Your guide to medical malpractice from expert malpractice lawyers

What is considered malpractice?

Medical malpractice is also known as ‘medical negligence’ or ‘professional negligence’.

In Australia, medical professionals have a duty of care for their patients meaning they must carry out treatment with due diligence, care and skill. If a medical professional does not meet this standard and you suffer harm or loss as a result, you may be able to take legal action and bring a claim against the medical professional for medical malpractice. Our team of malpractice lawyers can assist with this.

It is not only doctors who may be liable for medical malpractice but also surgeons, nurses, dentists, physiotherapists, obstetricians or other medical professionals.

How hard is it to prove medical malpractice?

To be successful in a medical negligence or medical malpractice claim you must be able to show the following:

1. your medical practitioner fell short of the standard of care that would be reasonably expected of a medical practitioner in the circumstances; and
2. the failure to exercise reasonable care has resulted in the damage suffered, e.g., if, regardless of negligent medical treatment, your condition, disease or disorder would have deteriorated and resulted in the same outcome, then there is no injury, loss or damage caused by the negligence of the healthcare provider.

Each of these elements must be proven on the ‘balance of probabilities’ meaning that it is more likely than not that the medical practitioner breached their duty of care and that this breach caused your harm or loss.

Your ability to meet the ‘balance of probabilities’ test will depend entirely on having the right evidence to address the right issues. This can be a complex area of law and requires experience, skill and knowledge to investigate. At Gordon Legal, our personal injury lawyers have the experience and knowledge to assist with these claims and can help you achieve the compensation that you deserve.

What percentage do malpractice lawyers take?

At Gordon Legal, we understand that recovering from an injury sustained as a result of medical malpractice is stressful enough without adding the burden of legal fees. Serious injuries can lead to extended time off work and put you and your family under significant financial pressure.

To help ease the process of obtaining legal advice, our medical malpractice lawyers offer a ‘No Win, No Fee’ service, which means that if we are unsuccessful in winning your compensation case you will not be charged legal fees. If your claim is successful, you will receive a compensation payout and we will be paid for the work we have done on your case.

The legal fees associated with representing you in a successful malpractice case can vary depending on the complexity of the case. However, we will be upfront and transparent with you at each step of the way and will advise you of our fees from the outset of your matter. Our fees will be deducted from your compensation amount so you will not be charged out of pocket costs. Importantly, if we are successful in your case, we will only charge you for the actual legal work that we perform and will never charge fees as a percentage of the compensation you receive.

What are the odds of winning a medical malpractice suit?

As every case is unique, it is difficult to provide an accurate assessment of your chances of winning a medical negligence or medical malpractice case. Our malpractice lawyers will only be able to advise on your chances of success once they have reviewed your case.

How long does a malpractice lawsuit take to resolve?

The timeframe for receiving compensation for medical negligence or medical malpractice will vary on a case-by-case basis, as the legal process will be influenced by your particular circumstances. It is best to speak with a lawyer who specialises in medical malpractice to understand how much time it may take for you to receive compensation.

The time it will take to receive compensation will depend on a range of factors, including the following:

• The severity of your injury.

• The length of time it takes for your injury to stabilise.

• The complexity of your case.

• The type of compensation sought and the governing compensation scheme.

It is important to note that medical negligence or medical malpractice claims are generally very complex and often require a six to 12-month investigation period to obtain evidence to support the claim before filing it in court.

It is quite common for these types of medical compensation claims to be settled outside of court. In this case, your lawyer can negotiate a settlement on your behalf. We will usually negotiate directly with a medical insurer for a lump sum payout that covers your costs and damages.

If your compensation claim does go to court, it can take between 18 months to three years to be finalised, depending on the complexity of the claim and whether the injuries have stabilised enough to be assessed.

Our expert malpractice lawyers will run your claim as quickly as possible, including making all reasonable attempts to resolve your case out of court in a timely manner where possible.

How can I determine if I have been the victim of medical malpractice?

Medical negligence or medical malpractice can take place in many different forms.

Below are common examples of medical negligence:

• Failure to provide preventative or proactive treatment to avoid a worsening condition.
• Delays in investigating, diagnosing or treating a medical condition.
• Misdiagnosis.
• Failure to provide an appropriate referral to a specialist or other professionals.
• Failure to convey test results to allow for treatment of a condition or injury.
• An incorrect reporting of a test, investigation or result.
• Any surgical error.
• Failure to advise the patient or warn them about the risks of a procedure or advise about the availability of an alternative treatment.
• Birth trauma or a birth injury claim.
• A dependency or nervous shock claim made by the family or dependants of a patient who has died due to medical malpractice.

If you potentially have a medical malpractice claim it is important to seek legal advice as soon as possible – get in touch with us today on 1800 21 22 23 if you are seeking advice about a potential claim.

Can I attend the same hospital if I have filed a malpractice suit against an individual?

Yes, you can continue to seek treatment at the hospital. However, if you feel or believe that you are not being dealt with in a professional manner or you have lost faith or confidence in the advice and treatment you are receiving, you may wish to consider seeking a second opinion or treatment at another hospital or clinic. The patient advocate at the hospital may be of assistance to you in dealing with the hospital staff and administration when you have lost confidence in your practitioner.

Can a hospital/clinic be sued for malpractice, or just individuals?

Both hospitals/clinics and individuals can be sued for medical negligence or medical malpractice depending on the circumstances.

A hospital or clinic can be sued for medical malpractice if the facility itself was responsible for the medical error or sub-standard care. However, a hospital or clinic will not necessarily be held responsible just because medical negligence occurred at that facility.

If an individual doctor was responsible for your sub-standard treatment, a claim can only be brought against a hospital or clinic if the doctor was an employee of that facility, or if the hospital or clinic were aware of the sub-standard treatment and did nothing about it.

What to do if this information applies to you

At Gordon Legal, we understand that medical negligence or medical malpractice is a personal issue.

For personalised and individual advice, we offer consultations to discuss your matter.

Please call Gordon Legal on 1800 21 22 23 or our Geelong office on 1800 21 22 23 to speak with a member of our team.

Given the current environment, we are providing consultations over the phone or via video conferencing platforms.