Ziaee v Rubino
[2023] ACTCA 7
•15 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Ziaee v Rubino |
Citation: | [2023] ACTCA 7 |
Hearing Date: | 17 November 2022 |
DecisionDate: | 15 February 2023 |
Before: | McCallum CJ, Kennett and O’Sullivan JJ |
Decision: | (1) The appeal is allowed. (2) Set aside the orders made on 3 February 2022 and, in lieu thereof, order that the Originating Claim be dismissed with costs. (3) The respondent is to pay the appellant’s costs of the appeal. |
Catchwords: | APPEAL – CIVIL LAW – Medical negligence – general practitioner – consideration of requisite standard of care – whether duty on general practitioner to follow up referral to a specialist in the public hospital system APPEAL – CIVIL LAW – Medical negligence – general practitioner – consideration of causation – cause of delay – whether primary Judge erred finding that something went “awry” in management of referral by public hospital – whether follow up of referral by general practitioner would have resulted in appellant being seen by specialist at materially earlier time |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 45 |
Cases Cited: | Rogers v Whitaker (1992) 175 CLR 479 Rubino v Ziaee [2021] ACTSC 331 Tai v Hatzistavrou [1999] NSWCA 306 |
Parties: | Soroush Ziaee ( Appellant) Michael Rubino ( Respondent) |
Representation: | Counsel G W Diehm KC with C O’Neill ( Appellant) A Campbell with R Wathukarage ( Respondent) |
| Solicitors Avent Law ( Appellant) Gerard Malouf & Partners ( Respondent) | |
File Number: | ACTCA 7 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: McWilliam AJ Date of Decision: 23 December 2021 Case Title: Rubino v Ziaee Citation: [2021] ACTSC 331 |
THE COURT:
Introduction
1․The respondent 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 he attended around 19 consultations with the appellant, who was a general practitioner working at the Tristar Medical Group (the Practice) in Bruce. On 6 March 2014 the appellant referred the respondent to a surgeon working in general surgery at Canberra Hospital (the first referral). When he saw the respondent again on 2 May 2014, at which time no response had been received to the first referral, the appellant sent a further letter to the surgeon (the second referral). No response to either referral was received by the appellant or the respondent, and there followed a period of more than two years during which the respondent was treated mainly by prescribed painkillers. In August 2016, the respondent’s foot became infected and extremely painful. He was admitted to Canberra Hospital for acute care and surgery was performed to drain an abscess.
2․The respondent sued the appellant, seeking damages in negligence.
3․It was not in dispute before the primary Judge that the appellant owed the respondent a duty to exercise reasonable care in treating him. The other elements of the cause of action were in dispute, as was the quantum of damages. Quantum is not an issue in this appeal, but error is alleged in her Honour’s findings on liability.
4․So far as liability was concerned, the primary Judge identified the issues as follows:
(a)the standard of the duty of care, which involves evaluating what precautions the reasonable general practitioner would have taken to guard against the risk of harm in the particular circumstances of this case;
(b)whether the [appellant] breached that standard of care; [and]
(c)whether any breach caused the injuries suffered.
5․The primary Judge answered each of issues (b) and (c) affirmatively: [2021] ACTSC 331. Her Honour entered judgement for the respondent in the sum of $190,084.60, and ordered the appellant to pay the respondent’s costs.
The reasons of the primary Judge
Standard of care
6․In identifying the relevant standard of care, the primary Judge began by referring to s 42 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act), which provides as follows:
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
7․Referring to Rogers v Whitaker (1992) 175 CLR 479, her Honour observed that the statutory words “reasonable person in the defendant’s position” were to be understood in the present context as referring to an ordinary skilled person exercising or professing to have the relevant professional skill: that is, the standard is that of an ordinary skilled general practitioner acting reasonably (at [24]).
8․Her Honour then referred to Tai v Hatzistavrou [1999] NSWCA 306 (Tai) at [101]–[102], where Powell JA (with whom Handley JA agreed) said the following:
It seems to me that, in a case such as this was, in which a patient consults a doctor concerning what appears to be a persisting health problem, the doctor is, as a consequence of his being consulted, and with a view to restoring the patient’s health, called upon to examine the patient; to carry out, or have carried out, such tests or procedures as might be thought necessary, or desirable, to be carried out to enable or to assist in, diagnosis; to diagnose the cause of the patient’s problem; to determine what treatment is called for; to prescribe that treatment, or to set in train steps for that treatment to be given; and to advise the patient in relation to the condition diagnosed and the treatment prescribed or proposed.
