The opportunities and challenges faced by litigants who strategically plead intentional torts are... more The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across A...
Psychiatrists and other mental health professionals are bound by patient confidentiality, althoug... more Psychiatrists and other mental health professionals are bound by patient confidentiality, although this may give way in cases where there is a danger to known individuals. While there may be an ethical obligation to take steps to warn individuals who are at risk, the ethical codes are not uniform and there could be more clarity as to when confidentiality may be breached. In the United States the courts have held mental health care professionals civilly liable to pay compensation to those affected by failure to warn, though there has been debate as to the nature and extent of the duty. This issue has been considered in other Commonwealth jurisdiction, but not squarely in Australia. This presentation considers these issues in the the context of recent disciplinary and coroners cases in Australia.
Multidisciplinary care (MDC) involves health professionals from a range of disciplines working to... more Multidisciplinary care (MDC) involves health professionals from a range of disciplines working together as a team (a multidisciplinary team – MDT) to deliver comprehensive care that addresses as many of a patient's needs as possible. Writing in 2011, Wilcoxon and others concluded: ‘Multidisciplinary care is accepted as best practice in cancer treatment planning and care.’ Yet their report (of the national audit of multidisciplinary cancer care in Australia) indicated that two-thirds of the surveyed hospitals did not have a MDT. Further, they found that where teams did exist, one-third of patients were not told that their case would be discussed by the team; the MDT-recommended treatment plan was not included in the patient’s record one-quarter of the time; and less than 1 per cent of teams reported routine attendance by the tumour-specific minimum core team. There is sparse case authority as to the potential medico-legal consequences of MDC by MDTs. This article raises five ques...
The opportunities and challenges faced by litigants who strategically plead intentional torts are... more The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across A...
In medical negligence litigation expert evidence has long played a dominant role. The trend towar... more In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.
Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report reco... more Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional torts claims in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.
Interlocutory judgment of the NSW Supreme Court in a medical negligence claim - circumstances und... more Interlocutory judgment of the NSW Supreme Court in a medical negligence claim - circumstances under which a facilitator may be appointed to assist in the conduct of a joint expert conference - background - jurisdiction of the Court to appoint a facilitator - analysis of decision.
Child born with gross hydrocephalus - cerebral palsy - questions surrounding obstetrician's n... more Child born with gross hydrocephalus - cerebral palsy - questions surrounding obstetrician's notes - ultrasound not ordered - illegible handwriting - importance of legible, accurate and detailed medical records - causation - child born with congenital varicella syndrome (CVS) - chicken pox - forseeability of risk.
More than 10 years have passed since the High Court of Australia confirmed the recoverability of ... more More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.
ABSTRACT Intentional torts to the person, compensation for injury and the Civil Liability Acts re... more ABSTRACT Intentional torts to the person, compensation for injury and the Civil Liability Acts recent cases and contemporary issues
The civil liability provisions relating to the assessment of damages for past and future economic... more The civil liability provisions relating to the assessment of damages for past and future economic loss have abrogated the common law principle of full compensation by imposing restrictions on the damages award, most commonly by a "three times average weekly earnings" cap. This consideration of the impact of those provisions is informed by a case study of the Supreme Court of Victoria Court of Appeal decision, Tuohey v Freemasons Hospital (Tuohey) 2 , which addressed the construction and arithmetic operation of the Victorian cap for high income earners. While conclusions as to operation of the cap outside of Victoria can be drawn from Tuohey, a number of issues await judicial determination. These issues, which include the impact of the damages caps on the calculation of damages for economic loss in the circumstances of fluctuating income; vicissitudes; contributory negligence; claims per quod servitum amisit; and claims by dependants, are identified and potential resolutions discussed.
Expert witnesses act as “injury brokers” in contributing to the analysis of what qualifies as leg... more Expert witnesses act as “injury brokers” in contributing to the analysis of what qualifies as legally recognised and compensable injury in medical negligence litigation. The orthodox approach in Australia is that expert witnesses, like advocates, are immune from suit in negligence. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16, the High Court of Australia upheld, but narrowed, advocates’ immunity. This article outlines the decision in the Atwells case and after reviewing Australian authority on expert witness immunity argues that, given the recent narrowing of the scope of advocates’ immunity, similar limitations are likely to be placed on the scope of expert witness immunity with two effects – it will be less commonly available and less predictably available.
Expert evidence plays a central role in establishing the relevant standard of care in medical lit... more Expert evidence plays a central role in establishing the relevant standard of care in medical litigation. In Australia, little is known about the expert witnesses who provide evidence about the standard of care provided in ED. A sample of recent published case law suggests that a proportion of expert evidence about breach of the standard of reasonable care in ED is provided by medical practitioners who are not emergency physicians and/or have no recent practice experience in an ED. This may potentially distort the identification of the relevant standard of care. In the United States, the American College of Emergency Physicians has attempted to address this issue by developing and promulgating expert witness guidelines. Is there a case for the Australasian College for Emergency Medicine to assume an advocacy role and/or develop standards in this area?
Faculty of Law Australian Centre For Health Law Research School of Law, Mar 1, 2012
Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties ... more Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.
