Suing a Hospital for Negligence

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A hospital may be directly liable for its own breaches of duty of care or contract (such as allowing a medical practitioner in training to perform a procedure that was clearly beyond their capacity). However there are also situations where the hospital itself has not been directly negligent, but its staff (eg doctors and nurses) were. A failure to take reasonable care by a doctor in a hospital may still result in a negligence action against both the hospital and the doctor. The principles relating to such actions are outlined below.

If you have suffered harm or loss as a result of a medical mistake in a hospital, you may wish seek legal advice on whether you can claim compensation. Our hospital negligence solicitors act on a No Win No Fee basis in claims against private and public hospitals. To find out whether you can sue a hospital for negligence, call our free helpline to speak with our legal team. We are happy to answer your questions on how to sue a hospital for negligence.

Vicarious Liability

A hospital may be held liable for its own negligent conduct, but also for the negligent conduct of others. The latter is called vicarious liability.

When determining whether the hospital will be liable for the actions of another person, it must be proven that:

  1. the person was an employee or agent of the hospital at the time of the alleged negligence and
  2. that the person's actions (that caused the harm) were carried out in the course of their employment.

If the patient injured by negligence is a public patient and vicarious liability applies, then it's generally best to sue the hospital only and not any other individual parties as having multiple defendants can result in unecessary delays.

Non-delegable duties

This duty arises when the hospital undertakes a responsibility for a vulnerable person. The hospital must ensure the safety and care of its patients, and their non-delegable duty of care cannot be delegated to an individual employee. This type of duty is often argued in cases where the negligence is due to systemic errors in a hospital, or where the negligence is caused by an independent contractor for whom the hospital will not be found vicariously liable.

Courts have generally held that where a private patient chooses the treating doctor, the hospital is generally not responsible for the negligence of that doctor. Though the hospital still owes a duty of care for its nursing staff.

Cases: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; John James Memorial Hospital Ltd v Keys [1999] FCA 678.

Indemnity and Contribution

Even though a hospital can be held liable vicariously or through its non-delegable duty under the common law, there is legislation that allows the hospital to require their negligent employee or contractor to contribute to the compensation payout. In some States, the hospital may even seek that their employee indemnify them in circumstances where the hospital has been found vicariously liable for their actions.

Hospital Negligence Claims in Australia

Examples of some the compensation cases that our hospital negligence solicitors have handled include:

  • breaches in duty of care by staff including doctors, surgeons and nurses.
  • staff being under the influence of drugs and/or alcohol.
  • complications from surgery that are the result of misdiagnosis, hospital delays, poor surgical skill.
  • medication dosage errors, prescription and/or administration of incorrect drugs or medications that are contra-indicated, including a failure to acknowledge allergies.
  • incorrect surgical procedure performed and/or a different procedure should have been suggested to the patient.
  • surgery performed on the wrong body part.
  • failure to advise the patient of the risks involved in the procedure and had the patient been advised accordingly, they would not have consented to the procedure or would have consented to a different type of procedure or treatment.
  • was the procedure appropriate in all the circumstances (eg laparoscopic surgery versus robotic surgery versus open surgery).
  • incorrect positioning of the patient on the operating table resulting in paralysis, nerve injury.
  • hypoxia or lack of oxygen to one's brain resulting in brain damage due to negligence by an anaesthetist.
  • anaesthetic awareness during surgery.
  • failure to diagnose medical conditions in a timely manner including stroke, heart attacks, meningitis.
  • incorrecting triaging in the emergency department.
  • failure to organise appropriate scans, blood tests, further investigations and post-discharge follow-up.
  • discharging a patient prematurely.
  • pressure injury / ulcers.
  • hospital falls.
  • hospital acquired infection (urinary, surgical site, pneumonia, prosthetic device infection).
  • post-operative haemorrhage or haematoma, pulmonary embolism, DVT.
  • neonatal birth trauma.

Hospital Malpractice Case Law

Curtis v Queen Elizabeth Hospital [2008] SADC 22

A doctor employed by the hospital failed to diagnose and treat meningitis in the plaintiff, causing complete sensorineural deafness of the right ear.

Jacqueline Lee Freestone v Murrumbidgee Local Health District [2016] NSWDC 53

This was a case where a Wagga Wagga Base Hospital radiologist failed to identify and report on a kidney lesion which was an incidental finding. The plaintiff succeeded in her case.

Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559

The patient in this case underwent video telemetry testing to determine whether she was a candidate for neurosurgical intervention for her epilepsy. She alleged that the staff of the hospital failed to intervene when they should have, resulting in her descending into prolonged period of seizure activity, permanently worsening her epilepsy.

Stefanyszyn v Brown; Brown v Newcastle Private Hospital Pty Ltd [2016] NSWSC 826

Incorrect suturing by Dr Brown involving the patient's bowel resulted in the patient's death. Dr Brown and the Hospital each independently owed Mrs Stefanyszyn a duty of care. The hospital had a non-delegable duty, and breaches were found in the patient's post-operative observations and care by staff members.

East Metropolitan Health Service v Martin [2017] WASCA 7

The plaintiff's right median nerve was injured during an attempt by hospital staff to insert a catheter line into his right arm. The trial judge found that there was a delay in investigating the patient's symptoms and treating the haematoma in the patient's right arm.


For obligation-free assistance call our hospital negligence lawyers to find out about your rights in suing a hospital within Australia. Time limits apply (generally 3 years) in claiming compensation against a hospital, however you should seek expert legal advice for your particular case as soon as possible.




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