Queensland patients victims of unfair medical negligence legal process, says Mark O'Connor

Written on the 22 February 2018

Queensland patients victims of unfair medical negligence legal process, says Mark O'Connor

A prominent Brisbane injury compensation law specialist says the legal system in Queensland is unfairly geared against negligence claims against doctors and hospitals.

Mark O'Connor says victims must negotiate a tortuous and expensive claims process greatly hampered by the fact that Queensland specialists are unwilling to give evidence against their peers in the medical profession.

Mr O'Connor, a Director with Brisbane firm Bennett & Philp Lawyers and an Accredited Specialist in Personal Injury Law, says a new report by the Grattan Institute showing one in every nine patients who go to hospital in Australia end up suffering a complication is just the tip of a medical negligence iceberg.

The complications statistic rises to one in four for those who stay in hospital overnight - about 725,000 each year.

Mr O'Connor feels while not all complications would be negligent or unavoidable, it is likely that a proportion of them would be arising out of negligent medical treatment, or unsatisfactory pre-operative-or post-operative care.

"Despite this, the grim reality is the medical negligence compensation system in Queensland is geared against patient claims.

If a claim is brought against a doctor or hospital then a complex and expensive (to the victim) process begins.

After giving an initial notice which gives the basic details of the client's claim, a potential claimant must within 12 months, before a claim can proceed, provide a report from a medical specialist.

This is to assess the incident and to provide an advice that the injury suffered by the patient was caused by a failure to meet an appropriate standard of care, the reason for that opinion and a confirmation that as result of the failure, the injured person suffered personal injury.

"The difficulty with this is that commonly, Queensland specialists are unwilling to give evidence against their peers in the medical profession. Interestingly, in my experience, they are less reluctant to give medical evidence supporting their fellow doctors," he said.

Mr O'Connor added this means that someone who wishes to bring a claim needs to, more often than not, seek medical opinion from an interstate doctor. This often involves having to fly interstate to be examined with all the expense associated with that with either the patient or the lawyer representing the patient paying that specialist's fee which more often than not would be in the broad range of about $2,000 and $,3500.

"This means that no matter how gross the negligence by a treating doctor or hospital, a plaintiff/patient needs to incur expenses often in the broad range of $2500-$4500 for travel costs to and from generally Sydney and Melbourne and the cost of the specialist report.

"This is simply to get to first base. The effect of this is that many people who have legitimate claims can't even consider them because it costs too much to get them started.

"These rules apply to the medical profession and to no other professional who may be sued - the legislation effectively puts the medical profession in a privileged class," he said.

Mr O'Connor added this, combined with the legislation providing that you cannot recover legal fees of any significance to pursue your rights unless your damages are greater than about $73,000 means that many people with legitimate claims are effectively shut out of any means of getting compensation.

A further effect of this is that because medical practitioners are often not pursued for compensation for the results of their negligence, because it is not cost-effective or too expensive to do so, it means that there is no disincentive for them to change the way they practice so that their poor medical practice is perpetuated, and patients continue to suffer.

"These special rules, brought in by Queensland's Beattie government in response to a fierce campaign the AMA, need to be revisited. The health and safety of the public needs to be put before the protection of the profits of the medical insurers.

"For Queensland medical negligence claimants, change to the claims process is long overdue and needs a complete overhaul to put the interests of the public before those of negligent doctors and hospitals," Mr O'Connor said.


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