Medical Negligence - elringtons lawyers

Surgical Errors

Posted on23, August 201827, September 2018AuthorTom Maling

Surgical errors include cutting of arteries or nerves, performing the wrong procedures, improperly inserting a medical device, leaving instruments in bodies or even not providing sufficient or any analgesia. Understandably the consequences can be severe and devastating for a patient and their family.

As surgeries pose serious risks, even when performed competently, working out whether a surgical error is due to negligence is often very complicated. Is the error an inherent risk of the surgery or is it because a doctor or nurse did something wrong? Surgical procedures are often completed by teams of surgeons, anesthetists and highly trained nurses, and determining who is exactly at fault and what precisely went wrong is a complicated task. At elringtons, we specialise in medical negligence claims and are experts in health and medical law.

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Surgical error or just a risk of surgery?

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 states a doctor or hospital is not at fault. It is just an unfortunate risk of a surgery that has occurred.

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 that you may have a medical negligence claim.

Examples of surgical errors

Can you sue a doctor for a surgical error?

To help you consider whether you have received negligent treatment, here’s a few things to ask yourself:

Have I got what I expected from the treatment?
What did my doctor tell me to expect would happen?
Has the treatment caused me further injury?
What has the doctor done afterwards?

These are the sorts of questions a lawyer will ask you.

Point 3 above is really important. In medical negligence claims you must show that the doctor caused you further injury. This is called causation. You will not be successful in a claim if you only show that the doctor was negligent, but did not actually cause you any further injury.

What compensation for my losses can I receive?

Battery Claims

Why should I talk to elringtons about my medical negligence claim?

Medical negligence claims are not just another type of personal injury claim. Just as you would see a specialist for complex health conditions, you should see a specialist for a medical negligence claim. The best way to quickly find out whether you may have a claim is to talk to an expert. We have expertise in health and medical law and for Canberra, Queanbeyan and South East NSW, Matthew Bridger and Thomas Maling are the specialists in medical negligence claims.

We have:

Inside knowledge about the health industry (one of our lawyers was a Registered Nurse);
University acquired knowledge about injuries and disease; and
An understanding of how healthcare should be provided.

To see more about our expertise on medical negligence check out our health and medical law blog. No other firm in Canberra or Queanbeyan matches our expertise in this area.

For more information see our Medical Negligence page or to make an appointment in either our Canberra or Queanbeyan office please do not hesitate to contact Matthew Bridger or Thomas Maling:

p: +61 2 6206 1300 | e: Info@elringtons.com.au

Hospital Complications and Medical Negligence

Posted on21, January 201826, July 2018AuthorTom Maling

By Tom Maling

According to new research from the Grattan Institute, almost 11% of all people hospitalised have a complication while in hospital. This equated to approximately 74,000 people in January 2015, a staggering number. While not all complications (thankfully) will have lasting consequences for patients, in our experience some do.

A medical negligence claim can help pay for the cost of picking up the pieces after a hospital complication, such as paying for further treatment, covering loss of wages and compensating your pain and suffering.

Hospital Complications

The Australian Commission on Safety and Quality in Health Care has identified 16 categories of hospital complication. These include:

Falls;
Surgical complications;
Medication errors; and
Respiratory, cardiac, renal and gastrointestinal complications (recognising and responding to deteriorating patients).

According to the Commission, the 16 complications are those which a hospital, with appropriate strategies, can reduce the risk of occurring. These types of complications therefore may amount to negligence.

Hospital/Medical Negligence

A doctor, nurse, pharmacist or physiotherapy may provide treatment negligently. Negligence refers to something that a health practitioner did or did not do, that another reasonable health practitioner would or would not do.

Having regard to the list of hospital complications above, a hospital and its staff may be negligent where they fail to implement strategies aimed at reducing the risk of known harm to a patient. This may include:

Not assessing a patient’s falls risk or implementing strategies to prevent a fall;
Not performing surgery competently;
Administering the wrong medication or the incorrect dose; or
Failing to escalate care when a patient’s condition is deteriorating.

For more information on medical negligence, see our article What is Medical Negligence?

Preventing Hospital Complications

Patients arrive at hospitals unwell and vulnerable. The primary responsibility to prevent hospital complications lies with hospitals.

However, patients may also help to reduce their risk of having a hospital complication. In 2018 the Harvard University recommended 7 questions to ask a doctor when they prescribe a new medication. These are:

Why do I need this medication, and how does it work?
What are the risks and benefits?
Are there side effects?
How do I take this medication?
Do I need to avoid anything while taking this new medication?
How soon will the medication work, and how long will I be taking it?
When will you review how well this is working for me?

These are good questions for patients to ask doctors and other health practitioners who administer treatment in hospital. Be an informed patient. It is your body and you have a right to ask about your treatment. In doing so, you may prevent a hospital complication, like being administered the wrong medication, from happening.

elringtons health and medical law

elringtons has represented people injured by hospital complications in medical negligence claims for many years. We are different from other law firms because we have:

Inside knowledge about the health industry;
University acquired knowledge about injuries and disease;
An understanding of how healthcare should be provided; and
A proud history of success for clients in the Canberra, Queanbeyan and South East NSW regions.

We understand the impact of negligence on our clients. We use this knowledge to build a rapport with you, to work with you, and to help you obtain compensation for your injuries.

Matt Bridger and Tom Maling represent clients in medical negligence claims. We act for Canberra and the surrounding regions including NSW residents from Queanbeyan, Batemans Bay, Goulburn, Yass, Cooma, Bega and Merimbula areas, in both ACT and NSW claims.

