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Medical Negligence Impacts On Income Protection, Private Health and NDIS

In our most recent article, How Medicare And Centrelink Benefits Affect Medical Negligence Claimswe identify how Medicare and Centrelink benefits impact upon medical negligence claims.

However, it is important to note that there are other benefits that have an impact on medical negligence claims.

OTHER BENEFITS THAT HAVE AN IMPACT ON MEDICAL NEGLIGENCE CLAIMS: -

  1. Income protection benefits
  2. Private health benefits
  3. NDIS benefits 

Do income protection benefits have an impact on medical negligence claims?

YES, those injured in the course of medical negligence may be eligible to obtain income protection benefits through their super fund or other held income protection insurance.

If an injured person is unable to work due to medical negligence, it is likely that their medical negligence claim will include a head of damage for “past economic loss”, which is a figure representing the past loss of income and past loss of superannuation.

If a claim is made for past economic loss and that compensation is paid out at settlement, the injured party may be required to pay back the income protection benefits received in the past in accordance with the income protection policy.

Generally, unless the injured party has purchased income protection insurance (i.e. not through a super fund), most policies will require a pay-back of the income benefits in circumstances where an injured person has been compensated for economic loss sustained during the same period income protection payments were received.

How to calculate the income protection refund?

Generally, income protection will pay a percentage of an injured person’s wage (e.g. 80%). When a past economic loss claim is made for medical negligence, the claim is made for the entire value of the loss.

Therefore, it is expected that after any income protection refund is made, the injured party will retain some compensation for past economic loss and loss of superannuation.

To find out how much is required to be reimbursed for income protection payments, the injured person should: -

- Speak to the income protection insurer to clarify whether they need to pay back the income protection benefits if they obtain compensation for past loss of income

- Obtain a statement from the income protection insurer detailing all income protection payments made under the policy

In some circumstances, the injured party may have obtained income protection from two separate insurers. This can make calculating the reimbursement amount difficult.

Therefore, it is important to be open and upfront about any income protection benefits obtained so any potential reimbursements can be factored into the medical negligence claim when negotiating a resolution.

Do private health insurance benefits have an impact on my medical negligence claim? 

YES, if treatment has been obtained for injuries sustained as a result of medical negligence, these expenses will form part of the medical negligence claim as a head of damage called “past medical expenses”.

The compensation received at settlement for past medical expenses cannot be kept by the injured party as this would constitute a double-up of compensation. This means that any expenses paid by the private health insurer in relation to injuries sustained as a consequence of medical negligence must be paid back to the private health insurer.

Upon request, the private health insurer will provide a benefit history statement detailing all benefits received during the injury period that is required to be reimbursed.

If an injured party has received compensation for future treatment expenses, the compensation may affect an injured person’s ongoing entitlements to claim future private health benefits in relation to that injury.

For example, under most private health policies, if compensation is received by the injured person for future surgery at $20,000.00, the injured person would be precluded from obtaining private health benefits in relation to that surgery, as if they received compensation from the medical negligence claim and from the private health insurer this would constitute a double up of compensation.

Do NDIS benefits have an impact on my medical negligence claim?

YES, if NDIS benefits are obtained for injuries sustained as a result of medical negligence, these expenses will form part of the medical negligence claim as a head of damage called “past medical expenses”.

NDIS will provide a statement of benefits detailing expenses that will need to be reimbursed if compensation is obtained for past medical expenses.

If you are in receipt of NDIS benefits as a lifetime scheme member, your solicitor will need to weigh up whether claiming future medical expenses in your medical negligence claim is appropriate in the circumstances.

This is because, if compensation is received for future care and assistance, NDIS cover may cease along with any entitlements to the lifetime scheme membership program as obtain future NDIS benefits would constitute a double up in compensation.

It is therefore vitally important to disclose all information in relation to income protection, private health, and NDIS benefits as these benefits have significant and, in some circumstances, ongoing implications for the injured person.