If this be the scope of a doctor’s duty to his patient in such a case, then, as it seems to me, if the doctor, without reasonable cause, fails to carry out, or to have carried out, such of the steps to which I have referred as, in the circumstances, were necessary or desirable, or, although carrying them out, does so without due care and skill, he has failed in the performance of his duty to his patient. When using the phrase “without reasonable cause”, I had in mind the passages - with which I agree - from Gieson: International Medical Malpractice Law which Priestley JA has set out in paragraphs 71-72 of his judgment, for while, in some cases - of which Kalokerinos v. Burnett Court of Appeal 30 January 1996 (unreported) provides an example - a patient’s failure to co-operate may rise no higher than contributory negligence, there are in other cases - of which Forman v. Pillsbury (1990) 753 F.Supp 14, to which Priestley JA has referred in paragraph 79 of his judgment, provides an example - when a patient’s failure to comply with the doctor’s recommendation will dictate a finding of no breach of the doctor’s duty of care.
(Emphasis in original.)
9․Her Honour then turned, at [29]–[39], to the question of what precautions would be taken by a reasonably skilled general practitioner who was in possession of the information that the appellant had. The concept of “precautions” arises from s 43 of the Wrongs Act. Section 43(1) provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant, and, in the circumstances, a reasonable person would have taken those precautions. In determining whether a reasonable person would have taken particular precautions against a risk of harm, s 43(2) sets out four factors which the court must consider: the probability that the harm would happen if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity creating that risk.
10․Her Honour observed that, in the present case, there was a risk that, if not treated, the hyperkeratosis would become extremely painful and effect the respondent’s ability to walk, and a risk that it would become infected, requiring surgery. These, her Honour said, were plainly foreseeable and not insignificant. The key issue, therefore, was what specific precautions a reasonable general practitioner would have taken to guard against those risks. The test was not what other doctors say they would or would not have done in the same or similar circumstances. Nor was the question to be determined solely or even primarily by reference to the usual practice.
11․Her Honour summed up the necessary enquiry at [38]–[39] as follows:
Applying the above legislation, in order to properly apply the above provisions of the [Wrongs] Act, the Court takes into account all the information in the possession of the defendant, and then considers what precautions a reasonably skilled general practitioner in possession of that information would have taken to guard against the reasonably foreseeable risk of harm or injury identified.
That process calls attention to the facts which form the basis of the knowledge that either was or ought to have been in the defendant’s possession in the course of treating the plaintiff. Due to the nature of the plaintiff’s allegations being an ongoing breach of duty from 5 February 2014 onwards, it is necessary to traverse the full detail of the course of treatment over 2013 to 2016.
The facts
12․The primary Judge carefully traced the history of the respondent’s treatment. For present purposes it is necessary to refer only to some particular aspects of that history.
13․The respondent first saw the appellant, complaining of pain on the sole of his right foot, on 24 July 2013. As noted above, he saw him around 19 times before he ceased attending the Practice in August 2016.
14․There was a factual dispute as to whether, on 5 February 2014, the appellant attempted to excise the hyperkeratosis from the respondent’s foot. Preferring the respondent’s evidence, the primary Judge held that this procedure had occurred. Evidently, it did not resolve the respondent’s problem. However, the conduct of this particular procedure was not part of the negligence found to have occurred by her Honour.
15․The respondent saw the appellant again on 12 February 2014. The respondent’s notes of that consultation record that an ultrasound was requested. The results of the ultrasound were discussed on 6 March 2014, and on that day the appellant sent the first referral. It took the form of a letter in the following terms to a surgeon at Canberra Hospital:
I am pleased to refer Mr Michael Rubino, age 33 yrs, whom I consulted today with hx of chronic cyst over the Rt plantar area no responding to medication.
I will appreciate it if you could see him for further evaluation and management.
16․On 2 May 2014, the respondent saw the appellant for a vaccination. There had been no response to the first referral. The appellant therefore sent the second referral, which was in the following terms:
I am pleased to refer Mr Michael Rubine, age 33 yrs, whom I consulted today with CC of pain over the plantar foot with chronic cyst over the Rt plantar area no responding to medication that affect his work performance and his daily activity ??
I will appreciate it if you could see him for further evaluation and management.
17․Her Honour recorded the appellant’s evidence as to why he had sent two referrals as being “that he was trying to highlight the complaint because it was affecting the [respondent’s] ability to work”. From the hospital records (which we will refer to further below) her Honour inferred that the letter comprising the second referral was initially processed as a referral, but was then cancelled when the administrators realised there was already an active referral for the same issue.
