Compensation for medical negligence in Victoria is regulated in part by the Wrongs Act (Vic) 1958.

Under that Act, aside from limited exceptions, a person cannot get compensation for pain and suffering for an injury caused by medical negligence unless it has resulted in a permanent impairment of greater than 5% and/or a permanent primary psychiatric impairment of greater than 10%. This is measured using the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition). In assessing impairment the Guides require an evaluation as to the permanency of the injury and consideration of defined medical criteria.

In simple terms this means that if the alleged negligence has not caused a permanent injury at the required level then compensation is not recoverable for pain and suffering, even if the medical service provider breached its duty of care.

Regardless of the level of impairment compensation can be claimed, if medical negligence exists, for loss of earning capacity and past or future medical expenses.

For advice contact Galbally & O’Bryan.