queensland are brought under the Personal Injuries Proceedings Act 2002 (“PIPA”), the PIPA requires that you deliver a Notice of Claim within the earliest of the following two events:-

  • 1 month after you instruct a lawyer to act for you; or
  • 9 months after the date of the injury/harm occurring.

There are separate time limits on bringing claims on behalf of minors (anyone under 18 years of age) being:-

  • 6 years after the parent or litigation guardian knew or ought to have known of the injury/harm occurring; or
  • 18 months after the parent or litigation guardian instructs a lawyer.

If your injury/harm occurred outside these time limits, or you have any doubts on how the limitation period applies to your potential claim, you should seek legal advice.

Time frames can vary for all personal injury claims, depending on the nature and severity of your injuries and loss. Having said that, as mentioned previously, medical negligence claims are usually very complex and require resources and experienced legal advice to run successfully and is another reason why you should seek legal advice prior to bringing a claim for Medical Negligence.

The overwhelming majority of personal injury claims settle before proceeding to Court.

The reason for this is because the Personal Injury Proceedings Act 2002 requires what are known as pre-court procedures to be undertaken by the parties to a claim prior to you having a right to proceed to Court.

These procedures include a compulsory settlement conference that the parties must attend which is an opportunity for the parties to attempt to reach a settlement without the extra expense, time and resources of going to Court.

However, as Medical Negligence claims can be complex, you may still have to file a claim in the Court if your matter cannot be settled during the pre-Court phase.

Helpful links:

Legislation:

Disclaimer: This information is designed for general information in relation to Queensland compensation law and does not constitute legal advice. We strongly recommend you seek legal advice in regard to your specific situation. For help understanding your rights, please call 07 3136 3287 or 0431 374 476 to talk to one of our lawyers today.