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Medical Negligence Law in Australia 



What Is Medical Negligence ?

The failure to take reasonable steps to avoid causing harm to a patient. Medical Negligence can be a difficult field as every medical operation has inherent risks.

There can never be a guarantee that nothing will go wrong. But just because a procedure has been unsuccessful does not mean negligence has occurred. However, even if the surgery has been successful and performed properly does not mean negligence has not occurred as will be shown below.

What need to be established

there is a duty of care, that the medical professoinals including the hospital breached that duty of care, the injury suffered could have been foreseen, finally that the damage suffered was caused by the breach of duty.

A high-profile medical negligence case that arguably had one of the largest impacts on medical negligence law in Australia. Cattanach V Melchior (2003) 77 ALJR 1312. where Mrs Melchior went for a tubal ligation, however Dr Cattanach assumed that the right fallopian tube had already been removed in a previous surgery.  Further, this case highlights that while Dr Cattanach had performed the surgery correctly medical negligence can still occur. 

Duty of care. 
Dr Cattanch has a duty of care to his patients as a doctor described as “single comprehensive duty
covering all the ways in which a doctor is called upon to exercise his skill and judgmentBreach of that duty.  Dr Cattanach had failed to confirm that the right fallopian tube had been removed.


Breaching his duty of care.

That the damage was foreseeable. If the right fallopian tube was present and unclipped it is foreseeable that Mrs Melchior could fall pregnant


Before the surgery Mrs Melchior used various birth control methods, the purpose of the surgery was to allow Mrs Melchior and her partner to engage in intercourse without having to use birth control. Therefore, there is a direct connection between Dr Cattanach’s breach and Mrs Melchior falling pregnant.


In this case the Court held that the costs of raising a child are recoverable damages, and awarded Mrs Melchior $105,000 in damages. However, one of the consequences of this case was the passing of legislation that prevents the courts awarding damages for economic loss for rearing a child. Unless that child has a disability then the costs that arise due to the disability are recoverable.

Failure to warn of potential risk.

Medical professionals have a duty to warn patients of any potential risks involved in a procedure as part of their duty of care. One of the main issues with this avenue is that it is often the patient’s word against the medical professional. For a negligence case relying on failure to warn a number of things need to be proved;

  1. That the damage you suffered resulted from a known potential risk

  2. That the risk was not insignificant

    1. This can be overcome depending on the circumstances

  3. That the doctor failed to warn of the risk

  4. That if you were aware of the risk you would not have had the procedure.


In Rodgers V Whitaker, Whitaker underwent eye surgery, the surgery was performed competently.  However, Whitaker soon went blind in her good eye as the surgery had caused sympathetic ophthalmia. Dr Rodgers was found to be liable as he failed to warn Whitaker that she could develop sympathetic ophthalmia and go blind in her good eye.  On the evidence, she would not have attempted the surgery had she be aware of the risk and was award $808,564.

Time limits

A Medical Negligence claim must be started from either[5]

  • three years from you discovered the medical negligence

  • twelve years from when the medical negligence occurred

The twelve years can be extended if the court believes it is just and reasonable to do so.




The Daily Telegraph has released data that the average medical negligence payout is around $43,585 in 2015. While there are much larger payouts, the largest being 10 million for a lady whose son was born with cerebral palsy due to the hospital’s negligence. Calculating damages and what you can actually claim are an important part of any negligence case. The method used to calculate damages is extremely complicated.  In the cases established causation was readily established however this is not always the case. Just establishing causation can be challenging, this is another reason why consulting a professional beforehand is recommended.  As the average medical negligence case will run for four years. Medical negligence is a complicated field of law as shown above by two correctly preformed procedures resulting in successful cases. These cases where chosen to emphasize that medical negligence is not just incorrectly performed procedures. It is highly recommended you consult an expert if you are considering bringing a medical negligence suit.

If you have any inquiries or wish to receive further information, please contact:

John Park ( Executive Lawyer)  & Graham  
M + (61) 410 626 909 / 1300 577 502 /

Level 13, 2 Park Street, Sydney NSW 2000 /

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