Australia: Health care: State-by-state round-up

Last Updated: 22 May 2017
Article by Kerri Thomas and Mark Doepel


The importance of experts and evidence

Zora v St Vincent's Hospital Sydney Ltd [2016] NSWDC 365 serves as a reminder of the need for strong expert evidence in medical negligence cases and the importance the Court may place on evidence when making its determination.

In this case, the Plaintiff underwent a coronary angiogram procedure at Liverpool Hospital, which required a catheter to be inserted in his left and right coronary arteries (of his heart) via the artery in his wrist. This day surgery involved contrast dyes being injected into the arteries to detect any blockages in the heart.

During the procedure, blockages were detected. However, because they did not require immediate treatment and did not affect the Plaintiff's vital signs, he was discharged that afternoon.

The next day, the Plaintiff suffered chest pains and was re-admitted into Hospital. Investigations found that the Plaintiff had suffered a myocardial infarction (heart attack) requiring surgery. While not conclusive, the investigations also suggested the Plaintiff's heart attack may have been caused by a dissection of the artery during the angiogram, which became the basis of the Plaintiff's claim against the Hospital.

The Court had to determine whether there was a dissection during the procedure and if the angiogram was performed negligently or in line with acceptable professional standards.

The Plaintiff's cardiology expert gave two reports on the matter (and subsequently gave a joint report with the Defendant's expert). However, the reports were inconsistent and included different findings on whether or not there was a visible dissection, and if the procedure was performed according to professional standards. By contrast, the Hospital's cardiology expert gave one report stating that the catheter was reasonably placed (and in line with peer professional standards) and there was no evidence of dissection.

Ultimately, the Court favoured the Hospital's expert evidence and held that if a dissection had occurred, it was not caused by the angiogram. The Court also rejected that the angiogram was performed negligently, despite the catheter not being in the optimal position.

We would like to acknowledge the contribution of Mark Doepel, Steven Canton and Dylan Moller to this article.

Significant damages for young plaintiffs in negligence cases

The decision of Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559 is a recent example of where medical negligence, particularly involving younger patients, can lead to significant damages being awarded (when assessed over the patient's lifetime).

The Plaintiff in this case was a 21 year-old woman with epilepsy caused by an antenatal stroke. To determine if she was eligible for surgical treatment, the Plaintiff underwent telemetry testing at Royal Brisbane and Women's Hospital—a test that required an induced seizure under hospital supervision, through medication withdrawal and sleep deprivation. The Plaintiff claimed that during the procedure, hospital staff did not intervene as promptly as they should have to end the seizure, instead allowing her to descend into a prolonged period of seizure activity lasting two hours and 44 minutes. The Plaintiff claimed this led to a permanent deterioration of her epilepsy.

The Hospital admitted a breach of duty of care by failing to:

  • treat the Plaintiff's seizure in a timely manner
  • properly instruct staff on how to give appropriate care and treatment, and
  • take steps to terminate the Plaintiff's seizure within an appropriate time.

The issue remaining was one of causation: did the Hospital cause the deterioration of the Plaintiff's epilepsy or was any deterioration a natural regression? In determining this issue, the Supreme Court of New South Wales looked at diaries and clinical notes, as well as expert evidence identifying the frequency of the Plaintiff's seizure activity before and after the Hospital's test. The Court determined that there was a significant increase in seizure frequency after the Hospital test, caused by the Hospital's breach of duty.

As the injury occurred in Queensland, Queensland law was used to assess damages. The Court awarded damages in the amount of $1,672,790.75. The most significant area of damages was for future care, as the Plaintiff was assessed as 41% on the injury scale value.

We would like to acknowledge the contribution of Mark Doepel, Steven Canton and Dylan Moller to this article.


Commissioning a healthier complaints process in 2017

Earlier in the year, Victorian lawmakers passed legislation to revamp and expand the existing health complaints system. The Health Complaints Act 2016, which came into force on 1 February 2017, incorporates the recommendations of a government-appointed expert panel that reviewed perceived deficiencies in the existing system. We covered these changes earlier in the year, which can be read about in this article.


