SEPTEMBER 2008

IN THIS ISSUE

Please Select an Article to Read

• Australian Law Reform Commission’s Privacy Report – Health Update
• Special Commission of Inquiry into NSW Public Hospitals releases its First Report
• Pharmacists and Franchising
• Accessing funds in the current market environment
• Aged Care Update
• Amendments to the NSW Medical Practice Act introduce compulsory reporting of doctors for sexual misconduct, substance abuse and incompetent clinical practice
• Case note: Peer evidence as to competent medical practice
• Proposed changes to general requirements for labelling of medicines
• Windfall for Medical Insurers in Medical Malpractice Cases
• Protecting Root Cause Analysis in NSW private health facilities
• Case Note: Court Of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act
• New procedures for Medical Negligence Claims in the NSW Supreme Court
• IVF Donors to lose anonymity under new legislation in New South Wales

 

New procedures for Medical Negligence Claims in the NSW Supreme Court

On 31 March 2008, a new practice note commenced in the professional negligence list of the Supreme Court of New South Wales.  The practice note applies to all proceedings on foot as at 31 March 2008, and matters commenced in or transferred to the list after that date.

The most significant changes concern the preparation and giving of expert evidence in claims for personal injury and the steps required in advance of a hearing.  This will have a particular impact on expert evidence in medical negligence claims.  The practice note assumes the standard orders will be made but does give the Court discretion to make different orders where appropriate.

The major features of the practice notes are as follows:

Expert Evidence

Where more than one expert is to give evidence on an issue:

1. all experts will give evidence concurrently;
2. prior to hearing, experts must confer and produce a report indicating areas of agreement and disagreement.

Unless otherwise ordered, the parties must jointly brief a single expert in relation to each head of damage claimed (but limited to a total of 3 experts on damages in most cases).  This single expert rule requires that:

1. the parties agree to a single expert within 14 days of the order and apply to the Court for directions if they cannot do so;
2. the parties agree on to put to the expert and method of briefing the expert within a further 14 days, and apply to the Court if they cannot do so;
3. the expert provide a report within 21 days of being briefed, or within the time agreed when initially approached for a report;
4. within 14 days of receiving report any party can put a maximum of 10 questions to an expert;
5. the expert report may be tendered at trial by any party.

Preparation for Hearing

The practice note sets out numerous steps each party must take prior to hearing.  These include that:

1. all factual evidence must be given by way of statements, exchanged in advance of the hearing;
2. the plaintiff must prepare a chronology to which defendants indicate facts which are agreed and facts which are in dispute;
3. the plaintiff must prepare a list of questions for trial judge to which defendants indicate that which is agreed and that which they wish to challenge;
4. the parties must prepare joint and individual tender bundles, with indexes to individual bundles exchanged in advance of the hearing.

While the changes to the practice note are clearly aimed at limiting the time and expense associated with preparation of expert evidence, there may be considerable practical difficulties in securing agreement on the choice of and briefing materials for single experts.  The new orders for preparation for hearing will increase the costs of proceeding to trial.  However, they do enable each party to understand clearly the case they are to meet, which may facilitate resolution in advance of a hearing.

Written by Meghan Magnusson, Senior Associate