Lawyers fear cerebral palsy sufferers will be stripped of their legal right to sue for medical negligence under a new injury insurance scheme being developed by the federal government.
The Australian Lawyers Alliance fear the National Injury Insurance Scheme, if introduced, may mean children who are born with cerebral palsy due to medical malpractice may be unable to take civil action to compensate for lifetime care and support.
The alliance has pointed to a major negligence case in the ACT, in which a family settled for $7.5 million, as evidence of the importance of civil action in such cases.
In that case, the family had alleged that malpractice at Canberra Hospital caused their son’s cerebral palsy when he was born, and settled recently after action in the ACT Supreme Court.
The alliance has warned that plans to introduce a National Injury Insurance Scheme, which is being developed alongside the National Disability Insurance Scheme, could prevent sufferers from taking similar action.
But the federal government said no decision had been made on such an approach, and that full consultation on the scheme was yet to take place.
“A decision regarding the implementation of a NIIS for medical treatment accidents will only be made following a public consultation process,” a Treasury spokesman said.
“No decisions have been made with regard to rights to sue under the common law or the treatment of cerebral palsy.”
The scheme is designed to provide no-fault lifetime care to Australians who suffer major injuries because of someone else’s negligence.
But the Productivity Commission has recommended that cerebral palsy should be covered by the NDIS only, and not the National Injury Insurance Scheme.
Alliance national president Andrew Stone said that meant health and medical costs would not be covered, as they would be under the NDIS, and sufferers would only be able to access what is available under the public health system.
“The recent Canberra settlement clearly shows, contrary to the assertions of the Productivity Commission, that those who suffer cerebral palsy as a consequence of medical malpractice can successfully sue,” Mr Stone said.
“In future cases such as the one settled in Canberra, people could be left without the right to sue for future medical costs, the ability to receive it under the NIIS, and any right to choose, even where negligence has occurred.”