If you or a loved one has suffered due to medical negligence, you’re likely experiencing a whirlwind of emotions – confusion, anger, and perhaps even betrayal. It’s a challenging time, and amidst the pain and uncertainty, you may be wondering about your legal options.
One of the most pressing questions is often, “How long do you have to claim for medical negligence?”
We understand that thinking about legal action might feel overwhelming, but knowing your rights and the time limits involved is important. Our May 2025 guide aims to provide you with clear, compassionate information about medical negligence claims in Australia, focusing on the critical timeframes you need to be aware of.
What is a medical negligence claim?
A medical negligence claim is a legal action taken when a healthcare professional fails to provide the standard of care expected in their role, resulting in harm to a patient.
In other words, medical negligence occurs if a doctor, nurse, or other medical provider makes a mistake. This mistake is not intentional, but happens through carelessness or omission. If that mistake causes injury or worsens a patient’s condition, the patient may have grounds for a medical negligence claim.
Medical professionals have a legal duty of care to their patients, which includes:
- Deciding whether to accept or refer a case appropriately
- Choosing and recommending the correct treatment
- Administering that treatment with reasonable skill and attention
While not every medical error qualifies as negligence, if the care fell below what would reasonably be expected from a competent professional in similar circumstances, legal action may be justified.
We all place our trust in healthcare professionals, expecting them to provide competent and careful treatment. Most of the time, they do.
However, sometimes things go wrong.
Find out how much you can claim today
Medical negligence claims vs medical malpractice claims
Are medical negligence and medical malpractice the same thing? Not quite. While closely related, they differ in intent and legal handling.
Medical negligence occurs when a healthcare professional unintentionally fails to provide the appropriate standard of care, leading to harm. This might include errors like misdiagnosing a condition, failing to follow up on test results, or making a surgical mistake due to oversight or carelessness. The harm wasn’t intended, but the provider didn’t meet the expected duty of care.
In most cases, no. Medical negligence claims made after 20 years will be barred by long-stop time limits, which are typically 12 years (or 10 years in the Northern Territory) from the date of the negligent act, regardless of when the harm was discovered.
Medical malpractice, on the other hand, goes a step further. It involves a breach of duty where the provider knowingly disregards established medical protocols or behaves recklessly, sometimes even with an awareness of the potential consequences. For instance, continuing a risky treatment without patient consent or ignoring critical symptoms might fall under malpractice.
The distinction matters because malpractice claims often carry a higher burden of proof, meaning intent or gross deviation from care standards must usually be demonstrated. Negligence cases focus more on whether a reasonably competent provider would have acted differently under the same circumstances.
Most common medical negligence claims
Common claims typically involve errors in diagnosis, treatment, medication, or patient consent that lead to avoidable harm.
| Type of medical negligence | Brief explanation |
|---|---|
| Misdiagnosis or delayed diagnosis | Failing to identify a condition correctly or in time, leading to delayed or inappropriate treatment |
| Surgical errors | Mistakes during surgery, such as operating on the wrong site, leaving instruments inside the body, or causing unintended damage |
| Medication mistakes | Prescribing the wrong medicine, incorrect dosage, or failing to check for harmful interactions or allergies |
| Birth injuries | Harm to a baby or mother due to improper care during pregnancy, labour, or delivery (e.g., oxygen deprivation, misuse of forceps) |
| Anaesthesia errors | Administering too much or too little anaesthetic, or failing to monitor a patient properly during sedation |
| Failure to obtain informed consent | Not fully informing the patient of risks, alternatives, or consequences before a procedure or course of treatment |
Get a free claim check
Medical negligence claims vs medical malpractice claims
Are medical negligence and medical malpractice the same thing? Not quite. While closely related, they differ in intent and legal handling.
Medical negligence occurs when a healthcare professional unintentionally fails to provide the appropriate standard of care, leading to harm. This might include errors like misdiagnosing a condition, failing to follow up on test results, or making a surgical mistake due to oversight or carelessness. The harm wasn’t intended, but the provider didn’t meet the expected duty of care.
In most cases, no. Medical negligence claims made after 20 years will be barred by long-stop time limits, which are typically 12 years (or 10 years in the Northern Territory) from the date of the negligent act, regardless of when the harm was discovered.
Medical malpractice, on the other hand, goes a step further. It involves a breach of duty where the provider knowingly disregards established medical protocols or behaves recklessly, sometimes even with an awareness of the potential consequences. For instance, continuing a risky treatment without patient consent or ignoring critical symptoms might fall under malpractice.
The distinction matters because malpractice claims often carry a higher burden of proof, meaning intent or gross deviation from care standards must usually be demonstrated. Negligence cases focus more on whether a reasonably competent provider would have acted differently under the same circumstances.
