Bill Madden

This website provides updates on medical law and related issues, mostly in Australia. It is maintained by Bill Madden.

He is a lawyer in private practice in Australia, a Fellow of the Australian Academy of Law and also an Adjunct Fellow at the School of Law and at the School of Medicine, Western Sydney University, an Adjunct Professor at the Australian Centre for Health Law Research, Queensland University of Technology and a Senior Fellow, Melbourne Law Masters, University of Melbourne.

Judicial review of conduct complaint: Expert opinion report.

By Bill Madden

March 3, 2021

Hastwell v Health Care Complaints Commission [2021] NSWCA 22 (on Caselaw) is of interest as an appellate consideration of an application for judicial review of an HCCC decision not to take further steps in a complaint against a psychiatrist arising from his conclusion in an expert opinion report of a delusional disorder . In refusing leave to appeal, the Court said (per Leeming JA): [87] … the legal requirements of expert opinion evidence applicable to proceedings…

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Appellate decision on application for recusal.

By Bill Madden

March 2, 2021

Polsen v Harrison [2021] NSWCA 23 (on Caselaw) saw the NSW Court of Appeal called upon to consider an application for leave to appeal from a decision of a trial judge in a medical negligence claim, refusing an application for recusal. As noted previously in this blog, the initial application was made after the trial judge commented on role of one of the plaintiff’s experts at a conclave. The Court of Appeal granted leave…

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Application for recusal + conclave process.

By Bill Madden

February 22, 2021

With thanks to Denise Aydin for drawing attention to the matter of Polsen v Harrison (No 2) [2021] NSWSC 111, available on AUSTLII. Part way through a trial and before hearing of a plaintiff’s application to further amend a statement of claim, the plaintiff invited the trial judge to recuse herself on the grounds of apprehended bias following comments made the previous day about the involvement of a psychiatrist in a joint liability conclave…

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Breast surgery claim.

By Bill Madden

February 16, 2021

With thanks to Ms Hayley Daniel for drawing attention to Fischer v Brown [2021] VCC 104 (on AUSTLII). The plaintiff underwent a revision of a bilateral breast reduction under the care of the defendant. She alleged negligence in failure to recognise and treat postoperative right sided venous congestion, giving rise to necrosis and a need for numerous corrective procedures. The plaintiff’s claimed failed for two main reasons. Firstly, the trial judge accepted the evidence…

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Conduct: Sexual assault of former colleague in social context.

By Bill Madden

February 8, 2021

Medical Board of Australia v A~ [2021] VCAT 85 (available on Austlii) is of interest for its detailed discussion of whether an admitted sexual assault by a doctor of a former colleague, in a social context, amounted to professional conduct under the National Law. The Tribunal ultimately concluded: [68] … To violate the victim’s personal autonomy in the way he did was a breach of trust, unacceptably disrespectful to her, and inconsistent with the…

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Application for judical advice by a tutor in respect of a potential settlement.

By Bill Madden

February 8, 2021

Application of Peter Hodges [2021] NSWSC 55 (on Caselaw) is of interest for its consideration of an application by a litigation tutor to the Court for directions or advice in respect of a potential settlement. The Court distinguished the position of a tutor and a trustee. Advice was ultimately given in the form that the Court “was satisfied that it was in the interests of the defendant to settle the proceedings” on minimum certain…

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Abuse: Subpoena objection.

By Bill Madden

February 5, 2021

With thanks to Charles Harrison for drawing attention to Di Cesare v Bird & Anor [2021] VSC 25 (on AUSTLII), a hearing de novo following an earlier decision of a Judicial Registrar as to whether a subpoena issueed by a plaintiff served a legitimate forensic purpose. The subpoena sought documents from an insurer for the Diocese of Ballarat, in respect of six categories of documents relating to sexual abuse committed or allegedly committed by…

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Apportionment.

By Bill Madden

February 5, 2021

With thanks to Lauren Sutherland QC for drawing atention to an interesting apportionment decision involving a motor accident insurer and two hospitals: Widdowson & Ors v Liberty Insurance Limited, NHS Grampian & NHS Highland [2021] CSOH 15 (available on the Scottish Courts website). Mr Widdowson was seriously injured in a road traffic accident and later died. The proceedings named the insurer for the negligent driver and also the National Health Services responsible for two…

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UK: Wrongful life cause of action or not?

By Bill Madden

January 21, 2021

Toombes v Mitchell [2020] EWHC 3506 (QB) (21 December 2020) (available on BAILII) raises some bried but legally complex issues. This brief note is not sufficient to cover all the elements of the decision, even though the decision itself is quite short. The trial was held to determine a preliminary issue – whehter on the facts of the claimant’s case taken at their highest, a cause of action existed for her. The Claimant was…

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Expert witnesses: Conflicting duties.

By Bill Madden

January 12, 2021

The England and Wales Court of Appeal was called upon to consider this novel issue in Secretariat Consulting PTE Ltd & Ors v A Company [2021] EWCA Civ 6, available on BAILII. At [3] the Court explained that no previous English case has addressed head-on a dispute in which there are two existing litigation support/expert retainers, which each client wished to maintain, relating to two live arbitrations, where what the respondent says is the same…

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Judicial review of conduct complaint: Expert opinion report.

Appellate decision on application for recusal.

Application for recusal + conclave process.

Breast surgery claim.

Conduct: Sexual assault of former colleague in social context.

Application for judical advice by a tutor in respect of a potential settlement.

Abuse: Subpoena objection.

Apportionment.

UK: Wrongful life cause of action or not?

Expert witnesses: Conflicting duties.

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