Funding fertility treatment

An interesting story by Rania Spooner in The Age newspaper today, about early withdrawal of superannuation fund balances by IVF patients and a company SuperCare which assists in that process for a fee (which is apparently refunded if the superannuation release application is not successful).

The Medical Board of Australia guidelines for cosmetic surgery, due to come into effect October 2016, provide at 12.4 that the (cosmetic surgery) medical practitioner should not offer financing schemes to patients other than credit card facilities, either directly or through a third party, such as loans or commercial payment plans, as part of the cosmetic medical or surgical services.

Wrist fracture treatment & instructions to expert witness

Ansell v Hunter New England Local Health District (NSWDC per Balla DCJ, 29 July 2016 unreported) is a decision arising from allegations of negligence in the open reduction and internal fixation of the claimant’s left scaphoid following a wrist injury.

On consideration of the expert evidence, the trial judge held that there had been no breach of duty (page 29) and that a section 5O defence would have been available in any event (page 32 – 33). The claimant also failed on factual causation (page 32).

Relevant to instructions given to an expert witness, the trial judge recited part of an email sent by a solicitor to the expert which relevantly said “Attached X ray done today for (the claimant). Only rely on it if it helps us.” The relevant expert said that he took no notice of the email, which the Court accepted.

The judgment does not suggest that there were submissions on this point but, presumably because of some concern on the part of the trial judge, an order was made for a copy of the reasons to be send to the Legal Services Commissioner.




Causal Uncertainty in Chinese Medical Malpractice Law

Causal Uncertainty in Chinese Medical Malpractice Law – When Theories Meet Facts is the title of a paper by Xiaowei Yu, recently published in the Tsinghua China Law Review. Th article provides information on a range of issues, but the core focus is explained by the abstract:

Causal uncertainty is frequently encountered in medical malpractice cases, both in China and in other legal systems. Under the traditional “all-or-nothing” approach of proof rules, the prevalence of causal uncertainty makes proof of causation highly problematic in medical malpractice lawsuits. The cutting-edge development at the national level is to apply proportional liability in response to evidentiary uncertainty over causation. After examining both “law on the books” and “law in action” pertaining to medical malpractice, it is found that although the new Chinese Tort Liability Law lacks evident rules that handle the problem of causal uncertainty, Chinese courts are so active and flexible that they systematically employ proportional liability to the trial of medical malpractice cases. The proportional liability approach can be justified from both legal and law and economics perspectives.

Birth trauma claim: Pleading amendments

Rae by his tutor Rae v South Western Sydney Local Health Network [2016] NSWSC 1176 required consideration of a claimant’s request to amended a statement of claim to add new allegations of negligence, referencing an expert’s report served sometime earlier.

The court took the view that the the arguably “new” particulars are no more and no less than a slightly more detailed description of the case as already particularised: [8].

The amendments were allowed.

Discrimination: Sign language interpreter for husband at birth

Hinton v Alpha Westmead Private Hospital [2016] FCAFC 107 was an appeal arising from an allegation that a hospital had (in breach of the Disability Discrimination Act 1992 (Cth) refused to provide sign language interpreting services to the appellant’s husband, who is deaf, in respect of the scheduled birth of the child of the appellant and her husband at the hospital.

The primary judge had summarily dismissed the application. On appeal the court overturned that ruling and remitted the matter for hearing.

The appellant ultimately gave birth at another hospital which provided the appellant’s husband with an Auslan interpreter.

VMO suspension dispute

Dr David Amos v Western New South Wales Local Health District [2016] NSWSC 1162 arose in circumstances where the LHD is currently giving consideration to suspending Dr Amos’ appointment as a VMO.

In response, Dr Amos invokes the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). Dr Amos seeks, inter alia, an injunction preventing his suspension on the basis that he apprehends he will be denied procedural fairness and an injunction preventing his being reported to the Medical Council of New South Wales under s 99A of the Health Services Act 1997 (NSW) (the “HSA”) without procedural fairness being afforded: [2]. Dr Amos also seeks an order quashing a report that was prepared for the LHD by Associate Professor Zeitz in late April 2016 (the “Zeitz report”): [3].

As noted at [6], Dr Amos failed to demonstrate to the requisite degree of likelihood that any decision to suspend him, including a decision that relied on the contents of the Zeitz report, would involve a denial of procedural fairness. Similarly, Dr Amos failed to demonstrate to the requisite degree of likelihood that any decision to report him under s 99A of the HSA would involve a denial of procedural fairness.

End of life decisions: Are doctors who know the law more likely to follow it?

Are doctors who know the law more likely to follow it is a guest post in the Journal of Medical Ethics blog by Ben White and Lindy Willmott, regarding their recently published study in that Journal.

The authors noted:

Compliance with the law was low with only 32% of doctors following the advance directive. Of interest was that doctors who knew the relevant law were more likely to comply with it and follow the advance directive than those doctors who did not know the law.

Medical & health law blog


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