Cumberland Hospital escapes: NSW public liability and duty of care explained

Surgical errors that can qualify for compensation include:

• Operating on the wrong body part or wrong side
• Performing the procedure incorrectly
• Damaging organs, nerves, or blood vessels during surgery
• Leaving surgical instruments or materials inside the body
• Anaesthesia errors causing harm
• Post-surgical infections due to inadequate sterilisation
• Negligent post-operative care

To establish a valid claim, you must prove that the surgeon or medical team breached their duty of care, causing you harm that would have been avoided with reasonable care and skill. At Stacks Goudkamp, our experienced surgical error lawyers carefully assess each case to determine whether the error falls below the appropriate standard of medical practice.

In NSW, strict time limits apply to medical negligence claims, including surgical errors. Generally, you have:

• 3 years from when you discovered the cause of action
• A maximum of 12 years from when the negligent surgery that caused the injury occurred, regardless of when you discovered the injury

It’s important to understand that “discovery” doesn’t simply mean when the error occurred, but when you became aware of each of the following:

• You suffered an injury
• The injury was caused by the fault of the medical professional
• The injury was serious enough to justify making a claim

Surgical errors are sometimes not immediately apparent, particularly if you were not informed by your treating doctors. We recommend seeking legal advice as soon as possible as exceptions may apply in certain circumstances. At Stacks Goudkamp, we can assess your specific situation and help determine the applicable time limits.

Compensation for surgical errors typically covers:

• Pain and suffering and loss of enjoyment of life
• Past and future medical expenses, including corrective surgeries
• Past and future loss of income and earning capacity
• Loss of superannuation
• Care and assistance needs, both paid and unpaid
• Home and vehicle modifications if required
• Medication and aids and equipment
• Travel expenses related to medical treatment

The value of your claim will depend on the severity of your injury, its impact on your life, and your specific financial losses. At Stacks Goudkamp, our surgical error lawyers work with medical experts and financial advisors to ensure all current and future needs are properly quantified and included in your claim.

Proving negligence in surgical error cases requires establishing:

• The surgeon owed you a duty of care
• This duty was breached due to unreasonable treatment
• The breach caused your injury
• You suffered an injury that qualifies for compensation

We gather evidence from various sources, including:

• Medical records and surgical notes
• Expert opinions from independent specialist surgeons
• Witness statements from other medical staff present
• Medical imaging and test results
• Your own statement about the events

At Stacks Goudkamp, we have over 40 years of experience in medical negligence claims and access to highly regarded medical experts who can analyse complex surgical procedures and identify where negligence occurred.

While some surgical error claims do proceed to Court, many are resolved through negotiation and settlement before reaching a final hearing. The process typically involves:

• Gathering evidence and expert opinions
• Preparing and serving a formal claim
• Participating in settlement conferences
• Mediation with the medical indemnity insurer

Our experience shows that approximately 90% of medical negligence claims settle without requiring a Court hearing. However, if the insurer disputes liability or offers inadequate compensation, we are fully prepared to represent you in Court to achieve a just outcome.

At Stacks Goudkamp, we handle all aspects of the legal process, keeping you informed at each stage while minimising stress during your recovery.

Surgical error claims typically take between 18 months and 3 years to resolve, though this timeframe can vary based on:

• The complexity of the surgical procedure involved
• Whether liability is disputed
• The severity of your injuries
• The time needed to determine your long-term prognosis
• The need for multiple expert opinions
• Court schedules if litigation is necessary

Some particularly complex cases or those involving catastrophic injuries may take longer, especially if we need to wait to fully understand the long-term implications of your injury.

At Stacks Goudkamp, we work efficiently to progress your claim while ensuring we never compromise on thoroughness or the compensation you deserve. We keep you regularly updated on the progress and expected timeframes throughout the process.

Yes, you may still be eligible to claim compensation even if you were informed of risks, in two key circumstances:

1. If the surgical error goes beyond the recognised risks and complications and represents a breach of the duty of care owed to you. Being warned about risks does not give medical professionals permission to operate negligently.
2. If you weren’t properly informed about significant risks that would have affected your decision to proceed with the surgery. This is called “failure to obtain informed consent.”

For example, if you consented to surgery after being told there was a small risk of infection, but the surgeon made a clear error by damaging an organ, you likely have a valid claim.

At Stacks Goudkamp, we carefully assess the nature of the surgical error, the information provided to you before the procedure, and whether proper consent was obtained.

Claims for surgical errors in public hospitals follow a slightly different process, but compensation is still available. When pursuing a claim against a public hospital:

• The claim is usually made against the Local Health District rather than individual doctors
• The NSW Treasury Managed Fund typically handles the claim
• The same principles of proving negligence still apply
• You’re entitled to the same categories of compensation

Public hospital claims can involve additional considerations regarding systemic issues such as staffing levels, equipment availability, and hospital policies however this does not absolve the public hospital from acting appropriately.

At Stacks Goudkamp, we have extensive experience with claims against both public and private healthcare providers and understand the nuances of each category of claim.

At Stacks Goudkamp, in most cases, we handle surgical error claims on a No Win, No Fee basis, meaning:

• You pay no upfront legal costs
• We fund all expenses during your claim, including expert medical reports, which can be costly
• Legal fees to us are only payable if your claim is successful
• A percentage of your legal costs will be recovered from the insurer if your claim succeeds

Unlike some firms, we don’t use litigation lenders who charge high interest rates for funding medical reports and other expenses. We cover these costs ourselves, ensuring you don’t face additional financial burdens during an already challenging time.

During your initial consultation, we’ll explain our fee structure clearly so you understand the process completely before proceeding.

If you suspect you’ve been injured due to a surgical error, taking these steps can help protect your health and potential claim:

1. Seek immediate medical attention from an independent practitioner to assess and treat your condition
2. Request and keep copies of all medical records related to the original surgery and subsequent treatment
3. Document your symptoms, complications, and their impact on your daily life
4. Take photographs of visible injuries or complications if appropriate
5. Make notes about conversations with healthcare providers regarding the error
6. Contact Stacks Goudkamp for expert legal advice as soon as possible

Early legal advice is crucial as it allows us to secure important evidence and ensure time limitations don’t affect your claim. Our experienced surgical error lawyers will provide a free, no-obligation assessment of your case and clear guidance on your options moving forward.