Last updated 1 February 2023
Unlike other areas of accident and injury law, a medical negligence claim requires a claimant to provide significant and potentially costly evidence early in the claims process. Claimants are encouraged to seek expert legal advice about the application of this information to their specific circumstances.
Was the treatment negligent?
Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. The general principles of negligence are covered in the Queensland Law Handbook chapter ‘Accidents and Injury’. Health professionals have a duty to take reasonable care for the safety of their patients and must provide an appropriate level of care throughout the treatment.
Sometimes medical treatment does not have the desired outcome and can, unfortunately, make a condition worse. It may be the case that a risk that the patient consented to materialises or a complication arises during the treatment that was handled appropriately but nevertheless led to a negative outcome. There are many examples of when a patient may be unhappy with the treatment they received, however, that does not necessarily mean the treatment was negligent.
If a person wishes to complain about their treatment, negligent or not, a complaint can be lodged with the Office of the Health Ombudsman (OHO). The OHO will investigate the circumstances of your treatment and investigate further steps, if necessary.
How to make a claim for damages
The process for starting a medical negligence claim against a doctor is found at s 9A Personal Injuries Proceedings Act 2002 (Qld) (Personal Injuries Proceedings Act). If the incident did not involve a doctor, s 9A does not apply.
A claim against a doctor is commenced by a claimant giving an initial notice requiring the doctor and/or clinic or hospital to provide copies of all relevant medical records. The claimant then needs to obtain a report from a suitably qualified and independent expert confirming that:
- there was a failure by the treating doctor or medical facility to meet the appropriate standard of care and
- because of that failure the claimant suffered an injury.
Unless a claimant can provide this expert report, they cannot proceed with a claim. If the treatment did not involve a doctor (e.g. a nurse or allied health professional), an expert report is not required to proceed with a claim.
This report and the Part 1 Notice of Claim must be provided within 12 months of receiving the records from the respondent.
The claims process is complicated. Expert legal advice should be obtained at the earliest opportunity.
The principles of compensation only allow for recovery of damages associated with injuries that would not have occurred but for the treatment. This means that the impact of underlying conditions (i.e. the injury or illness for which the treatment was sought) will not be compensable.
An adult claimant has three years from the date of the treatment to institute proceedings, but notice should be provided within nine months of the date of the treatment.
The position is different for children who usually have three years from their 18th birthday to bring a claim. If, however, the child’s parent or guardian has consulted a lawyer about the potential entitlement to claim, then certain steps must be taken within 18 months of the consultation (s 20C Personal Injuries Proceedings Act).