This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, ... more This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, et al’s (2006) preventing, knowing and responding theoretical framework is adopted to classify the different elements of patient safety law. Rather than setting out all relevant patient safety laws in detail, this chapter highlights key legal strategies which are employed to: prevent the occurrence of patient safety incidents (preventing); support the discovery and open discussion of patient safety incidents when they do occur (knowing),; and guide responses after they occur (responding) (Downie, Lahey, Ford, et al 2006). The law is increasingly being invoked to facilitate open discussion of and communication surrounding patient safety. After highlighting some legal strategies used to communicate patient safety, two practice examples are presented. The practice examples highlight different aspects of patient safety law and are indicative of communication issues commonly faced in practice. The first practice example focuses on the role of the Ccoroner in communicating patient safety. This example highlights the investigative role of the law in relation to patient safety (knowing). It also showcases the preventing responding and preventing elements in respect of the significant number of communication errors that can occur in a multi-disciplinary, networked health system. The main focus of the second practice example is responding example illustrates how the law responds to health service providers’ and professionals’ miscommunication (and subsequent incidents) during treatment, however it also touches upon knowing and preventing.
A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would... more A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff's ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff's prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court's reliance on both objective and subjective evidence, statistical evidence may be of increasing impo...
Although much excellent work has been done in Australia and elsewhere to improve the safety and q... more Although much excellent work has been done in Australia and elsewhere to improve the safety and quality of health care provision, the practice of medicine is inherently risky--adverse events sometimes occur. In Australia, practical guidelines for the open disclosure of adverse events to patients have been developed and are being implemented. State and Territory medical boards have recently adopted Codes of Conduct which include disclosure provisions, although the Australian Medical Association's Code of Ethics does not yet contain express patient disclosure provisions. There is a dearth of authority concerning legal obligations to disclose known or suspected adverse events. Although many Australian jurisdictions have introduced statutory protection for those who apologise or express regret to patients following an adverse event, there is no corresponding express statutory disclosure obligation, unlike in some parts of the United States. The Bundaberg experience illustrates the c...
The opportunities and challenges faced by litigants who strategically plead intentional torts are... more The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across A...
Psychiatrists and other mental health professionals are bound by patient confidentiality, althoug... more Psychiatrists and other mental health professionals are bound by patient confidentiality, although this may give way in cases where there is a danger to known individuals. While there may be an ethical obligation to take steps to warn individuals who are at risk, the ethical codes are not uniform and there could be more clarity as to when confidentiality may be breached. In the United States the courts have held mental health care professionals civilly liable to pay compensation to those affected by failure to warn, though there has been debate as to the nature and extent of the duty. This issue has been considered in other Commonwealth jurisdiction, but not squarely in Australia. This presentation considers these issues in the the context of recent disciplinary and coroners cases in Australia.
Multidisciplinary care (MDC) involves health professionals from a range of disciplines working to... more Multidisciplinary care (MDC) involves health professionals from a range of disciplines working together as a team (a multidisciplinary team – MDT) to deliver comprehensive care that addresses as many of a patient's needs as possible. Writing in 2011, Wilcoxon and others concluded: ‘Multidisciplinary care is accepted as best practice in cancer treatment planning and care.’ Yet their report (of the national audit of multidisciplinary cancer care in Australia) indicated that two-thirds of the surveyed hospitals did not have a MDT. Further, they found that where teams did exist, one-third of patients were not told that their case would be discussed by the team; the MDT-recommended treatment plan was not included in the patient’s record one-quarter of the time; and less than 1 per cent of teams reported routine attendance by the tumour-specific minimum core team. There is sparse case authority as to the potential medico-legal consequences of MDC by MDTs. This article raises five ques...
The opportunities and challenges faced by litigants who strategically plead intentional torts are... more The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across A...
In medical negligence litigation expert evidence has long played a dominant role. The trend towar... more In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.
Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report reco... more Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional torts claims in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.
Interlocutory judgment of the NSW Supreme Court in a medical negligence claim - circumstances und... more Interlocutory judgment of the NSW Supreme Court in a medical negligence claim - circumstances under which a facilitator may be appointed to assist in the conduct of a joint expert conference - background - jurisdiction of the Court to appoint a facilitator - analysis of decision.
Child born with gross hydrocephalus - cerebral palsy - questions surrounding obstetrician's n... more Child born with gross hydrocephalus - cerebral palsy - questions surrounding obstetrician's notes - ultrasound not ordered - illegible handwriting - importance of legible, accurate and detailed medical records - causation - child born with congenital varicella syndrome (CVS) - chicken pox - forseeability of risk.
More than 10 years have passed since the High Court of Australia confirmed the recoverability of ... more More than 10 years have passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child, in the well-known decision in Cattanach v Melchior. Yet a number of aspects of the assessment of such “wrongful birth” damages had not been the subject of a comprehensive court ruling. The recent decision in Waller v James was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases. However, given a finding on causation adverse to the plaintiffs, the trial judge held that it was unnecessary to determine the quantum of damages. Justice Hislop did, however, make some comments in relation to the assessment of damages. This article focuses mostly on the argued damages issues relating to the costs of raising the child and the trial judge’s comments regarding the same. The Waller v James claim was issued before the enactment of the Health Care Liability Act 2001 (NSW) and the Civil Liability Act 2002 (NSW). Although the case was therefore decided according to the “common law”, as explained below, his Honour’s comments may be of relevance to more recent claims governed by the civil liability legislation in New South Wales, Queensland and South Australia.