To read more about medical negligence damages, see our recent blog post: THE 4 MOST COMMON DAMAGED CLAIMED IN MEDICAL NEGLIGENCE MATTERS


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How Medicare and Centrelink Benefits Affect Medical Negligence Claims

Do Medicare & Centrelink affect my medical negligence claim?

YES, past Medicare and Centrelink benefits do have an impact on medical negligence claims.

Compensation received in medical negligence claims may also affect the injured persons ongoing rights and entitlement to Centrelink.

IMPORTANT: -

  1. Past Medicare charges relating to a medical negligence injury will need to be paid back to Medicare if the claim is resolved. Future Medicare entitlements may be affected by a medical negligence settlement if part of the claim relates to future medical expenses.
  2. Past Centrelink benefits may need to be paid back to Centrelink if the medical negligence claim settles and a portion of the settlement was for past economic loss.
  3. Future Centrelink benefits may be affected by a medical negligence settlement if part of the claim relates to economic loss.

Do past Medicare charges have an impact on medical negligence claims?

Yes, if treatment and other Medicare benefits such as nursing and home care benefits have been obtained for injuries sustained as a result of medical negligence, these expenses will form part of the medical negligence claim as a head of damage called “past medical expense”.

Do I have to pay back Medicare at the end of my medical negligence claim?

Yes, while expenses paid by Medicare are claimable as a head of damage in medical negligence, the compensation received at settlement for past medical expenses cannot be kept by the injured party as this would constitute a double-up of compensation.

Therefore, the money claimed for past Medicare must go back to Medicare and/or the private health fund.

How do you calculate a Medicare refund?

Upon request, Medicare will issue a Medicare History Statement from the date of injury to the date of request. This statement will detail every expense paid by Medicare over that period.

The injured party will need to tick the box next to treatment that relates to any injuries sustained as a result of the medical negligence. This form is then returned to Medicare.

Following this, Medicare will issue a Medicare Notice of Charge, which provides a total figure to be paid back to Medicare when the matter settles.

If a Medicare Notice of Charge is not available or has expired at the time of settlement, then 10% of the settlement money will be deducted by the Insurer and sent to Medicare.

Medicare will then send a Medicare History Statement to the injured party, upon receipt of the Medicare History Statement, Medicare will determine the charge and withdraw the charge amount and return the balance of the 10% to the injured party.

If there is no Medicare Charge, the full 10% will be returned to the injured party.

Does my past Centrelink benefits have an impact on my medical negligence claim?

Yes, if, as a result of medical negligence, the injured party is unable to work and has obtained a Centrelink benefit, the injured party may need to reimburse Centrelink at the end of the medical negligence claim.

If an injured party is unable to work, their past economic loss will form part of the medical negligence claim as a head of damage called “past economic loss”.

If the injured party is compensated for their past loss of income, they will not be able to keep that compensation and the Centrelink benefit for the same period as this would constitute a double-up of compensation.

How is Centrelink reimbursed?

If a portion of the settlement money relates to past economic loss, Centrelink will be notified and will issue a clearance or charge.

The clearance will advise of any amounts owing to Centrelink for any benefits that are compensation affected.

It is important to note if the injured party has unpaid Centrelink debts (e.g. garnishee or unpaid child support), those debts may be payable from the medical negligence compensation.

If there is an amount to be reimbursed to Centrelink, the insurer will deduct the amount owed to Centrelink from your settlement money.

An insurer is unable to pay out any settlement money until a Centrelink clearance or charge is received. Generally, this process takes between four 4-12 weeks.

If no Centrelink benefits have been claimed over the relevant period, Centrelink will issue a Clearance stating there is no charge and no money will be deducted by the insurer for reimbursement.

Does my medical negligence settlement affect my ongoing rights to Centrelink? 

YES, in some circumstances.

If a portion of the settlement money represents a loss of income, an injured worker may be precluded from obtaining Centrelink benefits in the future.

A preclusion period applies irrespective of whether the injured party has previously received Centrelink.

It is important to note; preclusion period may affect entitlements to Pensions and other age benefits.  

