Medical injury claims, also referred to as medical negligence or medical malpractice claims, concern injuries suffered because of the failure of a medical practitioner or medical service provider to exercise reasonable standards of care.
‘Reasonable care’ does not mean perfect care. Rather, it refers to a situation where a practitioner has not used an adequate level of skill or care. This level or standard, is considered with reference to what another similarly qualified practitioner would have done or should have done in the same circumstances. Complications can and do arise in medical situations all the time, and that does not mean that any negligence has occurred.
That said, breaches of care occur in a variety of ways and it is important to consider whether you have suffered an injury due to negligent medical treatment.
Breaches of care in medical situations can include improperly conducted surgeries, surgeries conducted in inappropriate circumstances, delays in diagnosis of cancer and other conditions, and failures to correctly interpret or appropriately act upon, medical imaging.
For a medical injury to be compensable, it must also have been caused by the negligence. That is, but for the breach of care by the medical provider, the injured person would not be suffering from the injury. Sometimes, showing that the negligence caused an additional injury to a patient, can be quite complex. It is however, a vital part of any medical injury claim.
What is the average compensation payout for medical injury claims?
This is a difficult question to answer, as most medical injury claims resolve in confidential settlements. Very few claims make it to a public trial.
It can be said that each year, the cap for pain and suffering damages increases in Victoria. This is the compensation available for the loss of enjoyment of life because of a serious injury caused by negligence. As at July 2021, the cap is $644,640.
How are medical injury claims calculated?
Calculating compensation for a Medical Injury claim depends on the loss suffered by the injured person. Damages for legal claims in Australia largely try to restore a person the position they were in prior to the negligence happening. We understand just how difficult it is for financial compensation to ever truly restore an injured person’s life to the way it was, but easing the financial burden of devastating injuries can afford families a lot of relief, and the ability to move forward with their lives.
In this way, medical injury claims will aim to recover the past and future medical and care expenses attributed to an injury arising from negligence. Depending on the injury, this can cover a broad range of costs, from surgery and medication, to fittings around the home and mobility equipment. Sometimes we engage specialists like occupational therapists to consider what needs an injured person will have into the future and how we can look to cover those costs in their claim.
Another aspect of a medical injury claim is loss of earnings. Where the medical injury has impacted a person’s capacity for work, we can make a claim for this financial loss. This is often calculated by looking at the injured person’s tax returns before and after their injury.
How long does it take to settle a medical injury claim?
The time it takes to settle a medical injury claim can vary greatly, depending on a number of factors. This can include, the time it takes for the injured person’s condition to stabilise, the amount of medical records to be reviewed, the number of expert reports required and the attitude of the opposing party. The process from enquiry to settlement typically takes around a year to 18 months. In circumstances where an injured person has a terminal condition, the process can be expedited.
It’s important to start a claim as soon as possible, as time limits apply to negligence claims. A typical medical injury claim must be filed with the court within 3 years of the injured person discovering their potential right to compensation.
Where can I find the best lawyers near me?
Gordon Legal assists clients from all across Victoria. Our medical negligence practice is headed by Paul Henderson, who has decades of experience in the area. You can be assured that by contacting Gordon Legal with your medical injury enquiry, you will be afforded the very best of advice and care.