ABSTRACT Intentional torts to the person, compensation for injury and the Civil Liability Acts re... more ABSTRACT Intentional torts to the person, compensation for injury and the Civil Liability Acts recent cases and contemporary issues
The civil liability provisions relating to the assessment of damages for past and future economic... more The civil liability provisions relating to the assessment of damages for past and future economic loss have abrogated the common law principle of full compensation by imposing restrictions on the damages award, most commonly by a "three times average weekly earnings" cap. This consideration of the impact of those provisions is informed by a case study of the Supreme Court of Victoria Court of Appeal decision, Tuohey v Freemasons Hospital (Tuohey) 2 , which addressed the construction and arithmetic operation of the Victorian cap for high income earners. While conclusions as to operation of the cap outside of Victoria can be drawn from Tuohey, a number of issues await judicial determination. These issues, which include the impact of the damages caps on the calculation of damages for economic loss in the circumstances of fluctuating income; vicissitudes; contributory negligence; claims per quod servitum amisit; and claims by dependants, are identified and potential resolutions discussed.
Expert witnesses act as “injury brokers” in contributing to the analysis of what qualifies as leg... more Expert witnesses act as “injury brokers” in contributing to the analysis of what qualifies as legally recognised and compensable injury in medical negligence litigation. The orthodox approach in Australia is that expert witnesses, like advocates, are immune from suit in negligence. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16, the High Court of Australia upheld, but narrowed, advocates’ immunity. This article outlines the decision in the Atwells case and after reviewing Australian authority on expert witness immunity argues that, given the recent narrowing of the scope of advocates’ immunity, similar limitations are likely to be placed on the scope of expert witness immunity with two effects – it will be less commonly available and less predictably available.
Expert evidence plays a central role in establishing the relevant standard of care in medical lit... more Expert evidence plays a central role in establishing the relevant standard of care in medical litigation. In Australia, little is known about the expert witnesses who provide evidence about the standard of care provided in ED. A sample of recent published case law suggests that a proportion of expert evidence about breach of the standard of reasonable care in ED is provided by medical practitioners who are not emergency physicians and/or have no recent practice experience in an ED. This may potentially distort the identification of the relevant standard of care. In the United States, the American College of Emergency Physicians has attempted to address this issue by developing and promulgating expert witness guidelines. Is there a case for the Australasian College for Emergency Medicine to assume an advocacy role and/or develop standards in this area?
Faculty of Law Australian Centre For Health Law Research School of Law, Mar 1, 2012
Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties ... more Part of the chapter: "Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour" Although ethical obligations and good medical practice guidelines clearly contemplate open disclosure, there is a dearth of authority as to the nature and extent of a legal duty on Australian doctors to disclose adverse events to patients.
This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, ... more This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, et al’s (2006) preventing, knowing and responding theoretical framework is adopted to classify the different elements of patient safety law. Rather than setting out all relevant patient safety laws in detail, this chapter highlights key legal strategies which are employed to: prevent the occurrence of patient safety incidents (preventing); support the discovery and open discussion of patient safety incidents when they do occur (knowing),; and guide responses after they occur (responding) (Downie, Lahey, Ford, et al 2006). The law is increasingly being invoked to facilitate open discussion of and communication surrounding patient safety. After highlighting some legal strategies used to communicate patient safety, two practice examples are presented. The practice examples highlight different aspects of patient safety law and are indicative of communication issues commonly faced in practice. The first practice example focuses on the role of the Ccoroner in communicating patient safety. This example highlights the investigative role of the law in relation to patient safety (knowing). It also showcases the preventing responding and preventing elements in respect of the significant number of communication errors that can occur in a multi-disciplinary, networked health system. The main focus of the second practice example is responding example illustrates how the law responds to health service providers’ and professionals’ miscommunication (and subsequent incidents) during treatment, however it also touches upon knowing and preventing.
A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would... more A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff's ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff's prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court's reliance on both objective and subjective evidence, statistical evidence may be of increasing impo...
Although much excellent work has been done in Australia and elsewhere to improve the safety and q... more Although much excellent work has been done in Australia and elsewhere to improve the safety and quality of health care provision, the practice of medicine is inherently risky--adverse events sometimes occur. In Australia, practical guidelines for the open disclosure of adverse events to patients have been developed and are being implemented. State and Territory medical boards have recently adopted Codes of Conduct which include disclosure provisions, although the Australian Medical Association's Code of Ethics does not yet contain express patient disclosure provisions. There is a dearth of authority concerning legal obligations to disclose known or suspected adverse events. Although many Australian jurisdictions have introduced statutory protection for those who apologise or express regret to patients following an adverse event, there is no corresponding express statutory disclosure obligation, unlike in some parts of the United States. The Bundaberg experience illustrates the c...
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