Australia: Health Alert - 16 April 2012

Last Updated: 21 April 2012
Article by Kerry Hogan-Ross

JUDGMENTS

New South Wales

Coote v Dr Kelly [2012] NSWSC 219 (14 March 2012)

Torts - negligence - medical negligence - whether general practitioner made a wrong diagnosis - a lesion on the foot diagnosed as a plantar wart - whether there was a misdiagnosis of the lesion - whether it was an Acral Lentiginous Melanoma (ALM) - whether there was failure to consider ALM as a differential diagnosis - whether there was failure to refer the plaintiff for specialist investigation - whether there was a failure to perform a punch biopsy of the lesion - plaintiff suffered a plantar wart and also had an ALM - duty of care owed - negligence established - whether there would have been a different outcome if ALM had been earlier treated - causation not established - section 50 of the Civil Liability Act - judgment for defendant - costs evidence - admissibility and relevance - opinion evidence - medical evidence - objections to expert evidence.

New South Wales. Coroner

Inquest into the death of Marth McKee

Death due to asphyxiation due to her neck becoming entrapped on a bed stick following a fall from her bed.

Tasmania

Delphin v Martin [2012] TASSC 13

Dr Wayne Martin (defendant), a dentist, commenced a procedure on Raymond Delphin (plaintiff) to remove a remaining fragment of a previously extracted tooth. The defendant realised there was actually a whole impacted tooth, took some digital x-rays, but encountered difficulties and stopped the procedure. The plaintiff suffered permanent facial nerve damage, which led to psychiatric problems. The plaintiff issued proceedings alleging negligence and breach of contract for failing to take reasonable care and failing to warn him of the treatment's risks.

The court found that had the defendant warned the plaintiff that nerve damage was a risk, the plaintiff would not have agreed to the tooth removal. The plaintiff did not receive an opportunity to make an informed decision.

Furthermore, the failure to have an operational orthopantomogram x-ray machine that would have showed the nerve's position clearly was a breach of the defendant's duties of care.

The defendant used excessive force, resulting in the crown fragment being displaced into the floor of the mouth. As the plaintiff obtained judgment, no findings had to be made as to his surgical skills and experience.

Evidence was given that after the procedure the plaintiff suffered from depression, anxiety and other psychiatric problems. The plaintiff could no longer work. The court was convinced the substantial cause was the procedure.

The court accepted that psychological treatment probably would not make the plaintiff employable. He was awarded damages for past and future economic loss and superannuation, pain and suffering, medical expenses and other expenses totalling $677,037.

Victoria. Coroners Court

Inquest into the death of Miles David Colman -001811 ( PDF 455KB)

Fall - death in care - suicide.

Finding without inquest into the death of baby Oscar

The Royal Women's Hospital provided antenatal care and advised baby Oscar's mother to have a caesarean section as the baby was in breech position. The parents planned to arrive at the hospital as late as possible to avoid a caesarean section, assuming the baby was not in distress. However, private midwife Ms Sayers' plan was to transfer to hospital once labour was established.

The labour progressed fast and when Ms Sayers arrived, the mother was already dilated. Ms Sayers called an ambulance but after discussions with the parents, decided the safest option was to stay at home. AV personnel were present at different stages of the birth. The baby's body was birthed but the head took another 10 minutes. Resuscitation commenced and the baby was transferred to the Mercy Hospital for Women and then to Monash Medical Centre. Due to an extremely poor prognosis, intensive care support was withdrawn.

The Coroner found no concerns in relation to the three hospitals' care. Also, the AV paramedics' reversion of care to Ms Sayers was not inappropriate considering her expertise and experience.

However, Ms Sayers contributed to the death of Baby Oscar by not having a clear plan with his parents, not visiting the home in a timely manner for a non-normal labour, failing to transfer the mother to the hospital and not fully appreciating the potential risks.

The Coroner's Court found that the cause of death was hypoxic-iscahemic encephalopathy with multi-organ failure complicating breech delivery. The death was preventable.

