Pulse - Issue 2

Pulse - Issue 2 - 2 February 2013


Welcome to the Summer 2013 issue of Pulse, a quarterly publication by Lander & Rogers’ Health Law & Litigation team with information on topical issues and developments in Australian medical and health liability.  In this issue of Pulse, we discuss:

  • the recent Court of Appeal decision relating to the adequacy and process of reasons given by a Medical Panel;
  • recent amendments to the Civil Procedure Act 2010;
  • proposals by the Medical Board of Australia to require medical practitioners to undergo revalidation on a regular basis;
  • the need to ensure that evidence given at trial and statements in other proceedings are consistent;
  • a Coroner’s recent finding concerning an aged care facility’s review and security processes;
  • a discussion of recent case law involving limitation of actions proceedings; and
  • a NSW Supreme Court judgement against a general practitioner for failing to adequately address a patient's obesity.

We hope that you enjoy reading this edition of Pulse and we welcome your feedback. If you have comments, queries or suggestions for topics that you would like us to cover in future editions, please contact us at pulse@landers.com.au or speak with your usual Lander & Rogers contact.

pdf22 Download a PDF of Pulse - Volume 2 (1.2 MB)



Medical Panel developments


Medical Panel reasons

Pulse med panel

In October 2012, the Court of Appeal handed down its decision in Kocak v Wingfoot Australia Partners Pty Ltd & Ors, a case concerning the adequacy of the Medical Panel’s reasons in an Accident Compensation Act 1985 referral. The Court of Appeal determined that the Panel’s reasons were inadequate and that this constituted an error of law, therefore providing grounds for judicial review.

The decision is notable as it could have implications for Medical Panel determinations in medical indemnity claims under the Wrongs Act 1958.

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Is an annual check up what the doctor ordered?

Pulse annual check up

At the Medical Board of Australia’s board meeting on 14 November 2012, discussion took place about the need for medical practitioners to undergo “revalidation” in order to better ensure patient safety. A revalidation process involves a medical practitioner regularly demonstrating that their medical knowledge is up to date and they are fit to continue to practise medicine.

The Board’s discussion created widespread media interest and divided opinion.

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Aged care

Coroner's review of aged care facility


Pulse Aged care.TN

On 14 December 2012, Coroner Parkinson handed down a finding into the death of a resident at an aged care facility in Cranbourne, Victoria.

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Recent developments in health and litigation law


Civil Procedure Amendment Act 2012 (Vic)

Pulse CPA 2012 Vic

The Civil Procedure Act 2010 (Vic) has recently been amended by the Civil Procedure Amendment Act 2012 (Vic) in relation to expert evidence, the definition of what is a substantive document, certifications and costs.

The key areas for hospitals, medical practitioners, aged care facilities and insurers to be aware of relate to expert evidence and certification.

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Consistency is the key to dispute resolution

Pulse consistency key

The ACT Supreme Court decision of Dickson v Dr Andrew Foote emphasises the importance of ensuring that where multiple proceedings and/or investigations arising out of the same set of circumstances are on foot, it is imperative to ensure that there is consistency between the medical practitioner’s evidence and/or statements given in each proceeding.

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When is court likely to extend a limitation period?

Pulse limitation period

The general rule in personal injury claims is that a plaintiff must issue proceedings within three years of their cause of action being “discoverable”. A cause of action is discoverable by a person on the first date that the person knows or ought to have known that the injury has occurred, that the injury was caused by the fault of another and that the injury was sufficiently serious to justify the bringing of an action. There are certain exceptions to the general rule and discoverability is not always clear cut, but even if the plaintiff has failed to issue within time, they may be able to obtain an extension of the limitation period under s27K of the Limitation of Actions Act 1958 (Vic) if the court considers it “just and reasonable”. Extension orders are thus discretionary.

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Supreme Court finds obesity a weighty issue for GPs


Pulse Obesity weighty issue

The Supreme Court of New South Wales recently found a general practitioner negligent for failing to take adequate steps in the treatment of his patient of 14 years. The claim was brought on the basis that the GP should have been more proactive in treating the patient’s early stages of liver disease by adequately addressing the problem of the patient’s morbid obesity.

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Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.