The main reason for going to the doctor is to seek treatment for any condition that ails us, or at least to ensure that we are in good health. Conversely, doctors have the responsibility to make sure that we are cured of the disease and that we are as healthy as possible. In fact, it is part of the Hippocratic Oath.
However, there are times when doctors make things worse rather than better. Rather than cure, harm may be done to the patient. This can be done with malicious intent, but are more commonly made due to mistakes. These types of mistakes, though, can be a matter of life and death.
That is the reason why patients who think that medical negligence has caused them or a third party harm can sue for medical malpractice. This is a fairly common type of lawsuit that exists in all countries, Australia included. Here’s what you need to know about medical malpractice and what you would need in case you want to sue.
What is Medical Malpractice?
Medical malpractice occurs when there is a deviation from what can be agreed upon to be the standard of care that should be done once a person has been accepted as a patient. Basically, anything that is omitted or changed from standard protocols of health care is considered as medical malpractice.
Medical malpractice, shockingly, is the third leading cause of death in the United States, according to the Journal of the American Medical Association. However, there are times wherein no harm falls upon the patient despite these incidents. Still, the high rate of deaths due to medical malpractice is very alarming.
Medical malpractice is a very common occurrence, and it can happen to even the most senior professionals. Reasons for this can vary, ranging from making shortcuts to the protocol or simple mistakes. The most common forms of medical malpractice include:
- Error in prescribing medication
- Flaws in medical equipment or tools
- Mistakes made during surgery
- Miscalculating dosages
- Not getting informed consent
Any of the situations mentioned above, as well as any acts of health workers that can cause harm to a patient during treatment or even as complications of such acts, can be construed as forms of medical malpractice.
What are the Grounds for Medical Malpractice?
Under Australian law, you can sue for medical malpractice if there is negligence on the part of the doctor that is treating you. This also extends towards any and all entities involved in treatment, including nurses, clinics, pharmacists, and hospitals.
In order to establish that there was medical negligence involved, you must prove three things, namely:
- Duty of care was owed
- Breach of duty was made
- Breach of duty caused harm to the patient or others
Duty of care simply means, without going into much detail, that there is a doctor-patient relationship involved. Having a doctor take on your case makes the doctor implicitly agree that he will do what is necessary to make you better and to not cause harm.
Breach of duty must be established for medical negligence to be proven as well. This means that the doctor treated you in a way that other specialists would deem unacceptable. This can be due to omission or failure to act as part of the standards required.
Lastly, you must prove that harm was directly incurred as a consequence of the breach of duty. Harm, in this context, can be physical, emotional, or financial in nature. Harm incurred does not necessarily have to be on the patient directly, as there are instances wherein others, such as family, friends, or even bystanders, can be affected by these breached.
It is also important to note that damages need not be incurred immediately after treatment. For as long as harm claimed in the lawsuit can be directly attributed to the breach of duty, then it can be considered by the courts.
If the three points mentioned above have been established, then you can have the evidence necessary to file a medical malpractice suit.
How Much Can You Get from Medical Malpractice Suits?
How much you will sue for in a medical malpractice suit will depend on several factors, such as the severity of the damage caused by the act. Typically, you can sue for the amount of the additional medical bills incurred to correct complications as well as the lost opportunities caused by the situation such as lost wages.
You can also sue for the physical pain and mental anguish that the damages have caused you. Of course, these can be a little bit difficult to quantify. In these types of scenarios, having a lawyer or law firm advise you can be a big help in order to determine how much you can claim from a lawsuit.
Take note, too, that doctors will probably not pay for anything that you win from the case out of pocket. Australian law requires that doctors have professional indemnity insurance against these types of claims. Insurance companies will pay out whatever amount is awarded to you in court on behalf of their clients.
More often than not, doctors and hospitals will also choose to settle out of court. Of course, this would probably net you a lower value than what you are asking for. Still, your lawyer will discuss your alternatives and provide you with advice on whether it would be better to take the settlement. This can also help you avoid further anguish if the case goes to court for a lengthy trial.
Where Can You File a Medical Malpractice Claim?
There are many law firms in Australia that specialize in filing medical malpractice claims. They are the ones well equipped with the knowledge and experience in determining whether there are ground to file a suit, and how much you would be able to get from suing.
If you are a victim of medical malpractice, then it is your right to sue and demand for what you deserve. You can look for lawyers that can help you file a case, or you can seek referrals to find the best ones that can help you make a substantial claim.