There are many different kinds of surgical procedures and techniques but in legal claims there are usually four issues:
whether the patient was an appropriate candidate for
that surgery
whether the surgery was performed with reasonable
care and skill
whether proper post-surgical care was given,
including detecting and treating infection, and
whether the patient was properly advised of the risks
of the surgery so that 'informed consent' could be given.
Malpractice claims arising from negligent surgical procedures include:
injuries suffered during laparoscopic ('keyhole')
surgery including damage to the bowel or blood vessels
injuries suffered during hernia repair, gall bladder
removal, hysterectomy and other abdominal surgery
complications of arthroscopy
complications of cardiac surgery
complications of eye surgery (including laser
surgery)
injuries suffered following orthopaedic surgery
(including back surgery, hip replacement, osteotomy, compartment syndrome, and
cauda equina syndrome),
injuries suffered during dental procedures (including
wisdom tooth removal, dental implants, and temporomandibular joint (TMJ)
damage)
injuries suffered during cosmetic surgery (including
breast surgery, rhinoplasty, blepharoplasty, 'chemical peel', laser surgery,
gender reassignment, and liposuction)
anaesthetic accidents
anaesthetic awareness
post-operative infections
failure to warn of material risks, and
hypoxic brain damage following cardiac bypass surgery.
Summary of general surgery cases
Summary of orthopaedic cases
Five FAQ about Surgery
How do I make a claim?
If you think you have a medical negligence claim, contact the Maurice Blackburn Medical Negligence team. We will take a statement from you about what has occurred and then provide you with a preliminary assessment. If we believe you should proceed further with your claim, we will then carry out an investigation of your case. An investigation will involve obtaining your medical records and reports from your treating doctors, if appropriate, then obtaining an independent medical expert's opinion.
How much will it cost?
In medical negligence cases that we believe have merit, we will conduct the investigation on a 'no-win, no-charge' basis. This means you will only be charged profit costs in the event you receive an award of damages and no profit costs will be charged if the claim is not pursued after being investigated.
If proceedings are issued after investigating the claim and the claim is successful, you will be charged for the costs of the investigation and the legal work performed after issuing proceedings. This will be a charge on the appropriate Court Scale, and you will be given more information about this at the time when the decision is made to issue proceedings. No costs are charged unless you receive a settlement or award of compensation.
However, in medical negligence cases, we require you to pay for the costs of the investigations, such as the fees charged by doctors for providing us with medical reports or by hospitals for providing us with medical records. We have to obtain these reports and records before we can advise you whether you are likely to be successful with your medical negligence case.
If, after carrying out the investigation, we believe that you should proceed with a claim, then we can offer you various remedies for obtaining compensation. If the medical treatment has resulted in an unexpected death, then we may recommend that a report be made to the Coroner's Court. Sometimes we also advise that a report should be made to the Health Care Complaints Commission of New South Wales, the Health Services Commissioner of Victoria or the Health Rights Commission of Queensland.
How long do I have to make a claim?
There are time limits for making a compensation claim. The time limits and pre-litigation requirements vary between States and Territories;
New South Wales
New South Wales law prohibits us from advertising legal services in
connection with Medical Negligence Claims. We regret that we are unable to
provide you with further information.
Queensland
In Queensland, generally Court proceedings must be commenced within three
years of the date of the injury. The Court also has a discretion to extend
this period to one year from the date of knowledge of a "material fact of a
decisive character". However, this is only a discretionary power and will depend
on the circumstances of each particular case. If Court proceedings are not
commenced within the relevant time limit then you are likely to be prevented
from ever bringing a case.
Additionally, under the Personal Injuries Proceedings Act, a person intending
to bring a claim for compensation must notify the "respondent" by sending them a
special form within the earlier of nine months after the date of the injury or
one month after instructing a solicitor to seek damages for personal
injury. It may be possible to extend this time limit in exceptional
circumstances.
The time limits for injuries to children are different, for both Court
Proceedings and under the Personal Injuries Proceedings Act.
Time limits are extremely complex and this information is simply a general
guide. The situation will vary from case to case and it is essential to
obtain specific legal advice about the time limits in your case as soon as
possible."
Australian Capital Territory
In the Australian Capital Territory pre-court procedures require a claimant
to notify a potential defendant of a possible claim within the earlier
of nine months of the incident or appearance of symptoms or four
months of instructing a lawyer regarding a possible claim and the defendant
being identified. Generally, a person has three years from the time
of the injury occuring or if the injury is a disease or disorder three years
before the day you first knew that you suffered an injury that is a disease or
disorder and that the injury is related to someone else's act or omissions, to
bring a claim. If they are a child, there is provision to extend the
time to bring a claim if it involves a disease or disorder. If Court
proceedings are not commenced within within the relevant time period you may be
prevented from ever bringing a claim. Legal advice is therefore
essential.
Victoria
In Victoria an adult has three years from the time of injury or medical
negligence was (discoverable) to issue proceedings. Children have six
years from the time of injury or medical negligence was discoverable to ssue
proceedings. The concept of (discoverability) is yet to be fully defined by the
Courts and accordingly it is prudent to be conservative when judging the date of
discoverability to have occurred, for example where the negligent treatment
involves an injury as a result of surgery undertaken in a negligent fashion, a
conservative assessment as to the date of injury would be the date the surgery
was undertaken, even where the negligence was not discovered by the Claimant
until some time thereafter. There may be circumstances where you can apply to
Court for an extension of time past these time limits. The position will vary
from case-to-case and you should obtain legal advice about the time limits in
your case.