There is a very recent ACT Supreme Court decision, Rubino v Ziaee [2021] ACTSC 331, which impacts on the standard of care that applies to General Practitioners.
What practitioners need to know is that:
- their duty of care is not discharged by merely issuing a referral to a specialist or hospital;
- if the patient returns to the GP for ongoing treatment of the relevant condition thereafter, and the GP has not received communication from the specialist/hospital to whom they were referred, the GP is obliged to:
a. make inquiries with the patient as to whether they pursued the referral;
b. if the referral was pursued, follow up with the entity/specialist to whom the referral was issued to:
i. ascertain if the patient is on a waitlist;
ii. obtain information about approximately when the treatment or surgery might be provided;
c. formulate a treatment plan for the patient’s care until they can be seen by the entity/specialist to whom they have been referred or an alternative plan if they do not intend to pursue the referral.
We recommend you put your GP members on notice of this decision.
Facts & allegations
Dr Ziaee was a general practitioner at Tristar Medical Group in Bruce in the ACT. The plaintiff, Mr Michael Rubino, sought treatment for hyperkeratosis (a “corn”) over a period of three years. His foot ultimately became infected and required emergency surgical intervention at the Canberra Hospital.
The plaintiff alleged that between July 2013, when he first saw Dr Ziaee, and 9 August 2016, when he received emergency surgery, he saw Dr Ziaee in relation to his foot condition on numerous occasions. Dr Ziaee prescribed pain relief, mainly Panadeine Forte, to help the plaintiff cope with the pain.
In March 2014, Dr Ziaee referred the plaintiff to a surgeon in the public health system in the ACT (a general surgeon at the Canberra Hospital). The clinical records confirmed that referral was received by the Canberra Hospital and registered in their system on 10 March 2014.
Dr Ziaee sent a further referral to the Canberra Hospital in May 2014, as he had not received a response to the first referral. The referral was processed by the Canberra Hospital and registered, but it was later cancelled, most likely because there was already an active referral in the system.
In December 2014, Dr Ziaee recorded in his clinical notes that the plaintiff was on the waiting list for surgery. However, the plaintiff gave evidence that he was never contacted by a surgeon or anyone at Canberra Hospital about being placed on a wait list for surgery.
The plaintiff alleged that he saw Dr Ziaee on multiple occasions between early 2014 and 2016 and told the defendant he had not heard from the surgeon and was in considerable and consistent pain. He asked Dr Ziaee for the phone number of the surgeon, but when he called it was the wrong number. He told Dr Ziaee that it was the wrong number and Dr Ziaee said that he would get somebody to give him a call.
Ultimately, the plaintiff did not see a specialist at any point until August 2016, when he underwent emergency surgery.
The plaintiff alleged that, after issuing the referral, Dr Ziaee did nothing further to treat his condition and he failed to follow up the referral. Broadly, he alleged an ongoing failure to treat on behalf of Dr Ziaee.
Her Honour accepted that something had ‘gone awry’ with the referral to the Canberra Hospital, so that it had essentially not been effective.
The Canberra Hospital was, at one point, a third party to the proceedings, but that claim was resolved prior to the hearing. There was no allegation pleaded by Dr Ziaee that the plaintiff was contributorily negligent.
Decision
Standard of care
As to the standard of care required of a reasonable GP in these circumstances, Her Honour found that:
- A reasonable practitioner would have referred the patient for surgery;
- The reasonable practitioner would then have waited for a reasonable period of time for the recipient of the referral to act upon it. Her Honour determined that a month was a reasonable time in the circumstances of this case;
- A reasonable practitioner would also have recommended some basic measures that could be done in the meantime to reduce the severity of the problem, such as using a pumice stone and attending a podiatrist for assistance;
- From May 2014 (the next consultation after the referral had been made), if no response to the written referral had been received, and on the basis that three months had passed since the referral had been made, a reasonable general practitioner in the circumstances would have followed up to find out what was happening, whether by telephone or in writing;
- A reasonable general practitioner would also have followed up on what the patient had been doing to improve the condition of the foot – which should have included discussing steps that did not require a referral, such as attending a podiatrist;
- When the general practitioner became aware that the patient’s pain was contributing to a deterioration in the patient’s mental health, with a need for medical intervention by way of anti-depressive mediation, a reasonable GP would have ensured that the patient had been processed through the system and placed on the relevant list for surgery, ‘perhaps with some idea of the approximate wait times’;
- A reasonable GP would also have again advised about the various conservative debridement measures, including ointments available from a pharmacy, scrubbing with a pumice stone, and attending a podiatrist;
- A reasonable practitioner, in these circumstances (a patient routinely attending the practice with significant ongoing pain), had a duty to try to assist the patient to progress a resolution, including ringing a private surgeon for advice;
- A GP would not have to go so far as to make enquiries of whether any surgeons were able to take on a public patient, at least without first taking the step of contacting the Canberra Hospital to follow up the status of the referral and to find out how long it would take for the public patient to be seen by a specialist with a view to confirming that surgery was, in fact, appropriate; and
- A reasonable GP would have made enquiries of the hospital as to the expected timing of a consultation to confirm surgery was required, or if it was assumed such consultation had happened, whether any information could be provided as to the timing of the surgery.
