Needed for a Claim
In order to have a claim for compensation for medical negligence, there are generally 2 requirements:
- The medical advice or care provided must have been below an acceptable standard (negligence):
- Harm must have come about because of (been caused by) the shortcomings in the medical advice or care.
Generally, both of these 2 things must be provable, for a claim.
In Western Australia (and the rest of Australia) there is no Law which states that because a patient suffers harm or a less than perfect outcome because of medical treatment they are entitled to be compensated. This is true, no matter how terrible the result has been.
Compensation is only generally payable if the doctor, other health professional or hospital failed to demonstrate “reasonable care.”
But what is “reasonable care?”
The short answer is that it is the minimum or baseline standard that ought to be expected of the relevant doctor, other health professional or hospital, given their professed expertise.
It is often less than the very best possible care, the so-called ‘gold standard’ advice and care.
The second requirement is that the patient’s bad outcome from the relevant medical care must have been caused, at least in part, by the shortcomings in it. In other words, had the medical advice or care been up to the appropriate standard, this would have avoided the harm that occurred.
This is often the most contentious and difficult issue in cases. This is not surprising given it often involves trying to figure out how things would have changed, with different medical care or advice. This always involves uncertainty or doubt, sometimes a great deal of uncertainty.
If the 2 elements mentioned above are both met, it is then a matter of figuring out what is appropriate compensation, given the outcome.
This can be very complicated, particularly in catastrophic injury cases. There are complex legal principles that must be applied to work out how much should be paid to compensate the patient (or their family) for the outcome.
Different aspects to the consequences of the poor outcome, including:
- an allowance of compensation for the pain, suffering and disability caused by the negligent medical advice or care;
- payment for expenses incurred and anticipated, including medical and other expenses;
- payment for lost wages and harm to the potential to work in future;
- payment for assistance required with activities of daily living and domestic activities.
Considerable expertise can be required, to properly assess appropriate compensation in complex cases, including catastrophic injury cases, delay in diagnosis of cancer cases and cases involving a patient’s death.
THE FIRST STEP: CONTACT US
We understand that deciding to investigate a claim is often a very big first step to take. Most people are frightened of or at least apprehensive of the legal system, lawyers, or at the thought of ‘taking on’ a doctor, hospital or ‘the medical profession.’
To make it as easy as possible, just fill out the form and we will contact you to let you know whether we think investigating a claim is something you should think about. There’s no obligation and no fee involved…
If you’d prefer we can even just send you an email answering your question (if it is simple enough!) or pointing you in the right direction.
If we think a claim is worth investigating, we’ll arrange to meet for a coffee and a chat.
If you want, go ahead and let us help you with the first step.