National Health Law Bulletin – June 2022


We are delighted to welcome you to the HWL Ebsworth Health Law Bulletin.

The health law firm of HWL Ebsworth is a leading provider of legal services to the Australian health industry, dedicated to assisting clients with all aspects of their legal needs. Within the National Practice Group, we have a team of partners and attorneys who have leading expertise in all aspects of health law and policy, including assisting health practitioners and to public and private healthcare institutions in civil suits, disciplinary proceedings and coroner’s inquests and providing advice on regulatory and compliance issues such as clinical governance, confidentiality, health insurance and ethics. Our team also has extensive experience advising on clinical protocols, medical practice management and industrial relations, as well as providing corporate and business advice to healthcare industry players.

As part of our focus on the healthcare industry, our newsletter covers a range of topics designed to give you insight into legal and other developments across the country.

Employee versus contractor: High Court rulings highlight importance of written agreement

The High Court delivered two landmark decisions on February 9, 2022. Both cases make it clear that the terms of a written contract are usually the primary consideration in determining whether someone is an employee or a contractor.

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Damages in case of wrongful birth – Update 2021 in WA – O’Loughlin vs. McCallum [2021] CMAD 77

Wrongful birth is a recognized form of compensation claim brought by the parents of a child whose birth was unplanned or unexpected and whose life occurred under the negligent advice or treatment of a physician.

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To send or not to send SMS? After all, who is going to see it?

It is very clear that clinical entries, referral letters, reports, radiology and pathology results are all part of a patient’s clinical record.

But what about more modern lines of communication?

We now see practitioners communicating with patients, referring colleagues and their chiefs of practice via text, email and instant messages. When do these communications become part of a patient’s clinical record?

The answer is broader than many practitioners realize and has implications not only for the information a patient can access in their record, but also as part of the discovery process in legal proceedings.

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Pridgeon v Medical Council of New South Wales [2022] NSWCA 60

Dr Pridgeon, the appellant, was a licensed general practitioner charged by the Australian Federal Police, and later by the Queensland Police, with offenses under the respective Commonwealth and Queensland Criminal Codes. The charges relating to Dr. Pridgeon’s involvement in harboring and/or supporting a mother and her twin daughters; the mother not having returned the twins to the custody of their father. The father had been named by order of the Family Court of Australia as the resident parent and the parent with whom the children had been ordered to live.

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Patient Diary Quotes

Sometimes a subpoena is issued on behalf of a defendant physician for logs kept by a plaintiff patient.

The Supreme Court of New South Wales considered such a case in December 2021 in Haragli vs. Tan [2021] NSWSC 1581.

The complainant underwent a double mastectomy on November 18, 2011 and alleged that her GP had been negligent in treating her improperly from May 2008.

The defendant denied being negligent.

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The duty of a general practitioner goes beyond simple referral

The plaintiff, Mr. Rubino sought damages against the defendant, Dr. Ziaree, a general practitioner in relation to the treatment and management of hyperkeratosis (known as cor). The issue specifically addressed was whether Dr. Ziaee had an obligation to follow up on a referral to a surgeon to ensure the plaintiff received timely treatment.

The case will be relevant to many GPs who rely on a specialist referral to fulfill their obligation, a ‘handover’ so to speak.

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Are you liable for payroll tax?

A medical practice will be liable for payroll tax if its “payroll” exceeds $1.2 million in a fiscal year. Money paid to an “employee” is considered “salary” for payroll tax, but did you know that money paid to a contract doctor under a “relevant contract” may also be considered as “salary” for the payroll tax?

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