18․The treatment of the respondent then entered what the primary Judge described as a “holding pattern” for approximately two years. The respondent was given prescriptions for Panadeine Forte on several occasions, and for wart-clear liquid on one occasion. Significantly, on 10 June 2014, he saw the appellant in relation to mood issues and was prescribed an antidepressant.
19․There was a divergence in the evidence concerning conversations about the progress, or lack thereof, of the referrals. The primary Judge preferred the respondent’s evidence, which was that he had told the appellant on multiple occasions that he had not heard from the surgeon and was in considerable and constant pain. He said that, on one occasion, he asked the appellant for the phone number of the surgeon so that he could follow up the referral himself. The appellant gave him a phone number, but when the respondent called that number he reached the cardiac clinic at Canberra Hospital. The respondent also said (and her Honour accepted) that he told the appellant he had been given the wrong number, and the appellant then said “that he was going to get somebody to give me a call”. However, although the failure of the appellant to follow up the referral was said to be negligent, no separate complaint was made about the appellant misinforming the respondent on this occasion.
20․On 2 August 2016 the respondent took himself to Calvary Hospital complaining of severe pain relating to the hyperkeratosis. He was discharged in the early hours of the following morning with a diagnosis that his foot had become infected. He was told to return after 8.30am for x-rays, which he apparently did. The discharge summary recommended review by his GP to consider pain medication and following up the referral. It was also suggested that the respondent consult a podiatrist “to assist in managing until surgical intervention”.
21․Later on 3 August 2016, the respondent saw a podiatrist. The podiatrist’s notes, which her Honour found helpful, were as follows:
S: pt presented with ED discharge notes – have had an ongoing history of pain with his corn, it initially was just a corn then one day it popped open and lots of pus came out, then its been opening and closing since. GP took to it with a blade and it hurt a lot, bled a lot, and made my toes tingle – GP said that was the nerves. Went to ED with it last night because the pain was the worst I’ve ever experienced.
O: Large, complicated hyperkeratotic lesion plantar 2nd-3rd met head right foot. There is a central crevice shaped hardened Hk lesion, with scar tissue partially overlying. It is too painful to touch with light touch.
A: Was unable to debride due to pt’s perceived idea of how much it would hurt. Padded with 10mm molefoam and stuck to foot with large cutout around lesion. Advised take the rest of the week off work and come back on Monday, having taken recommended level of Endone one hour prior to arrival – please get a lift to and from the appointment, do not drive.
P: Review Monday, attempt debridement of devitalised tissue. Suspect will need debridement under heavy sedation with surgeon – unsure how to get this via referral pathway, will call GP and suss it out – something fishy about story.
NB
Called GP and spoke to Dr who last treated him at Tristar medical group (didn’t give spelling, hard to hear clearly over the phone)
GP reported not having seen Michael in the clinic for approx 2 months, he was recommended surgery and given a referral to general surgeon to have the lesion removed, this was the last contact [G]P clinic has had with Michael.
Report to GP my consult – too painful to touch, recent ED admission and discharge.
Agreed with GP that general surgery is appropriate referral and reported that Michael stated that when he called the referred clinic they said they were a heart specialist and couldn’t help him so he hadn’t followed through.
GP asked me to request that Michael come back in to see him and he would repeat the referral pathway.
I agreed that this would be a good idea, as there is very little we can do for him if conservative debridement is non viable treatment option.
[Below is a further note made on 10 August 2016]
Pt failed to attend appointment. Unable to reach by phone. Unable to convey message from GP.
22․On 4 August 2016 the respondent saw the appellant. The appellant’s note of the consultation does not make any reference to following up the referral and her Honour inferred that he did not do that. He prescribed Endone. At that stage the respondent had an appointment to return to the podiatrist on 8 August 2016.
23․What then occurred is set out by the primary Judge at [95]–[99] as follows:
On 7 August 2016, the plaintiff attended the Emergency Department at Calvary Hospital, presenting with a lump on his foot that he said was now the size of his hand, and pain that had increased to the point that he could no longer withstand it, even with the Endone he had been prescribed. Two 5mg doses of morphine, administered by nurses at Calvary Hospital, similarly had no effect. At this point the plaintiff’s recollection was that there was also “redness, greenness, yellow, blackness” on his foot. The notes record the plaintiff as being in a wheelchair, in obvious distress and crying.
The plaintiff 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. He was finally discharged from the orthopaedic surgery unit on 22 August 2016.
