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20.1.3 Unintended consequence of medical treatment
Claims for the unintended consequences of medical treatment can be quite complex. There have been a small number of cases adjudged at the AAT and Federal Court, coincidentally Defence related cases. The cases of Eaton and Comcare (2002) and Comcare v Houghton (2003) can be used as guides in these types of claims.
RCG policy is currently that:
- a disease eg infection is not an injury for the purposes of S6A(2)
- to come within the expression of 'unintended consequences' that consequence must be one that is both:
- not desired or aimed for by the provider of the medical treatment, and
- is not a likely consequence of the medical treatment
- it is important to establish whether an injury is truly a consequence of medical treatment or whether it occurred in spite of medical treatment. For example, the loss of a tooth will be inevitable if medical treatment is not given and treatment provided is intended to prolong the life of the tooth. If the tooth is eventually lost then the dental treatment has not caused the loss and is not an unintended consequence of medical treatment.
Accordingly a treatment injury would not fall within the scope of S6A if:
- it arose from the original medical condition which required medical treatment and not from the treatment itself, or
- it was a common side effect or outcome of the treatment and thus could be considered as a likely consequence of the treatment.
It should be noted that a client may have other recourse if they are injured as a result of medical treatment in circumstances where S6A does not apply, for example:
- an action for damages, if the medical treatment was negligently provided
- victim's compensation, if the original condition arose as a result of a criminal act by another person, or
- motor vehicle insurance, if the original condition arose from a motor vehicle accident.