Proving that your doctor has been negligent is not always simple. The NSW Civil Liability Act 2002 codifies the requirements necessary to establish negligence.
To establish negligence, you must show that:
- Your doctor owed you a duty of care;
- Your doctor breached that duty of care (by doing or not doing something);
- You have suffered physical or financial harm; and
- Your doctor’s breach of duty of care caused that harm.
All hospitals, doctors and nurses have a duty of care to take reasonable care in the treatment they provide. The duty of care is owed to anyone who could foreseeably be harmed by their actions (or failures to act). This special relationship between a doctor and patient gives rise to a non-delegable duty of care.
In deciding whether there has been a breach of the duty of care, the first question to be determined is whether a reasonable person in the doctor’s position would have foreseen that his conduct involved a risk of injury to you.
The second question to be determined is what a reasonable person would do by way of response to the risk. The Court needs to consider whether the risk of harm was foreseeable and whether the risk was not insignificant.
One aspect of proving that your doctor has been negligent is answering the question whether your doctor failed to comply with what is accepted competent professional practice. The other aspect is to establish that the breach of the duty of care actually caused an injury. If the injury, loss or damage would have happened regardless of the breach of the duty of care, then no compensation can be claimed. You must show that it was more probable than not that the breach of the duty of care caused the injury and the loss and damage that flowed from the injury.
By Bernard McAuley, Solicitor
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
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