SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Rubino v Ziaee |
Citation: | [2021] ACTSC 331 |
Hearing Dates: | 29 June 2020 - 1 July 2020 |
| Submissions last received: Decision Date: | 6 July 2020 23 December 2021 |
Before: | McWilliam AJ |
Decision: | See [220] |
Catchwords: | NEGLIGENCE – MEDICAL NEGLIGENCE – General practitioner – treatment of hyperkeratosis over three years – where plaintiff referred to a specialist but referral was ineffective – whether duty to follow up |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 40, 42 – 46 Court Procedures Rules 2006 (ACT) |
Cases Cited: | Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 |
Parties: | Michael Rubino ( Plaintiff) Dr Soroush Ziaee ( Defendant) |
Representation: | Counsel A Campbell ( Plaintiff) C P O’Neill ( Defendant) |
| Solicitors Gerard Malouf & Partners ( Plaintiff) Avant Law ( Defendant) | |
File Number: | SC 22 of 2020 |
McWilliam AJ:
Introduction
The plaintiff in this case, Mr Michael Rubino, brings a claim in medical negligence seeking damages against the defendant, Dr Soroush Ziaee, who was his general practitioner, working at Tristar Medical Group (the Practice). The dispute is in relation to the treatment and management of a hyperkeratosis (more commonly known as a “corn”), on the plaintiff’s right foot over a three-year period. Ordinarily, this might be thought of as a relatively benign condition. In this case, the foot ultimately became infected and required emergency surgical intervention at Canberra Hospital.
In broad terms, the plaintiff alleges that between July 2013, when he first presented to the defendant, and 9 August 2016, when he received emergency surgery, he saw the defendant in relation to his foot condition on numerous occasions (he attended 19 separate consultations). The defendant prescribed pain relief, generally Panadeine Forte, to help the plaintiff cope with the pain caused by his foot condition. In 2014, the defendant referred the plaintiff to a surgeon through the public health system in the Territory. It is alleged that the defendant did nothing further, in terms of treatment, and failed to follow up the referral. The plaintiff alleges that such conduct fell short of the reasonable standard of care to be provided by a general practitioner. The delay in any effective treatment is alleged to have caused him to now suffer from an antalgic gait, with difficulties walking, due to ongoing pain. This has given rise to…
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- Rubino v Ziaee [2021] ACTSC 331
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- [2021] ACTSC 331
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CaseChat Overview and Summary
The primary legal issue the court had to address was whether Dr Ziaee owed a duty to follow up on the referral to a specialist after the plaintiff's condition did not improve. The court needed to consider the standard of care expected of a general practitioner in similar circumstances and whether there was a breach of this standard. Another key issue was the extent of any harm suffered by Rubino as a result of the alleged negligence.
The court examined the circumstances of the referral and the communication between Dr Ziaee and the specialist. It found that while there was a referral, there was no evidence of any follow-up by Dr Ziaee. The court considered the general practitioner's obligations in such cases and concluded that Dr Ziaee had a duty to follow up on the referral once it became apparent that the specialist's treatment had not been effective. The court found that Dr Ziaee had breached this duty, leading to a deterioration of Rubino's condition and additional suffering. The court also determined the extent of the damages attributable to this breach.
The court ordered that Dr Ziaee pay damages to Rubino for the harm suffered due to the breach of duty. The specific amount of damages was to be determined at a later stage, as outlined in the judgment at [220].
Orders
Orders of the court
See [220]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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