The Importance of Damages in a Medical Negligence Claim.

Hi,

I hope that your November has been pleasant!

Here at MAG, I’ve been able to hit the road and spend some time getting to sit down and chat with our highly valued clients which has been so rewarding. If you’re interested in arranging an in person or virtual catch up to discuss any feedback regarding our services, or if you would like more information please do not hesitate to reach out as I’m more than happy to have a chat!

First of all, I just wanted to share the statistics for our Medical Negligence Triage Service from October 2024.

In October there were 68 Medical Negligence Triage Cases lodged through our service!

Out of those 68 cases, 24 of them requested Free Preliminary Opinions, 7 of them proceeded to teleconferences, 2 of them proceeded to a full report while quite a lot of those requests are still currently in progress.

13 out of the 24 Free Preliminary Opinions requested received a “negligence not probable” response from the specialist and did not proceed any further.

We are happy to have been able to provide the plaintiffs with the closure they need as well as helping them avoid the emotional and financial burden of proceeding straight to a report, only to receive an unfavourable/unsupportive opinion.

This month’s topic is The Importance of Damages in a Medical Negligence Claim.

While establishing liability is a crucial part of any Medical Negligence claim, assessing the extent of the damages caused as a result of the Medical Negligence is just as important in supporting your client’s claim.

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For those uninitiated, the difference between Liability and Damages is; Liability reports are for the purpose of proving Medical Negligence. A Liability report will establish that a duty of care owed to the plaintiff was breached by the defendant. Common questions that establish liability in a report will be:

• Was the harm foreseeable?
• What is the usual practice in the circumstances?
• How likely was it that harm would result from the defendant’s conduct?

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Once the court is satisfied that the defendant has been negligent, the case then proceeds to assess the extent of damages. The extent of plaintiff’s injuries is assessed, including whether they are now permanently disabled as a part of the medical negligence, how their day-to-day life is impacted as a result of their injuries and whether this impacts their capacity to work and make a living. All of these factors are considered when assessing the extent of damages and awarding the plaintiff with a lump sum to cover the costs associated with the injuries received, treatment required and any lifestyle changes needed as a result of the medical negligence.

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There are physical damages, which are physical injuries sustained as a cause of the negligence on the defendant’s part, or there can be psychological injuries sustained as a result of suffering, or watching a loved one suffer as a result of the defendant’s negligence. Psychological injuries such as PTSD, Nervous Shock, Anxiety and Depression can often be caused as a result of being the victim of a medical negligence claim, or being the loved one of a medical negligence victim.

As someone who suffered a rare, unforeseen medical complication resulting in a bruised eye, despite not being in pain I definitely suffered from Anxiety and Depression immediately following the incident. I became more nervous regarding medical procedures, and when seeing how horribly blood red my eye looked in the mirror, I couldn’t look at myself, whether I was in my home or out in public I was constantly wearing sunglasses to avoid anybody seeing my eye. I was not in a great place mentally following the complication, I can only imagine how much worse it may be for people who are left permanently disfigured and injured as a result of medical negligence.

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I have invited Director and Principal Lawyer of Polaris Lawyers Alice Robinson to provide her insight as to the importance of a damages report;

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Assessment of damages can be deeply personal to the person bringing a case in medical negligence, and damages can encompass a wide range of factors for a Plaintiff.

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Broadly, compensation damages are intended by the Court to put a Plaintiff back in the place they would have been in, but for the negligence and the harm which occurred. This is of course very difficult for injured Plaintiffs, as their injuries are permanent and affect many facets of day-to-day life. To acknowledge this, the law allows for damages to be awarded across 4 different ‘categories’:

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1. Pain and suffering/loss of amenity of life/loss of expectation of life – more commonly referred to as ‘general damages’ and usually takes the form of lump sum
2. Damages for loss of earnings and/or loss of future earning capacity – which are calculated using the known earnings of the Plaintiff, together with medical evidence which discusses the impact of the Plaintiff’s injuries on their ability to work/go back to work
3. Damages for medical and like expenses – awarded for money spent in the past and any expenses into the future, including for things such as home modifications, equipment, medication and treatment/surgery
4. Damages for gratuitous or ‘home help’ care – based on the care provided by a Plaintiff’s family/friends to help them with activities of daily living and/or housework, which the Plaintiff would have otherwise done themselves, if they were not injured.

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By adding up these four broad categories, the Court and/or Jury can arrive at a figure to compensate an injured Plaintiff. Because each Plaintiff has a unique case, damages awards can vary, even for similar injuries, as they depend on how a Plaintiff is affected by their injuries.

?Spotlight on our Medical Negligence Specialists

Dr Allen James undertook medical and cardiothoracic training at the John Hunter Hospital, Westmead Hospital, The Prince Charles Hospital and at Southhampton General Hospital in the UK.? He is an experienced Cardiothoracic Surgeon with over 21 years’ experience at Lake Macquarie Private Hospital working within a multidisciplinary team.? He performs a broad range of cardiothoracic procedures including: coronary artery bypass surgery (CABG), heart valve surgery, redo and aortic cardiac surgery, lung cancer surgery, video-assisted thoracoscopic surgery (VAT), general thoracic, endoscopic sympathectomy for hyperhidrosis, pacemaker and defibrillator insertion.? He is a member of the educational Board of Cardiothoracic Surgery RACS and enjoys training young surgeons.

Dr Lesley Short has been an Australian certified orthodontist since 1990.? She worked in private practice from 1990 until her retirement in 2020.? She was also Clinic Director and teacher of post-graduate orthodontics in Canada from 2003 til 2009.? Her areas of expertise are child and adult clinical orthodontics, growth modification techniques for growing children, orthodontic treatment of cleft lip and palate patients and surgical/orthodontic treatment of adult patients with skeletal discrepancies.

Ms Coie Wilson is an Emergency Clinical Nurse and Clinical Nurse Educator with over 17 years of experience in diverse roles in the public and private sector hospital systems. She has completed a Bachelor of Laws, her Practical Legal Training, and a Master of Healthcare Leadership and Management. She also holds a Grad Cert in Emergency Nursing, Grad Dip in Occupational Health and Safety and Certificates in Aged Care. Coie has managed large projects for implementing new systems and procedures across multiple sites and has served in Quality and Safety roles, advising senior management. Ms Wilson's expertise extends to emergency and intensive care nursing, medical negligence, and regulatory investigation, reflecting her commitment to enhancing healthcare standards and safety practices.

Please do not hesitate to contact me with any queries, questions or concerns?via my direct line or email address.

Kind regards

Taylah McGregor

Medical Negligence Lead & NSW Business Development

Direct Line: (02) 9056 4471

[email protected]

Medical Negligence Bookings & Queries: (02) 8090 7616

[email protected]

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MedicoLegal Assessments Group Pty Ltd

ABN?47 613 189 049

Suite 507,?83 York Street,?Sydney NSW 2000

Phone:?02 8090 7611 |?Fax:?02 8090 7610