The injured party will be advised of any Medicare and/or Centrelink reimbursements as well as any Centrelink preclusion periods prior to the resolution of their medical negligence claim.

However, it is important to be open and frank about past Medicare and Centrelink benefits and debts to ensure the claim runs smoothly, and the right amount of compensation is obtained at the resolution of the medical negligence claim.

To read more about medical negligence damages, see our recent blog post: THE 4 MOST COMMON DAMAGES CLAIMED IN MEDICAL NEGLIGENCE MATTERS 

Keep an eye out for our next article on medical negligence and the impact of NDIS funding, income protection, and private health!

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Claiming Compensation For An Adverse Reaction To The COVID-19 Vaccine

Since this article was published on 2 July 2021, the Hon Greg Hunt MP (Minister for Health and Aged Care) issued a media release providing greater detail on the scope of the proposed COVID-19 vaccine indemnity scheme (see https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to-protect-health-professionals-and-patients).

The Australian Government has now clarified the proposed COVID-19 vaccine indemnity scheme will operate as “a no fault claims process scheme” to provide compensation where patients suffer “a significant adverse reaction, causing injury and economic loss because of vaccination”. What constitutes “a significant adverse reaction” has not yet been defined.

Furthermore, the COVID-19 vaccine indemnity scheme will “be backdated to the start of the national vaccine rollout”. Meaning, patients who suffer COVID-19 vaccine-related injuries prior to the scheme’s implementation will be entitled to claim compensation under the scheme.

Whilst the COVID-19 vaccine indemnity scheme will likely provide a simpler process for COVID-19 vaccine related injuries, injured persons are still entitled to pursue common law medical negligence claim compensation for adverse reactions to the COVID-19 in the interim and even after the scheme’s implementation.

National Indemnity Scheme

In late June 2021, the Federal government announced its intention to establish a professional indemnity scheme for medical practitioners who are “providing advice to people in relation to COVID-19 vaccination.”[1] 

Few details have been released about how the scheme will operate, and the scope of the scheme is unclear. However, the statement by the Federal Government seems to indicate the scheme will indemnify healthcare practitioners, not patients, from potential adverse reactions from the COVID-19 vaccine. 

Accordingly, it seems Australia will continue to lag behind other countries, such as New Zealand and the United States of America, who have established no-fault compensation schemes for vaccine-related injuries.[2] 

Medical Negligence Claims and the COVID-19 Vaccine

Interestingly, in the absence of a no-fault compensation scheme, injured persons may still be entitled to claim compensation for an adverse reaction to the COVID-19 vaccine by way of a medical negligence claim.  

Given that the Therapeutic Goods Administration has approved various COVID-19 vaccines as safe,[3] injured persons will most likely need to prove negligence by the medical practitioner who administered the COVID-19 vaccine in order to claim compensation.

An action in medical negligence requires an injured person to prove a medical practitioner failed to provide care to the standard of a competent medical practitioner at the time, and this failure caused them to suffer loss/damage as a result.[4]

Negligence in administering the COVID-19 vaccine might arise where a medical practitioner failed to warn the injured person of the potential risks or harmful side effects of a COVID-19 vaccine,[5] or incorrectly administered the COVID-19 vaccine (for example, injected the vaccine into the injured person’s nerve/bloodstream, rather than their muscle). 

Negligence might also arise if a medical practitioner administered a COVID-19 vaccine against the advice/recommendations of the Australia Government or the manufacturer. For example, the Queensland Government has advised that persons with a history of blood clotting disorders (such as Heparin-induced thrombocytopenia (HIT) or Central venous sinus thrombosis (CVST)) should not receive the AstraZeneca vaccine.[6] Accordingly, administering the AstraZeneca vaccine to a patient with a history of blood clotting who then suffers blood clots may give rise to liability in negligence. 

Similarly, persons with severe allergies to any of the ingredients in the COVID-19 vaccines have been advised not to have the COVID-19 vaccine.[7] Accordingly, where a patient suffers a severe allergic reaction to the COVID-19 vaccine, and the administering medical practitioner failed to take a relevant medical history,[8] this may also give rise to liability in negligence.

