Australian Medical Liability

661 Pages·2017·4.06 MB·English

by  Bill Madden

Australian
Medical Liability
Third edition
Australian
Medical Liability
Third edition
Bill Madden
BA LLB (Hons) (Macquarie); FAAL
Accredited Specialist (Personal Injury Law)
Janine McIlwraith
B Med Rad Sci (R/T) (Newcastle),
LLB (Hons) (Wollongong), GDLP, LLM (Sydney)
Benjamin Madden
B Sc (Sydney)
J D (University of Technology Sydney)
LexisNexis Butterworths
Australia
2017
LexisNexis
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National Library of Australia Cataloguing-in-Publication entry
Author: Madden, Bill.
Title: Australian medical liability.
Edition: 3rd edition.
ISBN: 9780409345926 (pbk).
9780409345933 (ebk).
Notes: Includes index.
Subjects: Medical care — Law and legislation —
Australia.
Medical laws and legislation — Australia.
Medical personnel — Malpractice — Australia.
Liability (Law) — Australia.
Other McIlwraith, Janine F. (Janine Flora). Madden,
Authors/Contributors: Benjamin.
© 2017 Reed International Books Australia Pty Limited trading as LexisNexis.
First edition, 2008. Second edition, 2013 (Reprinted 2014).
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Printed by Griffin Press, Australia.
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Foreword
It is a great pleasure to welcome this third edition of Australian Medical
Liability. It arrives in a timely progression: five years separated the first and
second editions; four years now separates the second and third editions, thus
reflecting the steadily increasing flow of medical liability cases.
Fortunately for the readership, in this edition the authors have
uncompromisingly continued to build upon the very high standard of
scholarship evident in the two earlier editions, with logical expansions and
organisation of the component parts to facilitate ease of authoritative research.
The cited case law is cross-jurisdictional. It is up to date on the application of
common law principles in the context of the continually evolving understanding
of how statutory reforms are interpreted and applied both at first instance and
on appeal, when it becomes necessary to define the scope and content of the
duty of care owed, to determine breach of duty, and to establish the several
components of causation.
This work will continue to provide conveniently reliable guidance and
relevant information to the judiciary as well as to teachers, practitioners and
students in the fields of law, medicine and related disciplines.
We congratulate the authors on their achievement in producing this enhanced
and timely edition of their work.
Julia Lonergan
Judges’ Chambers
Supreme Court of New South Wales
Leonard Levy
Judges’ Chambers
District Court of New South Wales
20 June 2017
Preface
Justice Julia Lonergan and Judge Leonard Levy have written a generous
Foreword for this third edition of Australian Medical Liability, for which we are
very grateful. Following almost 10 years after the first edition, the rewriting
process has highlighted the ongoing development of the law and reminded us of
the many challenges raised for the courts by the progress of medicine and
medical practice.
Some legal issues have been clarified since the first and second editions, but
many remain for careful consideration by the courts. In the ‘failure to warn’
area, is the skill of the practitioner a material risk that should be conveyed to the
patient in some circumstances? When might a medical practitioner be liable for
failure to facilitate communication of risk to a non-patient, such as in relation to
a patient’s disclosure of intention to harm, or a patient’s refusal to allow genetic
test outcomes to be conveyed? In medical treatments facilitating reproduction,
what compensation should be awarded where an error is made in selecting
donor gametes, or where donor characteristics are misrepresented? The law is
only beginning to grapple with those topics.
We wish to thank Associate Professor Tina Cockburn of the Australian
Health Law Research Centre at the Queensland University of Technology,
whose publications have formed the basis for a number of discussions in this
book. Behind the scenes and so not cited in the text are many colleagues
practising in the medical litigation area who have helped us with their insights
and support, including David Higgs SC, Richard O’Keefe, Richard Royle and
Hilbert Chiu.
The support and assistance of Georgina Gordon of LexisNexis is gratefully
acknowledged, along with that of Georgia O’Neill who has for the third time
patiently edited the text.
As always, our families have been patient during the re-writing process which
inevitably takes longer than we first promise. Their support is invaluable.
We offer our apologies for any accidental infringement of copyright. Any
errors are, of course, our own.
This book is dedicated to John Madden and Tim James.
Bill Madden
Janine McIlwraith
Benjamin Madden
21 June 2017
Table of Cases
References are to paragraph numbers
A
A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC
1038 …. 19.4
— v Schulberg (No 2) [2014] VSC 258 …. 10.87, 23.39
A & B by C (Their Mother & Next Friend) v A – Health & Social Services
Trust [2011] NICA 28 …. 19.4
AAA v BBB [2005] WASC 139 …. 5.15
AB v CD [2016] IEHC 541 …. 2.5
— v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 …. 6.4
— v McKimm & Central Gippsland Health Service [2015] VCC 987 …. 21.17
ABC v St Georges Healthcare NHS Trust [2015] EWHC 1394 …. 5.19, 19.4
ACB v Thomson Medical Pte Ltd [2017] SGCA 20 …. 19.4
Ackland v Commonwealth of Australia [2007] NSWCA 250 …. 15.9
Adams v Laboratory Corporation of America 760 F 3d 1322 (11th Cir, 2014)
…. 22.17
Adams by her next friend O’Grady v State of New South Wales [2008] NSWSC
1257 …. 15.18
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009)
239 CLR 420; 260 ALR 628; [2009] HCA 48 …. 1.1, 4.56, 5.25, 9.2, 17.11,
17.14
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 1.19, 3.4,
3.20, 7.9, 7.17, 10.83
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 4.10
Alexander v Heise [2001] NSWCA 422 …. 4.37, 10.2