Australia: Health Related Critical Judgments, Legislation, Press Releases and News Items

Health Alert - 21 June 2010
Last Updated: 23 June 2010
Article by Nigel Preston


New South Wales

Stamoulis v Sydney South West Area Health Service [2010] NSWSC 585 (3 June 2010)

In July 2008, Christine Ann O'Gorman filed a statement of claim against the defendant seeking damages for injuries and losses allegedly caused by the negligence of two radiologists, Dr Van Rooijen and Dr Varnava who reported on Mrs O'Gorman's mammogram screening. The screening was carried out under the title BreastScreen NSW.  The vicarious liability of the defendant for any negligent conduct of the radiologists was not in dispute.

The foundation of the claim was the reading of mammograms undertaken at a BreastScreen clinic in Camperdown on 23 February 2006.  On 7 March, BreastScreen wrote to Mrs O'Gorman and her GP advising that "the doctors who looked at your screening mammograms (opined) that there was no visible evidence of breast cancer".  The letter also contained some cautionary advice.  On 1 January 2007, whilst on holiday, Mrs O'Gorman noticed a hard lump in her left breast.  When she returned home she consulted her GP, but was not able to obtain an appointment for new mammograms and an ultrasound until 17 January.  These investigations resulted in a diagnosis of breast cancer in the left breast. 

The claim was heard in October 2008.  The court delivered judgement in favour of Mrs O'Gorman for $405,990.15. 

The defendant appealed against that judgement.  Before it was heard, the carcinoma metastasized into Mrs O'Gorman's lungs and brain and she died.  The plaintiff (her daughter) is the legal representative of her estate.  The Court of Appeal held that all judgements advanced by the defendant failed, except for the argument that the trial judge should not have disallowed expert evidence from Dr van Rooijen and Varnava even though it was their causal acts of negligence which constituted the plaintiff's case. 

This case was a retrial on the issue of negligence.  No challenge was made to the duty of care expressed by the trial judge, who said that the duty was "to provide that level of care and skill in the interpretation of mammograms to be expected from a reasonably competent radiologist in the context of a mammogram screening programme".  The appeal was essentially to determine whether there were features in the 2006 mammogram which raised the possibility of malignancy to have required the radiologists to recall Mrs O'Gorman for further investigation. 

The plaintiff relied on expert evidence from Dr Peter Kitchener and the defendant on the evidence of Associate Professor Jonathan Osborne.  In addition, Dr Van Rooijen and Dr Varnava were not prevented from expressing expert opinion.  As expected, their evidence supported the defendant's case.

All the radiologists agreed that if the 2006 mammogram was looked at in isolation, Mrs O'Gorman should have been recalled for further examination and investigation.

On appeal, Grove J preferred the evidence of Dr Kitchener.  Dr Van Rooijen testified that following a review of all available mammograms (of which there were 6 from 1994 to 2006), she did not observe any changes which she regarded as significant, and would have come to the same conclusion if she had done so in 2006.  Dr Varnava's evidence appeared to be inconsistent on a number of occasions, and was essentially "a campaign to justify the decision not to recall Mrs O'Gorman".  Grove J was not impressed by the evidence of either Dr Van Rooijen or Dr Varnava. 

The main reason why the judge preferred Dr Kitchener's evidence was that he used cumulative observations in forming his opinions.  Professor Osborne focussed on individual observations, appearing reluctant to form a response to the cumulative observations.  The evidence advanced by Dr Rooijen and Dr Varnava was a series of excuses for their failure to react to indicators which may have suggested sinister implications.

The judge was satisfied that "radiologists providing the level of skill in the interpretation of mammograms to be exercised in the context of a breast screening programme ought to have recalled Mrs O'Gorman for further examination in 2006", and therefore, that the issue of negligence should be decided in favour of the plaintiff. 

Australia. Federal Court

Flaherty v Secretary, Department of Health and Ageing [2010] FCAFC 67 (8 June 2010)

The appeal concerned the validity of decisions made under section 98 of the National Health Act 1953 (Cth) (Health Act) by a delegate of the Secretary of the Department of Health and Ageing Secretary).  The decisions related to an approval granted under the Health Act to Ms Margaret Hinde to supply pharmaceutical benefits at premises in Aberdeen, NSW (Premises). Approval by the Secretary allows a pharmacist to supply and sell drugs under the Commonwealth Pharmaceutical Benefits Scheme (PBS). 

On 20 April 2009, a delegate of the Secretary purported to cancel Ms Hinde's approval. On the same day, the delegate wrote to Ms Hinde (who was in prison), notifying her of the decision and of her right to apply to the Administrative Appeals Tribunal (Tribunal) for a review under section 105AB (8A) of the Health Act.

Ms Hinde's approval was cancelled following an extended period of suspension (due to Ms Hinde's alcohol dependency) and deactivation (following a fire which badly damaged the Premises, and a serious car accident in which Ms Hinde was involved).  Following the car accident, Ms Hinde pleaded guilty to a charge of dangerous driving occasioning death and was being held on remand in prison awaiting sentencing.  At the time of remand, the judge had said that a full time custodial sentence was inevitable.  In December 2008, a delegate of the Secretary wrote to Ms Hinde explaining that deactivations for more than six months were only granted in exceptional circumstances (and that Ms Hinde's approval had been deactivated for over 12 months).  The delegate informed Ms Hinde that there was a significant chance that her approval would be cancelled.  There was some correspondence between the delegate and Ms Hinde's solicitors, but this did not convince the delegate that the approval should not be cancelled.

On 6 May 2009, the appellant, Mr Timothy Flaherty, applied to the Secretary for the grant of an approval in respect of the Premises.  He included with his application a copy of a lease of the premises for a term of two years commencing on 1 June 2009.  If Ms Hinde's approval was cancelled, approval could have been granted to Mr Flaherty in respect of the Premises.  However, on 26 May 2009 the delegate decided to review her earlier decision to cancel Ms Hinde's approval, believing that they may not have afforded Ms Hinde procedural fairness.  The delegate purported to revoke the cancellation and reinstate the approval.  If these actions were effective, Mr Flaherty could not be granted approval in respect of the Premises.

Mr Flaherty commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Judicial Review Act) seeking orders that the revocation and reinstatement of approval for Ms Hinde be quashed or set aside.  In February 2010, a judge held that the cancellation decision was ineffective and the revocation and reinstatement was valid.  Mr Flaherty appealed from those orders. 

The court concluded that the cancellation of Ms Hinde's approval on 20 April 2009 was effective.  It ordered that there should be a declaration made that approval number 12370C to Ms Hinde was validly cancelled and has had no force or effect since that time.  In addition, an order should be made quashing the delegate's decision in May 2009 to reinstate the approval.

New Zealand. Health & Disability Commissioner

08HDC17309 General Practitioner/Rest Home - Management of rest home resident's fall; follow-up of PSA test.26 May 2010



Health Insurance Amendment (Professional Services Review) Bill 2010

Therapeutic Goods (Charges) Amendment Regulations 2010 (No. 1) - F2010L01283 - Health - These Regulations amend the Therapeutic Goods (Charges) Regulations 1990 to increase all annual charges for therapeutic goods and manufacturing licences by 2.4 per cent.

New South Wales

Health Practitioner Regulation Amendment Act 2010 No. 34 - assented 15/06/2010


Health (Drugs and Poisons) Amendment Regulation (No. 1) 2010

Health and Other Legislation Amendment Regulation (No. 1) 2010


Australia. Department of Health & Ageing

Media releases

Private Health Insurance Circulars

Residential Care Manual 2009, Edition 1: Update 1, following legislative amendments

Australia. Therapeutic Goods Administration

Suspected adverse reactions to Panvax® reported to the TGA 30 September 2009 - 30 April 2010 (updated)

Australian Public Assessment Report (AusPAR) for prescription medicines (added Clevidipine & Lapatinib)

Drugs designated as orphan drugs (added human hepatitis B immunoglobulin (HEPATECT CP))

Advisory Committee on Prescription Medicines (ACPM), 269th meeting recommendations (new)

Advisory Committee on Prescription Medicines (ACPM), 268th meeting recommendations (added 2 ratified resolutions)

Advertising exemption: Chemmart Pharmacy EC Aspirin 100 (new)

Advertising exemption: Pharmacy Choice EC Aspirin 100 (new)

Advertising exemption: Terry White Chemists EC Aspirin 100 (new)

Australian Public Assessment Report (AusPAR) for prescription medicines (added 'Soya oil, Medium chain triglycerides, Olive oil, Fish oil')

Draft compositional guideline for Wheat dextrin (new)

Self assessable notification form (new)

TGA Australian Public Assessment Report (AusPAR) for Prescription Medicines Guidance Document (updated)

