Accident Compensation Act 2001

32 Treatment injury

(1)

Treatment injury means personal injury that is—

(a)

suffered by a person—

(i)

seeking treatment from 1 or more registered health professionals; or

(ii)

receiving treatment from, or at the direction of, 1 or more registered health professionals; or

(iii)

referred to in subsection (7); and

(b)

caused by treatment; and

(c)

not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—

(i)

the person’s underlying health condition at the time of the treatment; and

(ii)

the clinical knowledge at the time of the treatment.

(2)

Treatment injury does not include the following kinds of personal injury:

(a)

personal injury that is wholly or substantially caused by a person’s underlying health condition:

(b)

personal injury that is solely attributable to a resource allocation decision:

(c)

personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.

(3)

The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.

(4)

Treatment injury includes personal injury suffered by a person as a result of treatment given as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6).

(5)

One of the circumstances referred to in subsection (4) is where the claimant did not agree, in writing, to participate in the trial.

(6)

The other circumstance referred to in subsection (4) is where—

(a)

an ethics committee—

(i)

approved the trial; and

(ii)

was satisfied that the trial was not to be conducted principally for the benefit of the manufacturer or distributor of the medicine or item being trialled; and

(b)

the ethics committee was approved by the Health Research Council of New Zealand or the Director-General of Health at the time it gave its approval.

(7)

If a person (person A) suffers an infection that is a treatment injury, cover for that personal injury extends to—

(a)

person A’s spouse or partner, if person A has passed the infection on directly to the spouse or partner:

(b)

person A’s child, if person A has passed the infection on directly to the child:

(c)

any other third party, if person A has passed the infection on directly to that third party:

(d)

person A’s child or any other third party, if—

(i)

person A has passed the infection directly to his or her spouse or partner; and

(ii)

person A’s spouse or partner has then passed the infection directly to the child or third party.

Section 32: substituted, on 1 July 2005, by section 13 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45).