Health Care in Australia We are fortunate to have a high standard of health care in Australia.
Our health care system consists of highly trained health practitioners across a wide diversity of fields including Chinese medicine, podiatry, physiotherapy, general medical practice, obstetrics, nursing, surgery, pharmacy, and holistic healing.
The health practitioners in all these fields are held to the best possible standards of patient care. The professional bodies covering their education and qualifications ensure that they are competent to apply best patient care by setting the high standards admitting them to the profession and then laying down standards that ensure best quality patient care with an underlying “do no harm” dogma.
An excellent example of this is the booklet “Good medical practice: a code of conduct for doctors in Australia ” published by the Medical Board Australian Health Practitioner Regulation Agency in October 2020. Section 3 “Providing good care”, section 8 “Patient safety and minimising risk” and section 9 “Maintaining professional performance” are pertinent here.
However, negligence, where a practitioner acts or makes a decision that accidently causes harm to their patient, still occurs.
The 1994 Quality in Australian Health Care Study (QAHCS) commissioned by the Commonwealth Department of Human Services and Health determined the proportion of admissions to an Australian hospital associated with an adverse event. An adverse event was defined as an unintended injury or complication which results in disability, death or prolongation of hospital stay and is caused by health care management rather than the patient’s disease. Admissions (14,179) to 28 hospitals in New South Wales and South Australia were reviewed. Admissions associated with an adverse event accounted for 16.6% of the admissions and 8.3% of admissions were judged to have been preventable. Overall, 46.6% of adverse events caused minimal disability, 13.7% resulted in permanent disability (but not death) and 4.9% of adverse events resulted in death.
An analysis of the QAHCS 5 years later showed that human error was a prominent cause of the adverse effects and that adverse events were more largely associated with errors of omission rather than commission.
Another analysis 5 years later involved 2,999 surveys of Australian doctors. It found that 65% of the respondents had been involved in a medicolegal matter previously, and 14% were involved currently. Seven % had been involved in six or more matters. Medicolegal matters were more associated with practitioners who were male, worked long hours, and worked in high intervention areas such as surgery and obstetrics/gynaecology.
The most common medicolegal complaints concerned claims for compensation and complaints to a health care complaints body.
A study by a South Australian surgeon 7 years after the QAHCS suggested that despite the allocation of $658m in 1998 for 5 years of quality improvement, in those 7 years, 81,200 preventable deaths may still have occurred.
A 2020 study focused on nursing concluded that “adverse medical events are high in Australia, however, new claims are decreasing.”
What determines success in claims for health practice negligence With increasing complexity in health practitioner practice, it is perhaps not surprising that some patients may have unforeseen negative outcomes.
Therefore, the major issue with a claim for negligence is to prove to the civil law standard (on the balance of probabilities) that the wrong committed by the practitioner led to the loss or harm. The negative outcome must be due to the practitioner’s negligence, not an unforeseen or unpreventable deterioration in the patient’s health.
To be successful in a claim for health practice negligence, you must be able to prove four legal factors.
Factor 1: There must be a duty of care This factor is reasonably straightforward to prove. If the practitioner has officially accepted you as a designated patient of the practitioner, then the practitioner owes a duty of care to you.
Factor 2: The duty of care must be breached Duty of care means a duty to take reasonable care or to exercise reasonable skill (or both).
It must be proved that the breach of the duty of care caused the damage to prove the tort of negligence.
This is often called the causation or “but for’ test. If the damage would have occurred but for the negligence of the practitioner, the negligence can not be the cause of the damage.
Factor 3: The breach must be below the standard of care normally expected by a practitioner in the field For determining whether a practitioner (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
A practitioner who provides a professional service incurs no liability in negligence arising from the service if it is established that the practitioner acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession, as competent professional practice.
Unless the court considers that the opinion is irrational.
The fact that there are differing professional opinions widely accepted in Australia by members of the same profession do not prevent any one or more of those opinions being relied on for the purposes of this criterion.
Professional opinion does not have to be universally accepted to be considered widely accepted.
Factor 4: The breach must have caused some damage to you There can be no liability without damage which can be recoverable in law.
Your damages can be physical, emotional and/or psychological.
Special damages are economic losses that can be calculated from the date of your injury and cover costs for such things as your:
Medical and hospital services, Rehabilitation, Special equipment, Travel and accommodation, Loss of income, and Legal services General damages are for estimated non-economic losses for such things as your:
pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement. Previous outcomes of claims for health practice negligence Examples of recent court orders concerning health practitioner negligence are the significant costs awarded for:
A pregnancy following negligent application of tubal ligation, Catastrophic injuries because of negligent mismanagement of claimant’s birth, and Second degree burns suffered after negligent laser treatment for tattoo removal, Lack of follow up of his surgical referral for a patient with a chronic foot infection by the General Practitioner Injuries caused by the medical and nursing staff of a hospital failing to consider the mother’s rising blood sugar levels during labour The profound and lasting effect and the hurt and pain suffered by a 17-year-old because of the negligence over the diagnosis and treatment for meningitis and septicemia when he was 3 months old Monetary compensation for such negligence payouts can be very significant.
Data for Queensland, the only state to report findings, show that between January 2018 – October 2023, negligence settlements for Queensland hospital and health services amounted to $396m. This covered findings for 1,049 cases, an average of $378,000 per case.
But the public information on these cases only covers the cases that go to court and become public.
The great majority of negligence cases are settled by the practitioner’s insurance companies in out of court settlements.
How we can assist your health practice negligence matter We have extensive experience with negligence cases.
We will work with you to establish a strong basis to determine if you have a potential negligence claim, provide legal and clinical advice on the likelihood of the success of your claim, and estimate the compensatory value of your claim.
Call us on 08 8212 2955 for a confidential first chat.
