Medical negligence lawyers in Queensland

What counts as medical negligence

Most people who contact a lawyer about medical treatment are not sure whether they have a claim. Something went wrong, recovery has been harder than expected, and nobody has given a clear explanation.

That uncertainty is reasonable. Surgery carries risk. Diagnosis involves judgement. Some conditions are genuinely hard to identify. A complication, on its own, does not mean anyone was at fault.

A medical negligence claim in Queensland generally needs to establish three things:

• A duty of care. This exists in almost every treating relationship, whether with a GP, specialist, hospital, dentist, nurse, midwife or other health practitioner.
• A breach of the standard of care. The care fell below what the law expects of a competent practitioner in that field.
• Causation. The breach caused harm that would otherwise have been avoided.

Each is a separate hurdle, and each has to be proved with evidence. The claim is governed by the Civil Liability Act 2003 (Qld), the Limitation of Actions Act 1974 (Qld) and Queensland’s pre-court procedures, which contain steps specific to medical claims.

The standard of care in Queensland

Section 22 of the Civil Liability Act sets the test for professionals, including doctors. A practitioner generally does not breach the standard of care if they acted in a way that, at the time, was widely accepted by peer professional opinion, from a significant number of respected practitioners in the field, as competent professional practice.

In plain terms, the question is not whether another doctor would have done something different. It is whether a respectable body of practitioners in that field would have considered what was done to be competent. Several points follow from that.

• Peer opinion does not need to be unanimous. Differing views can each be accepted, and a practitioner who followed one of them is generally protected.
• Irrational opinion does not count. A court can reject peer opinion it considers irrational, or contrary to written law.
• It is judged at the time. The standard is what was accepted practice when the care was given, not what is known now.
• Warnings are different. The peer opinion test does not apply to the duty to warn of risks, which is assessed separately.

Informed consent and the duty to warn

Before treatment, a doctor generally has a duty to warn you of material risks. A risk is material if a reasonable person in your position would want to know about it, or if the doctor knew, or should have known, that you in particular would want to know.

A consent claim needs more than proof that a warning was not given. It generally requires showing that, properly warned, you would have made a different decision, such as declining the procedure or choosing another option, and that the harm would then have been avoided. There is generally no duty to warn of an obvious risk.

Proving the negligence caused the harm

Causation is where many medical negligence claims are decided. It is not enough to show that care was substandard. You have to show that the substandard care caused harm you would not otherwise have suffered.

Under Queensland law, the negligence generally has to be a necessary condition of the harm. The comparison is between what actually happened and what would probably have happened with proper care. That comparison can be difficult where you were already unwell. A doctor may have missed something, yet the underlying condition might have run the same course regardless.

Australian law generally does not compensate the loss of a chance of a better outcome, on its own. If proper care would only have given you a less than even chance of avoiding the harm, a claim will usually fail, even where the care fell short. This is one reason the independent specialist evidence on causation matters as much as the evidence on the standard of care.

Failure to diagnose and delayed diagnosis

Claims about diagnosis are among the most common medical negligence claims. They can involve:

• a condition missed altogether, including cancers, fractures, infections, sepsis, stroke and cardiac events
• a test result that was not followed up, or a referral that was not made
• imaging or pathology that was misread
• symptoms attributed to something minor when further investigation was warranted
• a failure to communicate results between hospital departments, or between a hospital and your GP

Compensation in a delayed diagnosis claim is not for the condition itself. It is for the difference the delay made. If earlier diagnosis would have allowed less invasive treatment, a better prognosis or a shorter recovery, that difference is what the claim is about.

Surgical errors and other treatment errors

Surgical error claims arise where an operation or procedure was performed below the accepted standard, or where care before or after it fell short. Examples include wrong-site surgery, retained instruments or swabs, avoidable damage to nerves, blood vessels or organs, and post-operative monitoring that allowed a complication such as infection or bleeding to go unnoticed.

Many known surgical complications happen even with careful surgery, so these claims turn closely on the detail of the operation notes and the independent specialist’s view.

Other areas where claims arise include:

• anaesthetic errors
• medication and prescribing errors, including wrong doses and known interactions
• hospital care, such as falls, pressure areas and failures in observation
• mental health care, including discharge decisions
• cosmetic, dental and allied health procedures

Birth-related claims

Birth-related claims can involve the care of the mother, the baby, or both. Common issues include delayed response to foetal distress, delay in performing a caesarean, poorly managed complications during delivery, and failures in monitoring after birth.

A few things set these claims apart.

