Medical Negligence in Australia: what every GP needs to know

The information provided in this article is for educational and informational purposes only and does not constitute professional legal advice

Medical negligence is a term that can often be misunderstood, difficult to define, and dependent on the specific circumstances. A civil claim can ‌arise when a patient has suffered harm which they perceive to result from medical negligence. Financial damages are commonly the remedy.

According to the Victorian Health Complaints Commissioner (HCC), medical negligence refers to the breach of the standard of care owed by a medical professional to a patient, and if that breach has caused a patient to suffer physical harm, psychological harm or financial loss as a result, then that patient may consider making a medical negligence claim against the health care provider. 

As the Legal Services Commission South Australia outlines, the standard is one of reasonable care, not perfection.

Negligence vs adverse outcomes

The term negligence differs from adverse outcomes, which can occur because most medical treatments carry risks, and their adverse outcomes might not relate to the care a medical practitioner gave.

An adverse outcome may occur even when the care provided is of a competent and expected standard.

The Four Legal Elements: Duty, Breach, Causation, Harm

The Legal Services Commission South Australia also describes negligence as different from a mistake or an error of judgment. Although a risk of treatment eventuated, or a desired medical outcome was not achieved, this does not mean negligence has occurred.

The four key principles to prove negligence has occurred:

• Duty: There is, in the circumstances, a professional duty owed to a patient.
• Breach of duty: The health professional did not provide the expected standard of care that a person of similar experience and training would provide under similar circumstances.
• Causation: The health practitioner’s failure to meet the standard of care has caused harm or loss to the patient. 
• Harm: A breach of duty caused a patient to suffer injury or loss that a reasonable person in the circumstances could have expected to foresee. 

The main distinction between medical negligence and adverse outcomes lies in the standard of care.

The Standard of Care in Australia

As the Health Consumers' Council WA notes, medical practitioners owe an obligation to their patients to avoid harm that is reasonably foreseeable, sometimes referred to as a “duty of care”. This duty will depend on what is considered “widely accepted practice” in the medical field.

For example, it is widely accepted among medical practitioners that a patient must be warned of all material risks associated with a potential treatment.

This duty to warn was established after one of the most significant cases in Australia’s legal history, Rogers v Whitaker. This is the obligation to disclose what the patient needs to know, or what this patient or any reasonable patient in their position would want to hear.

Reducing Your Risk: Practical Steps for GPs

The Medical Board of Australia’s Code of Conduct provides guidance on patient safety and minimising risk. 

In addition, a patient-centred approach to providing quality healthcare, clear, empathetic, and honest communication with patients, best documentation practices, and open disclosure procedures after adverse events may help reduce risk. 

Avant’s data analysis shows that GPs are much more likely to receive a complaint than a claim for compensation. Between July 2017 and June 2022, 60% of claims against GPs were regulatory complaints, and 14% were claims for compensation. 

A HCC spokesperson tells InSight+ that common reasons for complaints to HCC about general practitioners include poor communication and interpersonal interactions, issues accessing services, inadequate monitoring, and missed or incorrect diagnoses.

Open, clear, empathetic communication

UNSW Law & Justice Associate Professor Jennifer Schulz says, “Our research shows that patients are most likely to complain about communication (such as practitioners being rude, disrespectful or insensitive) and insufficient or incorrect information. These issues often feature alongside complaints about adverse events. Patients' accounts show that these‌ issues and defensive practitioner behaviours can escalate complaints and claims.”

According to Avant, the initial response to a direct complaint from a patient is crucial, as it will influence whether the patient escalates their concerns further. 

Informed consent 

Patients must be provided with the information they need to understand the treatment they are consenting to. Avant recommends the following tests when discussing risk: 

• The objective test: what a reasonable person in the patient’s position would want to know. 
• The subjective test: what the patient would want to know based on what you learn about them through conversation and history. 

Avant also suggests doctors ask the patient specifically, “Is there anything in particular you are concerned about?” so that doctors can better address risks with them.

Document the discussion, including questions the patient asked and information provided to the patient.

Documentation Best Practices

Medical practitioners should make themselves familiar with their obligations under the HCC's Complaint Handling Standards and the Health Records Act 2001 (Vic), including maintaining clear, accurate and timely clinical records and responding appropriately to patient concerns, a HCC spokesperson says.

Similarly, Georgie Haysom, Avant Mutual General Manager, Advocacy, Education and Research says, “Having contemporaneous and accurate notes is critical not only for patient care but also to defend a claim or complaint. Doctors should ensure they are making comprehensive notes about the care provided, and also importantly, the clinical reasoning behind their decisions. Notes should be clear enough in case another practitioner is to take over the care.”

With the increasing prevalence of doctors using AI scribing, she recommends they check the transcribed notes before uploading them. She also refers to the Medical Board’s Code of Conduct, which provides a reliable guide on documentation. 

Clinical guidelines

Professor Liz Marles, Commission Clinical Director and a GP, says from a medico-legal perspective, a GP will be judged on whether their actions were consistent with the standard expected of a GP of similar training and experience. 

“GPs who use evidence-based guidance to inform their approach will be able to defend their decisions,” she says. 

“It is important for GPs to document the use of guidelines and their reasoning to demonstrate this.” 

She refers to the Commission’s Clinical Care Standards and Therapeutic Guidelines for Australian-specific guidance in relation to prescribing.

Open Disclosure After Adverse Events

Australia’s open disclosure policy requires health service organisations to acknowledge, explain and apologise for medical errors, as well as allow patients to relate their experience, and discuss consequences and future prevention efforts.

Professor Schulz notes in one of her research papers, that “Because being heard is an important (but often unmet) need for injured patients, talking provides psychological benefits and may decrease rather than increase the impetus to sue.”

When a Claim Is Made

The Medical Board’s Code of Conduct’s guidance around investigations includes seeking advice from a lawyer or professional indemnity insurer, cooperating with any legitimate inquiry and with any complaints procedure. 

Haysom recommends doctors get in touch with their medico-legal firm as soon as they receive a Statement of Claim or writ, as there is a timeframe for responding in a way that best protects the doctor’s interests.  

Professor Schulz says, “It is challenging for injured patient-plaintiffs to bring successful claims. Indeed, few of these claims make it all the way to courts. In the small number of claims where the patient-plaintiff is successful in medical negligence, their injuries are usually serious, and they have sufficient evidence to prove the elements of the tort which are duty, breach and causation.”