Authors: Her Honour Judge Denese Henare, Brittany Peck, Peter Sara
Published: 6 September 2023
Pages: 60

Introduction

Personal injury as a result of treatment (iatrogenic injury) is one of the six heads of cover in the Accident Compensation scheme. Claims are often complicated legally as well as factually. There may be significant entitlements are at stake, which will be funded from the Treatment Injury Account. And despite the no-fault principle, there can be a lot of sensitivity around the evidence required from medical professionals, with accompanying blame, grief and ongoing distress experienced by the claimants. The injuries are often life-changing events, and may even involve the death of a loved one.

Therefore, it is often these claims that people seek expert legal advice on. As such, lawyers acting for claimants in this area need to draw upon a wide array of skills, including: analysis of complex medical reports; connecting complex evidence to the legislation through the lens of the strong social policy purpose underpinning it; liaising with busy and overworked medical professionals; digesting volumes of medical records; and explaining to clients who have suffered significant health impacts why they will not qualify for cover when someone they know with the same health condition does.

By undertaking this work, claimant lawyers make a significant contribution to ensuring that the scheme is exercised in line with its purpose – a purpose that can be lost amidst the bureaucratic administration of the scheme by a large Crown Entity, with thousands of employees, many contracted providers, and millions of new claims every year. (Continued...)

Content outline

• Medical misadventure
• Treatment injury
• Exclusions
• Clinical trials
• Secondary injury from infection
• Date of injury
• Some specific categories of treatment injury
• Initial assessment and conversation with client
• Costs and funding 
• Experts and evidence
• Timeframes
• Professional health and safety