Medical negligence

Medical negligence claims, explained clearly.

How a medical negligence claim works in Queensland: what has to be proven, the pre-court process under the Personal Injuries Proceedings Act 2002 (Qld), and the time limits that apply.

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Reviewed by Blake Fraser, Principal Lawyer, Fraser Lawyers Last updated 12 June 2026

A medical negligence claim is not about a disappointing result. It is about a failure to take reasonable care that caused harm. Those are different things, and the difference decides most cases.

Medical negligence is one kind of personal injury claim. To succeed, a person generally has to show two things: that the care fell below the standard reasonably expected of the practitioner, and that the substandard care caused the injury. Both have to be established. A clear breach that caused no harm does not found a claim, and serious harm that no reasonable care could have prevented does not either.

Because medical negligence is a personal injury claim, the Personal Injuries Proceedings Act 2002 (Qld) applies. It sets out a pre-court process that has to be followed before a proceeding can start, and the steps run on their own timetable.

This page explains how the law works and what the process looks like. It is general information, not advice about a particular case.

Scope of work

What we help with

A medical negligence claim can arise from many kinds of care. Matters Fraser Lawyers advises on include:

Matter: What it usually involves
Misdiagnosis: A condition wrongly identified, where a reasonable practitioner would not have made the error
Delayed diagnosis: A condition identified too late, where the delay itself caused or worsened the harm
Surgical error: Avoidable injury during a procedure, or a procedure performed without proper care
Medication and prescribing: Wrong medication, wrong dose, or a failure to account for a known interaction
Failure to warn of a risk: A material risk not disclosed before treatment, where disclosure would have mattered
Birth-related injury: Harm to a mother or baby connected with the management of pregnancy or delivery
Hospital and nursing care: Failures in monitoring, handover, or post-operative care in a hospital setting
General practice care: Care by a GP that fell below the standard reasonably expected
Consent and information: Treatment given without informed consent, or on the basis of inadequate information

The label on a claim matters less than the question underneath it: was reasonable care taken, and if not, did that cause the injury. A surgical complication and a missed test result look very different, but both come back to the same two questions.

Most people do not know at the outset whether what happened to them is negligence in the legal sense. That is a question for assessment, usually with independent medical opinion, not something that can be answered from the outcome alone.

Process

What you need to know.

Two things generally have to be established in a medical negligence claim: a breach of the standard of care, and causation.

On the standard of care, the Civil Liability Act 2003 (Qld) sets the general test. Under section 9, a person does not breach a duty unless the risk was foreseeable, was not insignificant, and was one that a reasonable person in the same position would have taken precautions against. For health professionals, section 22 adds an important qualification: a professional does not breach the duty if they acted in a way that was widely accepted by a significant number of respected practitioners in the field as competent practice. This is often called the peer professional opinion defence. It is why an unwanted outcome is not, by itself, negligence. The question is whether the care met a standard that competent practitioners would accept, not whether the result was good.

There is a limit to that defence. Section 22(5) provides that it does not apply to the duty to warn a patient about the risks of treatment. Warnings are assessed differently, from the patient’s perspective rather than the profession’s.

On causation, section 11 of the Civil Liability Act 2003 (Qld) requires two elements. The breach must have been a necessary condition of the harm, which the Act calls factual causation, and it must be appropriate for the practitioner’s responsibility to extend to that harm, which the Act calls the scope of liability. In practice, causation is often the harder of the two to prove. It is not enough to show that care was substandard. It has to be shown that proper care would have produced a materially different result.

Consent and information

The duty to warn about risks.

A patient is entitled to be told about the material risks of a treatment before deciding whether to have it. Section 21 of the Civil Liability Act 2003 (Qld) sets out the duty. A doctor must give the information that a reasonable person in the patient’s position would require to make an informed decision, and any information the doctor knows, or ought to know, that the particular patient wants.

This reflects the principle settled in Rogers v Whitaker [1992] HCA 58, where the High Court held that the question of what risks a patient should be warned about is judged by reference to the patient, not solely by what the medical profession would disclose. A risk can be material even if it is small, if a reasonable person would attach significance to it.

A failure to warn is not automatically a claim. It generally has to be shown that, had the warning been given, the patient would have made a different decision. Where that can be shown, an undisclosed risk that comes to pass can found a claim even though the treatment itself was performed competently.

Before court

The PIPA pre-court process.

A medical negligence claim cannot simply be filed in court. The Personal Injuries Proceedings Act 2002 (Qld) requires a structured pre-court process first, and it is designed to resolve claims where possible before a hearing.

