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Medical Litigation (LAWS70225)

Graduate coursework level 7Points: 12.5On Campus (Parkville)

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Year of offer2018
Subject levelGraduate coursework Level 7
Subject codeLAWS70225
Availability(Quotas apply)
FeesSubject EFTSL, Level, Discipline & Census Date

2012 marked the 20th anniversary of the landmark Australian medical law decision Rogers v Whitaker. However, medical litigation remains an exceptionally vibrant and challenging field, underpinned by the rapid pace of scientific and social developments that generate new issues for the law and its ethical framework. Many of the more challenging issues are at the core of policy – birth, reproduction and death. The legal issues are fundamental – covering the existence of duties, what should be considered negligent, the challenges of legal causation and the appropriate compensation regime – all against a background of insurance affordability, the ongoing health and safety, reporting and disclosure agenda and the Australian Disability Insurance Scheme. This subject examines the framework of medical law, current challenges and issues on the horizon.

Lecturer Bill Madden is a lawyer specialising in medical litigation, the co-author of two health law texts and a regular writer and presenter on medical law topics.

Principal topics include:

  • History and incidence of medical litigation
  • The impact of recent legal and court-based reforms including mediation
  • The medical indemnity marketplace and proposed changes
  • Taking instructions from clients, access to records and interlocutory stages in litigation
  • Duty, breach of duty and statutory defences/special protections
  • Consent, informed consent and treatment errors—the legal differences
  • Causation and loss of chance
  • The importance and changing framework of expert evidence
  • Privacy and confidentiality issues
  • National regulation, conduct and crime
  • Mandatory reporting impacts
  • Coroners’ investigations and hearings.

Intended learning outcomes

A student who has successfully completed this subject will:

  • Understand the procedure of litigation in relation to medical injuries from the time an injury first occurs to the hearing in court
  • Have examined from the perspective of both patient and health professional the investigation and clarification of issues, the gathering and admissibility of evidence, the instructions to be given to solicitors and counsel and the preparation for hearing
  • Have thought through the role of regulatory inquiries and disciplinary proceedings against health practitioners
  • Have analysed the role of coroners’ investigations and inquests in making health practitioners accountable
  • Have had regard to the role of the criminal law in health practitioners’ accountability.

Last updated: 29 March 2019