During that time, two operations or procedures were carried out. The first was described as in the hospital records as an incision and drainage of right foot abscess, on 9 August 2016. The second was a debridement and washout right foot abscess. A swab of the foot showed heavy growth of mixed anaerobic bacteria.
The plaintiff was then prescribed a combination of three antibiotics, and provided with what might be characterised as standard follow up care, with wound review and wound dressing changes, blood tests and monitoring.
After that date, the plaintiff ceased attending the Practice.
What precautions should have been taken
24․The primary Judge then summarised the competing expert evidence of Associate Professor Clyne (who gave evidence for the respondent) and Dr Gooding (who gave evidence for the appellant).
25․In short, Associate Professor Clyne’s view was that the respondent should have been referred to a specialist surgeon and the referral should have been followed up. Where the patient was facing delays in the public health system, a general practitioner might need to devise alternative strategies and advocate for their patient. That might include attempting to ring a surgeon or “otherwise escalate the process”, potentially leading to arrangements for a referral.
26․Dr Gooding, who had experience of practice in the Territory, considered that the two referrals made by the appellant were consistent with a reasonable standard of practice. He did not consider that there was urgency for further treatment: reasonable treatment was to organise a specialist clinic appointment and for the respondent then to wait for a spot at the clinic, which was what had occurred.
27․Dr Gooding also gave some evidence about the practicalities of various steps that might have been taken to try to obtain earlier specialised treatment for the respondent. The primary Judge set out at [107]–[109] extracts from his report and oral evidence, the important aspects of which we set out later in these reasons. In short, his evidence was that as at the relevant time, patients in the Territory with conditions that did not need urgent intervention faced very long delays in the public system, and that follow-up by the referring general practitioner would not result in an earlier appointment unless accompanied by further information that indicated a significant change in the patient’s condition.
28․In response to this evidence about local circumstances, her Honour said, at [112]:
While I accept there may be cases where the location of a 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 general practitioners working in the Territory that warrants any preference of Dr Gooding’s evidence on the question of the content of the duty over that of Associate Professor Clyne for that reason.
29․The primary Judge then turned to analyse what a reasonable general practitioner would have done in response to the facts known to the appellant at various times. As at 5 February 2014, her Honour held that a reasonable practitioner would have referred the patient to surgery. The practitioner would then have waited for a reasonable period of time for the recipient of the referral to act upon it. Where the issue requiring surgery was not urgent and the referral pathway was through the public health system, a month was a reasonable time (at [113]–[114]).
30․From May 2014, her Honour concluded, if no response to the written referral had been received, a reasonable practitioner would have followed up to find out what was happening, whether by telephone or in writing (at [116]). From June 2014, with the added knowledge that the respondent’s condition was contributing to a deterioration in his mental health, a reasonable practitioner “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” (at [118]).
31․Her Honour also accepted Associate Professor Clyne’s evidence that a reasonable general practitioner would have attempted to ring a private surgeon for advice. She accepted that, in the circumstances mentioned above, a practitioner “had a duty to try to assist the patient to progress a resolution”. However, this was seen as “a different way of attempting to have the patient seen by a specialist”. It did not of itself indicate that the pathway chosen by the appellant was not reasonable (at [120]). The appellant had given evidence that, if he started begging surgeons to take his public patients no surgeon would ever take his call again. On this basis, her Honour appears to have accepted that the steps taken by a reasonable general practitioner need not include making enquiries as to whether there were any surgeons able to take on a public patient (at [121]).
32․The critical issue, identified by the primary Judge at [122], was whether the duty of the reasonable general practitioner, to ensure that the patient had access to specialised treatment thought to be necessary or desirable, “ceased at the writing of the second referral letter”.
33․Moving forward in time the primary Judge noted that, as at 22 December 2014, the appellant had knowledge (whether it was correct or not) that the respondent was on a waiting list for surgery. He also knew the pain the respondent was in and its impact on his psychological state. Even taking account of Dr Gooding’s evidence about the realities of waiting lists, in her Honour’s view, “following up on the referral after the consultation in December 2014 would not have been unduly onerous or costly”. It would have been “a reasonable precautionary measure to take” and “the minimum precaution forming part of the reasonable care to be taken to ensure that the selected treatment course through referral was effective”. Her Honour therefore rejected what she took to be at least implicit in Dr Gooding’s evidence, namely that leaving it entirely to the patient to follow up referral to a public hospital after such a significant period had passed constituted appropriate clinical management (at [124]). She found at [125] that:
… a reasonable general practitioner 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 [there was] any information that could be provided as to the timing of the surgery.