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 also represents our clients on all medical negligence and treatment dispute claims. Our experience means we have insight into health issues, health service delivery, and most importantly our client’s experiences.

Please contact Tom Maling for further information:

p: +61 2 6206 1300 | e: TWM@elringtons.com.au

Further elringtons articles

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elringtons health law update – adverse effects from Implanon and Mirena

Posted on12, December 20174, February 2018AuthorTom Maling

By Tom Maling

A 12 December 2017 ABC investigation report has exposed that Australian women are experiencing serious side effects from the long-acting contraceptive devices Implanon and Mirena.

The ABC report detailed that Australian women have experienced chronic pain, pelvic inflammatory disease, scarring, unintended pregnancies and depression following insertion of these devices.

The report is the latest to put a spotlight on a medical device for women that has been found to cause serious side effects. Another well-known example is the pelvic mesh device. Another, perhaps lesser known, is the Essure device. Earlier in 2017 elringtons lawyers wrote about the side effects that some women experienced after insertion of the Essure permanent contraception implant device (see elringtons health law update – hazard alert for Essure contraception implant device).

It goes without saying, if you think you have experienced a side effect from an Implanon or Mirena advice, you should seek medical help immediately. For those who have experienced additional costs as a result of a side effect such payment for extra treatment, time off work or even pain and suffering, compensation may be available. A medical negligence claim can help put you back to where you would have been without the side effect (as much as money can).

We have put together a range of articles to help health consumers understand their rights and remedies following negligent treatment. We hope the following help you understand more about your rights:

Elringtons Medical Negligence homepage
What is medical negligence?
Medications and Medical Negligence
Consenting to Health and Medical Treatment

Please feel free to contact Tom Maling for further information or to discuss your circumstances.

Further information:

p: +61 2 6206 1300 | e: Info@elringtons.com.au

elringtons health law update – dentist breaches nursing homes residents’ human rights

Posted on2, August 201710, May 2018AuthorTom Maling

By Tom Maling

The NSW Civil and Administrative Tribunal has found that a dentist has breached nursing homes residents’ human rights by providing dental treatment to without their consent.

In 2011, a NSW dentist attended 6 nursing homes and provided dental treatment to 69 residents. Of these 69 residents, only 17 were able to consent to the treatment. It is a crime to provide medical treatment when a person has not consented to it, and patients/victims will be entitled to compensation for any treatment provided to them without their consent.

On 1 August 2017, the Tribunal made orders prohibiting the dentist from practicing for at least 2 years. In its judgement, the Tribunal also said:

It is hard to imagine a more vulnerable group of patients. Those providing services to our elderly citizens have a duty to respect their human rights and dignity. Those persons lacking in cognitive capacity are deserving of special care from professionals involved in their treatment. So much is clear from Australia’s ratification of the United Nations Convention of the Rights of Persons with Disabilities, particularly Article 25 of that Convention which deals with the provision of health services. That respect of human rights and special care was completely absent in the practitioner’s treatment of the 69 patients.

What about the nursing homes and nurses?

While no nursing homes or nurses were sanctioned in this matter, the Tribunal did state:

… it is indeed unfortunate that the facilities also did not take greater care to ensure that informed consents had been obtained from all competent patients, or for the majority of them who were incapable of giving informed consent, the person responsible or guardian, before any treatment occurred ….

The law plays an essential role in protecting the human rights, dignity and health and wellbeing of people living in nursing homes. Nursing home residents have rights protected by the Aged Care Act 1997. Also, negligence and assault/battery claims provide compensation for injuries, as well as promote higher standards for future treatment.

Nursing homes and registered nurses have duties of care to nursing home residents. In this matter, we query how a reasonable nursing home, or a reasonable registered nurse, could permit a dentist to enter a nursing home and provide treatment to vulnerable people who lack the capacity to consent to the treatment. It is likely that a nursing home has a duty to residents who do not have capacity to consent to treatment, to ensure they are not given treatment which they have not consented to.

The law in this area is developing. We specialise in health law issues affecting nursing home residents such as negligent or unauthorised treatment, neglect, complaints about health practitioners and complaints about nursing homes.

Please feel free to contact Thomas Maling if you have concerns about the care and treatment a nursing home is providing.

Further reading

elringtons health law update – evidence growing on the serious side effects of a common reflux drug

Posted on19, July 201715, November 2017AuthorTom Maling

Update by Tom Maling

New research shows that common reflux drugs can increase your risk of premature death.

If you take drugs such as Nexium or Somac or Pariet, then you are taking a proton-pump inhibitor (PPI). PPIs are medications used to treat reflux. A whopping 19 million prescriptions were written in Australia in 2012-2013. While these medications are widely used, there is growing evidence that they are linked with increased risks of kidney disease, dementia and bone fractures in people with osteoporosis.

Now a US study has observed a 25% increased risk of death among people taking PPIs. The longer a PPI was taken, the greater the risk.

The prescribing practices for PPIs, like many other medications, is under frequent review. NPS MedicineWise, an Australian not-for-profit aimed at promoting quality use of medications, has recommended review of long term PPI use.

If you’re taking a PPI, and have been for a long time, you should make sure you have discussed your long-term use with your doctor. Medications are generally safe, however when things go wrong, they can have catastrophic consequences. Limit the possibility of this happening to you by keeping yourself informed about what medications you take and the risks and benefits.

Further information: