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2017 marked the 25th anniversary of the landmark Australian medical law decision Rogers v Whitaker. 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. 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 improvement mechanisms, the reporting and disclosure agenda and the Australian National Disability Insurance Scheme. This subject examines the framework of medical litigation, current challenges and issues on the horizon.
The subject presenter 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 government intervention
- 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 should:
- Understand the substantive law and the procedures of litigation in relation to medical injuries in Australia
- Have examined the history and context of medical litigation and the alternatives to it for provision of compensation
- Have thought through the role of the regulatory framework, disciplinary proceedings and criminal actions against health practitioners, relevant to medical litigation
- Have analysed the role of coroners’ investigations and inquests
- Be aware of current and forthcoming legal issues in the medical litigation sphere.
Last updated: 6 December 2019