Hospitals, Doctors and other health service providers carry insurance to compensate patients for injuries caused by mistakes or negligence.
Injury or Loss
Once it has been established that a medical practitioner failed to take reasonable care, our medical malpractice lawyers must prove that the patient has suffered some injury or loss as a result of the breach.
In the context of medical treatment, an injury may be, for example, worsening of a condition after a misdiagnosis, a less than optimum outcome of surgery, the shock of a relative after loss of a patient and a range of other effects on your mental or physical health – perhaps not normally considered an injury in the usual meaning of that word.
If it is established that a patient suffered loss as a result of the medical practitioner’s negligence, the patient may be entitled to claim compensation for the following:
The loss usually relates to a loss of income, wages or earning capacity if you have been unable to work, if you have reduced hours, lost promotions, lost the opportunity to take on new work or if you are facing the prospect of early retirement as a result of your injuries.
The medical Insurer is obliged to compensate you in such a way as to put you back in the financial position you would have been if competent medical treatment had been provided.
You can also claim loss of superannuation entitlements.
Non Economic loss (pain and suffering)
You are entitled to be compensated for what you have been through and the effect the injury has had on you and your life.
The Civil Liability Act which governs these matters states that no damages may be awarded for the pain and suffering flowing from an injury unless the severity your injury can be considered at least 15% of a most extreme case.
There is no particular formula to measure this aspect of your claim. The court determines the percentage of a most extreme case that your injuries represent after subjectively considering all of the medical evidence, the effect that the injuries have had on you emotionally and the effect that your injuries have had on your life and continue to have.
The maximum amount of damages that may be awarded for non-economic loss, as at 21 June 2011, is $500,500 and that will only be awarded in a most extreme case. The maximum will only be considered for injuries such as quadriplegia, extensive third degree burns and the like. On the other hand, if it cannot be established that the patient’s injuries are such that they represent more than 15% of a most extreme case, the patient is not entitled to any compensation in this regard but may still be entitled to compensation for wage loss, medical expenses and domestic care.
Our expert medical negligence solicitors will provide you with advice in relation to your own injury once the extent of it can be established.
Medical expenses or out of pocket expenses incurred as a result of reasonably necessary medical or rehabilitation expenses or other treatment received as a result of the injury can be claimed from the insurer.
We will obtain opinions in relation to the treatment you may require in the future and claim that too.
If your family and friends have been helping you out because you have been unable to perform domestic duties or if you have been paying for cleaners, gardeners or people to look after your children as a result of the medical practitioner’s negligence, the medical insurer is obliged to compensate you for the additional expenses. Even where family and friends have assisted without payment, the value of the assistance they have provided is compensable at a commercial rate.
The Civil Liability Act provides that no damages may be awarded in respect of domestic assistance or nursing care provided to a claimant for free unless it can be shown that there was a reasonable need for the services to be provided as a result of the injury.
Even then, damages will not be awarded unless the care was provided for at least 6 hours per week for at least 6 consecutive months.
If care was/will be provided for 40 hours or more per week, the patient may claim the amount per week of the average weekly total earnings of all employees in NSW for the period during which the care was/ is to be provided.
If the care was/will be provided for less than 40 hours per week, the damages must not exceed one–fortieth of the average weekly total earnings of all employees in NSW for the period during which the care was/ is to be provided.
If you require assistance in the future in any way, you may be entitled to claim the cost of professional carers to look after you or perform your housework or household repairs if you would have performed those tasks yourself uninjured.
Interest is not payable on damages awarded for non-economic loss of gratuitous care.