QLD Orthopaedic Surgery Nightmare - Medical Negligence?

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29 May 2015
Hi. I don't know where to go now. I have a medical legal problem. to make this short, my son had very bad in-turned feet. The surgeon, at Townsville Hospital, cut his Tibias in half and rotated his feet out to put them in a normal position. Unfortunately, he turned the Right foot out well past where the left one was placed, about 25deg more. He had difficulty walking so the Surgeons did more surgery and put a big screw in his foot. This also did not work so we had to go to the Specialist in Brisbane who said he needed corrective surgery to fix the botched job that the initial surgeons did and to get rid of the screw as he felt this was doing more harm than good. We had to pay out of pocket for this.

Now, we went to the Health Omsbudman. They decided that the surgeons did wrong and took the complaint to conciliation. APHRA also said the surgeons did something wrong and have an investigation going against the 2 surgeons. After 1 year, the OHO still couldn't get a 3rd independent review for the case. We had 2 surgeons here who wrote letters against the Surgeons. After the year, the Hospital came back and just said they didn't want to participate in conciliation and there is nothing we can do about that. We are left with nothing at this point. Don't know where to go.

I have gone to 2 different law firms but since my son seems to be ok at this time they said it wasn't something they would take for medical negligence. Not enough in compensation for them is probably why.

We just want someone to take responsibility for what was done and to pay us for what we had to pay out of pocket to correct the surgery bad surgery done on my son.

Any legal way I can go? Small claims tribunal? Civil law suit?


Hi Clay,

If two separate law firms have opted not to take your case on, and your son is fine now, then yes, the compensation payout you can expect may not be sufficient to justify the legal costs you will need to incur to get it. Even if a court awards you your costs, these are costs on a court scale and are only a fraction of what the lawyers will charge. This is because the bulk of a compensation payout usually surrounds permanent impairment and future medical and living expenses that will be required due to the medical negligence. However since you say he is relatively okay now, there would be no such component included in any damages award.

You can try to represent yourself in a civil suit to just claim back the out of pocket expenses that you have incurred, however medical negligence cases can be difficult.

You could try sending the hospital a letter of demand, demanding the sum of money that you say out are out of pocket and threaten to bring legal proceedings if its not paid? But I'm not overly optimistic of your prospects.


Well-Known Member
2 October 2015
With any medical negligence case, the Civil Liability Act states that a Plaintiff must prove that:

1. a duty of care was owed by the medical practitioner to the patient;
2. that the medical practitioner breached his duty of care to the patient;
3. that there was damage to the patient; and
4. the damage that was done was directly caused by the act by the medical practitioner.

If you are unable to prove all four elements of negligence then it is unlikely that you would win the case in court.

Unfortunately, in regards to damages there is a threshold that needs to be met for general damages and gratuitous care. Unless the damages claimed by your son would meet these thresholds, no damages would be payable. Also if there is no economic loss component (your son not being able to work for an amount of time due to the negligence) then the claim would be so small that any compensation would be taken up in legal fees.

You could gain a further opinion from a personal injury law firm who specialises in medical negligence (a lot of them do no win no fee) and bring along all evidence relating to loss of income from work, any help he required from another person (for free) due to the negligence, past medical costs including pharmaceutical items and what would be really helpful is for your treating doctor to provide a report to you stating what future treatment you would need.

Lawyering mum

Well-Known Member
26 September 2015
Sunshine Coast
The first step is to make a complaint to the Health services commissioner.

There may be an economic loss component, however that would be for an independent expert to comment on...perhaps when your son is older (say teenager) and problems may develop.

There are strict time limits to bring personal injuries claims, and generally speaking for children under the age of 18, they have until their 21st birthday to commence the claim IN COURT, however it is essential you see a lawyer as soon as possible so that other steps can be taken, particularly evidence at the time of the injuries, and to properly advise you in relation to time limits.

Please do not consider this to be legal advice, it is my opinion based on experience.

Good luck