Mental health reforms to impact hospitals and medical practitioners

The Mental Health Act 2016 (Qld) (MHA) recently came into effect in Queensland, with the aim of overhauling many aspects of patient interaction with hospitals and clinicians, including changes to policies and procedures surrounding patient rights, assessments, restraint, treatment and care.

Specific changes include:

  • authorised doctors will be required to discuss matters with patients (and support persons where appropriate) when:
    • recommending assessment of a patient
    • treatment authority is issued for a patient, and
    • deciding (or amending) the recommended treatment plan proposed for a patient.
  • authorised doctors must take reasonable steps to ensure the patient understands the information given
  • recommended treatment plans for patients and, subsequently, the actual treatment received by the patient must be recorded in health records, and
  • before treating any patient, medical practitioners must direct their attention to the presence of an advance health directive.

While future changes to the MHA have been flagged to reduce the number of forms medical practitioners need to complete, it is clear from the new requirements that there is an increased emphasis on recording clinical decisions and treatment. Hospital and medical practitioners must be aware of these requirements and ensure they adopt appropriate practices to comply with the MHA.

For medical indemnity insurers, increased reporting obligations are generally a welcome development and, when complied with, assist to defend medical negligence claims.

Validity of Mental Health Review Tribunal decisions at risk

Shortly before the MHA came into force, the Queensland Government took the uncommon approach of expediting the Mental Health Amendment Act 2017 (Amending Act) to retrospectively confirm the validity of decisions made by the Mental Health Review Tribunal.

This arose after a Tribunal member was discovered to lack the necessary legal admission qualifications necessary to hold such a position.

While the Amending Act confirms the validity of previous decisions, it also permits potentially affected individuals to seek review of decisions via a special tribunal. A review request must be made within six months of the start of the Amending Act.

Accordingly, insurers should be on notice that existing Tribunal decisions can be re-heard and potentially overturned.

We would like to acknowledge the contribution of Mark Sainsbury and Monica Jaynes to this article.


Amendments to the Court Rules relating to expert reports

The Supreme Court of South Australia has amended the Supreme Court (Civil) Rules 2006 (SA) and District Court (Civil) Rules 2006 (SA), altering the manner in which these Courts deal with expert reports. The amendment, Supreme Court Civil Rules 2006 (Amendment No.33) (Rules), came into effect on 1 October 2016.

Practitioners must now set out in letters of instruction to experts the assumptions the expert is requested to make, the materials provided and questions on which the expert is asked to express an opinion under rule 160(2A) of the amendment. While this was previously common practice, it was not mandated by the Rules and should bring consistency to the engagement of experts. Rule 160(2B) requires this letter to be sent to other parties within five days of sending to the expert.

Rule 160 now provides that where an expert (expert one) is responding to another expert (expert two) in the same field of expertise, or where another expert deals with the same subject matter, expert one should confer with expert two and state in their report if they have done so and if not, why not. When experts confer, they are directed by rule 160(3)(h) to identify the differences in assumptions made in each other's reports.

The Courts are clearly seeking to have experts engaged at an earlier stage in proceedings. Previously, only in certain cases would the Court order experts to participate in a "conclave" before trial to discuss and advise on issues on which they had reached a consensus.

A party can now apply to the Court to be relieved of the obligation to disclose an expert report, or information relating to the report, but must make its application within 60 days of disclosure (rather than five days after, as applied under incumbent rule 160).

The amendment also enables a party to file a summary expert report, in which the expert provides a summary of the assumptions made and opinions held in the proceedings, without obligation for the expert to confer with previous experts [or to comply with the requirements set out in rule 160(3)].

Rule 160(10) clarifies that an expert report, including a summary expert report, is not subject to legal professional privilege and, if admissible, may be tendered at trial.

The Rules still provide that parties must obtain all expert reports they intend to use for the trial before the relevant time limit, being 60 days after disclosure. Rule 160(11) now provides that even if a party obtains an expert report before the relevant timeframe, including a summary expert report, the report must still be disclosed within five days of receipt, unless the Court orders otherwise.

It will be interesting to see whether the changes will impact matters that heavily rely on expert opinion by leading to earlier settlement. The amendment will undoubtedly encourage practitioners to understand and engage with expert opinions at an earlier stage in proceedings and challenge experts to discuss and justify their conclusions to their colleagues at an earlier stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Kerri Thomas
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions