Australia: Reviews of medically related litigation

Health Law Newsletter
Last Updated: 11 July 2011
  • To Hold or To Fold?
  • Doctors Responsible for Financial Loss of Patients?
  • Shifting the Blame for a Nurse's Crime – When will a Hospital be Liable?

To Hold or To Fold?

Disclosure of documents in health care claims.

Late last year the Queensland Supreme Court gave a wide interpretation to a persons obligation to disclose information and documentation under section 9A(8) of the Personal Injuries Proceedings Act 2002 (PIPA). That section provides:-

(8) A person to whom an initial notice is given must, within one month after receiving the initial notice, give the claimant:-

(a) A written response advising whether any documents are held in relation to the medical services mentioned in the notice; and

(b) Copies of all documents held by the person about the medical services.

 The Court held that this obligation extended to the disclosure of any reports, witness statements and file notes created during any investigation into a medical incident, unless they are purely statements of opinion.

Allen v State of Queensland  [2010] QSC 442 (26 November 2010)

The Facts

Ethan Allen was 16 months old when he suffered severe brain damage following a heart operation at the Prince Charles Hospital on 23 December 2003. 

Two weeks after the operation the Hospital engaged solicitors who obtained from Ethan's treating doctors "privileged and confidential" written statements. The purpose of these statements was to record the events of and leading up to the operation on the basis that a claim might be made on behalf of Ethan down the track.

Ethan's father, Daniel Allen, instructed solicitors in May 2010. A claim for damages followed. The solicitors were aware that the Hospital had conducted an investigation in 2004 and that statements had been provided.

Section 9A(9) PIPA requires a claimant to provide a written report from a medical specialist "competent to assess the medical incident alleged to have given rise to the personal injury" and commenting on:-

  • The alleged failure to meet an appropriate standard of care in providing medical services.
  • The reasons justifying the opinion.
  • That as a result of the failure the claimant has suffered personal injury.

Ethan's lawyers said that before they could obtain such a report from a medical specialist they needed, amongst other things, the statements taken by the hospital's lawyers back in 2004. The hospital claimed that the statements were protected by legal professional privilege as they were created for the dominant purpose of being used in subsequent anticipated legal proceedings.

The Decision of the Queensland Supreme Court

1. The Court held that in order for the Hospital to claim litigation privilege over the statements, there must have been a real prospect at the time the statements were taken that the Hospital would be sued. This possibility must be determined objectively – it was not enough for the Hospital to subjectively state that it anticipated litigation merely because a patient had suffered a significant injury while under their care.

2. The Court accepted that the statements had come into existence for the dominant purpose of anticipated litigation, as at the time the Hospital thought the incident involved a "medico-legal risk". The fact that the Hospital engaged lawyers to obtain the doctors' statements was further evidence that it anticipated future litigation. There was no other purpose for obtaining the statements.

3. The Court then looked at section 30(1) and (2) of PIPA, which provide that:-

"30 Non disclosure of particular material

(1) A party is not obliged to disclose information or documentary material under division 1 or this division if the information or documentary material is protected by legal professional privilege.

(2) However, investigative reports, medical reports and reports relevant to the claimant's rehabilitation must be disclosed even though otherwise protected by legal professional privilege but they may be disclosed with the omission of passages consisting only of statements of opinion.

(3) . . ."

4. The Court held that section 30(2) must be interpreted in light of the disclosure obligation imposed by section 9A(8)(b) (see above). The Court held that in order to achieve PIPA's overarching purpose of resolving claims quickly and on a fully informed basis, the term "investigative reports" should be given a wide interpretation:-

"Such an interpretation was also consistent with the intention in PIPA of having the claimant's expert provide a fully informed opinion at an early stage on whether a claim had merit."

5. The Court held that the term "investigative reports" not only includes official reports of investigators or loss adjusters, but also file notes and witness statements that are made in the course of a hospital's investigation into a medical incident.

6. Accordingly, the Court held that the statements taken from doctors in 2004 fell within the meaning of "investigative reports", and therefore had to be disclosed, with the omission of passages that were solely statements of opinion.


  • Hospitals, health practitioners and their lawyers need to think twice before taking a statement(s) following a medical event or event arising out of the provision of medical services.
  • It would seem that any statements taken from persons who had a direct involvement in the provision of the medical services are subject to disclosure.
  • If there is a real prospect that the hospital or health practitioner might be sued then legal professional privilege will attach (so long as a lawyer takes the statement). But even then the statement or note may be disclosable at the time a section 20 notice is declined due to the effect of Watkins –v- State of Queensland (see our Insurance Alert).
  • The term "report" includes a draft report (Mitchell Contractors –v- Townsville-Thuringowa Water Supply Joint Board [2004] QSC 239) so it is arguable draft statements will also have to be disclosed where Allen applies.
  • Also remember that disclosure is limited to statements of fact, not opinion ie "This is what I did"; "This is what happened". In an environment of open disclosure the impact of this decision may have less of an effect in the health industry than it will in others.