34․After the consultation on 14 May 2015, the respondent’s condition was not improving, he had been on Panadeine Forte for more than a year, and was in significant pain and depressed. He was still awaiting surgery. At that stage, her Honour said, “there can be no question that the reasonable practitioner would have taken action to follow-up or escalate the surgical referral” (at [126]).
Breach of the standard of care
35․These assessments informed the primary Judge’s conclusion that the appellant had breached his duty of care to the respondent.
36․The essence of the respondent’s case, as summarised by the primary Judge at [130], was that the appellant’s “referral and the follow-up of the referral fell below an appropriate standard”: the appellant owed the respondent a duty to “do more than just prescribe Panadeine Forte and say ‘let’s just wait and hear from the hospital’”. Her Honour accepted that contention, accepting Associate Professor Clyne’s evidence that conservative treatment with painkillers for more than two years was not an appropriate clinical response. Putting aside presently irrelevant matters, her Honour made the following more specific findings.
(a)The appellant met the standard of care required of a reasonable general practitioner in March and May 2014, when he issued each referral (at [139]).
(b)By December 2014, in light of the silence from Canberra Hospital and apparent lack of progress, a follow-up phone call or some attempt at communication with the recipient of the referral was a reasonable precautionary measure to take. The appellant did not take that step, or any step to satisfy himself that his patient had not “somehow got lost in the system”. In this regard there was a breach of the appellant’s duty of care (at [141]).
(c)By May 2015, the breach was clearer. The evidence was that a patient whose condition was designated by the Hospital as level 3 (non-urgent), as the respondent had been, might have to wait a year for surgery. But the appellant knew or should have known that the referral he had made had not resulted in the respondent even seeing a surgeon within 12 months (or at least that surgery had not taken place within that timeframe). The respondent was attending frequently for strong pain relieving medication, was depressed, and the condition had been affecting his ability to work. The circumstances “required an ordinary general practitioner acting reasonably to follow up the referral and find out what was going on”. Further, “if a reasonable general practitioner had been given information of a delay in surgery, … they would have attempted to speak with a surgeon as to what might be an alternative response or encourage the plaintiff to attend to other means of reducing the impact of the problem in the meantime” (at [142]–[143]).
(d)Therefore, from at least December 2014, the “referral pathway, in terms of ensuring the plaintiff had access to specialised advice, was not managed with due care and skill” (at [149]).
Causation
37․The primary Judge referred to s 45 of the Wrongs Act, which (relevantly) provides as follows:
45General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2)…
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
38․Causation, as her Honour noted, requires assessment of a hypothetical. Comparison is necessary between the state of affairs that exists in fact and the state of affairs that would exist if the negligent act or omission had not occurred (at [154]–[155], citing Tabet v Gett [2010] HCA 12; 240 CLR 537). The first important question in relation to causation, therefore, was what would have occurred if the appellant had followed up the referral that he had made.
39․On this question the primary Judge found, critically, that the reason for the long delay in surgical treatment for the respondent was not that he was on a waiting list and had been accorded low priority. Her Honour found (at [157]):
He had not even been seen by a surgeon so as to assess whether surgery was appropriate. Something went awry so that the surgical referral to the Canberra Hospital had not been effective. No further action was taken by the hospital.
40․Consequently, had the appellant followed up by telephoning the Canberra Hospital, he would have discovered that “for whatever reason, the referral pathway was ineffective”. It was likely that, had he made this discovery, “he would have been able to take whatever measures were necessary to at least get the plaintiff seen by a specialist for some sort of initial advice” (at [160]–[161]).
41․The next important question was what would have followed from the procuring of such advice. The medical experts disagreed to some extent as to whether conservative treatment could have fixed the respondent’s problem on a long-term basis, but they agreed that such treatment would have been appropriate at least in the first instance. The primary Judge found that, had the respondent been seen in a more timely manner by a specialist, he would have:
(a)followed the advice he received from the specialist;
(b)undertaken conservative measures, including seeing a podiatrist for a reasonable period;
(c)if that was ineffective, or the podiatrist considered that debridement under sedation was needed, had surgery; and
(d)taken steps to manage the underlying cause of the hyperkeratosis (at [179]).
42․Her Honour therefore reached the following conclusions concerning the damage that had been caused by what she identified as the negligence of the appellant (at [183]–[187]:
On the balance of probabilities, and if it is assumed surgery was even necessary, 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 without a scale of infection that made the surgery urgent. It is also likely that the pain experienced by the plaintiff in the meantime would have been much less, and his mobility would have been increased.
