From the bench and the desk
Principles from medico-legal work
These notes summarise principles that arise again and again in consumer medical disputes, including work at the NCDRC. They are not a list of current client matters, and they are not a promise of a similar result. Party names are omitted.
Identity of gametes and IVF samples
Where a clinic cannot show a reliable chain of custody for sperm, eggs, or embryos, the dispute is not only about an unsuccessful pregnancy. Mix-up and misidentification have been treated as a grave deficiency of service. Documentation, labelling, witness protocols, and counselling records decide these cases as much as the clinical note.
Commissions have also looked at what the clinic should have done afterwards: disclosure, genetic testing where appropriate, and how the couple was counselled. A “we followed usual practice” defence is weak if the usual practice had no audit trail.
Vicarious liability of a hospital
Patients contract with the hospital, not with every doctor who walks the ward. Where a doctor is employed or held out as part of the hospital’s service, the hospital can be liable for that doctor’s negligence even if the patient never chose the individual by name.
Hospitals cannot hide behind “the doctor is an independent consultant” if they billed the patient, supplied the theatre, or advertised the specialist. Staffing, credentialing, and who signed the consent form all matter.
No cure is not negligence
Medicine does not guarantee outcome. An adverse result, a recognised complication, or a difference of expert opinion is not, by itself, deficiency of service. The complainant still has to show a breach of the standard of a reasonably competent practitioner in that field, and that the breach caused the injury.
This principle protects careful doctors. It does not protect missing records, unexplained delays, or treatment given without informed consent.
Informed consent and records
Consent is not a signature on a printed form the night before surgery. The patient needs to understand the nature of the procedure, material risks, alternatives, and who will operate. If the note is blank, the form is generic, or the language is not one the patient could read, the defence is already thin.
When something goes wrong, the contemporaneous record is usually worth more than later recollection. Discharge summaries, operation notes, and investigation reports should be asked for in writing and kept.
Pathology and diagnostic error
A wrong report, a switched sample, or a delay that changes the course of treatment can be a deficiency even where the treating doctor later acted in good faith on the paper in front of them. Labs are part of the service, not a side contractor the hospital can ignore.
These matters turn on accession logs, quality control, and whether a critical value was communicated. A pathologist’s reading of slides is judged by the standard of that specialty, not by hindsight.
Health insurance as a consumer dispute
Claim repudiation, hidden sub-limits, and “pre-existing disease” arguments are often consumer cases as much as they are insurance law. The policy wording, the proposal form, and what the hospital billed all have to be read together.
Patients and hospitals should not assume a civil suit is the only route. Forum, limitation, and whether the insurer was a party to the hospital’s package rate are first questions, not last ones.
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