For a medical negligence claim it begins with the special procedure in section 9A: an initial notice to the person the claim is against, a records response from them, and then part 1 of the notice of claim supported by a report from an appropriately qualified medical specialist. The notice has its own deadlines, which are explained below and which often fall earlier than the general time limit. Once the claim is on foot, the parties exchange information and obtain the medical and expert material the claim depends on.

Before a proceeding can start, section 36 requires a compulsory conference: a settlement conference of the parties. If the claim does not settle there, section 39 requires the parties to exchange mandatory final offers. Those offers carry consequences later if the matter does go to court and the result is no better than the offer.

The practical effect is that the groundwork, the records and the independent opinion, decides the case long before any courtroom would. That is also why early advice matters: the deadlines start running before most people have thought about a claim.

Time limits

Deadlines and risks.

Time limits in medical negligence are stricter than many people expect, and there is more than one of them.

The general limitation period is set by section 11 of the Limitation of Actions Act 1974 (Qld): an action for personal injury must be brought within three years of the date the cause of action arose. Queensland does not have a general discovery rule that postpones that period simply because an injury or its cause was not apparent at the time. Any extension depends on the specific statutory test, and different provisions apply where the injured person is a child. Later discovery should not be assumed to extend the deadline.

The PIPA deadlines run earlier, and for medical negligence they follow the special procedure in section 9A. An initial notice is generally due by the earlier of nine months after the incident or first symptoms, or one month after the person first instructs a law practice to act and the practitioner at fault has been identified. The person the claim is against then has one month to provide their records, and part 1 of the notice of claim follows, generally within 12 months of that response, accompanied by a report from an appropriately qualified medical specialist on breach and causation. Missing a deadline does not necessarily end a claim, but it requires a reasonable excuse and adds avoidable difficulty.

Medical negligence claims also take time to assess properly. Records have to be obtained and read, and an independent practitioner usually has to give an opinion on both standard of care and causation before anyone can say whether a claim is viable. Starting early leaves room to do that within the deadlines, rather than against them.

Sources and currency. The legal points on this page come from the primary sources below, current as at 14 July 2026:

Civil Liability Act 2003 (Qld): the general test for breach of duty (s 9), the standard of care for professionals and the peer professional opinion principle (s 22), the doctor’s duty to warn of risk (s 21) and causation (s 11).
Rogers v Whitaker [1992] HCA 58: the leading High Court authority that a patient must be warned of material risks, judged from the patient’s perspective.
Personal Injuries Proceedings Act 2002 (Qld): the pre-court process, including the ordinary notice of claim (s 9), the additional medical negligence notice procedure (s 9A), the compulsory conference (s 36) and mandatory final offers (s 39).
Limitation of Actions Act 1974 (Qld) s 11: the 3-year limitation period for personal injury.

Queensland legislation is published at legislation.qld.gov.au and case law at austlii.edu.au; legislation is periodically amended, so the current in-force version should always be checked.

What we do

How Fraser Lawyers acts in these matters.

Fraser Lawyers advises people who think something went wrong with their medical care, and works out whether there is a claim the law will recognise.

The first task is assessment: understanding what happened, obtaining the medical records, and arranging an independent medical opinion on whether the care fell below the standard and whether it caused the harm. If there is a viable claim, the firm runs the steps the Personal Injuries Proceedings Act 2002 (Qld) requires for a medical negligence claim, including the section 9A notice procedure, the exchange of material, and the compulsory conference, and advises on any settlement offer along the way.

Fraser Lawyers acts from its Bundall office for clients on the Gold Coast and across Queensland. Where a claim is not viable, the firm advises on that at an early stage.

Practical

Documents to bring.

Your medical records Hospital, specialist, and GP records relevant to the treatment in question
Hospital discharge summaries For any admission connected with the care or the injury
Imaging and pathology results Scans, X-rays, blood tests, and the reports that go with them
A list of your medications Including anything prescribed, changed, or stopped around the relevant time
A timeline of what happened Dates, the practitioners involved, and what was said, written while it is fresh
Correspondence with providers Letters, emails, or portal messages with the hospital, practice, or doctor
Any complaint already made For example, a complaint to the Office of the Health Ombudsman, and any response
Notes of your own observations Symptoms, their timing, and how the injury has affected daily life and work
Your identification Driver’s licence or passport

Pathway

The likely path.

Step 1: Initial assessment.

The first meeting covers what happened, what care was given, and what the injury has meant. The aim is to identify whether there may be a claim worth investigating and what records are needed. You leave with a clear view of how the law applies and what the next step is.

Step 2: Records and independent opinion.

Medical records are obtained and reviewed, and an independent practitioner is usually asked to give an opinion on whether the care fell below the standard and whether it caused the harm. This is the stage that decides whether a claim is viable. It takes time, which is why the limitation and notice deadlines matter from the outset.

