In today’s fast-moving society we often hear the phrase “Medical malpractice” being used in the same sentence as a patient’s or individual’s dissatisfaction with treatment provided to them by a Medical Practitioner which has either gone wrong or has not been successful. Far too often inquiries are made where a patient believes that they have a right to sue a Specialist or GP for treatment that may have not been fully successful or has gone wrong. It is important to understand that advice generally given will vary depending on each individual’s set of circumstances.

The law in this area has also changed over the years and more recently has been the subject of changes through government intervention. Medical malpractice cases by their very nature are difficult and require extensive research, obtaining of experts’ reports and a lot of preparation. It is very rare where liability against a doctor is clear, that even in those cases where it is most medical malpractice cases are vigorously defended and settlements rarely occur until such time as you are ready to run your case at Court before a Judge.

It is always important for individuals who are looking towards seeking advice or pursuing a possible claim for Medical malpractice to ensure that a detailed statement as to what has transpired is obtained. It is far too often the case that the individual, that is the patient, has little knowledge of exactly what occurred during the medical procedure as nine times out of ten they are under anaesthetic. It is for that reason that the obtaining of the hospital clinical notes is vital in the preparation of any medical malpractice case.

Medical malpractice cases in Australia require the establishment of a relationship between the person aggrieved and the treatment provider that is known as a duty of care. The duty of care is said to be a legal obligation to take care for the safety of the person where it may be foreseeable that treatment or failure to treat or failure to warn or even failure to diagnose may result in injury being sustained.

The next requirement is that there needs to be evidence to establish a breach of that duty of care. In other words some action or failure to act in accordance with either local or general standards has resulted in the patient sustaining an injury. It is in this area of the breach of the duty of care that medical expert evidence is required to establish that there is a case to be answered. Before proceedings can be commenced such evidence is required.

In relation to a Medical malpractice claim these claims can be successfully litigated and favourable results obtained however it must be remembered that the injury has to be of a significant or serious nature before one contemplates such action as clearly we have to be minded of the cost implications and cost orders that could be made against an individual bringing on a claim that ultimately is unsuccessful or doesn’t get over the requisite thresholds. It is for this reason that a lot of investigation needs to be carried out and the medical evidence and the clinical notes obtained well in advance of proceedings being commenced.