Article by Robert Samut & Madeline O'Connor

Doctors Responsible for Financial Loss of Patients?

The Queensland District Court has raised the possibility of a financial loss case being made out against a doctor for failing to provide a medical certificate, provided that:

1. The plaintiff provides consideration to the doctor (payment);

2. In the doctor's professional opinion the defendant was incapacitated; and

3. The plaintiff incurred a financial loss as a result of the doctor's failure to provide the medical certificate.

Kilvington v Grigg & Ors [2010] QDC 496 (23 December 2010)

The Facts

The plaintiff had been unable to work for a period of time and sought to obtain an early payment from his superannuation policy on the basis of "permanent incapacity". In order to obtain the payment the plaintiff required 2 medical certificates to be submitted with his application. The plaintiff sought one of the medical certificates from his longstanding GP (the first defendant) and the other from the third defendant who the plaintiff had attended upon at a community mental health clinic, operated by Queensland Health (the second defendant). The plaintiff incorrectly believed the third defendant to be a psychiatrist. The first defendant eventually provided the medical certificate. The third defendant failed to provide the plaintiff with a certificate.

The Issues

The action only proceeded against the second and third defendants. The plaintiff argued that the third defendant's failure to provide him with a medical certificate for his superannuation application amounted to a breach of duty by the third defendant and/or a breach of contract by the second and third defendants for which the plaintiff was entitled to damages for financial loss. The plaintiff also alleged various other breaches including a breach of statutory duty and claimed exemplary and aggravated damages.

The defendants argued there was no duty in contract, tort or statute to provide a medical certificate to the plaintiff. The defendants further argued that the plaintiff could not prove causation on the basis that even if the certificate had been provided, he would not have met the criteria for the payout. Further the defendants argued that the plaintiff had not suffered financial loss, as his superannuation balance remained available for him to claim in the future.

The Decision

In relation to the breach of contract claim the Court found the plaintiff's lack of consideration (payment) as fatal to his case. As a result, the Court concluded that there was no contractual duty owed by the third defendant to the plaintiff.

The third defendant was also found not to owe the plaintiff a duty of care in tort to "...act so as to avoid..." the plaintiff incurring financial harm, by providing him with a medical certificate, where the provision of such a certificate would not assist the plaintiff. However, it was reasoned that where a doctor provides a medical certificate, which is relied upon by a third party, the doctor will owe that third party a duty of care in relation to the matters contained within the certificate.

The Court also differentiated between the current case and the situation where a person is sick and seeks a medical certificate from their doctor in order to "...avoid loss of wages for that period." Such a situation may place "...a duty on a provide such a certificate." The Court found that not to be the position in the current case, concluding that the plaintiff did not incur economic loss in the usual way. The plaintiff was instead seeking to obtain a benefit (ie the earlier payment of his superannuation).

The Court accepted the third defendant's professional opinion that he could not determine whether the plaintiff met the test for incapacity, as in his professional opinion the plaintiff's psychiatric issues may have been manageable through medication had it not been for the plaintiff's alcohol consumption which was "not necessarily permanent". Further, the Court could not find that the third defendant's opinion was one which no reasonable medical practitioner in his position could have arrived at.

In relation to causation the Court concluded that even if the third defendant had provided a medical certificate, the insurer would on balance have rejected it because the application would not have complied with the insurance company's requirements that needed to be met prior to making the payment. As a result no superannuation payout would have occurred.

In addition the Court found that there was no statutory duty on the part of the third defendant to provide the plaintiff with a certificate.

The plaintiff's action failed with the plaintiff to pay the defendants' costs.


This case is of interest as there are few cases where a plaintiff has sought to recover pure economic loss against a medical practitioner. Plaintiffs generally sue medical practitioners to obtain compensation for physical or psychological injuries.

Even though unsuccessful, we suspect that this will not be the last we will see of these types of cases.

Article by Robert Samut & Kristina Fox

Shifting the Blame for a Nurse's Crime – When will a Hospital be Liable?

A hospital owes a duty of care to protect patients from sexual assault and other crimes by its staff members. Liability will depend on whether the Hospital has materially increased the risk of criminal conduct.

