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Medical negligence claims are complex. That’s why we have developed this short article which addresses five frequently asked questions regarding medical negligence compensation claims in NSW, providing clarity for those who might be considering such a claim.

1. What constitutes medical negligence?

Medical negligence occurs when a healthcare provider fails to meet the standard of care expected, resulting in harm or injury to the patient. For a successful medical negligence claim, the following elements must be established under the Civil Liability Act 2002 (NSW), (CLA):

• Duty of Care – the healthcare provider owed a duty of care to the patient. This is usually straightforward, as all healthcare providers owe a duty of care to their patients.
• Breach of Duty – the provider breached that duty by failing to exercise reasonable care and to take precautions against a risk of harm. This involves comparing the provider’s actions to the accepted standard of care in the medical community.
• Causation – the breach of duty caused the patient’s injury or harm. The patient must prove that the harm would not have occurred but for the provider’s negligence.
• Damage – the patient suffered actual harm or damage, such as physical injury, psychiatric injury, or financial loss.

The CLA also incorporates principles of the “peer professional opinion” defence, where a healthcare provider can argue that they are not liable because their actions were in line with the standard that was widely accepted by their peers as competent professional practice [1].

2. What is the time limit for making a medical negligence claim in NSW?

In NSW, the statute of limitations for personal injury claims, including medical negligence, is generally three years from the date the cause of action is discoverable [2]. This means that a claim must be filed within three years from the date when the plaintiff knew or ought to have known that:

• They suffered an injury;
• The injury was caused by the fault of the defendant; and
• The fact that the injury was sufficiently serious to justify the brining of an action.

However, there is an overarching limitation period of 12 years from the date of the Act or omission that caused the injury, regardless of when the injury was discovered. This is known as the “long-stop” period [3].

The limitation period may be extended, but it’s crucial to seek legal advice as soon as possible to avoid missing critical deadlines.

3. What compensation can be claimed in a medical negligence case?

Compensation in medical negligence claims is intended to restore the injured party to the position they would have been in had the negligence not occurred. The CLA outlines the types of damages that can be claimed, which generally fall into two categories: economic and non-economic losses.

• Economic losses – these include past and future medical expenses, loss of income, loss of earning capacity, and other financial costs directly related to the injury. Economic losses are quantifiable and require detailed evidence, such as medical bills, receipts, and expert reports.
• Non-economic losses – these refer to compensation for pain and suffering, loss of enjoyment of life, and emotional distress. The CLA imposes a cap on non-economic damages, with the maximum amount being adjusted annually based on inflation.

It is important to note that the CLA also imposes thresholds on non-economic loss claims, meaning that compensation for pain and suffering will only be awarded if the plaintiff is determined to be 15% of a most extreme case, or above [4].

4. Are there alternative avenues for complaint?

If the treatment you are complaining about was provided at a hospital, you may be able to lodge a complaint internally with the hospital. Most hospitals have a patient liaison officer (or a person with a similar title). That person will assist you in lodging a complaint internally if that is something of interest to you. You can usually find the complaints process on the hospital’s website.

You can also lodge a complaint with the Health Care Complaints Commissioner. There is no statute of limitations in relation to this kind of complaint to the HCCC. In some scenarios people have held off in lodging a complaint until the receipt of an expert report. That report, if critical of the care you received, can be attached to the complaint when it is lodged. The HCCC has discretion to determine which complaints are investigated and which are not.

More information about the HCCC can be found online here.

5. How is expert evidence used in medical negligence claims?

Expert evidence is a cornerstone of medical negligence claims. A compensation claim asserting medical negligence will require independent medical support for breach of duty of care. Support will also be required linking that breach of duty to compensable damage. The role of expert evidence includes:

• Establishing the standard of care – expert witnesses explain what the accepted standard of care is for a particular medical condition or treatment.
• Identifying breach of duty – experts assess whether the defendant’s actions or omissions deviated from the standard of care.
• Proving causation – experts provide opinions on whether the breach of duty caused the plaintiff’s injury. This can involve complex medical issues, requiring a thorough analysis of the patient’s medical history, treatment, and outcomes.
• Proving harm – experts provide opinions as to the extent of the plaintiff’s injury/injuries or damage and can quantify the economic losses.

The courts rely heavily on expert evidence to determine the outcome of medical negligence claims. It’s essential for plaintiffs to engage experienced legal counsel who can identify and work with qualified experts to build a strong case.

Medical negligence claims under the CLA are intricate and require careful navigation of legal and medical issues. Consulting with a legal professional is crucial to ensure that your rights are protected and that you receive the compensation you deserve.

This article was published on 16 December by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. If you or a loved one has been injured, use our Personal Injury Claim Check now.

[1] Civil Liability Act 2002 (NSW) s5O.

[2] Limitation Act 1969 (NSW) s50C.

[3] Limitation Act 1969 (NSW) s62B.

[4] Civil Liability Act 2002 (NSW) s16(1).