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Having recently passed the 30th anniversary of the landmark Australian medical law decision Rogers v Whitaker in 2022, medical litigation remains a vibrant and challenging field given the rapid pace of scientific and social developments that generate new challenges for the law. Many developments are at the core of individual importance - birth, reproduction and personal autonomy. The legal issues are wide-ranging, covering the existence of duties, what should be considered to be a breach of duty, the challenges of legal causation and the determination of appropriate compensation- all against a background of insurance affordability, medical treatment innovations and dispute resolution process changes.
This subject examines the framework of medical litigation, current challenges and issues on the horizon. The subject coordinator Bill Madden is a lawyer specialising in medical litigation, a co-author of two health law texts and a regular writer and presenter on medical law topics.
Principal topics include:
- The history and incidence of medical litigation
- The impact of recent legal and court-based reforms
- Duty, breach of duty and statutory defences / protections
- Consent, informed consent and treatment errors
- Factual and normative causation and the loss of a chance
- The changing framework of expert evidence
- Privacy and confidentiality issues
- Alternatives to fault based compensation
- Associated regulatory issues
- Coroners’ investigations and hearings.
Intended learning outcomes
A student who has successfully completed this subject should be able to:
- Examine and explain the substantive law and the basic procedures of litigation in relation to medical injuries in Australia
- Examine the history and context of fault based medical litigation and the alternatives to it for provision of compensation
- Interpret and explain the role of the regulatory framework, disciplinary proceedings and criminal actions against health practitioners, relevant to medical litigation
- Analyse the role of coroners' investigations and inquests
- Be aware of current and forthcoming legal issues in the medical litigation sphere.
Last updated: 10 November 2023