Medical Litigation

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of all the below subjects:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

2012 marked the 20th anniversary of the landmark Australian medical law decision, Rogers v Whitaker. Yet medical litigation remains an exceptionally vibrant and challenging field, underpinned by the rapid pace of scientific and social developments that generate new issues for the law and its ethical framework. Many of the more challenging issues are at the core of policy—birth, reproduction and death. The legal issues are fundamental, covering the existence of duties, what should be considered negligent, the challenges of legal causation and the appropriate compensation regime; all against a background of insurance affordability, the ongoing health and safety, reporting and disclosure agenda and the Australian Disability Insurance Scheme. This subject examines the framework of medical law, current challenges and issues on the horizon.

Lecturer Bill Madden is a lawyer specialising in medical litigation, co-author of two health law texts and a regular writer and presenter on medical law topics.

Principal topics include:

• History and incidence of medical litigation
• The impact of recent legal and court-based reforms including mediation
• The medical indemnity marketplace and proposed changes
• Taking instructions from clients, access to records and interlocutory stages in litigation
• Duty, breach of duty and statutory defences/special protections
• Consent, informed consent and treatment errors—the legal differences
• Causation and loss of chance
• The importance and changing framework of expert evidence
• Privacy and confidentiality issues
• National regulation, conduct and crime
• Mandatory reporting impacts
• Coroners’ investigations and hearings.

A student who has successfully completed this subject will:

• Understand the procedure of litigation in relation to medical injuries from the time an injury first occurs to the hearing in court
• Have examined from the perspective of both patient and health professional the investigation and clarification of issues, the gathering and admissibility of evidence, the instructions to be given to solicitors and counsel and the preparation for hearing
• Have thought through the role of regulatory inquiries and disciplinary proceedings against health practitioners
• Have analysed the role of coroners’ investigations and inquests in making health practitioners accountable
• Have had regard to the role of the criminal law in health practitioners’ accountability.

10,000 word research paper (100%) (1 August) on a topic approved by the subject coordinator.

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.