How do I prove medical negligence?

Part of a personal injury lawyer’s job involves speaking with people about the things that have gone wrong while they have received medical care. Often the conversation will start with them saying, “I’d like to speak with someone about a potential claim for medical negligence”. But what actually is medical malpractice or negligence, and how on earth can we prove it?

Medical negligence (or medical malpractice) is comprised of three distinct parts, all of which have to be present to be able to bring a claim for compensation. Sometimes it helps to think of medical negligence claims like a recipe with three ingredients; it doesn’t matter what order you put the ingredients in, but if you miss one out, the recipe will fail.

1. There must have been a breach of duty – this means that the treatment you have received was negligent (breach);
2. The negligent treatment must have caused you damage that would not have occurred otherwise (causation); and
3. You must have suffered an injury because of that negligence (injury).

When speaking with someone about their potential claim, we will ask them questions about the treatment they had received which they believe led to their injury, to help figure out if all three of those things might be present.

Unfortunately, my opinion (or the opinion of any other personal injury lawyer) on whether someone has a claim or not won’t cut the mustard alone when it comes to obtaining compensation in a potential medical malpractice claim. We need to get evidence from independent experts to support our beliefs.

I’m a curious person by nature, and one of the things I love most about working in medical malpractice is how much detective work can be involved. Part of my role is to help a person who is exploring a potential claim gather the expert evidence they need.

An independent expert is usually someone who has not provided treatment in your case, does not know you and does not know the person who provided the negligent treatment.

They need to be someone who is qualified to speak with authority in the area we need the opinion on. It needs to be apples for apples. So if a general practitioner has provided the substandard treatment, then we need another general practitioner to comment on the standard of the treatment that has been provided. Likewise, if an orthopeadic surgeon is the subject of the negligence claim, we will seek an orthpeadic surgeon for comment, and so on.

There are often three types of independent expert evidence we will need to obtain.

1. The first is an independent opinion that the treatment you received was substandard and could constitute negligence;
2. The second is an opinion that the substandard treatment has caused your injuries; and
3. The third is a medical expert who can certify your ongoing injuries according to the American Medical Association Guides to the Evaluation of Permanent Impairment. Your injuries would need to be certified as greater than 5% of the whole person for a physical injury and greater than 9% of the whole person for a psychiatric injury, to be able to claim medical negligence compensation for pain and suffering.

If we can’t obtain supportive opinions from independent experts that satisfy these areas, then disappointingly, a claim is not likely to be successful.

Medical malpractice claims are claims that are principally concerned with obtaining financial compensation.

People often start a compensation claim wanting to hold someone accountable for what has occurred, however, unfortunately a medical negligence claim will not necessarily achieve that. Rather, the purpose of a claim is to provide the injured person with the financial means to cover their previous expenses, the cost of care they may need in the future and to make day-to-day things a little bit easier.

If we are able to get the evidence required, then we are able to seek compensation. This can include compensation for your pain and suffering, past and future wage loss, the cost of past and future medical treatment and any other costs associated with the injury.

You may also like to read:

• Time limits for medical negligence claims in Victoria
• What is the maximum compensation I can receive for my personal injury claim?
• Informed consent in medical treatment