Her Honour observed that what the circumstances of this case really called to attention is whether the duty of the reasonable GP, which was to ensure the patient had access to specialised treatment that the GP thought was necessary or desirable, ceased at the writing of a second referral. Reasonable precautionary measures were required to ensure that the defendant’s selected treatment course through referral was effective. After the consultation in December 2014 it would have been a reasonable precautionary measure to follow up on the referral, particularly in the absence of receiving any communication from the recipient of the referral.
Importantly, Her Honour did make a somewhat curious distinction between the duty of a GP who sends the referral off to the specialist, to the duty of the GP who prints the referral for the patient and leaves it to the patient to make an appointment and provide the referral to the specialist. Her Honour did not elaborate on her reasons for this distinction, however based on her subsequent comments, it appears that the duty of a GP who sends the referral off to the specialist is more onerous because they have control over the referral process. In any event, in those circumstances, Her Honour felt it was not appropriate to leave it entirely to the patient to follow up the GP’s direct referral.
Breach of duty of care
Her Honour found that Dr Ziaee met the standard of required of a reasonable practitioner in March and May 2014 when he issued the referrals to the specialist. However, from June to December 2014, Her Honour considered that any treatment plan Dr Ziaee had devised ‘appears to have lost its way’. By December 2014, Dr Ziaee should have made a follow up phone call to the Canberra Hospital, or made some other attempt at communication, to ensure that his chosen treatment course through referral to the specialist was effective.
Her Honour felt it was clear that Dr Ziaee did not take that step, and he did not take any step from that date to satisfy himself that the plaintiff ‘had not somehow got lost in the system.’ Accordingly, Her Honour found that, in that regard, Dr Ziaee was in breach of his duty of care.
Her Honour felt the breach was even more clear by the time Dr Ziaee next saw the plaintiff in May 2015, and at that point Dr Ziaee should have acted reasonably to follow up the referral and find out what was going on. Her Honour observed that there was further information Dr Ziaee could have provided to the hospital in that the plaintiff was requiring strong pain relieving medication, was depressed, and his condition had affected his ability to work for some time. Her Honour accepted that if a reasonable GP had been given information of a delay in surgery they would have attempted to speak with a surgeon to determine an alternative response. A reasonable GP would also encourage the plaintiff to attend to other means of reducing the impact of the problem.
Her Honour determined that there was a failure to ensure the plaintiff received specialist surgical treatment in a timely manner, including following up in relation to the referral that had been issued.
Her Honour cautioned that her findings in relation to the breach of duty of care were made in the particular circumstances of the case, and should not be taken as a finding that a GP has a more general duty to follow up any time a referral is made for consultation by a specialist.
Her Honour said that she would have separately found that the treatment of the plaintiff was not carried out with due care and skill because there was a failure to develop any treatment strategy separate to waiting for surgery, as distinct from simply pain management. However, Her Honour said that was not something the plaintiff could take very far given her findings regarding causation.
Causation
Her Honour found, on the balance of probabilities, that (and assuming that surgery was even necessary), where it not for the delay, the surgical procedure the plaintiff had in August 2016 (followed by a second procedure) would have occurred at least a year earlier than it did, and in circumstances that were not urgent due to infection. The plaintiff would have also likely experienced less pain and his mobility would have been increased. Her Honour accepted that a metatarsal osteotomy or management under a podiatrist would have been appropriate.
Overall, Dr Ziaee was responsible for the delay in the plaintiff getting advice and treatment, during which time an infection grew and the plaintiff then required urgent treatment. Dr Ziaee’s breach also caused the plaintiff to develop a psychological injury.
Damages
| Head of damage | |
|---|---|
| General damages | $72,000 |
| Interest on general damages | $6,720 |
| Loss of future earning capacity | $10,000 |
| Loss of past earning capacity | $40,000 |
| Out of pocket expenses | $2,000 (plus Medicare payback) |
| Past and future gratuitous care and assistance | $53,925 |
| Total | $184,645 |
Comment
The decision places a heavy onus on GPs to continue to monitor a patient’s progress through the referral and requires them to, in effect, advocate on behalf of their patients to the specialist or hospital to whom they have been referred. This is yet another impost on the limited time and resources available to a GP, and also poses difficulties where the patient returns to the same GP practice for ongoing treatment, but sees a variety of practitioners within that practice. It also creates some tension between a patient and a practitioner in requiring inquiries into whether (and possibly why) the patient has not pursued a referral, and the variables that flow from that decision.
This article was written by Sarah McJannett, Partner and Lisa Gooneratne, Special Counsel.