Significantly though, as the extracts of the competing expert evidence above demonstrate, the problem would have recurred and required ongoing management, if not surgery. I accept that either a metatarsal osteotomy or management under a podiatrist with appropriate orthotics and debridement would have been appropriate.
It is unnecessary to resolve which of those two options would have occurred. Medical problems may be reasonably treated in different ways. Whatever option was recommended, I find that the plaintiff would have followed the specialist advice and whichever way the problem was addressed would have allowed the plaintiff to work with an improved level of physical movement and without the significant pain that required daily doses of Panadeine Forte.
While the delay in getting advice and treatment is attributable to the defendant, the need for further surgery to remedy an underlying biomechanical cause, or other appropriate treatment, is not. I am not persuaded that any failure by the defendant gave rise to any present need for further assessment and further surgery or the plaintiff’s current antalgic gait and ongoing pain.
The consequences of these findings is that the breach by the defendant was a necessary condition of a delay in the plaintiff receiving effective treatment, during which time an infection arose which required urgent treatment. The “damage” caused by the defendant included ongoing severe pain which had psychological consequences for the plaintiff.
The appeal
43․Four grounds of appeal were pressed. They are as follows:
1.The Primary Judge erred in describing the relevant duty of care of the [appellant] to be a duty to ensure the [respondent] “had access to specialised treatment” thought necessary or desirable by the [appellant] at the time of referral and “to ensure … the referral was effective” (paragraphs (118), (122), (123), (141), (148) and (149)) when the legal duty of care was limited to exercising reasonable care in the management of the [respondent] as his patient.
2.The Primary Judge erred in finding that the [respondent’s] referral to the Canberra Hospital had gone “awry” (157) or that he had “got lost in the system” (140), (141), (160), (161) because on the evidence the finding ought to have been that the delay he had experienced was in fact the system as it operated at the Canberra Hospital at that time.
3.The Primary Judge erred in finding (125) that the scope of the [appellant’s] duty required taking action to follow up or escalate a surgical referral because the evidence did not allow a conclusion that a reasonable person in the [appellant’s] position would have taken those precautions as they would know that such steps, in the absence of a significant deterioration in the [respondent’s] condition, would be futile.
4.The Primary Judge erred – (160) and (161) – in the analysis of causation by assuming, without finding, that a follow up by the [appellant] to the Canberra Hospital of the referral would have resulted in the [respondent] being seen by a surgeon at any material time earlier than he was, or if her Honour did so find, by erring in that the evidence did not permit such a finding.
Grounds 1 and 3 – Issues (a) and (b) – The Standard of Care and whether it was breached
44․Grounds 1 and 3 take issue with the way the primary Judge framed and applied the requisite standard of care.
45․Ground 1 should be rejected. Although it is true that the primary Judge referred at several points to the appellant having a duty to “ensure” that particular things occurred, we do not read her Honour’s reasons as a whole as turning on the existence of a duty of that kind. Those reasons must be read in the light of ss 43 and 44 of the Wrongs Act, referred to by her Honour, which refer to the taking of “precautions” against a “risk” of harm. It was not (and could not have been) contended or found that it was within the power of the appellant to decide the timing, nature or efficacy of such treatment as a specialist might decide was appropriate as a result of a referral; nor was it contended that the appellant, by his own efforts, could provide any treatment that would avoid the consequences which occurred. The references in the reasons to “ensuring” certain outcomes should be construed as a reference to taking reasonable steps adapted to bringing those outcomes about.
46․The finding of the primary Judge with which Ground 3 takes issue—that a reasonable general practitioner would have made enquiries of the Canberra Hospital—was the foundation for the later findings (at [141]–[143]) that the appellant breached his duty of care by December 2014, or at least by May 2015, in not attempting to communicate with the recipient of the referral. This finding was, in our view, erroneous.
47․It is useful at this point to set out s 43(1) of the Wrongs Act. It is as follows.
43Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
48․The hypothetical reasonable person, whose actions need to be considered for the purposes of s 43(1)(c), cannot be supposed to have taken a particular “precaution” against “harm” if they would have known or believed that the precaution would make no difference to the probability of the harm occurring. The relevant harm suffered by the respondent was the pain and inconvenience that flowed from his hyperkeratosis not being the subject of surgical intervention or specialist advice until it became infected and was dealt with by emergency surgery. That is the harm against which the hypothetical reasonable person—here a reasonable general practitioner—is taken to be trying to protect the respondent. Part of what the plaintiff needed to prove, therefore, was that a reasonable general practitioner in Canberra between 2014 and 2016 would have recognised “making inquiries”, “following up” or “escalating” a referral to a specialist in the public hospital system as actions that had some reasonable prospect of shortening the time in which the respondent would receive attention (and advice or treatment) from that specialist. However, all of the evidence on this topic came from the appellant.