Western Australia. State Administrative Tribunal

Medical Board of Australia v Teasdale [2012] WASAT 62 (30 March 2012)

Medical practitioners - disciplinary proceedings - incompetence or carelessness - vascular surgeon - whether excessive skin punctures made to gain access to arteries - turn on own facts.

LEGISLATION

Commonwealth

Fairer Private Health Insurance Incentives (Medicare Levy Surcharge) Act 2012 - C2012A00027 " Act No. 27 of 2012 as made

Fairer Private Health Insurance Incentives (Medicare Levy Surcharge—Fringe Benefits) Act 2012 - C2012A00028 " Act No. 28 of 2012 as made

Fairer Private Health Insurance Incentives Act 2012 - C2012A00026 " Act No. 26 of 2012 as made

Private Health Insurance (Benefit Requirements) Amendment Rules 2012 (No. 2) - F2012L00822 " as made

Northern Territory

Health Practitioner (National Uniform Legislation) Implementation Bill - introduced into the Legislative Assembly on 29 March 2012.

South Australia

Mental Health (Inpatient) Amendment Bill 2012

Victoria

Drugs, Poisons and Controlled Substances Amendment (Supply by Midwives) Act 2012 - Assent: 3/4/2012

Health Professions Registration (Repeal) Bill 2012 - introduced into the Legislative Assembly on 27 March 2012 and received its second reading speech on 28 March 2012.

REPORTS

Australia. Department of Health & Ageing

Media releases

Private Health Insurance Circulars

Medical Training Review Panel: 15th report

Alzheimer's Australia report on feedback received from older Australians, their families and carers through the national conversation on aged care reform

COTA report on national conversations on ageing

Ageing - Industry Feedback Alert - Bed Poles

Public consultation on draft regulations for internet point of sale tobacco advertising - In April 2010, the Federal Government announced that it would be introducing legislation to restrict Australian internet advertising of tobacco products. The Tobacco Advertising Prohibition Amendment Act 2012 received Royal Assent on 6 March 2012, and will commence on 7 September 2012. Regulations will be made on internet point of sale advertising. The government is seeking comments on draft regulation.

Australia. Parliament. House of Representatives. Standing Committee on Health and Ageing

Inquiry into Health Issues Across International Borders

Inquiry into Dementia: Early diagnosis and Intervention

Australia. Pharmaceutical Benefits Scheme

Submissions received as part of the Review of Anticoagulation Therapies in Atrial Fibrillation are now available. Further information about the Review is available at: Review of Anticoagulation Therapies in Atrial Fibrillation.

The Schedule of Pharmaceutical Benefits was updated on 1 April 2012 and the Summary of Changes can be found on the New, amended and deleted items page. Detailed information regarding additions and alterations of restrictions is now available in the fact sheet, New Listings and Changes 1 April 2012.

Australia. Private Health Insurance Ombudsman

Health Insurance Insider - The Private Health Insurance Ombudsman (PHIO) today launched its new consumer bulletin.... Read more

Australia. Therapeutic Goods Administration

Australian Institute of Health & Welfare

Media releases

Australia. Private Health Insurance Administration Council

Statement of Expectations and Statement of Intent - 06 April 2012 - The Minister for Health's Statement of Expectations, and PHIAC's Statement of Intent...

Circular 12/06 - 3 April 2012 - Capital Adequacy Standard - Interest Rate March 2012

Australia. National Health & Medical Research Council

2 April 2012 - Borderline Personality Disorder: Helping Patients and Clinicians Find the Right Treatment

5 April 2012 - NHMRC Research Tracker

Australian Competition & Consumer Commission

3 April 2012 - Button batteries: A little known risk - Joint news release from the Australian Competition and Consumer Commission, Energizer and Kidsafe on the dangers of button batteries. Release # NR 064/12

Australian Health Practitioner Regulation Agency (& the Boards)