• There may be more than one claim. The child and the mother may each have their own claim, and parents may have claims of their own in some circumstances.
• The full picture takes years. A child’s long-term needs often cannot be understood until they are older, so these claims are usually valued later than others.
• Future care dominates. Where a child needs lifelong care and support, that cost is usually the largest part of the claim.
• Time limits work differently for children. See the time limits section below.

Public and private hospitals

Who the claim is against depends on where and how you were treated.

In a private hospital, it is common for the surgeon, the anaesthetist and the hospital to each be separate parties with separate insurers. Identifying each of them early matters, because each needs to be given notice under the pre-court procedures.

In every setting, compensation is normally paid by an insurer or by the health service, not from the practitioner’s own pocket.

Health Ombudsman complaint or compensation claim

The Office of the Health Ombudsman is Queensland’s independent health complaints body. It can assess and investigate complaints about practitioners and health services, help resolve them, and take action about a practitioner’s conduct or refer matters to the relevant professional board.

A complaint and a compensation claim do different jobs.

• A complaint focuses on the practitioner’s conduct and on preventing the same thing happening again. It generally does not result in compensation for you.
• A compensation claim is about the harm to you: your health, your income, your care needs and your costs.

You can pursue either, both or neither. One does not prevent the other. Some people make a complaint first because an explanation matters most to them. Some make a complaint alongside a claim. It is sensible to get advice before lodging a detailed complaint, because what you write may later be read alongside your claim.

Medical records and expert evidence

Medical negligence claims are built on two foundations.

The complete clinical record. You are generally entitled to access your own health records, from public hospitals through the Queensland Government’s access processes and from private practitioners under privacy law. The first formal step in the pre-court procedures, the initial notice, generally includes a request for the records. Obtaining a complete set, including nursing notes, observation charts, imaging and pathology, is usually the first real piece of work.

Independent specialist evidence. An independent practitioner in the relevant specialty reviews the records and reports on the standard of care and on causation. For claims against doctors, Queensland’s pre-court procedures generally require a supporting report of this kind before the formal notice of claim is given.

Specialist reports are a genuine and significant cost, and they are paid as a disbursement, separately from legal fees. They are also the honest test of a claim. If the opinion is that the care met the standard, you have a clear answer early rather than a costly one late.

Time limits for a medical negligence claim in Queensland

Time limits in Queensland medical claims are more complicated than in most claim types, so treat the following as a general guide only. These are the Queensland deadlines; other states differ.

A late notice can sometimes be excused with a reasonable explanation, but that adds cost and argument. Extensions of the limitation period are not automatic and depend on the facts.

Because records and specialist evidence take time, early advice is more valuable in medical claims than in most others. Our article on time limits for compensation claims explains how the periods interact.

Medical negligence compensation: what it can cover

Compensation is assessed under the Civil Liability Act. Depending on the circumstances, it can take account of:

• General damages for pain, suffering and loss of enjoyment of life, assessed against a regulated scale that gives each condition a numerical value
• The cost of corrective or ongoing treatment, past and future
• Past and future loss of earnings, and the superannuation on them, with future earnings generally capped at a multiple of average weekly earnings
• Paid and unpaid care, which is often the largest component where someone needs long-term help, with unpaid care generally claimable only above a set threshold of hours
• Out-of-pocket expenses, such as travel, equipment and home modifications

How much a claim is worth depends on the difference the negligence made to your health, your work and your care needs. That cannot be judged until the records have been reviewed and your medical position is understood. Any figure given before then is a guess.

Where treatment for a work-related condition has gone wrong, a workers’ compensation claim may also be relevant. Where the result is that you can no longer work, a TPD claim through superannuation may be available as well. If the harm happened in a hospital through a hazard rather than treatment, such as a fall on a wet floor, it may be closer to a public liability claim.

How the firm runs your claim

Many people bring these claims because they want an honest account of what happened, and some assurance that it will not happen to someone else. Compensation matters, but it is often not the first reason. Saying so early helps shape how the claim is run.

At Rogalski Lawyers, the solicitor you first speak with runs your matter from start to finish, and you can reach them directly by phone or email. The firm keeps a deliberately low number of clients per solicitor.

Claims are run on a no win, no fee* basis, and the firm does not use litigation funders. Legal costs can often be claimed in addition to compensation recovered, and interest is only charged on legal costs that remain unpaid. Disbursements, including specialist reports and records fees, are separate, and they are explained to you in writing before any of them are incurred.

To talk through what happened, you can request a free case review or call 1300 848 424. The first conversation is confidential and commits you to nothing.