National Health Law Bulletin – June 2022

01 June 2022

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

The health law practice of HWL Ebsworth is one of the premier legal service providers 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 lawyers who have market-leading expertise in all aspects of health law and policy including assisting health practitioners and public and private health facilities in civil claims, disciplinary proceedings and coronial inquests and providing advice on regulatory and compliance issues such as clinical governance, privacy, Medicare and ethics. Our team also has extensive experience advising on clinical protocols, medical practice management and industrial relations as well as providing corporate and commercial advice to health industry participants.

As part of our focus on the health industry, our bulletin addresses a range of topics designed to provide you with an insight into legal and other developments across the nation.

Employee vs Contractor: High Court decisions highlight the importance of the written agreement

The High Court handed down two landmark decisions on 9 February 2022. Both cases make it clear the terms of written contract are usually the paramount consideration when determining whether an individual is an employee or contractor.

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Damages in wrongful birth – 2021 update in WA – O’Loughlin v McCallum [2021] WADC 77

Wrongful birth is a recognised form of compensation claim which is brought by the parents of a child whose birth was unplanned or unexpected, and whose life came about by virtue of the negligent advice or treatment of a medical practitioner.

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

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

But what about the more modern lines of communication?

We now see practitioners communicating with patients, referring colleagues and their office managers by texts, emails and instant messages. When do those communications form part of a patient’s clinical record?

The answer is more broad than many practitioners realise, and has implications not only for what information a patient can access in their records, but also as part of the discovery process in court proceedings.

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

Dr Pridgeon, the appellant, was a registered general practitioner charged by the Australian Federal Police, and later the Queensland Police, with offences against the respective criminal codes of the Commonwealth and Queensland. The charges related to Dr Pridgeon’s involvement in harbouring and/or supporting a mother and her twin daughters; the mother having not returned the twins back to the custody of their father. The father had been named by an order of the Family Court of Australia as a residential parent and the parent with whom the children had been ordered to live with.

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Subpoenas for a patient’s diary

Occasionally, a subpoena is issued on behalf of a defendant doctor for diaries maintained by a plaintiff patient.

The NSW Supreme Court considered such a case in December 2021 in Haragli v Tan [2021] NSWSC 1581.

The plaintiff underwent a double mastectomy on 18 November 2011 and alleged that her general practitioner had been negligent in treating her properly from May 2008.

The defendant denied that he had been negligent.

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A General Practitioner’s duty extending beyond making a referral

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

The case will have relevance to many general practitioners who rely on a specialist referral as a discharge of their obligation, a “passing of the baton” 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 financial year. Money paid to an ’employee’ qualifies as ‘wages’ for payroll tax, but did you know that money paid to a contractor doctor under a ‘relevant contract’ may also qualify as ‘wages’ for payroll tax?

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