Medical Negligence Claims
Advice for patients and families harmed by the care of a doctor, hospital, surgeon, dentist or other health practitioner in NSW.
A medical negligence claim seeks compensation where a health practitioner's care fell below the standard reasonably expected and caused harm. In NSW the test is shaped by the Civil Liability Act 2002 (NSW) and strict time limits apply. Vamp Law reviews the medical records, obtains independent medical opinion and advises whether a claim is viable before any claim is made.
What is a medical negligence claim?
A medical negligence claim is a claim for compensation by a patient who was harmed because a doctor, hospital, surgeon, dentist or other health practitioner did not take reasonable care. A poor outcome is not negligence on its own: treatment carries risks, and it can fail even when carried out properly. The claim has to show that the care itself fell short and that the shortfall caused the harm.
Vamp Law acts for patients and families in these claims across NSW as part of its personal injury practice, and Kyra Pastrovic runs each matter directly. In separate matters Vamp Law also acts for insurers and organisations, and a conflict check on every new matter means it never acts on both sides of the same dispute.
What do you have to prove in a medical negligence claim?
A patient generally has to prove four things, and the Civil Liability Act 2002 (NSW) shapes how each is decided:
Duty of care
the practitioner or hospital owed you a duty to take reasonable care, which is rarely disputed.
Breach
the care fell below the standard reasonably expected. Under section 5B, the risk must have been foreseeable and not insignificant, and a reasonable person in the practitioner's position would have taken precautions against it.
Causation
the breach caused the harm. The negligence generally has to be a necessary condition of the harm (section 5D), and the patient must prove causation on the balance of probabilities (section 5E).
Damage
an injury or loss the law recognises, such as further surgery, a worsened condition or lost income.
Causation is often the hardest element. Poor care does not give rise to a claim if the outcome would have been the same with proper care.
What is the peer professional opinion defence?
The peer professional opinion defence protects a practitioner who acted in a way that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice. It is in section 5O of the Civil Liability Act 2002 (NSW).
The defence has limits. A court will not rely on a peer opinion it considers irrational, the opinion need not be universally accepted, and where differing opinions are each widely accepted, any of them can be relied on. Under section 5P, the defence does not apply to a failure to warn of a risk of death or injury. Those cases turn on the general principles of negligence, and the duty to warn in Australia is usually traced to Rogers v Whitaker (1992) 175 CLR 479, where the High Court held that a doctor must warn a patient of material risks of proposed treatment.
How long do you have to make a medical negligence claim in NSW?
For most medical negligence claims, the Limitation Act 1969 (NSW) allows three years from the date the claim is discoverable, subject to a long-stop of 12 years from the treatment complained of, whichever ends first (section 50C). A claim is discoverable once you know, or ought to know, that the injury occurred, that it was caused by the fault of the practitioner or hospital, and that it is serious enough to justify a claim (section 50D). A court can extend the long-stop in limited circumstances (section 62A), and older rules can apply to treatment given many years ago.
Children are treated differently, though not always as families expect. Time does not run while a child has no capable parent or guardian, but where there is one, what the parent or guardian knew or ought to have known is treated as the child's knowledge (section 50F). Special rules apply where the person responsible was a parent or guardian, or someone close to them (section 50E), and a court can extend time where a parent or guardian irrationally decided not to bring a claim (section 62D).
What compensation can you claim for medical negligence?
Compensation can include past and future treatment costs, lost income and earning capacity, care and assistance, and damages for non-economic loss, which covers pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement.
The Civil Liability Act 2002 (NSW) limits several of these. Damages for non-economic loss are only available if the severity of the loss is at least 15% of a most extreme case (section 16), and above that threshold the amount follows a statutory scale up to an indexed maximum.
Is a complaint to the Health Care Complaints Commission the same as a claim?
No. The Health Care Complaints Commission deals with complaints about health service providers in NSW, but it cannot order a provider to pay compensation. Compensation comes through a civil claim or its negotiated settlement. Some people do both, and since a complaint does not pause the time limit for a claim, it is worth getting advice on timing early.
How does Vamp Law run a medical negligence claim?
First conversation
Kyra Pastrovic listens to what happened, identifies the key dates and flags any time limit that is close. A written costs agreement is provided before work starts.
Medical records
Vamp Law obtains the complete records from each hospital, clinic or practitioner involved.
Independent medical opinion
A doctor practising in the relevant field reviews the records and gives an opinion on whether the care met the accepted standard, and a further opinion is often needed on causation and your future condition. If the opinions do not support a claim, Vamp Law tells you plainly.
Identifying who is responsible
Claims about care in a NSW public hospital are covered by the Treasury Managed Fund, the NSW Government's self-insurance scheme managed by icare, which indemnifies the public health organisation running the hospital. A claim about private treatment is usually made against the practitioner or private facility and defended by their professional indemnity insurer.
Negotiation and proceedings
The claim is put to the other side with the supporting evidence. If a fair resolution is not reached, proceedings are filed in the appropriate court.
Frequently asked questions
Not necessarily. Surgery carries known risks, and complications can occur even with proper care. A claim needs evidence that the care fell below the accepted standard, or that you were not warned of a material risk, and that this caused the harm.
Possibly. A practitioner must warn a patient of material risks of proposed treatment, and the peer professional opinion defence does not apply to warning claims.
You also need to show that, properly warned, you would have decided differently and avoided the harm.
Family members may have claims after a death caused by negligent medical care, including a dependency claim and, for close family, a claim for their own psychiatric injury.
The wrongful death page explains how those claims work.
Yes, usually by a parent or guardian on the child's behalf. The time limit can run from when the parent or guardian knew or ought to have known of the claim, so it is worth getting advice early rather than waiting until the child turns 18.
Speak with Vamp Law about a medical negligence claim
This page is general information about NSW law, not advice on your situation, and the right answer depends on the facts and the documents, especially the medical records. If you or a family member were harmed by medical or dental care, make an enquiry or call +61 431 569 686 to speak with Kyra Pastrovic about the time limits that may apply.
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