Professional Indemnity FAQ

Medical Malpractice - Loss of Chance claims

Tabet v Gett [2010] HCA 12 Medical Malpractice Loss of a chance claims - Are they now gone?

The legal uncertainty from the 2004 New South Wales Court of Appeal decision in Rufo v Hosking[1] has ended. In an unanimous decision, the High Court of Australia has held in Tabet v Gett that damages are not available for the loss of a chance of a better medical outcome unless the plaintiff can prove, on the balance of probabilities, that he or she would have had a better outcome had the defendant not been negligent.

A six year old girl named Reema Tabet was admitted to hospital in 1991 after recovering from chickenpox. She was suffering headaches and nausea, and was vomiting. Dr Maurice Gett, a paediatrician made a provisional diagnosis of post-chickenpox viral encephalitis. Unfortunately, Reema later suffered a rapid deterioration in her neurological condition and had a seizure. A CT scan revealed a brain tumour (that had been growing for 2 years). Reema underwent surgery to remove part of the tumour but was subsequently diagnosed as having suffered irreversible brain damage. The expert evidence that Reema adduced at trial supported a finding that Dr Gett should have arranged for her to have a CT scan before her condition had deteriorated. Gett appealed.

After reviewing the expert evidence, the Court of Appeal held that Reema's loss of a chance of a better outcome ranged between 'speculative' and 'some'. It ultimately settled on a finding that Reema had lost only a 15% chance (as opposed to the trial judge's 40%) of avoiding the brain damage she complained of. This being the case, the Court of Appeal concluded that Reema had not proven on the balance of probabilities that she had suffered any brain damage as a result of Dr Gett's breach of duty to her.

The question at the centre of Reema's appeal to the High Court was whether the common law of Australia should recognise that the loss of a chance of a better medical outcome is actionable in damages. After considering the central question, the development of the common law in other countries and the expert evidence led at trial, the High Court dismissed Reema's appeal.

Loss of chance claims in medical negligence litigation appear now to be a thing of the past. Plaintiffs should now only be awarded damages for the loss of a proven better outcome, not a percentage of that loss based on the probability (or improbability) of the outcome occurring. This return to a balanced law will be of comfort not only to medical indemnity insurers, but also to the medical profession working in an already financially-strained healthcare system, which has limited capacity to manage 'defensive medicine'.

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CPR joins Ausure

We would like to announce to all our Clients, Prospective Clients, Suppliers and Insurers, that Cooper Professional Risks Pty Ltd trading as CPR Insurance Services, will be leaving National Adviser Services Pty Ltd (NAS) and joining Ausure Pty Ltd as a Corporate Authorised Representative from 5 March 2018.

Fundamentally, there is no difference to you, except our Invoices will look a little different, and the Banking details will be in a different name and account number. Everything else at CPR stays the same.

There are a number of reasons we have made this decision, but the primary reason is for what we believe is best for our clients.

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Special offer to CPR Insurance clients

Employsure are providing a FREE Business Health Check to all our clients and gives you the opportunity to receive an analysis of the health and safety requirements in your workplace. Also. Employsure  will review your employment agreements as well as your wage rates helping you to avoid workplace claims.

Ordinarily this would cost you at least $1,250 but because you are a CPR Insurance client, it is free!

It involves the following review for you.

SAFECHECK

A specialist Work Health and Safety Consultant will visit your workplace and carry out:

A review of your business’ current work health and safety policies, procedures and systems to identify areas of concern or non-compliance

Following the review, you will receive a report summarising the findings and the health and safety

Status of your workplace

WAGE CHECK

A Wages Adviser will review your rates of pay and produce a Wage Check report.

The review will be conducted against the industrial instrument applicable

A report will be supplied advising if the wages are compliant and what steps to take to achieve compliance

CONTRACT REVIEW

A Document Consultant will review an employment agreement and provide recommendations.

The review will highlight compliance issues with the Fair Work Act 2009 as well as best practice

The report will make recommendations to achieve compliance and provide protection to your business.

This will remove any areas of potential dispute and risk

So what do you have to lose? Contact us on 07 3123 1137 and arrange 

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