For a claim in medical negligence for an adverse reaction to a COVID-19 vaccine to be financially viable, an injured person will need to have suffered serious and prolonged symptoms/injuries following vaccination. Accordingly, where a patient merely suffers the known and common side-effects to the COVID-19 vaccine, which tend to only last a couple of days [9], they are unlikely to be entitled to any/much compensation. 

Compensation from Statutory Schemes

Where an injured person needs to take time off work to recover from a COVID-19 vaccine, even for known and common side-effects, they may be entitled to Workers’ Compensation.[10] An entitlement to Workers’ Compensation may particularly arise where an injured person is vaccinated against COVID-19 at the direction of their employer.[11]

Similarly, funding from the National Disability Insurance Scheme (NDIS) may be available where an injured person suffers “a permanent and significant disability” as a result of receiving a COVID-19 vaccine but will not be available for temporary symptoms/injuries following vaccination.[12] 



  [1] Prime Minister Scott Morrison, ‘National Cabinet Statement’ (media statement, 28 June 202) <https://www.pm.gov.au/media/national-cabinet-statement-5>

[2] See generally Wood et al, ‘Australia needs a vaccine injury compensation scheme: Upcoming COVID-19 vaccines make its introduction urgent,’ Australian Journal of General Practice (online, 9 September 2020) Table 1 <https://www1.racgp.org.au/ajgp/coronavirus/australia-needs-a-vaccine-injury-compensation-sche>

[3] Therapeutic Goods Administration, ‘COVID-19 vaccine: Provisional registrations,’ COVID-19 Vaccines (webpage, 25 June 2021) <https://www.tga.gov.au/covid-19-vaccine-provisional-registrations>

[4] Civil Liability Act 2003 (Qld) s 22; see generally Rogers v Whitaker (1992) 175 CLR 479.

[5] See generally Rogers v Whitaker (1992) 175 CLR 479;  Civil Liability Act 2003 (Qld) s 21. 

[6] Queensland Government, ‘COVID-19 vaccination information: Patient Information,’ Queensland Government (fact sheet, June 2021) <https://www.health.qld.gov.au/__data/assets/pdf_file/0029/1029359/covid19-patient-information-sheet.pdf>

[7] Ibid. 

[8] Chin Keow v Government of Malaysia and Another [1967] 1 WLR 813

[9] Australian Government Department of Health, ‘Are COVID-19 vaccines safe?’ Australian Government Department of Health (webpage, 17 June 2021) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/learn-about-covid-19-vaccines/are-covid-19-vaccines-safe>

[10] See generally WorkCover Queensland, ‘COVID-19 vaccines and your workplace health and safety obligations,’ (webpage, 2 March 2021) <https://www.worksafe.qld.gov.au/news-and-events/news/2021/covid-19-vaccines-and-your-workplace-health-and-safety-obligations>

[11] See generally Megan Bowe and Emma Croskery, ‘Can employers make the COVID-19 vaccination mandatory?’, Colin, Biggers & Paisley (webpage, 1 February 2021) <https://www.cbp.com.au/insights/insights/2021/february/can-employers-make-the-covid-19-vaccination-mandat?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>

[12] Nicholas Wood, ‘Who pays compensation if a COVID-19 vaccine has rare side-effects? Here’s the little we know about Australia’s new deal,’ The Conversation (online, 15 October 2020) <https://theconversation.com/who-pays-compensation-if-a-covid-19-vaccine-has-rare-side-effects-heres-the-little-we-know-about-australias-new-deal-147846>

One download between you and your key to compensation...

  • Printable or accessible as an interactive PDF;
  • Complete with examples, hints and tips, and space to do your working
  • 1 download for our entire 5-part online series

Want to fast track the process with our free interactive workbook?

Breaking down the smokescreen of uncertainty through a unique step-by-step approach. 

CONTACT US

t      (07) 3231 0604

e     [email protected] 

a     345 Queen St, Brisbane City


Medical Law © 2020 Privacy & Disclaimer