Medical Negligence

1. A doctor or health professional does something wrong;
2. It is something another reasonable doctor or health professional, in the same position, would not have done; and
3. This causes you an extra injury over what you had first had treatment for.

It is not just doctors who may be sued for negligence. Dentists, nurses, optometrists, physiotherapists, psychologists and any other health professional may be sued for negligent treatment which causes you an injury.

For a more detailed explanation, please see our ‘What is medical negligence?’ article.

A hospital will be liable for negligence by doctors, nurses, pharmacists and other staff who work for or at the hospital. A hospital may be negligent when staff fail to implement strategies aimed at reducing a risk of harm to a patient. This may include:

• Not performing surgery competently;
• Administering the wrong medication or the incorrect dose;
• Birthing complications not adequately managed; or
• Failing to escalate care when a patient’s condition is deteriorating.

We have acted for many clients in cases involving negligence by hospital staff, including:

• Stretching a nerve during neck surgery.
• Cutting an artery during abdominal surgery.
• Failing to repair ligaments during knee surgery which were meant to be repaired.
• Performing a surgery that our client had not consented to.
• Failing to diagnose a condition was being caused by a side-effect of a drug being given by the hospital.
• Administering a medication which our client should not have received at all.
• Failing to administering the correct dose of anaesthetic during insertion of pacemaker.
• Physically restraining our client and causing serious hip and pelvic fractures.

For more information on hospital negligence see our pages:

• Hospital Complications and Medical Negligence
• Surgical errors

Before you have surgery you should be told of the risks of the surgery. Depending on what the precise procedure is, common risks are bleeding, pain and damage to nerves. By agreeing to have the surgery, the law presumes that you have accepted these risks. They are called inherent risks. If an inherent risk of the procedure happens, the law will generally say that a doctor or hospital is not at fault.

A surgical error on the other hand is something which is not an inherent risk of the surgery. It is something that should not occur if the surgeon performed the surgery competently. It is when a surgical error takes place through incompetence or without proper skill, that you may have a medical negligence claim.

We have acted for clients in surgical error claims which have included:

• Stretching a nerve during surgery.
• Incorrectly assessing the position of a cyst during neck surgery and damaging nerves.
• Cutting an artery during abdominal surgery.
• Failing to administering the correct dose of anaesthetic during insertion of a pacemaker.
• Failing to recognise a serious complication during surgery and doing nothing to treat the complication.

Claims relating to pregnancy and birth usually fall into 2 categories:

1. A claim by the child if it is born with injuries that arise as a result of a failure by others looking after the mother during the pregnancy and birth.
2. A claim by the mother as a maternal injury claim during or after the birth if there has been mismanagement.

We have handled cases relating to pregnancy and birth claims which have included:

• Failing to administer early antibiotic cover leading to infection within the birth canal and uterus and leading to premature birth.
• Improperly diagnosing incontinence in an expectant mother when in fact her waters had broken, leading to premature birth and damage to the baby.
• Failing to recognise and treat rapidly increasing blood pressure in the mother causing pre-eclampsia and premature birth.
• Failing to administer the correct type and dose of medication giving rise to injury to the unborn baby in-utero.
• Failing to identify that of part of the placenta had been left in the uterus after the birth of the baby leading to sepsis and a need for surgery.
• Failing to properly repair a third degree tear following episiotomy needed during delivery leading to massive scarring, constant groin pain and affect on activities of daily living.

For more information see our pregnancy and birth claims page.

GP’s are the first port of call for many of us when we are unwell. They have a complex job. Unfortunately, there are many cases of negligence against GPs involving failure to diagnose conditions, failure to refer patients to specialists and medication errors.

We have acted for clients against GPs in cases involving:

• Improper advice and management of wrist fracture, including failing to treat swelling.
• Long-term prescription of an antimigraine medication which was only meant to be prescribed for short-term relief.
• Under-dosing a medication during pregnancy, which meant the intended effect of the medication did not occur.
• Prescribing 2 medications which were not meant to be taken together.
• Failing to refer our client to an obstetrician in an at-risk pregnancy.

A medical misdiagnosis occurs when a doctor fails to diagnose the correct condition. This may occur because the doctor has failed to competently conduct an assessment or misinterprets the results. This failure may then lead to incorrect treatment being prescribed or no treatment at all.

Examples of cases we have been involved in where there has been a misdiagnoses include:

• Incorrectly interpreting ultrasound imaging and misdiagnosing breast cancer (plus failing to perform a biopsy of the breast lump).
• Misdiagnosing symptoms of a stroke before it became catastrophic.
• Misdiagnosing pre-eclampsia which caused our client to have a stroke.
• Misdiagnosing the position of a cyst and causing nerve injury during a surgery.

For more information see our page Medical Misdiagnoses.

A doctor’s duty of care covers choosing the right medication and dose, advising patients on the treatment options, warning of risks and monitoring for the intended impact of the medication and side-effects.

We have acted for clients in cases involving:

• Long-term prescription of an anti-migraine medication which was only meant to be prescribed for short-term relief.
• Under-dosing a medication during pregnancy, which meant the intended effect of the medication did not occur.
• Overdosing of a medication causing loss of consciousness.
• Prescribing 2 medications which were not meant to be taken together.

For more information see our page Medications and Medical Negligence.

Residents of aged care facilities/nursing homes have the same legal protections as everyone else! We have long been championing issues relating to the rights of residents and sent a detailed submission to the Royal Commission into Aged Care Quality and Safety in 2019.

For more information on aged care claims see our page Claims against aged care facilities – negligence, battery and contract.

