What is a duty of care in injury compensation claims?
Duty of care by definition is a moral or legal obligation to ensure the safety or well-being of others. When you visit a medical provider for treatment or advice for any injury or medical condition they owe you a duty of care.
A medical provider can be a doctor, dentist, orthopaedic surgeon, neurosurgeon, psychiatrist or psychologist, medical specialist, physiotherapist, chiropractor, etc.
According to the duty of care legislation in QLD, you must receive reasonable care and skill, so as not to expose you to a reasonably foreseeable risk of injury when providing you with any medical treatment or advice.
We’ve pulled together some of the most common questions and answers below, but you’re welcome to contact us if you’d prefer to get a free claim assessment.
Can I get medical negligence compensation?
Frequently asked questions about duty of care
- The information is reasonably required for the patient, so they can make a fully informed decision whether they wish to proceed with the treatment given risks involved
- The information is such that the medical provider knows, or ought to know, that the patient would want to be aware of it when making their decision to undertake the treatment or follow the advice
There are some cases where a patient can undergo treatment by a doctor for an injury the patient already has, and the patient suffers a further injury during that treatment.
However, not all of these cases will be considered contributory negligence by the medical provider. It is important to speak with an experienced personal injury lawyer to help you determine when medical negligence occurs and who is liable for a compensation claim.
It does not necessarily follow that if a patient suffers further injury from undergoing treatment, they automatically have a medical negligence claim.
To succeed in a claim for medical negligence, it has to be shown that there has been a lack of care in the provision of that treatment, or failure to warn of the nature of the risks involved in undertaking the treatment.
You should also be aware that there are time limits that must be followed before lodging a claim for medical negligence. This is why you need expert legal advice to understand if you are able to claim compensation for things such as economic loss and pain and suffering.
Yes, this is because it is accepted that there are certain risks of injury that will always be associated with some medical treatments. Even with the best duty of care and skill being exercised by the medical provider, complications can occur. This is particularly relevant in cases where further injury can occur during surgery. Find out more about medical negligence claims.
Under the provisions of the Civil Liability Act 2003, a professional is not considered to have breached their duty of care if:
It’s established that they have acted in a way that is widely accepted by a significant number of other respected and competent professionals in their field
Unless the practice is irrational or contrary to a written law.
If a doctor performed an operation without due care and you were injured as a result then they have failed their duty of care under civil law. However, when it comes to compensation claims and duty of care, employer obligations mean the hospital can be held vicariously liable for an act or omission by the treating doctor if they were employed by the hospital.
If you receive treatment at a hospital, by a doctor who is not an employee but is contracted by the hospital rather than by you, it is likely a non-delegable duty would exist. That means the hospital will be the defendant if the injured person seeks compensation.
If you receive treatment as a private patient of a doctor at a hospital, and the doctor was contracted by you (for example, you consulted with the doctor in their private rooms prior to treatment) then the doctor will be the likely defendant.
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