Medical negligence claims arise when a doctor, hospital, surgeon or other health provider fails to provide care to the standard expected and a patient is harmed as a result. Not every poor outcome is negligence. These claims depend on independent expert evidence about what should have happened, what did happen, and what difference it made.
Common types of medical negligence
- misdiagnosis, delayed diagnosis or failure to refer
- surgical errors and avoidable surgical complications
- medication and prescribing errors
- birth injuries to mother or baby
- failure to warn of a material risk before treatment
- hospital system failures, infection control and inadequate monitoring
How negligence is assessed in South Australia
Medical negligence claims are governed by the general law of negligence and the Civil Liability Act 1936 (SA). The Act includes a specific standard for professionals: in broad terms, a health professional is not negligent if they acted in a way widely accepted by members of the profession as competent practice, unless that practice was irrational. Failure to warn of risks is treated separately, because patients are entitled to information about material risks before they agree to treatment.
Causation
You also need to show that the negligence caused your injury, rather than the underlying illness or a known risk that would have happened anyway. This is often the hardest part of the claim and is why independent specialist opinion is obtained early.
Thresholds for damages
The Act sets thresholds before some categories of damages, such as damages for pain and suffering, are payable, and limits how some losses are calculated.
What you can claim
- corrective treatment, medical and rehabilitation costs
- lost income and loss of earning capacity
- care and assistance, including care provided by family
- pain, suffering and loss of enjoyment of life, where the thresholds are met
Complaints and compensation are different
A complaint to the hospital, the Health and Community Services Complaints Commissioner or the practitioner’s regulator can lead to an explanation, an apology or disciplinary action, but it does not by itself pay compensation. A compensation claim is a separate legal process. You can pursue both, and it is worth getting advice before making a formal complaint.
Time limits
Personal injury claims in South Australia generally must be started within three years, and in medical cases the question of when time started to run can be complex. Different rules can apply to children. Get advice as soon as you suspect something went wrong.
Immediate practical actions
- Get the treatment you need now, from another provider if you have lost confidence.
- Write down a timeline of appointments, conversations and symptoms while you remember them.
- Keep letters, discharge summaries, prescriptions and receipts.
- Request copies of your medical records, or let us do it for you.
- Speak with a lawyer before signing any release or accepting any payment.
Related pages
- Injury & Compensation Lawyers
- Medical treatment and failure to warn
- Time limits for personal injury claims in Adelaide
Frequently asked questions
Is a bad outcome enough to make a claim?
No. Treatment can be performed properly and still go wrong. A claim needs evidence that the care fell below the accepted standard and that this caused harm you would otherwise have avoided.
Do I need an expert report?
Almost always. An independent specialist in the relevant field reviews your records and gives an opinion on the standard of care and causation. We arrange this as part of the claim.
Can I claim against a public hospital?
Yes. Claims involving public hospitals are usually handled by the state’s insurer, and the same legal principles apply.
How long do medical negligence claims take?
Often longer than other injury claims, because expert evidence takes time and your condition needs to stabilise before the claim can be fully valued. We give you a realistic timeframe once the records have been reviewed.