When you have surgery that is supposed to be minor, but it comes with major consequences, you want to be compensated for your personal injury. But who do you sue?
High Court Increasingly Doctor-Friendly?
Lately, the High Court of Australia has become increasingly practitioner-friendly in the case of medical negligence lawsuits. To make a long story short, it is much more difficult to prove medical negligence against a practitioner than it used to be. The standard of proof is becoming much more stringent and doctors have found a loophole that is becoming increasingly effective.
Two recent decisions in particular, Wallace vs Kam (2013) HCA 19 and Odisho vs Bonazzi (2014) VSCA 11, have “changed the game.” The High Court found doctors not responsible or negligent, even though they didn’t fully inform the patient of the risks involved in their surgeries, because the patients would have undergone the surgeries even if they had been informed of the risks.
Manufacturers: Are they Liable?
Since the courts are increasingly reluctant to find liability against doctors, many are suing manufacturers when they are injured by a doctor. An example is that if a patient sustains an injury during a hip replacement, it may be possible to sue the manufacturer of the artificial hip due to being defective or not matchable to the original hip.
The reason this works better is that, thanks to the Trade Practices Act and the Competition Consumer Act, medical device manufacturers are subject to more regulation, scrutiny and responsibility than doctors are. Due to the lower threshold of liability, which translates to “more responsibility for their actions,” it can be easier to win a case against a manufacturer than against a doctor.
Yet Another Loophole
Doctors have their loophole but manufacturers have one, too. Manufacturers aren’t required to have liability insurance. If they don’t have liability insurance, you may not ever see a dollar, even if you win a lawsuit against them.
You Need Great Representation
If you think you have been the victim of medical negligence, you may be eligible for compensation. Call Bradford Legal today: 1300 738 303.