Australian Medical Negligence Case Studies

Published by Marshall & Gibson Lawyers on the 30 September 2012

Medical negligence is a contentious area of law that arouses strong emotions in many people, perhaps because they put their wellbeing in the hands of a trusted medical practitioner, and when something goes wrong, they perceive that trust as having been betrayed. As with all negligence lawsuits, ‘duty of care’ is the central issue — whether there was a duty of care, whether that duty of care was breached and whether the injury in question was a result of that breach.

The AMA has been lobbying to have medical practitioners made exempt from claims of negligence, but as long as there remains a duty of care in medicine, there will always be a question of negligence when that duty is breached. The following are case studies involving medical negligence in Australia that deal with various aspects of duty of care.

PD v Harvey (2003) — where the defendant was found negligent for failing to follow up after referring the plaintiff to another doctor, thus establishing that duty of care extends beyond consultation.

Brown v Thoo (2004) — in which the plaintiff successfully established negligence through the defendant’s misadministration of a contraceptive device, which resulted in ‘wrongful birth’.

Finch v Rogers (2004) — in which the plaintiff successfully established negligence due to the defendant’s failure to request blood tests after a surgical procedure, resulting in unnecessary chemotherapy treatment.

Wighton v Arnot (2005) — in which the plaintiff successfully established negligence through the defendant’s failure to investigate, diagnose, disclose and treat injuries resulting from a surgical procedure.

G & M v Armellin (2009) – in which the plaintiff successfully demonstrated a breach of duty of care by the defendant, who fertilised two separate embryos without consent, resulting in pregnancy.

Thompson v Haasbroek (2009) — in which the plaintiff successfully demonstrated the defendant’s breach of duty of care by failing to investigate persistent neck pains, which resulted in quadriplegia.

Tabet v Gett (2010) — in which the plaintiff was unable to recover compensation for the defendant’s breach of duty of care, because the breach only caused the loss of the chance for a ‘possible’ better outcome, rather than a ‘probable’ better outcome. This is called ‘loss of chance’.

Medical negligence lawyers seek compensation for their clients for:

  • Pain and suffering
  • Loss of income due to inability to work
  • Loss of superannuation
  • Medical and rehabilitation expenses, both past and future
  • Domestic assistance from inability to perform household tasks
  • Special needs, such as modifications to a home or vehicle.

Failure to observe a reasonable standard of care, when the defendant should have been able to foresee that their actions would result in an injury, is considered negligence. Negligence is generally decided by peer professional opinion (testimony by other practitioners in the field as to whether the defendant’s actions were acceptable practice), which is then ruled on by the court.

If you think you might have been the victim of medical negligence, you should seek advice from a personal injury lawyer, who will be able to determine if you have a reasonable chance of establishing a successful negligence claim.