AUSTRALIA Trends and Developments Contributed by: Robert Samut, Barry Nilsson
ties resolving a dispute by the engagement of joint experts. Not only are there more experts to choose from, but the number of experts being retained in cas - es is increasing. With the rise of AI and technology, new experts will emerge as claims include allegations relating to the failure of a product and/or software. The rise of the peer opinion defence is also being seen – ie, where legislation codifies the Bolam test and provides that a professional does not breach a duty arising from the provision of a professional service if it is established that they acted at the time in a way that was widely accepted by a significant number of their peers as being competent and professional prac - tice. Two recent Supreme Court of New South Wales (“NSW Supreme Court”) decisions have provided added guidance and assistance with regard to raising this type of defence. In April 2025, the NSW Supreme Court decided in favour of an ophthalmologist in the matter of Busa v Eastern Sydney Local Health District t/as Sydney Eye Hospital (2025 NSWSC 130) on the basis of peer opinion supporting a finding that the doctor had not breached his duty of care. In May, the same court made a similar finding in Nemes v South Eastern Sydney Local Health District (2025 NSWSC 418) – ie, finding in favour of the defendant hospital on the basis of peer opinion. How is the Law Responding to Claims Involving New Technology Such as Robotic Surgery, AI Tools and Virtual Care Platforms? As healthcare providers integrate more advanced technologies and personalised treatment, the medical negligence risks evolve and will be different to some extent to what they are today. There will be more prod - uct and software claims – and more tech claims. With AI tools, it will rarely be the case that the doctor and/or hospital will escape all liability in the event of product failure. The doctor’s non delegable duty of care remains. Healthcare providers must apply human oversight and judgement when using AI and any out - puts. They will also need to carefully guard patient privacy when using AI in healthcare. In the context of AI and technology in medicine, the healthcare professional will bear the ultimate respon - sibility for patient safety and wellbeing. It is no answer
to a claim to blame the product or the software. The patient may choose to sue only the healthcare pro - vider, and it will then be up to the provider to seek recovery from the AI or product manufacturer/sup - plier. As a consequence, the contracts that healthcare providers have with the manufacturers or suppliers of these products or technology will become increasingly important. Healthcare providers need to be careful and ideally avoid assuming liabilities under the contract by indemnifying, releasing or agreeing to insure these providers. Insurance policies will probably not provide insurance cover for such pure contractual liabilities. Jurisdictional issues will arise from time to time with telemedicine claims. The relevant jurisdiction will gen - erally be the place where the harm is suffered. The next big disruptor for healthcare litigation has to be the evolution of more personalised care using advanced technology, and the rise of telemedicine- and AI-driven diagnostics. This is going to disrupt healthcare more generally. The nature and subject of the claim will generally be the same. For example, a medical negligence claim will still be a claim for dam - ages for injury and loss made against the healthcare provider. However, the cause of the injuries or adverse event will increasingly change over time; whereas pre - viously it may have been at the hands of a surgeon, it may now be a malfunctioning robot or failure of tech - nology. Healthcare lawyers will need to ensure that they are able to deal with these emerging causation issues. The law will need to catch up with AI and provide some much-needed guidance and regulation. This applies across the board, not just in relation to healthcare. There are some laws that capture AI in a general way, as follows: • the Privacy Act 1988 and the Australian Privacy Principles apply to AI systems that handle personal information, which includes health information; • data protection laws cover the collection, use and storage of data used by AI systems; and • importantly, in healthcare, if an AI system or tool is a “medical device” as defined in the Therapeutic
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