Step 3: Notice of claim.

Medical negligence has its own notice procedure under section 9A of the Personal Injuries Proceedings Act 2002 (Qld), which is more involved than an ordinary personal injury notice. It begins with an initial notice to the person the claim is against, who must then provide their records. Part 1 of the notice of claim follows, generally within 12 months of that records response, and must be accompanied by a report from an appropriately qualified medical specialist addressing the alleged breach, the reasons for that opinion, and causation. This formally advances the pre-court process and triggers the exchange of information between the parties.

Step 4: Compulsory conference and final offers.

Before any proceeding can start, the parties attend a compulsory conference under section 36 to try to resolve the claim. If it does not settle, mandatory final offers are exchanged under section 39. Whether a particular claim resolves at this stage depends on the evidence and the parties’ positions.

Step 5: Resolution or court.

If the claim settles, the terms are documented and the matter ends. If it does not, and the claim is to continue, a proceeding may be started in court. Preparing the claim properly through the earlier steps is what makes a sensible resolution possible.

Frequently asked

Questions we hear often.

Plain-English answers to the questions clients tend to ask. If your question is not here, call us.

Get in touch

What do I have to prove in a medical negligence claim?

Generally two things. First, that the care fell below the standard reasonably expected, which is the breach. Section 9 of the Civil Liability Act 2003 (Qld) sets the general test, and section 22 adds that a health professional does not breach the duty if they acted in a way widely accepted by respected practitioners as competent practice. Second, that the breach caused the harm. Section 11 requires that the breach was a necessary condition of the injury and that it is appropriate for liability to extend to it. Both have to be established. One without the other is not enough.

Is a bad outcome the same as negligence?

No. Medicine carries risk, and not every poor result is the product of substandard care. The legal question is not whether the outcome was good but whether reasonable care was taken. Under section 22 of the Civil Liability Act 2003 (Qld), care that a significant number of respected practitioners would accept as competent is not a breach, even if the result was poor. That is why an honest assessment usually needs the records and an independent medical opinion, not just the outcome.

What is the time limit for a medical negligence claim in Queensland?

The general limitation period is three years from the date the cause of action arose, under section 11 of the Limitation of Actions Act 1974 (Qld). Queensland does not have a general discovery rule that postpones that period, and any extension depends on the specific statutory test; different provisions apply where the injured person is a child. Separately, and often earlier, the Personal Injuries Proceedings Act 2002 (Qld) sets deadlines for the notice of claim, and medical negligence follows the additional section 9A procedure. Because more than one deadline applies, and they can fall well before the three-year mark, it is sensible to seek advice early.

Do I have to go to court?

Not necessarily. The Personal Injuries Proceedings Act 2002 (Qld) requires a pre-court process designed to resolve claims, where possible, without a hearing. For a medical negligence claim it includes the section 9A notice procedure, a compulsory conference of the parties under section 36, and an exchange of mandatory final offers under section 39 if the claim does not settle at the conference. Whether a particular claim resolves before court depends on the evidence and the parties’ positions.

What can a medical negligence claim cover?

In general terms, the law recognises two broad categories. Economic loss covers financial consequences such as the cost of past and future treatment and care, and lost earnings or earning capacity. General damages cover pain, suffering, and loss of amenity. What any individual claim covers depends entirely on the circumstances and the evidence. These are the categories the law uses, not a figure or a prediction.

The doctor did not tell me about a risk. Does that matter?

It can. Section 21 of the Civil Liability Act 2003 (Qld) sets a duty to warn a patient of the material risks of treatment, and the High Court in Rogers v Whitaker [1992] HCA 58 held that materiality is judged from the patient’s perspective. A risk can be material even if it is small. A failure to warn generally founds a claim only where it can be shown that a proper warning would have changed the decision to have the treatment. Whether that is so is assessed on the particular facts.

What should I do first if I think something went wrong with my care?

Request a copy of your medical records, and write down the sequence of events while it is still fresh, including dates and who said what. Be aware that time limits apply and that the notice deadlines under the Personal Injuries Proceedings Act 2002 (Qld) can run earlier than the general three-year period. Then seek advice. Early assessment leaves time to obtain records and an independent opinion within the deadlines rather than against them.

Personal injury claims in Queensland run to strict time limits. Some apply within months of the injury or accident, the limits differ by claim type, and a few, such as hit-and-run claims against the Nominal Defendant, cannot be extended.

Talk to Fraser Lawyers about a medical negligence matter.

A short conversation is usually enough to understand whether your situation is worth investigating and what the next step is. Fraser Lawyers is based at 86 Bundall Road, Bundall, and acts for clients across the Gold Coast and Queensland.

Call (07) 5554 6116 Send a short enquiry