  • 13 April 2012 - The Medical Board of Australia releases a statement about eligibility for specialist registration. | Read Article
  • 13 April 2012 - The Medical Radiation Practice Board - Guidelines for those completing applications who may be come under the grandparenting Provisions. | Read Article
  • 12 April 2012 - The National Specialist IMG Committee, a Committee of the Medical Board of Australia, releases its first Communiqué. | Read Article
  • 12 April 2012 - The Physiotherapy Board releases its latest newsletter. | Read Article
  • 11 April 2012 - The Podiatry Board of Australia releases its latest Communiqué. | Read Article
  • 11 April 2012 - Chinese Medicine Board - The Advanced diploma level programs of study list for Australian qualifications has been updated. | Read Article
  • 11 April 2012 - Chinese Medicine Board - The Board has released a consultation paper on new proposed Continuing Professional Development (CPD) guidelines. | Read Article
  • 10 April 2012 - The Osteopathy Board of Australia releases its latest Communiqué. | Read Article
  • 5 April 2012 - The Podiatry Board of Australia is consulting on proposed Limited Registration Standards for podiatrists. | Read Article
  • April 2012 - The Chiropractic Board of Australia releases its latest newsletter. | Read Article
  • 5 April 2012 - The Podiatry Board of Australia is consulting on proposed guidelines for supervision of podiatrists. | Read Article
  • 5 April 2012 - Chinese Medicine Board - Updated lists of qualifications for general registration under the grandparenting provisions. | Read Article
  • 5 April 2012 - WA presentation about National Registration for Occupational Therapists. | Read Article
  • 3 April 2012 - Four more health professions regulated nationally from 1 July 2012. | Read Article
  • 3 April 2012 - The Pharmacy Board releases FAQs for CPD. | Read Article
  • 2 April 2012 - The Dental Board of Australia releases its latest Communiqué. | Read Article
  • 2 April 2012 - The Medical Radiation Practice Board of Australia releases its Communiqué. | Read Article
  • 2 April 2012 - The Occupational Therapy Board of Australia releases a Communiqué. | Read Article
  • 30 March 2012 - The Psychology Board releases Issue 4 of Connections newsletter. | Read Article
  • 30 March 2012 - Occupational Therapy Board - Joint statement released regarding English language skills for overseas qualified practitioners. | Read Article
  • 30 March 2012 - Read more about the Australian Health Practitioner Regulation Agency's (AHPRA's) work in health practitioner regulation in the latest AHPRA Report. | Read Article
  • 30 March 2012 - The Medical Board of Australia releases its latest Communiqué. | Read Article
  • 28 March 2012 - The Optometry Board of Australia is consulting on amendments to its CPD documents. | Read Article
  • 28 March 2012 - The Osteopathy Board of Australia releases its latest newsletter. | Read Article

New South Wales. Ministry of Health

Information bulletin

Guideline

Northern Territory. Department of Health

Media releases

Hospital Network Governing Councils Membership - Expressions of Interest now open

South Australia. Department of Health

Media releases

Directive - Interaction between SA Health and the Therapeutic Goods Industry

Directive - Medicines Access Programs

Directive - Samples

Guideline - Consumer Feedback Management Guideline

SA Health Fees Policy for the Ethical Review of Research

Tasmania. Department of Health & Human Services

Media releases

Victoria. Department of Health

Hoarding and squalor - 2012

Media releases

Western Australia. Department of Health

Media releases

Draft WA Health Promotion Strategic Framework 2012–2016 (PDF 1.4MB)

New Zealand. Ministry of Health

4 April 2012 - Don't Bug Me? Pathogens and Pathways in Drinking Water Supplies - This video informs on the access and presence of pathogens in the drinking water supplies. It is intended for the small drinking water supplies and can be used in the Pacific Island Countries.

