A joint investigation between the Sydney Morning Herald, The Age and ABC’s 7.30 recently revealed there has been a substantial increase of Medicare billings, many of which are for unnecessary procedures or incorrect billings (link: https://www.smh.com.au/politics/federal/medicare-is-haemorrhaging-the-rorts-and-waste-costing-taxpayers-billions-of-dollars-a-year). This begs the question of what you can do if you discover that a healthcare practitioner has unnecessarily billed Medicare on your behalf.
Make a complaint
You can report the practitioner to the NSW Health Care Complaints Commission (HCCC). The HCCC is the regulator of healthcare practitioners in NSW. Their role is to investigate complaints made with respect to practitioners if issues are raised in relation to public health and safety. Following the HCCC’s investigation, if it considers the practitioner’s conduct amounts to professional misconduct or unsatisfactory professional conduct, the HCCC can take steps to prosecute the practitioner before the NSW Civil and Administrative Appeals Tribunal. Allegations regarding improper and unnecessary Medicare billing are serious allegations which the HCCC should be made aware of.
You can find out more about the HCCC’s role, including how to make a complaint on their website: hccc.nsw.gov.au.
Medical negligence claim
If you are concerned that you have undergone an unnecessary or inappropriate medical procedure, then you may have a claim in negligence. In order to succeed in a negligence claim, you must establish that the practitioner breached the duty of care they owed to you which has caused you to suffer from some damage or harm.
If you have undergone the wrong or inappropriate procedure, then expert evidence is required to establish that and to provide the type of procedure you should have undergone and why. The expert evidence must also establish that you have suffered some damage or harm by undergoing the wrong procedure. This may be in the form of having to undergo additional medical procedures or your condition deteriorating as a result of the failure to perform the correct procedure.
If you have undergone an unnecessary procedure, then expert evidence is required to establish why the procedure was unnecessary and whether there were alternative options to the procedure you underwent, such as conservative management. Furthermore, the expert evidence should explain what your issues are now, including whether you must undergo further treatment to correct issues caused by the unnecessary procedure.
In the event you have undergone an unnecessary procedure and you suffer from serious risks and complications which you were not warned about, you may be able to bring a claim based on a ‘failure to warn’. A doctor has a duty to warn a patient of a material risk of any procedure. A failure to warn claim can be brought in circumstances where:
1. The surgery or procedure was unnecessary such as elective surgery, cosmetic surgery or not lifesaving surgery
2. There were risks and complications attached to the surgery or procedure specific to the type of surgery or procedure
3. You were not warned of those risks by the medical practitioner
4. If you were warned of the risk, you would have attached some significance to it; and
5. The risk occurred.
There are a number of legal options available to those who have been affected by improper or excessive billing to Medicare. It is important to get the right advice specific to your circumstances.
Get in touch with us
If you or anyone you know would like further advice in relation to their options, please contact our medical negligence team on 13 43 63.
At Turner Freeman, we have specialist medical negligence lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our medical negligence lawyers are located across NSW including in our offices in Parramatta, Sydney, Wollongong, Newcastle and Toronto.
