Compensation and claims for damages

 

In New Zealand, the ACC scheme limits the way claims for compensation for personal injury can be made. Claro’s lawyers are experts in the ‘treatment injury’ provisions of the Accident Compensation Act. However, some avenues exist for damages claims against healthcare providers, and such cases arise periodically. Our lawyers have played a leading role in many of these cases. We understand the various jurisdictions intimately, including how to manage potential and actual claims, and the use of alternative dispute resolution strategies such as mediation.

When it comes to health sector compensation claims:

  • few lawyers have substantive experience
  • different jurisdictions overlap meaning potential for multiple jeopardy
  • resolution commonly involves more than just the legal merits and money.

Examples of work done by Claro lawyers:

An appeal to the High Court involving a claim to ACC for treatment injury where the claimant had an underlying health condition, the inevitable consequence of which was renal failure. We acted for ACC, which had declined the claim. The appellant argued that timely treatment would have delayed dialysis by up to two years. The appeal involved a question of “accelerated progression” in the treatment injury context. The High Court confirmed that the acceleration rule has no place under ACC scheme, and that the progression of the appellant’s disease was not exacerbated by any failure to diagnose.

Claim for damages in relation to the suicide of a man in police custody following a mental health assessment. Our lawyers represented a DHB in this complex claim against multiple defendants, brought by the man’s estate and family. The claim involved complex duty of care issues, including provisions under the NZ Bill of Rights Act, and Mental Health Act issues. We negotiated a non-financial settlement on the basis that there was no demonstrable negligence by the DHB as the ‘right to life’ cause of action was too remote, and ‘secondary victim’ criteria were not satisfied.

A claim against a private hospital following an unsuccessful surgical procedure. As a matter of contract, the patient’s brother-in-law (who paid for the procedure) alleged a total failure of consideration and demanded a refund. The claim was not one for “damages” in the traditional sense. Our lawyers advised on whether or not the claim was statute barred (i.e., the law expressly excludes proceedings being brought in given circumstances). The claim was found to be statute barred and was ultimately withdrawn.

High Court claim for breach of privacy and confidentiality following the unlawful access by an employed health professional to the patient records of a personal acquaintance. We represented the DHB. The claim raised issues of vicarious liability of a DHB where an employee acts outside clear instructions of the employer and in breach of the employer’s policies. Following negotiation the complainant did not pursue the claim.

Defamation claim. A health professional made a disparaging and subjective comment in a patient’s notes about the patient’s support person. Requests were made to remove the note, and for the reasons for its inclusion to be investigated. An allegation of defamation was made. The matter involved consideration of “qualified privilege” in terms of the Defamation Act 1992 and the extent to which a confidential patient record can be considered a publication.

An attempted private prosecution of a DHB health protection officer. The proposed prosecutor sought to file charges of perjury against the officer in relation to evidence given by the officer at a hearing several years previously. We acted for the DHB. The court found that there was insufficient evidence before the court, and that there had been an abuse of process in the way the matter had been brought before the court. The court refused to accept the charges for filing.

Training we offer

We provide expert witness training for health professionals who give expert opinions, write reports and give evidence in inquests, disciplinary hearings and other court settings. The one day training involves case studies, report writing sessions, and includes a mock hearing where participants give evidence and are cross examined. For enquiries about this training, contact Anita Miller or Jonathan Coates.