AUSTRALIA Trends and Developments Contributed by: Robert Samut, Barry Nilsson
Healthcare in Australia is undergoing a significant transformation, having to adapt to an ageing popula - tion, dealing with an increasing prevalence of chronic diseases and benefitting from many and varied tech - nological advancements. Australian healthcare providers continue to provide a high standard of care to patients and consumers. The industry is well regulated, with the care being provided by a highly trained workforce. It is, however, an indus - try that is under constant pressure, with both private and public healthcare providers having to do more on tightening budgets, and with many care providers being stretched to the point of exhaustion. AI in healthcare is rapidly evolving, with significant research and investment focused on integrating AI into patient-focused care and creating systemic effi - ciencies. Over the past few years, there have been changes in the frequency, severity and nature of claims being made against healthcare providers. The industry relies heavily upon both local and overseas insurers to meet the cost of these claims. Lloyds syndicates continue to play an important role in providing cover for the larger healthcare operations. This overview looks at recent trends and develop - ments in the claims and regulatory environment affect - ing healthcare providers, and what the next disrup - tions to the market might include. Claims Against Healthcare Providers Secondary psychiatric claims arise where a person suffers a psychiatric injury or illness as a result of witnessing, or being informed of, a traumatic event involving another person. They are also referred to as “nervous shock claims”. There is a requirement of close ties of love and affection between the injured person and the person seeking damages for nerv - ous shock. There has been a continuing increase in the frequency of secondary psychiatric claims being made against healthcare providers. In addition, the damages awards are also increasing. Where a number of family members are seeking compensation from the healthcare provider, the quantum of the secondary
victim claims may exceed the damages being claimed by the injured party. The amounts being claimed for gratuitous care and paid care are increasing due to higher hourly rates being allowed for in gratuitous care claims, and to providers increasing their service fees for paid care. In part, this is due to the National Disability Insurance Scheme (NDIS) distorting the costs of the care market with the rates that care providers have been charg - ing the fund. A widespread practice developed where NDIS participants were being charged more for sup - port than non-NDIS participants, which created a two- tier system, and these higher costs have been filtering into medical negligence claims costs. Another concerning trend is the extension of limitation periods. The limitation of actions legislation across the country generally provides that you have three years from the day the cause of action arises to issue proceedings against a defendant. There is the ability to issue proceedings outside this three-year period where the claimant is only made aware of facts that give rise to the claim later in time, including after the limitation period has expired. The courts are quite amenable to extending the limitation period by finding that a plaintiff had not discovered, or was not aware of, a material fact of a decisive character until some time after the negligent act or omission. COVID-19 continues to have an impact on claims in two ways: • firstly, in the way that claims against healthcare providers are managed – technology allows for bet - ter engagement with experts and witnesses, where you can share documents on your screen and have multiple people involved in the meeting; and • secondly, in the way that COVID-19 disruption also saw a spike in claims for missed diagnoses and delayed diagnoses, which are still working their way through the system. More recent times have seen the rise of the medical expert. There are now a number of companies with stables of medical experts. The plaintiff expert and the defendant expert divide is locked in, notwithstand - ing the acknowledged and obvious benefits of par -
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