Medical Negligence Claims are Difficult… but not impossible

Within legal circles, medical negligence is widely recognised as one of the most difficult types of compensation claims for injured plaintiffs. Here we’ll examine why that is and try and break down a few of the concepts and barriers in medical negligence claims.

To make a claim for compensation for medical negligence you need to prove:

1. Breach of Duty – that the treatment you received was negligent.
2. Causation – that the negligence caused damage which would otherwise not have occurred.
3. Damage – that you have suffered an injury because of the negligence.

Claims for medical negligence sometimes include claims for “failure to warn” of a risk of the treatment. These claims are very difficult to prove and can only succeed if a Court accepts that you would have refused treatment if you’d been properly warned.

Clients sometimes ask: can’t I just claim for the negligence? The short answer is no.

Each of the ingredients needs to be present in order to bake the cake. So, you need to prove all three points above, before you can commence a claim. Unless you can prove that some or all of your damage and loss would have been avoided with reasonable treatment, you’re left with a mess, not a compensation claim.

The purpose of making a medical negligence claim is to get compensation. A claim cannot be pursued unless there is a loss, such as:

• medical treatment expenses;
• care expenses;
• wage loss; or
• noneconomic loss (also called pain and suffering).

Some of these amounts are capped by law.

To claim compensation for your pain and suffering (your noneconomic loss), you must have suffered a ‘significant injury’.

This is defined as a permanent impairment of more than 5% of the whole person for physical injuries (more than 4% for spinal injuries) or more than 9% of the whole person for a psychiatric injury. This is assessed by an independent medical expert who must use the American Medical Association Guides to the Evaluation of Permanent Impairment.

In most claims, the assessment cannot be done until the injuries are stable. That is, your ongoing impairment is unlikely to substantially change.

You can claim for past and future wage loss and past and future medical and care costs that arise because of the negligence. Claims for these losses can be made whether you are able to establish that you have suffered a significant injury or not. But you still need to prove breach of duty, causation and damage.

Because of the time and challenges involved in bringing a medical negligence claim, unless your loss attributed to wages, medical expenses and care is significant (i.e. $50,000.00 or more), it is probably not worth making a claim for compensation for those losses alone.

Perhaps the best way to give a sense of the difference between medical negligence claims and other injury compensation, is to look at two scenarios, and then to spot the difference between them.

Julia goes to hospital with an injured knee and has surgery. She has a poor outcome and is left with a limp and ongoing pain.

Andrea is in the hospital bed next to Julia, after being knocked off her bike by a car that didn’t give way. She’s got the same injuries, had the same surgery and had the same outcome.

Why will Julia’s claim for compensation be more difficult than Andrea’s?

1. Factual disputes and a lack of witnesses

The circumstances of Andrea’s accident are likely to be well known and undisputed. Andrea is likely to be able to give evidence about the driver’s negligence. Witnesses, dash cam footage, CCTV, police reports and accident reconstructions all help paint a clear picture about what happened and who was at fault. By comparison, it is likely the surgeon and her assistant are the only witnesses to the injuries Julia suffered in surgery.

2. Public perception and sympathy

Few people have much sympathy for bad drivers on our roads. By comparison, there is rightly a huge amount of respect for our public health systems. There is likely to be some stigma associated with a claim against a public hospital, involving medical staff trying their best to protect the public. Insurers know this, and factor it in when considering whether to take a case to Court or to try and settle the claim before Court.

3. Pre-existing injuries

Like almost all people attending hospital, Julia came in with a pre-existing condition. Because of this, there will always be some dispute about how much of her ongoing problems were caused by the surgery, and how much were going to develop because of her pre-surgery problems. By contrast, Andrea was fit and well and riding a bike before she was negligently injured. All of her ongoing problems are because of the crash caused by the driver.

4. Negligence or a complication?

We recognise that not everyone that has medical treatment gets better to the extent that they’d hoped. Some patients will have poor outcomes even with gold standard treatment. Complications can arise in surgery that aren’t as a result of anyone’s carelessness or error. In Andrea’s case, her injuries are clearly caused by a negligent driver. Julia on the other hand, will need to prove that her outcome was because of surgical negligence, rather than because of a recognised complication of the surgery.

5. Reputations to be protected

The negligent driver is far less likely than a surgeon to dispute or defend a claim in order to protect their reputation. Health providers feel understandably defensive about any allegation that they provided substandard care. This often results in protracted disputes about what went wrong and why, with the medical treatment provided, and can also increase the costs and risks of litigation.

Gathering independent expert evidence in support of the claim is the key to success in a medical negligence claim.

As much as the evidence of an injured client is an important piece of the puzzle in a medical negligence claim, most claims rise and fall on the evidence of independent medical experts who provide medicolegal opinions regarding what went wrong and why.

Common sense is actually not very common in medical negligence claims. All parties instead rely heavily on the medical records, and the opinions of medical specialists engaged to review the evidence and express a view about whether the treatment was negligent, and whether any negligent treatment was a cause of loss or damage for the patient.

Medical insurers and Courts are very rarely persuaded by the beliefs of a patient (or their lawyer) about whether medical treatment was negligent, unless those opinions are soundly supported by independent medical expert evidence. Your own online research about the medical treatment is not evidence, and will not be considered in a claim.

Disputes about the medical evidence by “competing experts” are technical, complex and expensive. Providing them with the wrong information, or asking the wrong question (or wording the question incorrectly) can be the difference between getting compensation for a medical treatment injury and lengthy litigation and a heavy loss.

When considering whether to investigate a medical negligence claim, there are a number of factors which need to be weighed up:

1. Law – Does the law support your claim so that you have reasonable prospects of winning?
2. Compensation – What can you receive if you win?
3. Costs – will the compensation that you might receive outweigh the costs?
4. Time limits – can your claim be made in time, or can you get an extension?
5. Timing – How long will the process take?
6. Alternatives to compensation – Is a complaint a more appropriate option?

To properly consider these factors, you should get free initial legal advice, armed with the following questions:

• Do I have a chance of winning this claim? What are my chances?
• What compensation might I get if I win?
• What happens if I lose?
• If I win, what will be the costs that I need to pay?
• How long will the claim take?
• Can I also lodge a complaint about the medical treatment I received?

Our team at Polaris has years of experience in getting great results for people injured by medical treatment – guiding them through legal complexities to get the best possible compensation.

We also frequently see the results of lawyers without the necessary expertise, who have attempted to make claims for injured clients and failed. Some of those clients should have been advised not to pursue a claim, and would have saved time and money by receiving that advice up front from lawyers who specialise in medical negligence.

It is critical that you seek expert legal advice about your potential claim, from a medical negligence specialist, before making a decision about whether to pursue a claim.