Medical malpractice is professional negligence where a health care professional provides treatment to a patient that, either by act or omission, fails to meet a standard of practice considered acceptable by the medical community and which causes injury or death to the patient.
To protect themselves from negligence claims, most medical professionals take out professional liability insurance, which covers their legal costs in defending the claim and any costs awarded to the plaintiff. This article looks at nine of the most prominent cases in Australia in recent years:
1. Brown v Thoo (2004)
The defendant was found guilty of negligence for administering a contraceptive device incorrectly, with the result that the plaintiff became pregnant (wrongful birth). The case demonstrates that duty of care can refer to a healthcare professional’s responsibility to prevent future as well as current medical problems. Damages were awarded in relation to the current and future costs of raising the child.
2. Finch v Rogers (2004)
In this case, the defendant was found guilty of negligence for failing to request blood tests after performing a surgical procedure on the plaintiff. This resulted in the plaintiff being subjected to an unnecessary cycle of chemotherapy treatment, which caused him further injuries. The case serves as a reminder to surgeons that they need to follow up appropriately and in a timely manner on surgical cancer patients.
3. G & M v Armellin (2009)
Despite the plaintiff instructing that she only wanted one embryo transferred during an IVF procedure, the embryologist fertilised two separate embryos, resulting in the birth of twins (wrongful birth). The defendant was found to have committed a breach of their duty of care because they had failed to confirm the number of embryos for transfer with the fertility centre staff.
4. Thompson v Haasbroek (2009)
A general practitioner was found to have breached his duty of care when he failed to investigate a patient’s consistent neck pain, which turned out to be a symptom of cervical radiculopathy. This resulted in the plaintiff becoming a quadriplegic and damages of some $290,000 were awarded to the plaintiff. The judge noted that such conditions could be difficult to diagnose, but concluded nonetheless that the defendant was negligent, based largely on the testimony of a panel of expert GPs.
5. PD v Harvey (2003)
The defendant was found guilty of negligence for failing to ensure that the plaintiff received appropriate counselling after being diagnosed as HIV-positive. Despite referring the plaintiff to a specialist, the defendant failed to follow up on the plaintiff’s non-attendance at the specialist clinic, demonstrating that a healthcare professional’s duty of care extends beyond the initial consultation.
6. Wighton v Arnot (2005)
The defendant was found negligent for failing to inform the plaintiff of injuries resulting from a surgical procedure and failing to diagnose, investigate and treat those injuries. The case shows that a health care professional has an obligation to perform post-operative examinations with an appropriate level of care, to inform patients of any suspected negative outcomes and to take appropriate steps to confirm their diagnosis in a timely manner.
7. Tablet v Gett (2010)
While the defendant was found to have breached a duty of care by delaying diagnosis and treatment of the plaintiff’s brain tumour, the court found that it was only a 25% contributory factor to her subsequent brain damage and did not cause a loss of chance for a better outcome. The plaintiff’s subsequent appeal to the High Court was dismissed, as Australian law does not allow for loss of chance in personal injury cases.
8. Cattanach v Melchior (2003)
This landmark case was decided in the High Court, which ruled that the defendant was negligent in his performance of a tubal ligation procedure on the plaintiff, which resulted in her becoming pregnant. More significantly, they also ruled that the negligent doctor could be held accountable for the costs associated with the rearing and maintenance of a healthy child. To head off a flood of similar claims, the Queensland government then introduced legislation, preventing a court from awarding such damages in the future.
9. Harriton v Stephens (2006)
This was another landmark case where the plaintiff who is disabled as a result of rubella, brought a claim of negligence against her mother’s doctor for failing to diagnose the condition, which, if known, would have led her mother to terminate her pregnancy. The ‘wrongful life’ claim was dismissed and the verdict caused a good deal of controversy, with those against arguing that, while the decision by the High Court was logical, it was also unfair and out of step with current thinking.
As can be seen by the nine examples cited here, medical malpractice is alive and well and comes in a variety of different guises. If you think you may have been a victim of negligence by a healthcare professional, you should seek legal advice, as you may be entitled to compensation.
Medical malpractice laws vary from state to state in Australia, but usually three things must be established in order to make a claim:
- That the treatment did not meet Australian standards
- That it resulted in your suffering or injury
- And that the harm was a direct result of the negligence.
Most states have a three year time limit in which a claim for compensation can be made, although there are provisions for a claim to be made after longer than three years where the injury was not immediately evident.