Case review: Rubino v Ziaree  ACTSC 331
The plaintiff, Mr Rubino sought damages against the defendant, Dr Ziaree, general practitioner in relation to treatment and management of hyperkeratosis (known as a corn). The question specifically addressed was whether Dr Ziaee had a duty to follow up a referral to a surgeon to ensure the plaintiff received timely treatment.
The case will have relevance to many general practitioners who rely on a specialist referral as a discharge of their obligation, a “passing of the baton” so to speak.
The plaintiff alleged negligent treatment and management of his hyperkeratosis of the right foot over a three year period. Ultimately the plaintiff’s foot became infected and required emergency intervention at Canberra Hospital.
The plaintiff first presented to the defendant on 24 July 2013 and eventually received emergency surgery on 9 August 2016. In the intervening period the plaintiff had attended upon the defendant on 19 separate occasions relating to his foot. The defendant generally prescribed pain relief to help the plaintiff cope with the pain.
On 6 March 2014 diagnostic imaging demonstrated a chronic cyst and there were some debris inside the cyst. At this stage, the defendant referred the plaintiff for surgery to a general surgeon at Canberra Hospital. The referral was received by Canberra Hospital on 10 March 2014.
There was some confusion regarding the process of the referral through Canberra Hospital as one note appeared to suggest the plaintiff advised he had already seen a surgeon and a second note suggested the referral was cancelled.
The plaintiff saw the defendant again on 2 May 2014 in relation to a vaccination. He had not received a response to the first referral. Accordingly on 2 May 2014 the defendant sent a further letter to the hospital for evaluation and management. This was received by the hospital on 8 May 2014 and again seems to be recorded as ‘cancelled’ by reference to the referral history on 19 May 2014. The Court surmised that the second referral was cancelled once the hospital identified they had an active referral for the same issue in their system. The plaintiff then entered a holding system for two years.
The defendant gave evidence that on 22 December 2014 the plaintiff told him he was on a waiting list for surgery. The plaintiff, on the other hand, gave evidence that he was aware that he had been referred for surgery in early 2014 and was told by the defendant that he needed to see a surgeon and the surgeon would be in contact with him. The plaintiffs version is that he returned to the practice on multiple occasions between 2014 and 2016 and told the defendant that he had not heard from the surgeon and he was in considerable pain. On one occasion he asked the defendant for the phone number of surgeon so that he could follow up and refer himself. The defendant gave the plaintiff the phone number but when he called the number it went to the cardiac clinic at Canberra Hospital. The Court accepted this evidence as it was consistent with what the plaintiff later told a podiatrist.
On the evening of 2 August 2016 the plaintiff took himself to Calvary Hospital suffering from severe pain relating to the hyperkeratosis on the sole of his right foot. He was discharged with the suggestion to see a podiatrist which the plaintiff did. The podiatrist called the defendant and recorded that the defendant reported not having seen the plaintiff for two months and that he had previously been given a referral to a general surgeon. It was agreed between the podiatrist and defendant that surgery was appropriate and a further referral should occur.
The plaintiff then attended the defendant on 4 August 2016 during which, the defendant did not write any further referral or follow-up on the previous referrals that had been issued. Indeed, the Court accepted that the defendant did not appear to have discussed the surgical approach he had suggested to the podiatrist at all.
On 7 August 2016 the plaintiff attended the Emergency Department at Calvary Hospital and was transferred to Canberra Hospital due to the speed at which the infection in his foot was spreading. The discharge summary records that the plaintiff was admitted for acute care and discharged on 22 August 2016. During that time he had two operation.
The plaintiff alleged that in doing nothing further in terms of treatment, and in failing to follow up on the referral, the defendant was negligent. It was alleged that the delay in effective treatment caused him to suffer from the infection, requiring surgery, leading to injury and impairment.
Two general practitioners provided medico-legal reports and evidence during the trial, Associate Professor Clyne and Dr Gooding each of which disagreed about the treatment a general practitioner should have provided in the circumstances.
Associate Professor Clyne’s view was that the plaintiff should have been referred to a specialist surgeon and this referral should have been followed up. He indicated that where a patient was experiencing delays in the public health system a general practitioner may need to devise alternative strategies and advocate for their patient. This may include attempting to ring the surgeon or otherwise escalate the management and processes.
Dr Gooding considered the referrals provided by the defendant met the standard of care.
Dr Gooding did not consider there was any urgency for further treatment and that reasonable treatment was to organise a specialist clinic appointment and for the plaintiff and wait for a spot at the clinic. In his opinion, as the defendant had referred the plaintiff there was no ‘act of omission’.
The Court did not prefer either opinion over the other and noted the evidence of experts in the relevant field is not determinative.
The Court concluded that the plaintiffs condition required treatment. If untreated there was a risk that the hyperkeratosis would become extremely painful and affect his ability to walk. There was also a risk that the hyperkeratosis would become infected requiring surgery. These were all foreseeable risks which could not be described as insignificant.
The Court determined that as at 5 February 2014, the facts known to the reasonable general practitioner were that there was an ongoing hyperkeratosis, it was painful to walk on and was affecting the patient’s ability to work, that antibiotics had not assisted the infection and that it is unlikely to resolve without incision and debridement but that urgent treatment was not required. The Court found that at that point a reasonable practitioner would have referred the patient for surgery. A reasonable practitioner would then have waited a reasonable period of time for the receipt of the referral to act further.
If by May 2014 there was no response, the Court determined that a reasonable practitioner would have followed up to find out what was happening whether by telephone or in writing.
By June 2014 a reasonable practitioner would also have the added knowledge that the physical condition and constant pain were contributing to a deterioration in the patient’s mental health, with the need for medical intention by way of antidepressant medication. With the extra information a reasonable general practitioner would have ensured the patient had been processed through the system and placed on the relevant list for surgery, perhaps with some idea of approximate wait time.
The Court concluded (at paragraph 140) that from June 2014 to December 2014 any treatment plan the defendant had devised appeared to have lost its way. The plaintiff had not been seen by a surgeon for the best part of a year. A follow-up call or some attempt at communication in relation to the referral was a reasonably precautionary measure. The Court was not satisfied that the defendant took any step to satisfy himself that the plaintiff, as his patient, had not somehow become lost in the system and in this regard there was a breach of duty of care.
Overall the Court was persuaded that from at least December 2014 the plaintiff was not managed with due care and skill. It was accepted there was a failure to ensure the plaintiff received surgical treatment in a timely manner including following up in relation to the referral that had been issued.
In terms of causation, the Court also accepted that had the defendant taken whatever measures necessary to at least get the plaintiff seen by a specialist of some sort, or by recommending that he attend the emergency department at an earlier time (which he eventually did), he would have received treatment and avoided the extent of his injuries.
This case demonstrates that a general practitioner needs to be proactive to ensure that a follow-up of a referral is made and to contact the hospital or specialist directly if no response is received within a reasonable period.
Each set of circumstances will be different, however relying on the plaintiff and the hospital to follow-up a referral will not be a sufficient defence.
This article was written by Katharine Philp, Partner and Audrey Lacey, Special Counsel.