When medical treatment does not go as expected, it is understandable to wonder whether a doctor, hospital or other healthcare professional did something wrong. A delayed diagnosis, unexpected surgical complication or worsening condition may raise concerns about the quality of care you received.
However, a poor medical outcome does not automatically amount to medical negligence. One of the central questions is whether the healthcare professional met the standard of care legally expected of them in the circumstances.
Understanding this standard helps explain why some medical complications may support a compensation claim while others do not.
What Does “Standard of Care” Mean?
The standard of care refers broadly to the level of skill and care that could reasonably be expected from a healthcare professional providing a particular service.
In NSW, professional negligence is governed in part by the Civil Liability Act 2002 (NSW). Section 5O provides that a professional will generally not incur liability in negligence if they acted in a manner that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice. A court can reject peer professional opinion if it considers that opinion irrational.
Importantly, the standard is not based on whether another doctor might have made a different decision. Medicine often involves legitimate differences in professional judgement, and the Act expressly recognises that more than one professional approach may be widely accepted.
Does a Medical Mistake Automatically Mean Negligence?
There is an important difference between an undesirable outcome, an error and legally actionable negligence.
Medical treatment involves uncertainty. A recognised complication may occur despite appropriate treatment, a condition may be difficult to diagnose, or a treatment may simply fail to achieve the hoped-for result.
A medical negligence claim generally requires more than demonstrating that something went wrong. It is necessary to consider whether the care provided fell below the legally required standard and whether that failure actually caused harm.
For example, a patient developing a complication following surgery does not by itself establish negligence. The relevant questions might include whether the procedure was performed appropriately, whether the complication was recognised and treated within a reasonable timeframe, and whether appropriate information about material risks was provided beforehand.
How Is the Appropriate Standard Determined?
The expected standard depends on the circumstances. A specialist surgeon performing a complex procedure will be assessed in the context of the professional service being provided. The issues considered may be quite different when examining the actions of a GP assessing symptoms during an initial consultation.
Relevant questions could include:
- What symptoms and information were available at the time?
- Were appropriate examinations or investigations undertaken?
- Should further testing have been ordered?
- Was specialist referral appropriate?
- Was treatment consistent with accepted professional practice?
- Were important changes in the patient's condition adequately monitored?
- Were abnormal results appropriately followed up?
Professional standards also provide useful context. The Australian Health Practitioner Regulation Agency's shared Code of Conduct emphasises informed decision-making and obtaining informed consent, including discussion of material risks and expected outcomes.
Crucially, the healthcare professional's conduct is assessed according to what was reasonably known at the time, rather than simply judging the decision with the benefit of hindsight.
What Role Does Expert Medical Evidence Play?
Medical negligence claims frequently involve questions that cannot be resolved simply by looking at the outcome.
An independent medical expert may be asked to consider the records, investigations, treatment and circumstances and provide an opinion about whether the care was consistent with competent professional practice.
For example, where cancer was diagnosed later than expected, the question is not merely whether an earlier diagnosis would have been preferable. Expert evidence may be required to consider whether a reasonably competent practitioner should have investigated the earlier symptoms differently and, importantly, whether doing so would probably have changed the patient's outcome.
Expert evidence can therefore be critical both to establishing a breach of duty and to proving causation.
What About the Duty to Warn About Medical Risks?
The duty to warn deserves separate attention. Section 5P of the Civil Liability Act 2002 (NSW) provides that the professional-negligence provision in section 5O does not apply to liability connected with giving, or failing to give, warnings, advice or other information about the risk of death or injury associated with a professional service.
Consent is therefore an important issue in its own right.
NSW's Health Care Complaints Commission explains that informed consent involves providing clear information about proposed treatment and available options, with patients understanding relevant risks, benefits and alternatives. NSW Health also maintains detailed guidance for obtaining consent to medical and healthcare treatment.
A signed consent form does not necessarily resolve every question about whether sufficient information was provided. What was actually explained to the patient and whether a particular risk was material can become important issues.
Does Falling Below the Standard of Care Guarantee Compensation?
Establishing a failure to meet the appropriate standard is only part of a medical negligence claim.There must generally also be a sufficient connection between the negligent conduct and the injury or loss being claimed.
Consider a delayed diagnosis. Even if it is established that the condition should have been diagnosed earlier, a further question remains: Would earlier diagnosis probably have resulted in a materially better outcome?
If the eventual outcome would have been the same despite appropriate care, proving compensable loss may be difficult.
Medical negligence cases therefore often involve two closely connected questions:
Was the care negligent?
and
Did that negligence cause additional harm?
The distinction is particularly important when a patient already had a serious underlying illness or injury before the alleged negligence occurred.
What Evidence May Be Important?
Assessing whether the standard of care was breached often requires a detailed reconstruction of the treatment provided.
Relevant material may include medical records, GP notes, hospital records, imaging, pathology results, referral letters, operative reports, medication records and correspondence between healthcare providers.
A patient's own recollection may also be relevant, particularly where the dispute concerns what symptoms were reported or what information about treatment risks was provided.
Obtaining the complete medical record can help a lawyer and appropriately qualified medical experts identify what happened, what information was available to practitioners at each stage and whether further investigation is warranted.
How Can Law Advice Help With a Potential Medical Negligence Claim?
Medical negligence claims can be difficult to assess without both legal and specialist medical input. A disappointing result alone does not establish negligence, while a genuine departure from accepted professional practice may not always be obvious to a patient from their medical records.
The lawyers at Law Advice can review the circumstances surrounding your treatment, obtain and examine relevant medical records, identify the legal issues that need to be investigated and seek appropriate independent medical evidence where required. They can also assess whether an apparent failure in care caused additional injury or loss and advise you about the compensation that may be available.
If you are concerned that a doctor, hospital or healthcare provider may have fallen below the required standard of care, speaking with an experienced medical negligence lawyer can help determine whether there are reasonable grounds to investigate a claim further.