Medical negligence occurs when a healthcare professional’s failure to provide an appropriate standard of care results in patient harm. In Western Australia, approximately 140,000 diagnostic errors occur annually across Australia, with nearly 50% of malpractice claims against general practitioners involving diagnostic mistakes.
Key Information for WA Patients:
Time Limits: Under the Limitation Act 2005 (WA), patients generally have three years from the date of injury to commence legal proceedings for medical negligence. Extensions may be available in certain circumstances.
Common Types of Medical Negligence:
- Misdiagnosis or delayed diagnosis
- Surgical errors
- Medication errors (incorrect prescription or administration)
- Failure to refer to specialists
- Inadequate informed consent regarding treatment risks
- Birth injuries and pregnancy-related complications
Establishing a Medical Negligence Claim: To succeed in a medical negligence claim, you must demonstrate:
- The healthcare provider owed you a duty of care
- There was a breach of that duty (failure to meet accepted medical standards)
- The breach directly caused your injury (causation)
- You suffered actual damages or loss
Medical Indemnity Insurance: All medical practitioners in Australia are required to hold medical indemnity insurance, which provides the framework for compensation when negligence is established.
Not all negative medical outcomes constitute negligence, complications arising from known and disclosed risks typically do not qualify as negligent care.
Medical care in Australia
A study that appeared in The Medical Journal of Australia in 2020 estimated 140,000 cases of diagnostic error occur in Australia annually, pointing out almost 1 in 2 malpractice cases against general practitioners involves diagnostic error.
In Australia, the law requires that medical industry practitioners have medical indemnity insurance. The insurance is there to provide financial redress to those who can establish a personal injury claim as a result of negligent medical care.
In most cases a three year time limit applies in Western Australia for a patient to bring court proceedings for medical negligence as outlined by the Limitation Act 2005. If more than 3 years has lapsed we can help ascertain whether it is still possible to pursue a claim by getting an extension under West Australian law.
Types of medical negligence
Medical negligence claims cover a wide array of medical scenarios, from misdiagnosis of symptoms, lack of referral and ineffective care, to surgical error. Being prescribed or administered incorrect medication is another example.
Did a medical practitioner advise an activity, medication, or medical procedure that was safe, when in fact the associated risk, given your medical history and present medications, rendered it unsafe, resulting in harm?
Injuries related to or resulting from pregnancy and birth may also qualify. Keep in mind, however, that a negative medical outcome that results from known risks of which you were informed, generally does not constitute medical negligence.
There are many different scenarios where patients suffer as a result of negligence. If you have made a claim but you are unsure about your entitlements, Soul Legal is able to provide a free assessment.
Medical negligence and medical malpractice
Medical negligence occurs when a medical professional fails in their duty of care, thereby causing a person physical or psychological harm. Please note this applies to a range of professions associated with medical care, not just GPs.
Medical malpractice differs in that rather than making an error, common with medical negligence claims, it can be proven the medical practitioner chose not to provide adequate care that met Australian standards.
Proving medical negligence
Proving that a medical practitioner is negligent can be a complex process, best approached with the support of a trusted and experienced medical negligence lawyer. For example, there is the issue of causation which involves proving that your medical outcome would not have transpired if not for the negligent treatment.
Soul Legal provides legal advice and assistance in medical negligence cases. We can help you navigate the needs of the case, including organising the medical evidence required to support a compensation claim.
In many cases medical negligence claims are settled prior to the need for court proceedings. Our goal is to help you attain a settlement that compensates for the long-term impact of the negligent outcome.
How can Soul Legal help?
We offer a no win no fee service that provides ease of mind when undertaking a claim for medical negligence compensation. Contact us for an obligation free claim assessment using this form. We’re ready to listen, and help.
Kevin Wong is the Director of Soul Legal and a seasoned Perth-based personal injury lawyer who has been passionately representing injured clients across Western Australia since 1991, handling everything from minor claims to complex catastrophic injury cases.