The types of compensation that may be awarded are:

1. Previous lost wages for your time off work;
2. If your injuries will affect your ability to work in the future, then your future lost wages;
3. The cost of treatment, medications, disability aids and pain relief in the past and future;
4. Care and assistance provided to you by family and friends, or paid for;
5. Pain and suffering; and
6. Loss of enjoyment of life.

Here are a few examples from us:

• $12 million for a client who was negligently prescribed a medication by a GP, Neurologist and hospital and which unfortunately caused catastrophic injuries.
• $780,000 for a client who had a dental extraction negligently performed, causing perforation of a sinus cavity.
• $450,000 for a client who suffered nerve injury during surgery.
• $65,000 for a client given inadequate anaesthetic during a procedure.

Claims will be much bigger when injuries are more severe. However, even comparatively minor injuries can see very large claims when a person cannot work for a period of time and there is an ongoing need for treatment.

IWe provide free initial consultations and tailored solutions to legal fees. This includes no charge up front for services, staged or progressive payments or payment at the end of the matter. We are happy to provide more details on fees, however as each case is different, we provide estimates directly to you so that it is relevant to your individual claim.

We offer no win/no fee arrangements on a wide range of matters. You will have to pay for things like expert evidence and court fees, but will cost you nothing to speak to our health law team about what has happened to you.

Some firms charge what’s called an ‘uplift fee’, which is a percentage increase on the fees charged at the end of your matter (sometimes 20%). We don’t.

In our experience, the costs of doing nothing, long term, outweigh your legal costs. Further, if you are successful, the general rule is that the other side will pay the majority of your legal costs.

Matt Bridger and Tom Maling lead our health and medical law team and are assisted by Cecilia Pascoe and Gabby Bridger. Our staff mix enable us to ensure you work with someone you are comfortable with.

Matt is an Accredited Specialist in Personal Injury Law and has over 25 years of experience representing people in medical negligence matters, including small claims right up to multimillion dollar catastrophic injury claims. He has great medical knowledge across a whole range of areas and has conducted cases in general surgical, birth and obstetrics, dental, orthopaedics, pharmacological and cardiology negligence.

Tom completed training as a Registered Nurse and has experience in hospitals and nursing homes. He has health law expertise, running medical negligence claims involving surgery (including dental), medication errors, physical restraint in mental health, misdiagnoses and pregnancy mismanagement. Tom also advises on aged care negligence, abuse and civil claims. He has drafted extensive submissions to the ACT Government on euthanasia laws, as well as to the Aged Care Royal Commission on use of physical and chemical restraints.

Cecilia has worked on a range of medical negligence matters, in particular in relation to surgical errors. She applies knowledge and experience honed over the course of her law degree, where she excelled in health law, completing her Honours thesis on the subject of mental fitness to plead in the ACT. In 2015, she was awarded the ANZAPPL Dux prize for achieving the highest mark in ANU law course ‘Law and Psychology. Cecilia also has experience in ACAT hearings at the Adult Mental Health Unit at The Canberra Hospital.

Gabby has worked on a range of medical negligence cases including those involving orthopaedics, surgical errors, hand surgery, medical misdiagnosis and female health. She has broad medical knowledge of medical treatment and surgery, gained from her research and experience in other personal injury matters. Gabby’s knowledge attained in her original degree, Bachelor of Science in Psychology, assists with her understanding of psychological injuries and impacts, along with her understanding of physical health.

We have a proud history of success for clients in the Canberra, Queanbeyan, Bega, Cooma, Batemans Bay, Merimbula and other South-Eastern NSW areas.

Medical negligence is a special area of law. Just as you would see a specialist for complex health conditions, you should see a specialist for a medical negligence claim. We are not a personal injury firm which does a bit of medical negligence. We specialise in health and medical law – it’s our focus and passion (just look at all our articles and information on medical negligence).

Cases we have run

We have acted for clients in matters such as:

• Quadriplegia caused by negligent prescription and administration of an anti-migraine drug over many years.
• Complex hip fractures caused by illegal restraint in a mental health unit.
• Delayed diagnosis of appendicitis in an emergency department leading to perforation.
• Misdiagnosis of breast cancer due to incorrect reading of imaging and failure to perform a biopsy.
• Permanent finger contractures due to negligent fracture and swelling management by a hospital and GP.
• Permanent nerve injury during neck surgery.
• Perforation of sinus cavity during tooth extraction.
• Failure to administer sufficient anaesthetic during cardiac pacemaker surgery.
• Failure to recognise signs of pre-eclampsia.

In June 2018, the ACT Legislative Assembly heard evidence from the ACT Government’s insurer that over the next few years, medical negligence claims were expected to rise from 89 to 109. This is only for ACT Health claims, and so does not include claims against private hospitals.

This equates to almost 2 per week, meaning there are many people in our region who have been impacted by negligent treatment.

• Elringtons secures $12 million settlement for client
• Medications and Medical Negligence
• Hospital Complications and Negligence
• What is medical negligence?
• Epilepsy and Bipolar Disorder medications linked to birth defects
• Epilepsy and Bipolar Medications may have effected 20000 UK Children
• Consenting to health and medical treatment
• Beware of the consent form
• Hazard alert for Essure contraception implant device
• Serious risks from coronary artery stent
• Evidence growing on the serious side effects of a common reflux drug
• Faulty aortic valve replacement devices
• Adverse effects from Implanon and Mirena
• Hazard alert for Essure contraception implant device
• TGA warnings on sleeping tablet Belsomra
• Medical Negligence Lawyers for South East NSW
• What Duty of Care does a Nursing Home Have?
• Psychiatric side effects of common asthma medication
• HIV medication linked to serious birth defects
• Surgical errors
• Medical Misdiagnoses
• Pregnancy and birth claims