In Australia, loss of chance medical negligence cases involve claims where a medical practitioner’s actions or lack thereof are said to have deprived the patient of a better outcome. This idea comes into play when a healthcare provider’s conduct does not cause immediate harm but instead leads to a worse prognosis or a higher risk of complications, affecting the patient’s chances of recovery or improvement.
For example, accidents and complications can occur during anaesthesia and perioperative care, sometimes resulting in patient injury. When these incidents arise from a failure in the anaesthetist’s duty of care, the concept of loss of a chance for a better outcome may be relevant.
Can you make a loss of chance negligence medical claim in Australia?
Yes, you can indeed make a loss of chance negligence medical claim in Australia, but the process can be quite complex and is influenced by specific circumstances.
A loss of chance claim usually occurs when a medical professional’s negligence diminishes a patient’s likelihood of achieving a better outcome, even if the patient cannot definitively prove that they would have had a better result if the negligence had not taken place. In these situations, the patient may seek compensation for the “lost chance” of a more favourable outcome, rather than for a guaranteed result.
Here are some key points related to loss of chance claims in medical negligence in Australia:
- Duty of Care: The healthcare provider must owe a duty of care to the patient.
- Breach of Duty: There must be a breach of that duty, meaning the healthcare provider acted negligently.
- Causation: The patient needs to prove that the negligence directly caused a loss of chance, even if it’s not certain the outcome would have been different without the negligence.
- Quantification of Loss: The chance lost must be quantifiable in terms of percentages. For example, if a patient had a 50 per cent chance of recovery and negligence reduced it to 30 per cent, the lost chance can be calculated as the 20 per cent chance they no longer had.
Australia’s approach to the loss of chance in medical negligence is shaped by wider public policy considerations. Courts frequently consider the societal effects of these claims on the healthcare system, striving to avoid overwhelming providers with lawsuits while still safeguarding patient rights. This balance embodies the principle of “proportional liability,” where damages awarded correspond proportionally to the likelihood of a better outcome, rather than the complete outcome itself.
How are damages calculated in such claims?
Calculating damages for loss of chance involves assessing how much the opportunity for a better outcome was diminished due to medical negligence. Courts evaluate the patient’s health status had the negligence not occurred and compare it to the actual outcomes. The difference in probabilities helps determine a proportional amount for damages. For instance, if a plaintiff lost a 30 per cent chance of recovery, the damages awarded could reflect 30 per cent of the total damages that would have been granted in a successful direct negligence case.
It’s also important to recognise that courts may adjust this percentage based on various factors, such as the patient’s pre-existing health conditions, age, and the medical treatments available at the time of the incident. This complexity often leads to contentious calculations of damages in loss of chance cases.
In Australia, the compensation for a loss of chance medical negligence claim can vary widely, as it depends on the likelihood of a better outcome and the degree of harm caused by the lost opportunity. Damages are usually awarded in proportion to the lost chance rather than as a full amount. For example, if a court determines that there is a 25% chance of avoiding a serious condition, the plaintiff may receive 25% of the total potential compensation.
So, if the full damages would have been AUD 200,000, the plaintiff could be awarded AUD 50,000. Compensation may cover economic losses (like lost income and medical expenses), non-economic losses (such as pain and suffering), and, in some instances, future care costs. Additionally, Australian law imposes caps on non-economic damages in medical negligence cases, with the maximum amounts differing by state; for instance, in New South Wales, the cap in 2023 was approximately AUD 686,500. Due to the complex calculations involved, seeking legal guidance is crucial.
What should patients do?
For patients thinking about pursuing a loss of chance claim, it’s crucial to gather thorough medical records and seek advice from experienced lawyers as soon as possible. Proper documentation and solid legal support can enhance the likelihood of a favourable outcome, enabling claimants to build a stronger case that satisfies the stringent evidentiary requirements set by Australian courts.
Read this also: List of Compensation Payouts and How they are Calculated?
United Legal Canberra is here to assist you with your workers’ compensation claim. For more information, call us at (02) 9161 684283 or email us at admin@unitedlegal.com.au. Scheduling an appointment takes just a few minutes.
