Before: McCallum CJ, Kennett and O’Sullivan JJ
Decision date: 15 February 2023
The respondent to the appeal, Mr Rubino, suffered pain from a hyperkeratosis (commonly known as a corn) on the sole of his right foot, which interfered with his ability to work. Between July 2013 and August 2016 Mr Rubino attended around 19 consultations with the appellant, Dr Ziaee, who was a general practitioner working in the ACT.
On 6 March 2014 Dr Ziaee first referred Mr Rubino to a surgeon working in general practice at the Canberra Hospital (a public hospital). Dr Ziaee consulted with Mr Rubino again on 2 May 2014, at which time no response had been received to the first referral, and Dr Ziaee sent a further letter to the surgeon. No response was received to either referral. In the following two years, Mr Rubino’s foot was treated mainly by prescribed painkillers. In August 2016, his foot became infected and extremely painful and he was admitted to Canberra Hospital for acute care and surgery.
Mr Rubino sued Dr Ziaee, seeking damages for negligence. It was not in dispute before the primary Judge that Dr Ziaee owed Mr Rubino a duty to exercise reasonable care in treating him. However, there was dispute about whether Dr Ziaee had breached the duty of care owed to his patient and whether any such breach caused Mr Rubino’s loss.
The primary Judge determined that Dr Ziaee had breached the duty of care required of him as a general practitioner by not following up the referrals. As to causation, the primary Judge found that, had Mr Rubino been seen in a more timely manner by a specialist, he would have followed specialist advice and undertaken conservative measures to manage the underlying cause of the hyperkeratosis. It was found that the breach by Dr Ziaee was a necessary condition of the delay in the plaintiff receiving effective treatment, which resulted in ongoing severe pain and severe psychological consequences for Mr Rubino.
Dr Ziaee appealed the primary decision.
The Court of Appeal found that the long period the patient waited without being seen by the surgeon was a result of the patient being on a long waiting list and allocated low priority.
On appeal, it was found that it was not open to the primary Judge to find that a reasonable general practitioner would have contacted Canberra Hospital to follow up the referral. Further, even if Dr Ziaee had followed up the referral or tried to escalate it within the overstretched public health system, it most likely would not have changed the hospital’s triaging of Mr Rubino, and therefore would not have resulted in him seeing a surgeon at any time before August 2016 when his condition became urgent.
The appeal was allowed, with an award for Mr Rubino to pay Dr Ziaee’s costs of the appeal.
Effects of the decision
General Practitioners can breathe a sigh of relief that their duty does not extend so far as to advocate on behalf of their patients to the referring specialist or require them to achieve timely review by another medical practitioner. In a role that already requires extremely acute skills to examine, diagnose, treat and refer patients during very short consultations, the additional duty held in the trial, but overturned on appeal, would have further strained the resources of General Practitioners.
This article was written by Sarah McJannett, Partner, and Kate Torney, Solicitor.