What is duty of care?

Yes. Medical practitioners who provide treatment or advice that carries a risk of harm or injury have a duty of care meaning they must warn their patients of the risks involved. This includes circumstances where:

• 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

The QLD duty of care legislation exists to protect you from foreseeable harm when seeking medical advice or treatment. If you feel that your medical provider has carried out a negligent act or you were not fully informed about the potential hazards of your treatment then you should contact a personal injury lawyer.

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.

According to the Duty of Care Act in QLD, it is not enough to establish there has been a breach of duty by your medical provider in their treatment of you. To claim a breach of duty of care under civil law, you also need to show that you have sustained an injury as a result of that standard of care, negligent treatment or advice. You need to prove that it was the actual breach of duty that caused your injury. In medical negligence cases, this can sometimes be problematic. This is because often further injury is sustained whilst the patient is undergoing treatment for a pre-existing injury that is quite debilitating. This can mean the treatment itself can cause increased symptoms.

It can sometimes be very difficult to differentiate the injury sustained from the pre-existing injury for which treatment was being provided.

Especially from the increased injury caused by the treatment.

This is not only an issue when looking at causation, but when looking at what damages or compensation you should receive for your injuries in a medical negligence claim. The best thing to do is contact us and get a free claim assessment, and we can advise more.