Medical Negligence Claim - Australian Law
The law in Australia is generally based on a federal system with each state or territory having its own individual legislation on a particular topic and if no such legislation exists the applicable law is known as ‘common law’ which has grown up over the years based on the equitable decisions made by judges in earlier cases which can differ dependent on location. Some statutes are passed by the Government of Australia and do apply nationally however in the case of medical negligence claims whilst there are moves afoot to unify the law on a national basis at the moment each state or territory has its own law.
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Common Law
In some parts of Australia the common law applies to medical negligence claims and in other areas there is legislation. Where the common law applies courts do not judge a doctors conduct by comparing it to other medical practitioners but apply absolute standards A common law medical negligence claim will succeed if the standard of care did not reach the level demanded by the law in that particular location.
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Legislation
Recent legislative changes applying to medical negligence claims in some states have established that a doctor will not be judged to have been negligent if their conduct was such that a substantial body of the medical profession would have acted in a similar manner faced with the same situation provided that the approach to the treatment was considered to be logical. The mere fact that the chosen treatment has failed and alternative treatment may have succeeded does not establish negligence in these circumstances.
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Time Limits
There are time limits that apply to medical negligence claims in Australia. A claim must be settled or legal proceedings must have been issued in a court of law within three years of the negligent treatment or within three years of the discovery of the negligence. For children time does not start to run until the eighteenth birthday and for the mentally incapacitated time does not start to run until full mental capacity has returned. The court also has a wide discretion which is rarely exercised.
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Personal Injury Solicitors
Our specialist medical negligence solicitors deal with cancer medical negligence claims using the no win no fee scheme. If you would like free advice just complete the contact form or email our offices and a lawyer will telephone to give information on how to protect your legal rights with no further obligation.