What Medical Practitioners need to know when accused of medical malpractice.

Medical negligence (or medical malpractice) consists of three separate parts, all of which have to be present to be able to bring a claim for compensation. A great way to think about it is – as if it was a recipe with three ingredients; it doesn’t matter what order you put the ingredients in, but if you miss one out, the recipe will fail. In other words, three specific requirements are essential for a successful claim and compensation.

The 3 requirements for a medical negligence claim

  1. There must be a breach of duty – this means that the treatment received was negligent (breach);
  2. The negligent treatment must caused the patient damage that would not have occurred otherwise (causation); and
  3. The patient must have suffered an injury because of that negligence (injury).

For most claims, evidence is the key factor. Without it and an independent expert confirming the evidence, most potential claims will fail. 

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What evidence is required in medical negligence claims?

An independent expert is usually someone who has not provided treatment in the case, and does not know the patient. 

They need to be someone who is qualified to speak with authority in the area. For example if a general practitioner has provided the treatment, another general practitioner is the perfect independent expert.  

Types of independent expert evidence

There are often three types of independent expert evidence needed.

  1. The first is an independent opinion that the treatment received was substandard and could constitute negligence;
  2. The second is an opinion that the substandard treatment has caused the injuries; and
  3. The third is a medical expert who can certify your ongoing injuries according to the American Medical Association Guides to the Evaluation of Permanent Impairment.  Injuries would need to be certified as greater than 5% of the whole person for a physical injury and greater than 9% of the whole person for a psychiatric injury, to be able to claim medical negligence compensation for pain and suffering.

Let the team at Tego help you mitigate your risks

We are Australian medical indemnity insurance providers and cover your practice with medical indemnity insurance, doctors indemnity insurance, gp medical indemnity insurance, medical malpractice insurance, medical practice insurance, and more. If you are a health practitioner with Tego, we offer 24/7 medico-legal advice and support in regards to what you need to know when you are accused of medical malpractice

This publication is general in nature and is not comprehensive or constitutes legal or medical advice. You should seek legal, medical or other professional advice before relying on any content, and practice proper clinical decision making with regard to individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgment or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Tego Insurance Pty Ltd is not responsible to you or anyone else for any loss suffered in connection with the use of this information. All content on this page has been written in a generic way, and has not been presented with any knowledge of your personal objectives or financial needs.