49․Dr Gooding was a full-time general practitioner and medical director at a practice in Gungahlin. In oral evidence he confirmed that he had worked there since 2012. He therefore had experience of conditions in Canberra at the time the referrals in the present case were made and while they remained on foot. His report said the following in relation to a question concerning telephoning the outpatients clinic to follow up a referral:
In my experience taking this action is highly unlikely to result in an earlier date being given. In fact, when patients call requesting an earlier appointment themselves then they are often instructed to consult again with the referring GP. They are usually given instructions to ask their GP to give further information in order that the hospital specialist can consider escalating the referral. Sometimes it is suggested that the GP can call the hospital and discuss the case in order to obtain an earlier appointment. In practice this only makes a difference if there has been a significant change in the patient’s condition that is very likely to lead to a very significantly adverse outcome if not attended to earlier. Unfortunately, this is a common scenario. In my opinion the public hospital system caters well for acute emergencies, serious acute illness, and other life-threatening illness such as cancer, but if a patient has a very painful, but not life-threatening problem, then obtaining earlier treatment is generally not possible.
50․In relation to patients placed in category 3 (classified as non-urgent), Dr Gooding observed that surgery is recommended to be completed within 365 days. However, he said:
Unfortunately access to surgery for the treatment of non-urgent conditions is limited in the public hospital system and in many cases category 3 patients will wait for very long periods far in excess of one year.
51․In his oral evidence, Dr Gooding said that in 2013 and 2014 waiting times were even longer. He also addressed a somewhat broader question as to whether there was a way to highlight or elevate a referral in these terms:
Unfortunately, in my experience, no, unless there is a very significant difference in the patient’s presentation, – and this does happen; sometimes there will be an infection, the infection resolves with antibiotics and then because it’s resolved the condition isn’t deemed to be high priority.
52․When it was put to Dr Gooding that the respondent was experiencing pain, he said:
Unfortunately my understanding is, in terms of the way the hospitals – because the hospitals obviously have far more demand than they can service in a way they like. They have to categorise and consider urgency, and pain unfortunately isn’t. I think it’s recognised – even in category C, the pain and disability can be features but the condition can still be determined non-urgent.
53․The appellant’s own understanding, according to his evidence, was that he had no way of influencing when one of his patients would be seen by the Canberra Hospital; that calling to ask what was happening would not produce any useful result; and that some of his patients had had to wait for up to four years
54․Associate Professor Clyne, who was called by the respondent, had not practised in the Territory and was therefore not in a position to contradict what Dr Gooding said about waiting times or the vagaries of the Territory’s public health system. His evidence was that general practitioners had a duty to do their best for the patients, seemingly even if whatever the practitioner could do was not going to be successful. As he put it, “you don’t walk past a dying person on the street because we think we can’t help, we try, and in this case, there is a duty to try”. That, however, does not reflect the standard of care that the Wrongs Act or the general law of negligence imposes on a medical practitioner.
55․Associate Professor Clyne also suggested that, where a patient was facing delays in a public health system, a general practitioner might need to devise alternative strategies. These might include attempting to ring a surgeon or “otherwise escalate the process”, or to discuss the patient’s case generally with a specialist so as to receive expert advice on management. However, the possible availability of these other avenues did not, so the primary Judge found, make the referral pathway chosen by the appellant an unreasonable one (at [120]). Nor was there evidence concerning the likelihood that any specialist in the Territory would have been prepared to give advice without having seen the patient, let alone what that advice would have been or how it would have affected the outcome for the respondent. There was evidence from the appellant himself that asking private surgeons to take on his public patients would have the result that no surgeon would ever take his call.
56․As a result, in our view, it was not open to the primary Judge to find that a reasonable general practitioner in the Territory between 2014 and 2016 would have regarded contacting the Canberra Hospital to follow up a referral as a useful or appropriate way to advance their patient’s interests. Consequently, it was not open to find that a reasonable general practitioner in the circumstances in which the appellant found himself would have taken that step. The appellant had made a referral in February 2014 and followed it up with a further referral in May of that year, seeking to highlight the case and make sure that those working in the Canberra Hospital understood it properly. The next development of note was in June 2014, when the respondent’s mood was sufficiently low to cause the appellant to prescribe an antidepressant. However, there was no evidence that this was an unusual event in cases where patients classified as non-urgent experienced long delays, or that it was something likely to lead the Canberra Hospital to change the way it had classified the respondent’s condition.
