Medical Negligence in Australia: How to Make a Claim
Last updated: June 2026
What Is Medical Negligence?
Medical negligence (also called clinical negligence or medical malpractice) occurs when:
- A healthcare professional owed you a duty of care (e.g. your doctor, surgeon, hospital)
- They breached that duty by falling below the standard of a reasonable professional in their specialty
- The breach caused your harm or injury
- You suffered damages as a result
All four elements must be proved. Medical negligence is different from a bad outcome, complications and risks are inherent in medical treatment. Negligence requires a departure from accepted professional standards.
The Standard of Care
In Australia, the standard of care for medical practitioners is governed by the Civil Liability Acts in each state. The peer professional practice standard applies: a doctor is not negligent if they acted in a way that was widely accepted as competent professional practice at the time.
Common Types of Medical Negligence Claims
- Misdiagnosis or delayed diagnosis (e.g. missed cancer)
- Surgical errors or wrong-site surgery
- Medication errors (wrong drug, wrong dose)
- Anaesthesia errors
- Failure to obtain informed consent (not warning about material risks)
- Birth injuries
- Infection due to inadequate hygiene
Informed Consent
A separate claim can arise from failure to obtain informed consent: a practitioner must warn you of material risks (those a reasonable patient in your position would want to know, or risks the practitioner knows you would want to know). Failure to warn of a risk, where you would have declined treatment had you known, is actionable.
How to Pursue a Claim
- Gather your medical records: request them from all treating practitioners
- Get an independent medical opinion: a specialist in the relevant field must assess whether the standard of care was met
- Consult a medical negligence lawyer: most work on a no-win no-fee basis for strong cases
- Comply with limitation periods: generally 3 years from when you discovered (or should have discovered) the injury
Complaints vs Legal Claims
A complaint to the Australian Health Practitioner Regulation Agency (AHPRA) or the state health complaints commissioner can result in investigation and disciplinary action against the practitioner, but it does not result in compensation. A legal claim is separate.