United Kingdom. Department of Health

Canada. Health Canada

30 March 2012 - Canada Concludes Preliminary Assessment of Triclosan

World Health Organisation

Dementia: a public health priority

Australian Medical Assocation

  • 12 April 2012 - Medical board should fund doctors' health services - In a submission to the Medical Board of Australia (MBA), the Australian Medical Association (AMA) is calling on the board to fund better access to doctors' health services across the country. AMA President, Dr Steve Hambleton said today that the AMA's submission to the MBA highlights the evidence that doctors are at greater risk of mental illness and stress-related problems and are more susceptible to substance abuse than the general population.
  • 11 April 2012 - Submission: Funding for doctors' health advisory services - The AMA has responded to the MBA consultation paper on the role of the board in funding external doctors' health programs. In preparing its response, the AMA relied on its 2011 Position Statement on the Health and Wellbeing of Doctors and Medical Students as well a survey of doctors conducted by the AMA that attracted 2,057 responses.
  • 11 April 2012 - Human Cloning 2012 - This position statement addresses reproductive cloning of human beings as well as other cloning techniques.
  • 11 April 2012 - AMA plan to bolster the rural medical workforce - The AMA today released the AMA Position Statement on Regional/Rural Workforce Initiatives 2012, which sets out a practical achievable plan to attract doctors and medical students to live and work in rural and regional Australia. AMA President, Dr Steve Hambleton said that the AMA has for some time identified medical workforce shortage as a major health issue, particularly in regional and rural Australia.
  • 11 April 2012 - AMA Position Statements on genetic testing and human cloning - The AMA has updated and split the content of its Position Statement on Human Genetic Issues 1998. Revised 2000. Revised 2002 to produce the AMA Position Statement on Genetic Testing 2012 and the AMA Position Statement on Human Cloning 2012. The AMA Position Statement on Genetic Testing 2012 is more contemporary and reflects current issues relevant to genetic testing.
  • 10 April 2012 - AMA welcomes investment in specialist medical training - The AMA welcomes Health Minister, Tanya Plibersek's announcement that all training positions in the federally-funded Specialist Training Program have been fully subscribed. This comes on top of February's announcement that all 1,000 first-year GP training places had been filled. AMA President, Dr Steve Hambleton said today that while most specialist training takes place in the public hospital system, the Commonwealth had progressively increased funding to support more specialist training in nontraditional settings, including private hospitals.
  • 10 April 2012 - AMA sets its own items for managing a shared health summary for the Personally Controlled Electronic Health Record (PCEHR) - The AMA has introduced its own items for preparing and managing a shared health summary for the PCEHR. AMA President, Dr Steve Hambleton said today that the Government had not created new items for doctors' time and work with patients on the PCEHR and had not allocated any new funding in the Medicare Benefits Schedule to cover this new clinical service to be provided by doctors.
  • 4 April 2012 - Regional/Rural Workforce Initiatives - 2012 - The AMA has identified medical workforce shortage as a major health issue. The Regional/Rural Workforce Initiatives - 2012 Position Statement looks at all the issues affecting workforce shortages in regional and rural Australia and outlines initiatives and measures that would offer solutions to the current workforce shortage.
  • 4 April 2012 - Creating a better learning environment for medical trainees - The AMA today released its Position Statement on Supervision and Assessment of Hospital Based Postgraduate Medical Trainees (2012). AMA Vice President, Professor Geoffrey Dobb said today that achieving high-quality supervision and assessment of trainees must be a top priority for the Australian health system.
  • 4 April 2012 - Draft Guide to using the PCEHR - The AMA has produced a draft guide for doctors on how to use the PCEHR, which is due to commence implementation from 1 July 2012. The draft guide has been circulated for feedback from doctors and is available on the AMA website for professional and public comment prior to final publication.
  • 3 April 2012 - AMA calls for new Inquiry into the sexualisation of children in advertising - The AMA is calling for a new inquiry into the premature sexualisation of children in marketing and advertising. AMA President, Dr Steve Hambleton said today that self-regulation by the advertising industry is clearly not working.
  • 30 March 2012 - Supervision and assessment of hospital based postgraduate medical trainees - 2012 - Achieving high-quality supervision and assessment of trainees must be a high priority for the health system. The AMA position statement on Supervision and assessment of hospital based postgraduate medical trainees (2012) outlines the key requirements for effective supervision and assessment of trainees to ensure the quality of medical education and training remains of a high standard.

American Medical Association

Media release

26 March 2012 - American Medical Association Releases Physician Guide to Medical Management of the Home Care Patient - The American Medical Association and the American Academy of Home Care Physicians released a new guidebook to help physicians identify and oversee the wide range of medical and social services available to assist their patients at home.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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