In New South Wales (NSW), medical negligence law is designed to protect patients who have been harmed by a medical professional during treatment or medical intervention. These laws provide a framework for patients to seek compensation for their injuries and ongoing medical expenses, as well as holding healthcare providers accountable for their actions.

If a patient believes that they have a medical negligence case, it’s important to seek legal advice as soon as possible, as there are strict time limits for making a claim. With the right legal support from experienced medical negligence lawyers, patients can hold healthcare providers accountable for their actions and receive the compensation they deserve.


Understanding Medical Negligence in NSW

Medical negligence is a serious issue that can have devastating consequences for patients. In NSW, medical negligence is defined as a breach of a duty of care by a health professional that causes harm or injury to a patient. Health professionals are required to provide a reasonable standard of care to their patients, and failure to do so can result in legal action.

There are several factors that must be present for a case of medical negligence to be successful. These include:

  • Breach of duty
  • Causation
  • Damage

It is important to note that not every poor medical outcome is the result of medical negligence; sometimes, despite the best efforts of health professionals, patients do not recover as expected.

There are also many known complications and risks when a patient receives medical treatment.


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Common Examples of Medical Negligence Claims

There are many circumstances that can potentially be eligible for a medical negligence claim. According to the Australian Patients Association, the following could be considered negligence:

  • Patient suffered injury as a result of treatment or surgical errors.
  • Incorrect diagnosis, or, under- or over-diagnosing a patient.
  • Overlooking a patient’s symptoms or signs of disease.
  • Not validating a patient’s history of their presenting complaint.
  • Prescribing the wrong dose or wrong type of medication.
  • Failure to order necessary tests or ordering unnecessary tests, or even misinterpreting test results.
  • Failure to obtain informed consent from a patient or their legal guardian.
  • Inadequately explaining the risks of a medical treatment or procedure to a patient.
  • Discharging a patient prematurely.
  • Failure to or inadequate follow-up of a patient.

What Compensation Can You Receive?

If medical negligence is proven, you may be entitled to various compensation, including: 

  • Medications or other treatments
  • Hospital charges and fees
  • Rehabilitation costs
  • Equipment for managing the injury or assistive equipment
  • Travel costs
  • Loss of income.
  • Physical or psychological pain and suffering
  • Disability or physical impairments
  • Loss of future earning capacity.

Who Can You Make a Claim Against for Medical Negligence in NSW?

There are a variety of medical and healthcare professionals, as well as organisations or companies, that can be subject to a claim. According to the Australian Patients Association, you can make a personal injury claim for medical negligence against:

  • Doctors
  • Nurses
  • Paramedics
  • Surgeons
  • Operating theatre technicians
  • Dentists
  • Pharmacists
  • Allied health professionals
  • Hospitals
  • General practice clinics
  • Specialist health service clinics

Medical negligence claims in New South Wales are governed by the Civil Liability Act 2002 (NSW).

What is the Civil Liability Act 2002 (NSW)?

The Civil Liability Act 2002 is the primary legislation that governs the recovery of damages in civil claims in NSW. The legislation states:

“An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes.”

What Evidence Do You Need for a Medical Negligence Claim?

A lump sum payment is a one-time payment made to the beneficiary or the trustee of the deceased estate. The lump sum payment is usually tax-free if paid to a dependent beneficiary, such as a spouse or child under 18 years old. However, if paid to a non-dependent beneficiary, such as an adult child, the payment may be subject to tax.

It’s important to note that not all super funds allow for lump sum payments. Beneficiaries should check with the fund to see what options are available to them.

Income Stream

An income stream is a regular payment made to the beneficiary over a period of time. The income stream can be paid as a reversionary or non-reversionary pension. A reversionary pension means that the payments continue to be made to the beneficiary after the death of the original recipient. A non-reversionary pension means that the payments stop after the death of the original recipient.

Income streams are subject to tax, but the tax treatment depends on the age of the deceased and the age of the beneficiary. It’s important to seek professional advice to understand the tax implications of an income stream.


To establish causation, the plaintiff must prove that the medical practitioner or healthcare provider’s breach of duty caused their injury. This requires the plaintiff to show that their injury would not have occurred but for the medical practitioner or healthcare provider’s breach of duty.


Proving medical negligence will also require the plaintiff to provide evidence that they suffered damage as a result of their injury, such as physical, emotional, and financial harm.


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Making a Claim for Medical Negligence in NSW

Making a medical negligence claim in NSW follows a structured process that involves several key stages. If you are considering whether or not to make a claim, you should seek legal advice from an experienced personal injury lawyer as soon as possible.

When Can a Person Make a Medical Negligence Claim in NSW?

A person can make a medical negligence claim when they have suffered harm due to the negligence of a medical or healthcare professional, including cases where a provider has failed to meet the expected standard of care, resulting in injury or harm to the patient.

