Medical practitioners and hospitals are often under pressure to give accurate diagnosis and treatment to their patients in tight timeframes.

In a perfect world, health care and medical treatment would proceed without complication and deliver anticipated results. However, this is simply not the case – errors in judgement and mistakes do happen causing personal injury and loss. In circumstances where an adverse outcome could have been avoided and negligence can be shown on the part of the treatment provider or hospital, the injured person should be deserving of compensation.

Pursuing a medical negligence claim is particularly complex and requires guidance from a specialist lawyer.

This article sets out what must be proven to succeed in a medical negligence claim. Remember, this is a complex area and all cases are unique and must be assessed on their individual merits.

Do I have a case?

The first step in pursuing a medical negligence claim is to consult with your lawyer who will consider whether you are likely to be successful in your case.

In addition to sustaining injuries, a claimant (person making the claim) must show that those injuries were the result of the negligence of the respondent (person against whom the claim is made).

There are certain elements that must be proven and within each, the law has established various principles to assess on the facts, whether that element is satisfied.

Proving medical negligence

In all negligence cases, the claimant must prove:

A duty to take reasonable care was owed by the respondent to the claimant. A duty of care arises in situations where the respondent has an obligation to care for the claimant in circumstances where injury or damage could occur as a result of the respondent’s conduct.

It is generally accepted that a medical professional owes a duty to exercise reasonable care, skill and judgment in caring for his or her patient.

The respondent was negligent and therefore breached the duty of care owed to the claimant. Proving negligence can be complex within a medical environment. Negligence may be established if it can be shown that the respondent failed to do what a reasonable person practising in the same field would have done.

A claimant may have difficulty in proving negligence where a medical professional has acted in accordance with the accepted practice of a responsible body of medical professionals or complied with the standard of a reasonable person practising in the same specialty.

In determining whether negligence has occurred, the conduct is assessed at the time of the incident and the medical authority available. The Court will be guided by expert medical evidence however will not entertain conduct that, although readily accepted, is irrational.

The respondent’s negligence caused the harm suffered by the claimant. The harm caused by the claimant must be causally connected to the respondent’s negligence and not too remote.

The starting point is but for the respondent’s negligence, would the injury or harm have been suffered? This test however is subject to certain qualifications – negligence must be a necessary condition to the harm caused and it must be appropriate in the circumstances for the respondent’s liability to extend to the harm caused.

If the damage sustained was reasonably foreseeable and can in fact be attributed to the negligence, then causation may be established. Conversely, harm which is unforeseeable is too remote to be recoverable. For example, in Commonwealth v McLean (1996) 41 NSWLR 389 the claimant suffered post-traumatic stress syndrome which lead to smoking and alcohol abuse which subsequently lead to throat cancer. The claim for harm suffered (throat cancer) was considered too remote from the incident that caused post-traumatic stress and was therefore unsuccessful.

Types of medical negligence claims

A medical negligence claim may include the failure of a hospital to treat medical emergencies such as appendicitis, discharging patients from hospital without adequate review, pregnancy and birth-related issues, lack of reasonable care and skill when performing surgery and administrative errors such as a mix-up in patient records.

Following are two examples of common types of medical negligence claims.

Failure to warn

A patient should receive full disclosure of the risks associated with surgery or a medical procedure. A medical negligence claim may arise when a patient suffers injury or harm and it is established that the doctor failed to adequately warn of the particular risks involved with the patient’s treatment.

Rogers v Whitaker (1992) 175 CLR 479 determined that in cases concerning advice of the risks associated with a medical procedure, ‘…a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment [and if] the patient is likely to attach significance to the risk’.

In this case, the patient who was already blind in her right eye had surgery which was essentially cosmetic, performed to that eye by an ophthalmic surgeon. The patient asked several risk-related questions regarding the surgery pertaining to her right eye. The surgery resulted in a rare occurrence of sympathetic ophthalmia which meant that the patient became blind in the left eye.

The Court found that the surgeon, although not specifically asked about the risk factors for the patient’s left eye should have, based on her obvious concerns and risk aversion regarding her right eye, warned her of the risk of sympathetic ophthalmia.

Failure to diagnose or misdiagnosis

A medical negligence claim may be made against a practitioner who fails to diagnose, delays a diagnosis or misdiagnoses an illness.

A more common claim is for the delayed diagnosis of a progressive disease such as cancer, particularly if the diagnosis would likely have been apparent upon a routine examination. The more routine the examination (based on the standard expected of other professionals), the more likely that a claim for negligence might be successful.

The pre-existence of the illness or condition must be considered in light of the likely outcome had the condition been diagnosed earlier. For example, a comparison must be made of the patient’s prognosis for recovery if treatment was available for a particular disease that was discovered sooner rather than later. Such cases will require expert medical reports and opinion.


Medical negligence claims are subject to strict time limits and should be navigated with an experienced lawyer. It can be a long road to achieving a successful outcome however one worth travelling if you succeed in your claim and are reasonably compensated for your misfortune.

If you or someone you know wants more information or needs help or advice, please contact us on 02 9790 7000 or email [email protected].