While it is not possible for a hospital to constantly supervise all its staff, the New South Wales District Court has held that adequate staffing levels and a 24 hour patient monitoring system will go a long way in showing that a hospital has responded reasonably to the risk of staff members assaulting patients.

NB v Sydney South West Area Health Service [2010] NSWDC 172 (6 October 2010)

The Facts

The plaintiff was 18 years old when she suffered a stroke in early 2006. She was treated in the intensive care unit (ICU) of the Liverpool Hospital for about 5 weeks during February and March 2006. At times during this period the plaintiff was restrained to prevent her from dislodging various lines and tubes. She was unable to speak as she was heavily medicated, lapsing in and out of consciousness.

The clinical notes confirmed that the plaintiff developed a rash while in ICU and creams were applied to her "intimate areas". There were times when the plaintiff was left in her bed unclothed and uncovered, such as when she was suffering from a temperature.

The plaintiff alleged that during her last week in ICU she was sexually assaulted by a male ward orderly employed by the Hospital. She claimed that she overheard a nurse ask the ward orderly to "babysit" her, so that she was left alone in the ward orderly's care. The plaintiff was unclothed and uncovered. She claimed that the ward orderly closed the curtains to her cubicle and assaulted her.

The plaintiff also alleged that prior to the assault, she had overheard the ward orderly make comments with sexual overtones about her to a nurse. The plaintiff did not report this to the police.

The plaintiff was transferred to a neuro-surgical ward on 22 March 2006 and was given a letter board because she was still unable to speak. On 2 April 2006, she used the letter board to spell out the words "sexual assault" and the ward orderly's first name. The plaintiff's mother filed complaints with the Hospital's nursing unit manager, police and Health Care Complaints Commission.

The plaintiff alleged that she suffered nervous shock as a result of the assault. She sued the Hospital for damages on the basis that it was:

(a) Vicariously liable for the criminal conduct of the ward orderly; and

(b) Directly liable in negligence for allowing circumstances to arise in which the ward orderly could sexually assault her.

The Decision of the New South Wales District Court

Was the plaintiff assaulted?

On the balance of probabilities, the Court was not satisfied that the ward orderly assaulted the plaintiff. The Court held that it was probable that the plaintiff was mistaken when she claimed that she was sexually assaulted because:

(a) She was heavily medicated and lapsed in and out of consciousness;

(b) There was expert evidence that the plaintiff's memory was severely impaired during her time in the ICU;

(c) Her use of the letter board had probably resulted in a misunderstanding or misrecording of the details of the complaint;

(d) The plaintiff received treatment to rashes in her intimate areas, which was a rational alternative explanation for the plaintiff's allegations of assault;

(e) There was no prior record of crime or misconduct by the ward orderly; and

(f) There was a lack of opportunity for the ward orderly to commit the assault. The physical layout of the ICU and the systems in place for nursing patients, managing staff rosters, supervising ward orderlies and reporting complaints meant that it was improbable that the ward orderly had the opportunity to have access to the plaintiff so as to be able to commit a sexual assault.

Was the Hospital vicariously liable for the alleged assault?

The Court held that if the assault occurred, it could only be regarded as an independent criminal act and would fall outside the scope of the terms of the ward orderly's employment. The Hospital could not be held vicariously liable to the plaintiff.

Was the Hospital directly liable for the alleged assault?

The Court held that the criminal nature of the ward orderly's alleged assault did not exclude the Hospital from liability. Circumstances might arise where a hospital is under a duty to take reasonable steps to protect others against the risk of harm from the criminal conduct of its staff. The question was whether the Hospital was at fault in materially increasing the risk of criminal conduct.

The Court held that there were deficiencies in the recruitment and reference checks of the ward orderly. There was no evidence of any assessment of the ward orderly's conduct or the quality of his work, even though he had only been recently recruited.

The Court also found that the Hospital's complaints handling systems did not always operate as planned. Staff members appeared to consider that it was not their responsibility to report the plaintiff's allegations against the ward orderly as soon as they were made, even though the complaint was very serious.

Despite these shortcomings, the Court ultimately held that the Hospital did not breach its duty of care to the plaintiff. The Court held that the Hospital's very high levels of staffing and the fact that the plaintiff was monitored on a 24 hour basis by one nurse with responsibility solely for her care was a more than reasonable response to the risk that a staff member would behave in the manner alleged against the ward orderly.

While it was not possible to maintain a constant level of supervision of all staff in the ICU, the Court held that it was not reasonable to require the Hospital to maintain supervision to the standard of perfection.

Judgment was entered for the Hospital with costs.

Article by Robert Samut & Madeline O'Connor

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