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How to Prove Medical Negligence?

It’s a pretty safe bet that when most of us go to the doctor or hospital, we do so expecting to get better. Unfortunately, we don’t always get what we want. Sometimes there is no cure for what ails us. Sometimes something goes wrong. It can happen during diagnosis, treatment or surgery. Because the results are often devastating, there may be questions about medical negligence.

The big picture

Pursuing legal recourse in a medical negligence case is not easy. This is because proving the doctor did something wrong is just the first step. To have a viable case, you must also prove:

  • The error violated applicable standards of care.
  • The error triggered ensuing events.
  • The ensuing events would not have occurred if the medical professional hadn’t made the mistake.

A case in point

To clarify, consider the following scenario: Jane Doe goes to his personal physician because a cut on her hand isn’t healing properly. She also has redness, swelling and pain radiating up her arm. Her doctor suspects a simple infection, but sends her to a specialist just to be sure. The specialist does some sort of procedure that doesn’t go to plan. Jane’s condition worsens to the point where partial amputation is necessary.

Devastated, Jane seeks legal advice. After hearing her story, the lawyer she’s consulted does a thorough investigation of her claim. It turns out her original condition would have resulted in partial amputation anyhow. This meant the specialist’s negligence  in performing the procedure did not leave Jane any worse off than she would have been if she had never seen the specialist, and she is unable to prove causation.

The ‘widely accepted’ practice defence

Your medical negligence claim may also fail if the defendant can prove that the treatment you received is “widely accepted” in the field. In other words, the claim will fail if the doctor’s peers generally view his or her actions as  “competent professional practice.” You should be aware, however, that this does not necessarily mean that most professionals must agree to the practice.

You should also be aware that the court does not have to accept this defence. In fact, if the Court finds the peer professional opinion is “irrational,” the defendant cannot rely on it.

 Failure to warn claims

A failure to warn claim is a type of medical negligence claim. It is made when the injured party alleges he or she was unaware that the injury sustained could occur.  To win a failure to warn case, you must prove:

  • that your specific outcome was a known risk of the procedure;
  • that the risk was significant;
  • that the doctor did not warn you about said risk;
  • that you would not have had the procedure if you had been warned about the risk.

In this context, it is important to understand that just because you had an unwanted or adverse outcome does not necessarily mean your doctor was negligent. Complications known as risks of a procedure, can and do occur.

Accordingly, most people can prove the first two elements of failure to warn.  It is less likely that you can prove that your doctor never mentioned a specific risk.  That being stated, there is legal precedence for a patient’s word to carry more weight than a doctor’s insistence that he or she did warn the patient about a specific risk. Copies of medical records may serve as proof that the doctor failed to provide appropriate warning.

More often than not, an injured party cannot prove the last element in a failure to warn case. This is because judges have difficulty believing that someone seeking medical attention would not agree to recommended treatment.

Available compensation

You can be compensated in a medical negligence case if you can prove that:

  • you were injured as a result of a doctors or healthcare professional’s negligence
  • you suffered physical, financial and emotional losses as a result

However, there are restrictions on the amount of compensation you may receive. For example,  compensation for loss of wages is capped at three times the Average Weekly Earnings published by the Australian Bureau of Statistics.  Because this provision applies to people whose gross salaries top $140,000.00, however, it does not apply in most cases.  Any claims for lost superannuation entitlements are restricted to the mandatory employer contribution rate.

Technically, you cannot be compensated for pain and suffering unless your injuries are equivalent to no less than 15% of a most extreme case.  But since there is no set way of gauging what 15% of a most extreme case looks like, a percentage is decided based on each individual’s injuries.  The most that can be awarded for pain and suffering is approximately  $612,500.00, but the amount is indexed annually to reflect inflation.

In summary

Clearly medical negligence cases pose their share of challenges, both to the injured party and to his or her lawyer. Because this area of the law can be so tricky, it is essential to get the proper legal advice and representation. That’s where we come in. Contact us to learn more about how we tackle these cases, today.

Listen to the Podcast



In this podcast, Dan Toombs talks with Beilby Poulden Costello, Partner and Accredited Personal Injury Law Specialist, Courtenay Poulden on everything you need to know about making a medical negligence claim in New South Wales.


Sadly, thousands of Australians each year suffer the consequences of some type of medical negligence, many of them do just grin and bear it without ever considering legal action. It can be a big mistake to find out a little bit more about what you should do if this has happened to you. I’m with Beilby Poulden Costello, Partner and Accredited Personal Injury Law Specialist, Courtney Colden. Courtney, at the outset, what is medical negligence?

Medical negligence, Dan, is a circumstance where someone’s medical treatment or the absence of medical treatment causes them loss and damage, and that treatment or failure to treat was negligently carried out by the medical practitioner or hospital or health provider. It really relates to a wide range of medical services and often it is a failure to diagnose as opposed to a failure to carry out a procedure properly.

Courtney, what should somebody do if they feel as if they have suffered from some type of medical negligence?

Well, the first thing they should do is discuss the problem with their doctor and find out exactly what the problem is and whether it can be rectified. At the same time, they should seek legal advice early in the piece. Lawyers need to get hold of all of the relevant medical records and information and more often than not, to engage the services of an expert medical practitioner in order to give any opinion. So it’s all about hard work and getting the evidence together.