TGA Australian Public Assessment Report (AusPAR) for prescription medicines: Questions and answers (updated)

Australia. Dental Board of Australia

Update Continuing Professional Development - 9 June 2010 Continuing Professional Development (CPD) - 9 June 2010 (pdf, 258kb)

Australia. Pharmacy Board of Australia

Update - The Pharmacy Board of Australia provided a revised proposal to the Australian Health Workforce Ministerial Council for its Professional Indemnity Insurance Arrangements Registration Standard on 19 May 2010.  - Proposal for Professional Indemnity Insurance Registration Standard (pdf, 37kb)

Australia. Medical Board of Australia

Thursday 10 June 2010 - Proposals on Registration Standards on limited registration for teaching or research and limited registration in the public interest. On 31 May 2010 Dr Joanna Flynn, Chair, Medical Board of Australia, finalised the Board's proposals on limited registration for teaching or research and limited registration in the public interest for submission to the Chair, Australian Health Workforce Ministerial Council for approval. These proposals are based on responses to the Board's consultation paper and subsequent refinement by the Board. - Proposals on Registration Standards (pdf, 350kb)

Australia. Psychology Board of Australia

Tuesday 15 June 2010 Approved Codes and Guidelines The Psychology Board of Australia, under the authority of Professor Brin Grenyer, Chair, has released Guidelines on Area of Practice Endorsements and Guidelines on Continuing Professional Development.  - Guidelines on area of practice endorsements (pdf, 216kb) Guidelines on continuing professional development (pdf, 200kb)

Australia. National Health & Medical Research Council

NHMRC Tracker 11 June 2010

Australian Institute of Health & Welfare

Australian hospital statistics 2008-09 - Australian hospital statistics 2008-09 presents a detailed overview of Australia's 1,317 public and private hospitals. In 2008-09, there were 8.1 million separations from Australia's hospitals including: 4.5 million same-day acute ... Published 17 June 2010.

Australian hospitals 2008-09 at a glance - Australia's hospital 2008-09 at a glance provides summary information on Australia's 1,317 public and private hospitals. In 2008-09, there were: 8.1 million hospitalisations in public and private hospitals; 7.2 million ... Published 17 June 2010.

Australian Commission on Safety and Quality in Health Care

Recognising and Responding to Clinical Deterioration: Solutions for Safe Care Conference, November 2010

New South Wales. Department of Health

Media release

Policy directive

Information bulletin

New South Wales. Parliament. Committee on the Health Care Complaints Commission

Operation of the Health Care Complaints Act 1993: Final Report

Northern Territory. Department of Health & Families

Media releases

Queensland. Department of Health

Media releases

South Australia. Department of Health

Media release

  • Dental plan for South Australia  - Friday, 18 June 2010 - Health Minister John Hill has released a seven-year plan to ensure South Australians continue to receive world class dental care as well as reducing decay rates and waiting times to see a dentist. "All South Australians should have access to safe, timely and affordable oral health care and this plan sets out the guiding principles to achieve this," Minister Hill said. Read more...

Tasmania. Department of Health & Human Services

Tasmanian Budget 2010-11 18 Jun 2010

Victoria. Department of Health

Media releases

Interstate Guidelines - June 2010 (PDF File 121kb) - New cross-border guidelines have been developed by Victoria and South Australia, effective from 15 June 2010. They provide operational guidance on the delivery of cross-border mental health services, under the civil agreement between the two states. The guidelines cover service delivery, taking persons to the other state for involuntary treatment, the planned transfer of patients and the apprehension and return of patients who are absent without leave. The guidelines will be the subject of ongoing review, to reflect any changes to mental health legislation and the service systems in either state. Feedback is sought about the form and content of the guidelines, to ensure they meet users' needs and are relevant to service providers and other stake holders. Comments may be provided to or by telephone (Mon-Wed) to Kristen Densley (03) 9096 6931.

Melbourne's bed of roses - 11 June 2010 - Melbourne women will have better access to lifesaving breast cancer screening with a new BreastScreen clinic to open in the CBD.

Heartfelt thanks to Royal Children's - 11 June 2010 - Young cardiac patients whose lives were saved thanks to world-class technology gathered at the Royal Children's Hospital to share their experiences.