Notification of Claim

The first step in the claims process is to notify the healthcare provider or facility of the intention to make a claim. This notification should include details of the alleged negligence and the harm suffered as a result.

Medical Assessment

Following the notification of the claim, an independent medical assessment may be conducted to determine the extent of the harm and the link to the alleged negligence. This assessment is crucial in establishing the basis for the claim.

Settlement and Litigation

Once the medical assessment is completed, the parties involved may engage in settlement negotiations. If a settlement cannot be reached, the claim may proceed to litigation, where the matter will be heard before the courts.

How Long Does a Medical Negligence Claim Take in NSW?

The duration of a medical negligence claim in NSW can vary depending on the complexity of the case, the willingness of the parties to reach a settlement, and the court’s schedule. Generally, these claims can take several months to several years to reach a resolution.

Time Limits for Making a Medical Negligence Claim

In NSW, the statute of limitations on all medical negligence cases is a three-year time limit. This means that if a patient has been the victim of medical negligence, they have three years from the date of the negligence to commence a lawsuit against the relevant medical practitioner or institution. However, there are some exceptions to this rule. For example, if the patient was under the age of 18 at the time of the negligence, the three-year time limit does not begin until their 18th birthday.

It is important for patients to be aware of these time limits and to act quickly if they believe they have been the victim of medical negligence. If a patient fails to commence legal proceedings within the time limit, they may be barred from making a claim.

Compensation and Damages

Medical negligence can result in significant harm to patients, including physical, emotional, and financial damages. Compensation and damages are available to patients who have suffered harm as a result of medical negligence in NSW.

What is the Average Compensation for Medical Negligence in Australia?

The amount of compensation awarded to victims of medical negligence in Australia varies depending on the severity of the injury and the circumstances of the case. Negligence claims are usually calculated based on the following factors:

  • The severity of the injury.
  • The impact of the injury on the patient’s life.
  • The cost of medical treatment and ongoing care.
  • Loss of income and future earning capacity.
  • Pain and suffering.

Types of Damages

Should we be able to prove negligence on the part of the sanctuary which resulted in your injuries, you would be eligible to receive an award of damages (compensation). These damages include the following:

1. Non-Economic Loss

Section 16 of the Civil Liability Act allows for lump-sum compensation for pain and suffering, loss of enjoyment of life, loss of amenities of life, suffered to a person as a result of their injuries. There is a threshold that one’s injuries must be at least 15% of a most extreme case.

2. Medical and Out-of-Pocket Expenses

This represents compensation for the expenses that you have paid for medical expenses in the past (including put through the public health and Medicare system) and allowance for future medical and related expenses you would incur. This is paid as a lump sum.

3. Past and Future Loss of Income

This represents lump-sum compensation for past loss of income since the date of your injury and an allowance for future loss of income to normal retirement, plus superannuation. Medical evidence in relation to your long-term prognosis and ability to work and earn will be needed to assess this head of damage.

4. Domestic Assistance

Under the Act, Section 15B, one is entitled to claim for the cost of services, care and assistance that is provided by others to you that you did not need before the accident. There is also a claim for loss of services representing compensation for the care that is provided to others, i.e. your children that would have been performed by you but for your injury.

Is a Medical Negligence Claim Worth It?

When someone has been a victim of medical negligence, they may be wondering if it is worth pursuing a claim. While it can be a difficult decision to make, it is important to consider the potential benefits and drawbacks before making a decision.

The benefits of pursuing medical malpractice claims include:

  • Compensation: In NSW, the compensation amount will vary depending on the severity of the injury and the impact it has had on the victim’s life.
  • Accountability: Holding medical professionals accountable can help prevent similar incidents from happening in the future and improve the quality of care provided by healthcare professionals and institutions.
  • Assistance: A successful medical negligence claim can provide closure for the victim and their family and provide much-needed assistance for their ongoing medical expenses and treatment.

The main drawbacks of pursuing a claim can include:

  • Time and Cost: Even on a no win no fee basis, the time and cost involved in pursuing a claim can be quite high. Medical negligence claims can be complex and lengthy, and may require expert testimony and evidence which can result in high legal fees and a significant amount of time spent on the case.
  • Emotional Toll: Making a claim can also take an emotional toll on the victim and their family through reliving the incident and the legal process can be stressful.
  • No Guarantee of Success: It is important to remember when pursuing a claim, that even if you have a strong case there is no guarantee of success.

Key Takeaways

Experienced Medical Negligence Lawyers in NSW

If you believe you are eligible to make a medical negligence claim, you should seek the advice of an experienced personal injury lawyer – contact BurkeMead Lawyers to discuss your unique circumstances and potential compensation outcomes. 

About the Author
Sean Wright

Sean is a member of the personal injury team with extensive experience in representing injured clients at the Personal Injury Commission as well as in the District and Supreme Courts of NSW.