Last updated 4 July 2016

Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. The general principles of negligence are set out in further detail in the Accidents and Injury chapter.

Health professionals are under a common law duty to take reasonable care for the safety and wellbeing of their patients. Breaches of that duty may give rise to claims for damages. As many medical treatments involve highly specialised and technical skills, a court will usually need evidence from medical specialists about correct procedures and usual safeguards followed in particular medical treatments before a decision can be made about whether or not a particular health professional has been so careless in providing that treatment to a patient as to be considered negligent.

Difficulties in medical negligence cases

Very few medical negligence cases are simple. Often a lawyer will have to collect a great deal of information, such as hospital records and expert reports, before they can tell the patient whether there is a good case. Even then, after a case begins and opposing medical opinions are presented, the case becomes more difficult as the court has to choose which medical opinions to accept.

Common difficulties

From the patient’s point of view, there are some common difficulties encountered in medical negligence cases. Medical treatment very often includes a risk of some sort. Very rarely can the total safety of any procedure, even if it is performed with proper care and skill, be guaranteed. This means that just because the treatment has been unsuccessful, or even harmful, it does not mean that there has been negligence.

What amounts to negligence of a professional person is a matter of opinion and judgment. The court does not base its judgment on what the patient or the practitioners concerned have to say, but on the opinions of suitably qualified experts. Often these experts disagree about what is the cause of the problem, or about what the practitioner should have done in the circumstances.

It is often difficult to decide what the patient’s health would have been like if the problem had not occurred. The court tries to work out whether a patient would still have had the treatment if warned of the risks and whether the presenting condition would have impaired their future health and independence in any event.

Assessing damages

Apart from the difficulties in succeeding in a medical negligence case, assessing the damages is also difficult. A client in a medical negligence case is almost always suffering from a medical problem prior to the alleged negligence. Only the medical problems that flow from the negligence will lead to compensation. Other subsequent medical problems, which cannot be shown to flow from negligence, do not attract compensation.

Obtaining independent medical reports

Almost no medical negligence case can be won without supportive and credible evidence from an independent specialist health professional, and it can be difficult to find a health professional who is prepared to become involved in such a case. Obtaining independent medical reports can also be very costly.

Taking legal action

The investigation and pursuit of a possible medical negligence claim is a very complicated matter. Any person considering a claim against a health practitioner should seek legal advice.

More information on legal proceedings relevant to a negligence claim can be found in the Complaints about Professionals chapter.