Gastroenteritis update for supported residential services - 10 June 2010 (33kb, pdf)

Hospital circular

Western Australia. Department of Health

Media releases

New Zealand. Ministry of Health

Tatau Kahukura: Māori Health Chart Book 2010, 2nd Edition - The chart book presents key indicators relating to the socioeconomic determinants of health, risk and protective factors for health, health status, health service utilisation, and the health system

New Zealand. Mental Health Commission

14 June 2010, The Mental Health Commission criticises Otago University student magazine's parody of homeless people and calls for an apology - A recent 'Critic' magazine story The Bum and the Bottom of the World interviews three apparently... -  + Read more

9th April 2010, Feedback required on the family/whānau booklet we are producing - We are seeking comments from a wide range of people and agencies to tell us what you think about the draft booklet "When someone in your family/whānau has mental health or addiction issues". Please download the consultation paper here.  Some questions are set out in Appendix One of this paper that we would like you to complete (this is also available here as a word document). Please email your comments to by 5pm 7 May 2010. We would prefer to receive submissions in electronic format (Microsoft Word or PDF); however, we are happy to received faxed or posted submissions.

Canada. Health Canada

Health Canada Makes it Easier for Canadian Consumers to Report Side Effects [2010-06-17]

United States of America. Department of Health & Human Services

Sebelius Announces New $250 Million Investment to Strengthen Primary Health Care Workforce

Australian Medical Association

AMA calls on Senate to pass National Preventative Health Agency Bill to put spotlight on prevention 16 June 2010 - AMA President, Dr Andrew Pesce, said today that the AMA is calling on the Senate to pass the National Preventative Health Agency Bill during this fortnight's Parliamentary sitting period. Dr Pesce said the National Preventative Health Agency would set a national strategic approach to prevention and promote healthier lifestyles by advising and making recommendations to governments on preventative health.

Tobacco excise legislation passed; plain packaging for tobacco products next - AMA 15 June 2010 - Welcoming the passing today of legislation to increase the excise on tobacco products by 25 per cent, the AMA is urging the Parliament to be equally supportive of other anti-smoking initiatives, especially the introduction of plain packaging for tobacco products. AMA President, Dr Andrew Pesce, said the Government's strong action to combat smoking would save lives and improve the health of many thousands of Australians.

GPs call for individual health identifier 15 June 2010 - General practice representative groups have joined forces this week to push for the Healthcare Identifiers Bill 2010 to be passed. Members of United General Practice Australia (UGPA) – the Rural Doctors Association of Australia, the Australian General Practice Network, The Australian Medical Association, the Royal Australian College of General Practitioners, the Australian College of Rural and Remote Medicine and General Practice Registrars Australia – want to see health identifiers become a routine part of medical practice.

"He won't be right, mate" Men urged to be proactive about their health 13 June 2010 - AMA Vice President, Dr Steve Hambleton, today urged Australian men to be proactive about their health and seek advice and support from their family doctors to keep themselves in good shape for a longer life.

GP Network News Issue 10, Number 19 - 11 June 2010 11 June 2010 - GP Network News Issue 10, Number 19 - 11 June 2010:- AMA seeks more detail and engagement on health reform; Practice nurse funding changes: AMA practice manager survey; AMA position statement – doctors and preventative care; Use of antiviral medication for influenza in 2010; New waist measurement resources for general practice

American Medical Association

AMA Urges Sunscreen for Everyone, Regardless of Skin Tone  - Media Alert, June 17, 2010 - People of all skin colors, including blacks and Hispanics, should wear sunscreen and avoid excessive sun exposure to reduce their skin-cancer risk. Read the Washington Post Article

Florida Physician Cecil Wilson New AMA President  - AMA Press Release, June 15, 2010 - Cecil B. Wilson, MD, an internist from Winter Park, Florida was inaugurated today as the 165th president of the American Medical Association at its Annual Meeting. Read more

AMA Adopts New Policies During Final Day of Annual Meeting - AMA Press Release, June 15, 2010 - The AMA, the nation's largest physician group, voted today at its Annual Meeting to adopt the following new scientific policies. Read more

AMA Works to Strengthen the Physician Workforce to Meet the Nation's Health Care Needs - AMA Press Release, June 14, 2010 - U.S. faces a shortage of between 124,000 and 159,000 physicians by 2025. Read more

Health Alert is a summary of the critical judgments, legislation, press releases and news items which have come to our attention each week.

The summaries contain links to more detailed information and many items of special interest will also contain commentary.

Health Alert is a quick and effective means of ensuring that you are aware of significant recent changes.

To view the full Health Alert (PDF) follow this link.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

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