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Medical Negligence

Connor Legal specializes in medical negligence cases in Western Australia. Contact Dan Connor and find out if you have a good case.

Medical negligence is when care given by a healthcare professional is below an acceptable standard and causes physical or mental injury, or death. Common reasons for claims include failure or delay in diagnosis, or incorrect treatment. Poor communication between a doctor and patient is a common cause of claims.

Dan Connor has a long history of representing individuals in the area of medical negligence, and continues to regularly represent patients who have been injured, or the families of those who have died as a result of the negligence of medical professionals and healthcare providers.

In order for a negligence claim to succeed, an injured patient must show that the doctor (or other health professional) owed the patient a duty of care, that this duty was breached, and that the patient suffered harm as a result of the proven breach of duty.

Examples of Medical Negligence Cases

Examples of medical negligence claims Dan Connor has successfully handled include:

  • King v Metropolitan Health Services Board (1998) 20 SR (WA) 103. My client had suffered a severe infection as the result of a nurse at the Royal Perth Hospital failing to obey correct procedures regarding a cannula that she knocked out from his arm. We were sccessful at first instance, and on appeal a re-trial was ordered, and the case settled after.
  • Boehm v Deleuil & Anor [2005] WADC 55. My client’s general practitioners misdiagnosed a lump at the back of Mr Boehm’s knee as a lipoma, but it was a life threatening cancer. The cancer continued to grow until a more alert doctor sent a sample of tissue for histopathology, which led to a diagnosis of cancer. Meanwhile, months had passed and Mr Boehm’s leg had to be amputated. We succeeded in recovering compensation on the basis that earlier diagnosis by the GP’s would have enabled a less radical procedure  to have been performed, and our client’s leg would not have been amputated.
  • Strempel v Wood & Anor [2005] WASCA 163.  I represented a man who suffered severe injuries to his leg as a result of complications following a knee replacement operation caused by compartment syndrome. He also suffered injury to his sense of balance and hearing due to administration of an antibiotic (gentamicin). The trial Judge dismissed the appellant’s claims of negligence concerning the compartment syndrome and allowed the gentamicin claim. I appealed that decision and the Supreme Court found that the orthopaedic and vascular surgeons concerned were liable for the complications stemming from the compartment syndrome. The surgeons then applied to the High Court for leave to appeal, but that application was dismissed.
  • Smith v Minister for Health [2010] WADC 77. I  represented a lady who had been overdosed with hydromorphone as the result of the negligent calibration of a Medtronic intrathecal pump by a Perth public hospital. Her case was successful and she was awarded $237,530.00 compensation.

Duty of Care

Usually, there is no difficulty in proving that a duty of care was owed, as this is implied by the patient/doctor or patient/hospital relationship itself.

Breach of Duty

A claimant must prove that whatever the doctor did or did not do fell below the standard of a reasonably competent doctor in that particular field of medicine. The test of whether a doctor breached the duty of care owed to a patient is whether he or she has failed to meet the standard of a reasonable body of other practitioners also skilled in that field. This duty has been supplemented by the Civil Liability Act, 2002. The duty on the doctor to act in a way that is reasonable applies whether the matter concerns treatment, diagnosis or advice.

Usually, to prove negligence, we will obtain advice from a qualified expert in the relevant field of medicine. An expert report is not required where only explanation for harm is that there has been negligence. An example is be where a surgeon performs a procedure on the wrong body part. In these sorts of cases there is a presumption that the doctor was negligent and it is then up to him or her to prove otherwise.

Causation

In addition to proving breach of duty, a claimant must also prove that the breach either directly caused the injuries alleged or significantly contributed to them. This element of the claim is often fairly simple the show, but can very difficult to demonstrate in some particular cases. For example, a patient may be able to show that a general practitioner should have taken a biopsy, which would have led to a diagnosis of melanoma (skin cancer). But a patient must also prove that earlier diagnosis with cancer would have made a difference to the patient’s treatment or outcome. If no damage has resulted from a proven breach no compensation is payable.

It may sometimes be the case that the treating medical professional or their employer will admit that there has been a breach of duty. However this is not enough to say that that person or employer is liable for any damages. In order to establish liability it must be shown that the breach of duty caused the damage.

Damage

“Damages” is the legal word for compensation. Damages include physical injury and psychiatric injury, as well as financial loss such as loss of earnings and future healthcare provision. Psychiatric injury must be a recognised psychiatric injury, such as post-traumatic stress disorder, anxiety disorder or adjustment disorder. Grief or emotional upset are not injuries for which damages can be awarded.

The object of an award of damages is to put the claimant into the position he or she would have been in if the negligent act had not occurred.

Not all losses are recoverable. A court will only award damages for losses which are not too “remote”, in other words, which are reasonably foreseeable.

Compensation for any psychiatric or physical injury will include an award for the pain and suffering and “loss of amenity” (or the benefit and enjoyment of life which the claimant has lost). These are known as “general damages”. The court will also award a sum for any past and future financial losses that have been caused by the negligence. This will include lost earnings and the costs of care, aids and equipment (“special damages”).