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Rubino v Ziaee

Rubino v Ziaee

Case [2021] ACTSC 331 23 December 2021

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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:	ACT v Gillan [2018] ACTSC 223 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 McLennan v Meyer Vandenberg [2020] ACTCA 7 Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269 Phillis v Daly (1988) 15 NSWLR 65 Richards v Rahilly [2005] NSWSC 352 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 Rogers v Whitaker (1992) 175 CLR 479 Spence v Neilson [2018] ACTSC 273 Tabet v Gett [2010] HCA 12; 240 CLR 537 Tai v Hatzistavrou [1999] NSWCA 306 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wallace v Kam [2013] HCA 19; 250 CLR 375
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rubino v Ziaee

Details

AGLC: Rubino v Ziaee [2021] ACTSC 331
Case: [2021] ACTSC 331
Decision Date: 23 December 2021

CaseChat Overview and Summary

The case of Rubino v Ziaee involved a plaintiff who brought a claim against a general practitioner, alleging negligence in the treatment of hyperkeratosis over a period of three years. The plaintiff, Rubino, claimed that the defendant, Dr Ziaee, had failed to adequately treat his condition and had not followed up after referring him to a specialist. The matter was heard in the Supreme Court of Victoria, which was required to determine whether Dr Ziaee had breached any duty of care owed to Rubino by failing to adequately follow up on his referral to a specialist.

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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Citations

AGLC Citation

Rubino v Ziaee [2021] ACTSC 331

Most Recent Citation

Ziaee v Rubino [2023] ACTCA 7

Cases citing this decision · 1 of 1 shown

Ziaee v Rubino
[2023] ACTCA 7

…Rogers v Whitaker (1992) 175 CLR 479 Rubino v Ziaee [2021] ACTSC 331 Tabet v Gett [2010] HCA 12; 240 CLR 537 Tai v Hatzistavrou [1999] NSWCA 306…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

McLennan v Meyer Vandenberg
[2020] ACTCA 7 Para 1

…laim. No one made any submissions about it and no schedule was provided to the Court. Notwithstanding this, cases such as McLennan v Meyer Vandenberg [2020] ACTCA 7 at [106] are to the effect that interest ought to be awarded, although the amount of interest may be affected by the sum that I have found above. Acc…
Spence v Neilson
[2018] ACTSC 273 Para 1

…e cases in a supplementary submission, which I granted leave to file following the hearing. In addition, the plaintiff relied upon Spence v Neilson [2018] ACTSC 273 ( Spence ), where Mossop J awarded $88,000 (plus interest on the past component of that sum) for general damages at [151]. In that case, the damages we…
ACT v Gillan; Gillan v ACT
[2018] ACTSC 223 Para 1

…The defendant estimated $40,000 at its highest, for the temporary physical pain suffered by the plaintiff and relied on the decision of ACT v Gillan [2018] ACTSC 223 ( Gillan ) at [152], where such amount was awarded. In Gillan , Penfold J relied on two other cases in forming a view as to the appropriate measure of…
Wallace v Kam
[2013] HCA 19 Para 1

…olved is a “single comprehensive duty” to exercise reasonable care and skill in the provision of professional advice and treatment: Wallace v Kam [2013] HCA 19; 250 CLR 375 at [8], citing Rogers v Whitaker at 489. Earlier in Rogers v Whitaker , it was stated by the plurality (at 483) that the duty extends to (em…
Tabet v Gett
[2010] HCA 12 Para 1

…As submitted by the defendant, this aspect of the claim requires assessment of a hypothetical. In Tabet v Gett [2010] HCA 12; 240 CLR 537, Hayne and Bell JJ held at [66] (citations omitted):…
Mason v Demasi
[2009] NSWCA 227 Para 1

…d is with due caution that has been expressed in other cases, such as Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227 ( Demasi ). In particular, I have been mindful of the following (see Demasi at [2] per Basten JA):…
Container Terminals Australia Ltd v Huseyin
[2008] NSWCA 320 Para 1

…xt in which they have been considered is with due caution that has been expressed in other cases, such as Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227 ( Demasi ). In particular, I have been mindful of the following (see Demasi at [2] per Basten JA):…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 1

…Only once the risk of harm is known can one assess what a reasonable response to the risk would be: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 ( Dederer ) at [59] per Gummow J.…
Vairy v Wyong Shire Council
[2005] HCA 62 Para 1

…ion of breach is a prospective inquiry that should focus on “foresight” of the risk of injury, rather than hindsight: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] per Hayne J.…
Richards v Rahilly
[2005] NSWSC 352 Para 1

…may be cases where the location of general practitioner may have some bearing on the standard of care expected (see for example, Richards v Rahilly [2005] NSWSC 352 at [145]), I have not found it necessary or appropriate to approach this case from a perspective that there is something special or unique about genera…
Malinda Kempe v Robert Bruce Webber
[2003] ACTSC 7

…ugh ground were restricted (at [35]). He was awarded an amount of $45,000 on account of non-economic loss. In Warrener v Australian Capital Territory [2003] ACTSC 7 , a 62 year-old plaintiff (14 years older than Mr Gillan at the date of injury) suffered an ankle injury, albeit of a more serious nature than Mr Gil…
Anthony James Grinsted v Tony Madden Refrigerated Transport Pty Limited
[2001] ACTSC 37

…In Anthony James Grinsted v Tony Madden Refrigerated Transport Pty Ltd [2001] ACTSC 37 the plaintiff suffered a soft tissue injury to his ankle. He remained able to work and engage in extensive travel and related activities at the date of the trial. Though he was able to walk reasonable distances, the degree to wh…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 1

…n to guard against those risks. When assessing the “reasonable response to the risk”, the defendant relied upon this point made in Phillis v Daly (1988) 15 NSWLR 65 by Mahoney JA at 72B-D:…
Tai v Hatzistavrou
[1999] NSWCA 306 Para 1

…s of a failure to treat, including a failure to follow up a referral for surgical treatment, the following principle is taken from Tai v Hatzistavrou [1999] NSWCA 306 ( Tai v Hatzistavrou ) where Powell JA (with whom Handley JA agreed) said at [101]-[102]:…
Rogers v Whitaker
[1992] HCA 58 Para 1

…ion” reflect what has been described as the ordinary skilled person exercising or professing to have that professional skill: Rogers v Whitaker (1992) 175 CLR 479 ( Rogers v Whitaker ) at 487. The standard required was that of an ordinary skilled general practitioner acting reasonably.…
Gaudron J
[1999] HCA 22 Para 1

…stances, nor is it relevant that other doctors have not said that they would pursue a particular course of action: Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269 ( Naxakis ) at 275 per Gaudron J.…

Legislation cited in this decision · 2

Civil Law (Wrongs) Act 2002 (ACT)
40, 42 3 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
1 mention (from Para 1)