The course is delivered over 14 weeks, commencing on Monday, 15 May 2023. You will work through six online modules at your own pace and attend a two-day, online workshop on Saturday, 24 June and Sunday, 25 June, 2023. Attendance at the workshops is mandatory to pass the course.
The two-day workshop will run for six hours each day and will cover the following topics:
- If medical negligence is the answer, what is the problem? Medical negligence in context
- The patient/client/litigant therapeutic relationship
- Identifying legal issues (but NOT becoming your own lawyer!)
- Complexities in causation - long-tail exposure claims (asbestos, tobacco, silicon), and scientific uncertainty
- The challenges of scale: class actions and defective medical devices and pharmaceuticals
- Apologies, regrets, institutional reforms?
- Dr Bawa-Garba – a case study
- Reflections, next steps and closing
Module 1: What do we mean by ‘harm’? The wrongs we compensate, and the ones we don’t – We begin our examination of negligence by considering the social and economic conditions that drove its evolution, and exploring why we compensate some forms of harm, but not others. We consider the complexities around ‘pure’ psychological or mental harms, and loss of chance of a better medical outcome, as well as wrongful life and wrongful conception claims.
Module 2: A duty of care within an ethic of care – Negligence law is predicated on the idea that the defendant owes the plaintiff a duty of care. Medical ethics and professional standards require a focus on the well-being of the patient and the practitioner within their broader social context. What is a duty of care? What activities does it apply to? And is it consistent with the broader ethic of care approach demanded by the profession and society?
Module 3: Breach of the doctor’s duty of care – When the ‘how’ is more important than the ‘what’. Breach is the ‘fault’ element of negligence law, when the conduct of a defendant is benchmarked against the hypothesised conduct of a reasonable person in identical circumstances - in the case of medical negligence, a hypothetical peer professional.
Module 4: Causation and defences – What does it mean to legally ‘cause’ a harm? Is it different to scientific or philosophical causation? How do we show that an individual’s harm was caused by a particular act or omission, against a complex backdrop of epidemiological data? What is the science simply isn’t advanced enough to know? Causation in medical negligence raises many conceptual challenges rarely found in other areas of law- how does the legal system account for this complexity?
Module 5: Damages, indemnity, and insurance – We are all required to hold professional indemnity insurance (or our employers are) as a condition of practice – but why? In this module we will look at the components of a damages claim and consider the role of insurance – including professional indemnity insurance – in offsetting risk liability for practitioners.
Module 6: The view from across the seas – other approaches to medical negligence. Our focus to date has been on the common law anglo-centric model of medical negligence law, but there are other models. In some countries, iatrogenic harms (including negligence) are covered by statutory no-fault schemes. Elsewhere there are calls to criminalise medical negligence under legislation. We consider these developments through the lens of the purpose and objectives of negligence law and reflect on why they may or may not offer useful insights into the Australian medical negligence law context.
|Computer-aided Test (Open)||Completion of online exercises (6 x 5%)||30%||Ongoing|
|Assignment||Legal problem-solving assignment||50%||In Consultation|
|Student Engagement||Workshop participation||20%||Week 7|