Medical negligence claims can only be filed when a hospital or other healthcare provider is unable to provide satisfactory medical treatment. Anyone who has experienced a breach of duty by a doctor, hospital or healthcare provider, like a dentist or allied health care can file a medical negligence claim, but there are a lot of things to keep in mind!
In Australia, filing a medical negligence claim is a complicated procedure, and it requires thorough evidence to establish the liability of the healthcare provider. This means that you need proof, documentation and a considerable amount of paperwork is involved. So, let’s break it down and talk about the evidence that you need for a medical negligence claim as per Australian law.
The claim is only valid if the treatment, care or advice results in injury, damage or loss, this is known as ‘causation.’ The worth of the claim is determined by the extent of damage, loss and injury. It is pertinent to note here that medical negligence can occur in the post-treatment care, medical treatment itself or the provision of advice about the treatment.
Medical negligence includes:
• Delay in treatment
• Failure to diagnose
• A surgical error
• Incorrect treatment provision
• Incorrectly prescribed medicine
• Making an incorrect diagnosis
What evidence is needed for a medical claim:
To make a compelling case, you need all the paperwork you can get. All medical records, like specialist records, GP records, hospital records and allied health records need to be submitted as evidence. Documentary evidence is the best way to prove the patient/doctor relationship. Furthermore, evidence about what went wrong and why and the injury suffered from the negligence is also fundamental.
It is important to engage a lawyer early on to ensure that all the relevant documents and paperwork is obtained. The documents, along with the injured patient’s documented record of account of the events that occurred is necessary to obtain an independent expert medical opinion. This will assist in early identification of any gaps in evidence.
Step-by-step guide
For anyone who is filing a medical negligence claim, it’s important to first establish a duty of care. This is generally straightforward and not complicated, because as per the law, doctors, nurses and other medical professionals owe a standard of care to their patients.
From there on, the proof of relationship is needed, and to prove that you need:
• Medical records
• Treatment records
• Appointment booking receipts
Then, we move on to the breach of duty. Once we have established duty of care, we talk about the breach of said duty. This can be done by expert testimony of other medical experts on a comparative analysis, along with the treatment plans, progress notes of the doctor that highlight errors in care and diagnostic reports, which may show misdiagnosis or failure to diagnose.
To prove causation, a direct link between the healthcare provider’s breach and the injury or harm that was suffered as a consequence needs to be shown.
Evidence that will be needed to establish that link is as follows:
• Expert’s opinion to address how the breach of duty resulted in the harm suffered
• Medical reports to show a before and after in the patient’s condition
• Timeline documentation that creates a clear timeline of the events leading up to the harm
Then we move on to demonstrating the damage caused by the negligent medical service. There’s no case without proving that the patient suffered actual damage as a result of the breach of duty. This can be financial loss, psychological harm or physical injury. Furthermore, it can also be a combination of the three.
For proof of harm, you will need:
• Medical bills or invoices for medical treatments
• Disability reports, in case there have been any disabilities or limitations from the injury
• Reports from psychiatrists or psychologists if the patient suffered emotional distress
• Records of income in case of financial loss
• The personal testimony of the patient and the family and/or others impacted
Consistency in evidence
Consistency in evidence is of utmost significance. The evidence of the injured person and the medical records need to be coherent. The best way to achieve consistency is by recording the events of what happened early on, as this guarantees accuracy with the documentary evidence. The most powerful proof is if medical records back up what an injured person state.
Medical negligence claim and Australia.
It is important to know that when it comes to the Australian legal system, many factors must be addressed. In the country, medical negligence claims are subject to a statute of limitations, which requires that a claim should be filled within three years from the injury date, meaning that acting fast is of utmost importance.
Read this also: How are work injury damages calculated?
The burden of proof lies with the plaintiff in these cases, which means that the evidence filed is the most important part of filing a medical negligence claim. In some cases, the defendant may argue that the patient contributed to their own harm through their actions/inactions, so it is important to show that the patient followed all the medical advice.
Conclusion
To sum it all up, medical negligence claims in Australia require a thorough and detailed body of evidence to establish the liability of the healthcare provider. To make a compelling case, an individual must hire a lawyer and get started on the procedure as promptly as they are able to.
By joining medical records, documenting the impact of the injury and so on, a strong case can be built. However, understanding the legal framework, like the statute of limitations and burden of proof is also fundamental for a successful claim.
