Wrongful Birth Cases: The Filters of Scope of Duty and of Normative Causation.

Wrongful birth cases were initially brought most often for failed contraception, sterilisation or termination of pregnancy. Claims have since arisen from alleged failures in the provision of pre-conception and antenatal advice leading to a loss of opportunity to commence or terminate a pregnancy, or for failures in assisted reproduction. Within that second category, breach of duty leading to the birth of a child with disabilities has not always been enough for the claimant parent/s to recover compensation or at least for all of the child's disabilities. Two key cases show the courts' focus on scope of duty issues - Waller v James and Khan v Meadows. Arguably the same outcomes could have been arrived at by consideration of normative causation. This article examines the two cases, but emphasises the fact-sensitive nature of those judgments in which scope of duty and normative causation filters may or may not apply.

Who should provide expert opinion in emergency medicine-related medical litigation?

Expert evidence plays a central role in establishing the relevant standard of care in medical litigation. In Australia, little is known about the expert witnesses who provide evidence about the standard of care provided in ED. A sample of recent published case law suggests that a proportion of expert evidence about breach of the standard of reasonable care in ED is provided by medical practitioners who are not emergency physicians and/or have no recent practice experience in an ED. This may potentially distort the identification of the relevant standard of care. In the United States, the American College of Emergency Physicians has attempted to address this issue by developing and promulgating expert witness guidelines. Is there a case for the Australasian College for Emergency Medicine to assume an advocacy role and/or develop standards in this area?

When patients behave badly: Consent, breach of the duty of care and the law.

Patients who are abusive or aggressive in ED raise special clinical and legal challenges. These include what steps clinicians should take to exclude serious illness/injury as the cause of the behaviour and when investigations or treatments can be imposed on these patients without their consent. Using a case illustration, this paper discusses legal issues which arise in this context, including how the standard of care owed by clinicians is determined and what may constitute a breach of duty; such patients' right to consent to (or decline) tests and treatment; and when clinicians may lawfully act without consent and/or control the patient's behaviour.

Vaginal Dialogues: The Trials and Tribulations of Mesh in the Repair of Prolapse.

Media reports suggest that between 2005 and 2014 an estimated 8,500 patients were injured (including 170 deaths) in Australia by defective medical devices. An Australian representative action against two manufacturers and a supplier of certain medical devices used for the treatment of stress urinary incontinence and pelvic organ prolapse by three women representing over 700 registered class members alleging serious complications of vaginal mesh repair gave rise to a judgment in favour of the plaintiffs in late 2019. The judgment suggests that replacing a set of suspensory components of the levator ani muscle with a rigid matrix of mesh which provided strong support at the expense of flexibility may have been a misguided choice.

In the Footsteps of Teiresias: Treatment for Gender Dysphoria in Children and the Role of the Courts.

The Family Court of Australia has stepped back from a previously perceived need for involvement in the approval of stage 1 and stage 2 treatments, for children requiring gender transformation. At present those children and their families who are in agreement need not seek authorisation of the Family Court to undertake either Stage 1 (pubarche blockade with gonadotrophin-releasing hormone agonists) or Stage 2 treatment (cross-hormone therapy such as oestrogen for transgender males). Stage 1 treatment to suppress pubarche would nowadays be commenced at Tanner stage 2 which commences as early as 9.96 years in girls and 10.14 years in boys. Suppression of puberty continues until the age of 16 years when cross hormonal treatment commences. This article questions the assertion that suppression of puberty by GnRH analogues either in cases of precocious puberty or gender dysphoria is "safe and reversible" and argues that it warrants ongoing caution, despite the Family Court having broadly accepted that assertion.

Expert Witness Immunity in Australia after Attwells v Jackson Lalic Lawyers: A Smaller and Less Predictable Shield?

Expert witnesses act as "injury brokers" in contributing to the analysis of what qualifies as legally recognised and compensable injury in medical negligence litigation. The orthodox approach in Australia is that expert witnesses, like advocates, are immune from suit in negligence. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16, the High Court of Australia upheld, but narrowed, advocates' immunity. This article outlines the decision in the Atwells case and after reviewing Australian authority on expert witness immunity argues that, given the recent narrowing of the scope of advocates' immunity, similar limitations are likely to be placed on the scope of expert witness immunity with two effects ­ it will be less commonly available and less predictably available.

Conclaves and concurrent expert evidence: a positive development in Australian legal practice?

Many Australian courts now prefer pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial. This contrasts to the traditional approach where experts did not meet before trial and did not give evidence together. Most judges, lawyers and expert witnesses favour this as a positive development in Australian legal practice, at least for civil disputes. This new approach affects medical practitioners who are called on to give expert evidence, or who are parties to disputes before the courts. Arguably, it is too soon to tell whether the relative lack of transparency at the conclave stage will give rise to difficulties in the coronial, disciplinary and criminal arenas.

Adapting to concurrent expert evidence in medical litigation.

In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.

Proof of causation in informed consent cases: establishing what the plaintiff would have done.

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff's ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff's prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court's reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.

Legislative intervention in Queensland to restrict access to solariums and cosmetic procedures by children and young persons.

Breaking new ground, Queensland has enacted laws restricting access to cosmetic surgery by those under 18 years of age. Legislation in other Australian jurisdictions is narrower in scope, focusing on niche areas such as solarium use, tattoos and body piercing. Even in those niche areas there are inconsistencies of approach and now the unique Queensland cosmetic surgery restrictions further raise the prospects of "medical tourism" and highlight the difficulties of differing legislation throughout Australia. All implementations, however, face the same challenge: to balance protection of vulnerable children, respect for a young person's autonomy and due regard to parental consent.

Bundaberg and beyond: duty to disclose adverse events to patients.

Although much excellent work has been done in Australia and elsewhere to improve the safety and quality of health care provision, the practice of medicine is inherently risky--adverse events sometimes occur. In Australia, practical guidelines for the open disclosure of adverse events to patients have been developed and are being implemented. State and Territory medical boards have recently adopted Codes of Conduct which include disclosure provisions, although the Australian Medical Association's Code of Ethics does not yet contain express patient disclosure provisions. There is a dearth of authority concerning legal obligations to disclose known or suspected adverse events. Although many Australian jurisdictions have introduced statutory protection for those who apologise or express regret to patients following an adverse event, there is no corresponding express statutory disclosure obligation, unlike in some parts of the United States. The Bundaberg experience illustrates the complex ethical, practical and legal issues which arise in this area.

Intentional torts claims in medical cases.

Civil liability legislation enacted in each Australian jurisdiction following the Ipp Report recommendations created a clear divide between "negligence" and "intentional" torts. The common law action for trespass to the person is to varying extents maintained in the approaches taken by the State and Territory legislatures. This article explores the potential application of intentional torts claims in a medical context in light of recent case law. It identifies advantages for plaintiffs who plead intentional tort claims, including onus of proof, causation, remoteness, the quantum of compensatory damages and the availability of aggravated and exemplary damages.