What constitutes a “failure to refer” claim in regard to Medical Negligence?

It is with genuine concern and dismay that all of us have read reports in the press recently as to the extent of medical errors that have been made in our public health system resulting in numerous medical negligence claims costing the taxpayers of NSW tens of millions of dollars a year in payouts. In fact a recent Daily Telegraph report identified what it called the 10 worst hospitals in NSW based on an assessment of the latest 2018-2020 health data available from the NSW Bureau of Health Information and the Australian Institute of Health and Welfare across 25 categories.

Medical negligence proceedings involve the prosecution of a claim against a healthcare professional or institution. The claim can be bought as against a doctor, radiographer, physiotherapist, medical centre or a hospital. In the prosecution of any medical negligence claim it is necessary to establish, ultimately to the satisfaction of a court:

• That the patient was owed a duty of care.

• That the duty of care was breached by the treating health professional.

• That the breach of that duty caused or materially contributed to the injury, loss or damage suffered by the patient.

The breach of duty is determined by reference to “peer professional opinion”. That is, it is the expert evidence elicited from peer professionals which determines the standard of care expected and whether there has been a breach of same. The breach of the duty can take many forms. There can be a failure to diagnose by the healthcare professional. There can be a failure to treat properly. There can also be a failure to refer. A failure to refer concerns the failing on the part of the healthcare professional to properly identify the nature and extent of the injury or illness that is being treated for the purpose of determining what referral the patient requires. That referral may be for further investigative procedures such as radiological examinations or alternatively, it may be a referral to another healthcare professional such as a specialist. If the peer professional opinion evidence available supports the contention that the failure to refer by the healthcare professional caused or materially contributed to the injury, loss or damage suffered by the patient then the healthcare professional will be liable in negligence and responsible for the payment of damages.

The breach of the duty can take many forms. There can be a failure to diagnose by the healthcare professional. There can be a failure to treat properly. There can also be a failure to refer. A failure to refer concerns the failing on the part of the healthcare professional to properly identify the nature and extent of the injury or illness that is being treated for the purpose of determining what referral the patient requires. That referral may be for further investigative procedures such as radiological examinations or alternatively, it may be a referral to another healthcare professional such as a specialist. If the peer professional opinion evidence available supports the contention that the failure to refer by the healthcare professional caused or materially contributed to the injury, loss or damage suffered by the patient then the healthcare professional will be liable in negligence and responsible for the payment of damages.

Medical negligence claims can be difficult and complex. They need not be. Brydens Lawyers are the experts in the prosecution of all medical negligence claims. If you are dissatisfied with the treatment which has been provided to you by a healthcare professional as a result of which you have suffered further injury, loss or damage, then contact Brydens Lawyers today for a risk-free assessment as to whether there is a claim available to you.

Strict time limits apply with respect to the prosecution of any medical negligence claim. Contact Brydens Lawyers today on 1800 848 848 or at brydenslawyers.com.au. At Brydens Lawyers – #WEDO medical negligence claims.