So what you should do is consult a lawyer who might be able to first you will. Look, unfortunately, what’s happened to you is not compensable, but in circumstances where it may be to give advice as to as to what information and material is necessary in order to give an opinion as to whether it’s worth taking the case any further.

Courtney, do you find in your experience that at times people may be reluctant bringing about such a claim because they have an existing quite often or historically long relationship with their doctor or a specialist and they don’t want to do anything about it?

That’s often a problem, Dan, and we see that someone’s had a doctor who’s looked after them for many years and they haven’t made and they have a good relationship and they haven’t made any mistakes or errors in the past, and then something drastic or significant happens to the patient and they feel uncomfortable. And I understand that that relationship, the therapeutic relationship between a patient and a and a doctor is very important. We won’t be advising our clients to rush out and destroy that relationship or to interfere with it in any way unless there really is good reason to do so.

And that is a significant case in negligence and damages that are significant enough to warrant taking the action further. I mean, a lot of the cases we see relate to specialists, intervention and hospital procedures or failed hospital procedures or the failure of hospitals to act or to or to or to refer to appropriate specialists. So in those instances, really not you and your family doctor, that really comprises a very small proportion of the types of medical negligence cases that I’ve seen over the last 30 years or so.

And we’re always conscious of the importance of that relationship.

It’s the insurance companies at the end of the day that pay these compensation claims if they’re successful, isn’t it?

Yes, it is an insurance company, the doctor. The doctors are all fully insured, it’s a precondition of their practicing certificate in the same way that it is for a lawyer or an accountant or an engineer or architect. They have to have in place, you know, insurance in order to be registered by their professional bodies and the medical professions.

Exactly. Now, what about time limits?

There is tight time limits that apply in these matters, isn’t it? Yes, there are strict time limits, just about every area of personal injury law involved time limits, and that’s why you ought to act quickly and normally in a medical negligence matter. You have three years from the date that the case becomes discoverable. Discoverability under the law means that you’ve got to know that there was some negligence, that it’s caused loss and that you’ve suffered lost.

Once those things are reasonably known to a patient or in our case, we call them clients, then you have three years from then within which to commence proceedings. There’s no scope for extending it in part from some very limited circumstances where there’s incapacity. So those guidelines are strict and must be adhered to. It’s for that reason we recommend that people start the ball rolling as soon as reasonably practicable. Now, clearly, that brings into play things like recovery and doing your best to recover from your injury before you start thinking about engaging lawyers.

And I think that’s a pretty smart way to go about it. But it seems to me that as soon as you reasonably are able to, it’s a good idea to have someone start looking at things, because often it takes a long time to locate an expert in that relevant area. We’ve been all over the world in our firm. I’ve had experts from Harvard University, Oxford University. We’ve had experts from Scandinavia on specific issues. So often we have to go far and far and wide, particularly if the hospital or the medical practitioner involved is very senior in the industry.

Trying to get colleagues in our jurisdiction to have a look at the case may be problematic. So we’ve got to allow for all those factors when we’re making when we’re considering the time factors. So it’s important.

And that’s crucial, isn’t it? Because I’m assuming that, you know, when it comes to this type of litigation, it’s not litigation that a person should consider looking at with an inexperienced law firm that just doesn’t do this work often.

Now, it’s very much a specialist field from a legal point of view, if not in the personal injury field. It’s probably the most specialised area, mainly because it’s not it’s very complex when you are trying to unravel medical problems and you don’t have a medical background. So you’re very much reliant upon your contact with and how you can liaise with members of the profession, the medical profession. I mean, if you’re not comfortable with doing that and you can’t consult with professors and what have you at a reasonable level, you shouldn’t be doing it.

So it’s very much a speciality area. And I strongly recommend that that people look carefully at which lawyer they engage.

Courtney now at Beilby Poulden Costello you offer a free initial no-obligation consultation. Is that the case?

That is the case. What we will do is have to speak to the client, obviously, initially, initially over the phone to make sure that there’s, you know, sufficient justification for having a conference. Then we need to confer with the client, prepare a bit of a chronology of events, try and work our way through what really was the problem that they complain of. And then to give some advice about whether or not the costs and resources necessary to bring these pretty complex claims are worthwhile.

I mean, the judgment people rightly expect from us is to say, well, look, you know, look, you’ve suffered an injury, but you went into the hospital with some problems. You’ve come out just a bit worse, in which case, even though it may have been poor, treatment of the value of it in legal compensation terms isn’t enough to justify going ahead. So we have an initial consultation at no cost so that we can work through that and give people some initial advice.

And that same at that same conference, we can map out for our clients what it is that they’re likely to need in order for us to get to the point where we can advise them whether or not the case is worth proceeding with. So that general initial discussion is very important. And then if both the client’s satisfied with our services and if we think the client’s got a reasonable course of action, we’ll start doing the preliminary investigations again. We’ll do it on the basis that we only get paid for them if the case ultimately goes ahead and is successful.

Now, many is a case that I’ve had over the last 30 plus years where I’ve done a lot of work to get it to a position where I can advise. And my advice to the client is I don’t think the case is worth proceeding with now. We do that at our own expense because we’re mindful that if we are going to take on a case in the medical negligence area, going to be hard work and we’ve got to make sure it’s got reasonable prospects before we’d give advice to anybody else.