This article will discuss medical negligence laws in NSW. The silent aftermath of medical negligence looks like an empty hospital bed and a family left in shock. It’s a hidden crisis within the healthcare system all over the world, particularly in New South Wales.
Medical negligence, also called medical malpractice, happens when a healthcare professional (doctor, nurse, surgeon, technician, etc.) makes a mistake that falls below the accepted standard of care in their field, and this mistake directly causes harm to a patient.
What legal remedy can victims or their families avail of in this situation? In NSW, these are the medical negligence laws that govern medical malpractice cases:
The primary goal of medical negligence laws in NSW is to provide a mechanism for individuals harmed by medical negligence to receive financial compensations. This can cover:
- Medical expenses (current and future)
- Lost income and earning potential
- Pain and suffering
- Loss of quality of life
NSW Medical Negligence Laws: The Health Care Liability Act 2001
This law outlines the main principles around proving medical negligence and sets out how a healthcare professional’s actions are judged against the standard of care. The HCLA aimed to reduce the rising costs of medical indemnity insurance and make compensation for medical negligence cases more sustainable.
Moreover, its goal is to find a balance between ensuring fair compensation for those injured by medical negligence and protecting healthcare workers from excessive litigation. Here are some important provisions under the HCLA:
- Mandatory Professional Indemnity Insurance (Part 3). Requires medical practitioners to hold approved professional indemnity insurance to practice. This ensures that injured patients have a source of compensation.
- Limitations on Damages. The HCLA modifies aspects of the Civil Liabilities Act, specifically regarding damages in medical negligence cases. It places caps on certain types of compensation like:
- Non-economic loss (e.g., pain and suffering).
- Loss of earnings.
- Data, Reporting, and Risk Management (Part 3). Outlines requirements for medical indemnity insurers to collect data, report on trends, and implement risk management programs. This aims to identify patterns and reduce the potential for medical errors.
NSW Medical Negligence Laws: The Civil Liability Act 2002
The Civil Liability Act (CLA) governs how damages (compensation) are awarded in NSW for personal injury cases, including medical negligence. This act places limitations on certain types of damages.
The NSW legislators, in enacting this Act, want to address concerns about rising insurance costs and a perceived ‘compensation culture.’ Moreover, it aims to standardise and clarify the principles of negligence law across various areas, including personal injury caused by medical malpractice.
Key provisions that impact medical negligence cases:
- Section 5B – Duty of Care. Establishes the general principles for when a reasonable person owes a duty of care to another. In medical negligence, the doctor-patient relationship inherently creates a duty of care.
- Section 5C – Breach of Duty. Outlines how the standard of care is determined. For medical professionals and health professionals, this means their care is assessed against what a reasonable and competent professional in the same field would have done.
- Section 5D – Causation. Deals with the “but for” test – whether the injury would have occurred BUT FOR the negligent act. It also addresses the ‘scope of liability’, limiting recovery for remote consequences.
- Section 5O – Special Protections for Professionals. Provides extra safeguards for ‘professionals’ (including doctors) when determining if the standard of care was breached. It states that a medical professional does not breach their duty if their actions are in line with a widely accepted practice by their peers, even if that practice turns out to be flawed.
Note that the Civil Liability Act works in conjunction with the Health Care Liability Act to establish the legal framework for medical negligence in NSW.
By ensuring compensation and holding providers accountable, medical negligence laws help maintain public trust in the healthcare system. Patients need confidence that there are safeguards if errors occur.
Disclaimer: This is a general overview of medical negligence laws in NSW, not legal advice. If you have concerns about a potential medical negligence case, always consult with a qualified lawyer specialising in this field.
NSW Medical Negligence Laws: Elements of a Medical Negligence Claims
To prove a medical negligence case, the following elements generally need to be established:
- Duty of Care. You must show there was a doctor-patient relationship, creating an obligation for the healthcare provider to act with reasonable care.
- Breach of Duty. You must demonstrate the health professional or medical practitioner deviated from the accepted standard of care (what a reasonably competent medical professional in their position would have done).
- Causation. You must prove the breach of duty was the direct cause of your injury or harm. In other words, the injury wouldn’t have happened without the medical error.
- Damages. You must have suffered some type of loss due to the injury, such as medical bills, pain and suffering, lost wages, or reduced quality of life.
What To Do If You Suspect Medical Negligence?
Here’s a breakdown of what to do if you suspect medical negligence in NSW:
1: Prioritise Your Health. Seek additional medical attention. If the suspected negligence has caused ongoing harm or complications, see a new doctor or healthcare provider to address those issues. Your health is paramount.
2: Gather Information
- Collect your records. Request copies of all medical records related to the incident from the original healthcare providers. This includes consultations, tests, surgical records, etc.
- Document your experiences. Start a journal detailing what happened, dates, symptoms, conversations you had, how the negligence has impacted your life, and any witnesses to the events.
- Compile medical bills. Gather all bills related to the medical treatment where you suspect the error occurred, as well as any follow-up care.
3: Consider Your Options
- Health Care Complaints Commission (HCCC). Contact the HCCC. They can investigate your complaint and may be able to help resolve the matter without the need for formal legal action.
- Consult a specialist lawyer. Seek a lawyer specialising in medical negligence for a professional assessment of your potential case. They’ll help you understand your options, the strength of your medical negligence claim, and the legal time limits involved.
4: Work with Your Lawyer (if you choose to retain one)
- Building your case. Your lawyer will meticulously guide you through collecting more evidence, obtaining expert medical opinions, and preparing to meet the legal requirements of a medical negligence case.
- Pre-court process. NSW has protocols requiring an attempt to resolve the matter out of court. Your lawyer will handle the communication and negotiations with the healthcare provider.
- Formal legal action. Ifa settlement isn’t reached, your lawyer will initiate formal court proceedings, which can be a lengthy and complex process.
Need to Prove Medical Negligence in NSW?
If you suspect medical negligence has caused you harm, don’t hesitate to seek legal advice. Our team of competent lawyers at JB Solicitors can help you explore your options and determine the best course of action for such a claim about medical negligence. Our lawyers can also help you understand more about medical negligence laws in NSW.
Contact us today and let’s discuss your case.