Revamp of damages laws to protect obstetricians

20/10/04
The State Government has introduced new laws to protect obstetricians from being sued by their patients decades after treating them.
Attorney General Jim McGinty said the changes would stave off a predicted crisis in obstetrics in Western Australia brought about by archaic statute of limitations laws, which enabled people to sue obstetricians for negligence up to 24 years after the birth.
"It is absurd that doctors should have the threat of legal action hanging over them for so many years," Mr McGinty said.
"That constant fear of a law suit has pushed up insurance premiums for obstetrics and led to a shortage of obstetricians in the private sector."
At present, the statute of limitations is suspended for children until they turn 18, and then provides six years for legal action to be commenced.
The Attorney General said this had caused significant problems for doctors who could suddenly be sued - and expected to recall and defend their actions - for events that occurred up to 24 years earlier.
The proposed reforms will wind back the statute of limitations for legal action against obstetricians to six years from the birth.
"So if a child suffers an illness or injury as a result of negligence during birth, there will be a six-year limit to take action against the doctor," Mr McGinty said.
"However, the court will have the power to extend this if it considers a parent or guardian's failure to commence proceedings was unreasonable.
"We have to ensure that children are not disadvantaged, which is why we have provided a safety net by allowing the courts to step in and extend the time if necessary."
Australian Medical Association President Paul Skerritt said the changes would help overcome the obstacle of retaining and recruiting obstetricians.
"Legal concerns have forced many obstetricians to leave private practice making it difficult to maintain high quality care for mothers and their babies," Dr Skerritt said.
"However, the new legislation brings WA into line with other States and is fairer for both patients and doctors.
"This is a win-win situation for all parties and Mr McGinty deserves credit for helping resolve the issue."
Mr McGinty said the overhaul of the Limitation Act would address several other key legal issues including:

• providing people who suffered latent injury or disease the ability to take legal action for the first time, such as people exposed to chemicals or victims of child sex abuse; and

• removing discriminatory provisions that made it more difficult for people to sue Government departments and agencies so in the future, the Government would be treated the same as non-Government entities.

Under current law, people are unable to take civil action more than six years after the date they were actually injured.
"For many victims, the statute of limitations can run out even before they know they have a physical injury or illness or that a particular person was responsible," the Attorney General said.
"The changes will give people a window of three years to make a damages claim from the time the first significant symptoms of their illness or injury appeared.
"This effectively means that the clock does not start ticking until a person is fully aware of the extent of their condition."
The courts will also be able to extend the limitation period from when the victim knew or ought to have known both the physical cause of the injury and that the injury was attributable to the conduct of some identified person.
For a person with a mental disability, the new laws will provide a statute of limitations of 12 years from the date of the injury if the person is not under the care of a guardian or administrator and three years if they are under care.
Mr McGinty said the changes would modernise WA's civil law and bring the State into line with other jurisdictions around the country.
"The State Government hopes this Bill can proceed with bipartisan support to give WA a modern limitations regime which is fairer and more flexible than our current law and deliver a greater degree of certainty for defendants and victims," he said.
Attorney General's office: 9220 5000