Medical negligence occurs when a healthcare professional fails to exercise reasonable care and skill, resulting in harm or injury to a patient during the undertaking of their advice, management or treatment. It is a serious breach of the duty of care owed by doctors, nurses, hospitals and other healthcare providers to their patients. If you’ve suffered due to medical treatment that fell below acceptable standards, you may have grounds for a medical negligence claim.
This article explains what medical negligence is, how it applies under Victorian laws, the types of cases it covers, how claims are proven – and the legal options available if you believe you have been affected.
Defining Medical Negligence In Victoria
Medical negligence (sometimes called medical malpractice) refers to a situation where a healthcare professional fails to take reasonable steps that another competent professional would have taken in the same circumstances. If this failure causes injury, worsening of a condition, or other harm, it may be grounds for compensation.
Common legal principles of medical negligence include:
- Duty of care – The healthcare professional owed a duty to provide treatment with reasonable skill and care.
- Breach of duty – The provider failed to meet the required standard.
- Causation – The breach directly caused harm or injury.
- Damages – The patient suffered measurable loss or damage.
Types Of Medical Negligence
Medical negligence can arise in many forms. Common examples include:
- Misdiagnosis or delayed diagnosis – Failing to correctly diagnose a condition or delaying diagnosis, leading to harm.
- Surgical errors – Mistakes during surgery, including operating on the wrong body part, leaving instruments inside the patient, or unnecessary procedures.
- Medication errors – Administering the wrong medication or dosage, or failing to check for adverse reactions.
- Failure to obtain informed consent – Not properly informing a patient of the risks associated with a procedure or treatment.
- Birth injuries – Harm caused during pregnancy, labour or delivery due to negligent care.
- Post-operative care failures – Negligence in monitoring or managing a patient’s recovery.
- Inadequate emergency treatment – Failing to provide timely and appropriate care in an emergency situation.
- Negligence by allied health professionals – Such as physiotherapists, pharmacists, chiropractors or dentists.
How Is Medical Negligence Proven?
To establish medical negligence in Victoria, several key elements must be proven:
- Duty of care – It must be established that the healthcare provider had a legal duty to care for the patient. This element is not difficult to establish as all healthcare professionals owe a duty of care to any patient they provide treatment, management or advice to in the context of medical treatment.
- Breach of duty – Expert medical evidence is usually required to show that the provider failed to meet the standard of care expected of a reasonable practitioner in the same field.
- Causation – It must be proven that the negligent act or omission directly caused harm or worsened the patient’s condition. To this regard, it must be shown that ‘but for’ the breach of duty, the injury would not have occurred.
- Harm or damages – The patient must have suffered a recognisable injury, loss, or damage, whether physical, psychological, or financial.
Expert opinion from qualified and independent medical professionals is almost always needed to prove breach of duty and causation. Relevant medical records, test results, and reports are key pieces of evidence in a claim.
What Are The Legal Consequences Of Medical Negligence?
When negligence is proven, the injured patient may be entitled to compensation. Damages may cover:
- Medical expenses – Including future treatment costs.
- Lost income – Compensation for time off work or loss of earning capacity.
- Pain and suffering – For physical pain, mental anguish, or loss of enjoyment of life.
- Care and assistance – For personal care or support needs arising from the injury.
- Legal costs – In some cases, part or all of the claimant’s legal fees may be recoverable.
In rare cases, exemplary damages may be awarded to punish particularly reckless or egregious conduct.
The Compensation Process In Victoria
Medical negligence claims in Victoria are governed by both common law principles and the Wrongs Act 1958 (Vic). The Personal Injuries Proceedings Act 2002 (Vic) also applies in some circumstances. The process usually involves:
- Seeking legal advice – An experienced medical negligence lawyer can assess your case and explain your legal options.
- Investigating the claim – Gathering medical records, obtaining expert reports, and assessing damages.
- Notifying the defendant – Formal notification must be given to the healthcare provider or their insurer.
- Negotiation and settlement – Many cases resolve through negotiation or mediation before court proceedings.
- Court proceedings (if necessary) – If a fair settlement isn’t reached, a claim can proceed to court.
Time Limits For Medical Negligence Claims
Strict time limits apply to negligence claims in Victoria. Generally, proceedings must be commenced within three years of the date the injury was discovered (or reasonably should have been discovered). Extensions can apply in some cases, such as for minors or persons with a disability.
Is It Difficult To Prove A Medical Negligence Case?
Medical negligence cases are often complex, requiring detailed expert evidence. Not every poor outcome or medical mistake amounts to negligence. The key question is whether the healthcare professional failed to meet the standard of a reasonable practitioner in their field.
Because of this, it is crucial to:
- Obtain expert legal advice early
- Preserve relevant medical records
- Understand that even with strong evidence, cases may take time to resolve whilst the injuries and damages caused stabilise and become better understood
How Can A Personal Injury Lawyer Help?
A specialist medical negligence lawyer can:
- Assess the merits of your potential claim
- Guide you through the legal process
- Help you access independent medical experts
- Negotiate with insurers and health providers
- Represent you in court if required
At National Compensation Lawyers, we offer a No Win, No Fee service, ensuring you don’t face legal costs unless we succeed in your case.
Conclusion
Medical negligence can have devastating impacts on a person’s life, health and financial security. Understanding what medical negligence is, how it’s proven, and the legal process involved can help you make informed decisions about seeking justice.
If you believe you have been affected by medical negligence in Victoria, seek legal advice from experienced medical negligence lawyers. Early action is vital to protect your rights and maximise your chance of a fair outcome.