57․The present case is therefore distinguishable from Tai, to which the primary Judge referred at [144]–[147]. That case concerned a specialist gynaecologist who had arranged for admission of one of his patients to a public hospital, where he worked regularly and it was envisaged that he would himself perform the relevant procedure. The procedure was regarded as routine but necessary to diagnose the cause of the patient’s complaint (which was potentially very serious, and later found to be cancer). The form was lost in the hospital administration and a date was not set, resulting in delay and harm to the patient. Unlike the appellant here, the specialist in Tai had a measure of control over the prioritisation of his patients, the means to know (had he monitored matters properly) that something had gone wrong in scheduling, and the ability to do something about it.
58․Two points should be noted briefly about the conclusion we have expressed above. First, it does not involve imposing a different standard of care depending on the jurisdiction or location in which a general practitioner has their practice. What is significant is the circumstances in which the practitioner subject to the relevant duty finds themself. Where a particular precaution against risk is readily taken and effective, failing to take that precaution may well constitute negligence. The calculus is different, however, if the circumstances of the case make that precaution more onerous or less likely to guard effectively against the identified risk. Factual differences of that kind can arise between jurisdictions in the Australian federation depending on the organisation and performance of their public health systems and other institutions.
59․The second point that should be noted is that we have hitherto been discussing the knowledge that was available to the appellant, and would have been available to a reasonable practitioner in the appellant’s position, relevant to the utility of following up a referral. We have therefore not dealt, in this part of our reasons, with the primary Judge’s finding that something went “awry” in the processing of the referral by staff at the Canberra Hospital. If that did occur (a question with which we deal below in connection with causation), it was outside the knowledge of the appellant; and there was no evidence that such events were within the contemplation of a reasonable general practitioner at the relevant time. The proposition that some form of administrative glitch had occurred at the Canberra Hospital, while relevant to the analysis of causation, does not affect our analysis of whether the appellant breached his duty of care to the respondent.
60․For the reasons set out above, we conclude that the appellant did not breach that duty. Ground 3 in the appeal is made out.
Grounds 2 and 4 - Issue (c) - Causation
61․Grounds 2 and 4 are relevant to causation. They do not strictly arise in the light of our conclusion on Ground 3 but are dealt with for completeness.
62․Critical to the primary Judge’s ultimate findings on causation was the finding that something had gone “awry” in the Canberra Hospital’s management of the referrals made to it, no action had been taken and the process had been “thwarted by oversight, mistake or misinformation” (see [157], [161]). If that is correct, the possibility arises that a phone call or further correspondence from the appellant might have led to discovery of the mistake and action being taken. Absent that finding, however, based on the evidence summarised above, the delay experienced by the respondent (such that his problem became acute before he had been seen by a specialist) was consistent with the system working normally; and inquiries or prompting by the appellant would not have led to any different outcome.
63․In support of the finding that some mistake had occurred in processing the referral, the primary Judge set out excerpts from the evidence of Professor Sekel and Associate Professor Miniter, both orthopaedic surgeons. However, in these extracts the witnesses were doing no more than expressing surprise or bemusement that such a long period had elapsed before the respondent was seen by a specialist. They did not claim experience in the inner workings of Canberra Hospital. However, the evidence of Dr Gooding, who had experience referring patients into the public health system in the Territory, indicates that the long delay experienced in the present case was not a matter for particular surprise. The delay is not itself suggestive of something having gone “awry” at Canberra Hospital.
64․Records of both of the referrals made by the appellant were in evidence. They are evidently printouts of records in an electronic system that were added to from time to time, rather than documents created on particular occasions, and therefore need to be read with care. The following points emerge.
(a)The first referral was received on 11 March 2014, registered on 14 March 2014 and triaged on 28 March 2014, with priority listed as “3”.
(b)The first referral has two records. One is listed as cancelled on 2 April 2014 and has the notation “duplicate referral”. It seems that it was mistakenly entered into the system twice but the mistake was rectified. The other record shows things being done on the referral up to August 2016.
(c)The second referral was received and registered on 8 May 2014. It was cancelled on 19 May at 13.00. Its record includes the notation “MERGED”.
(d)The first referral is recorded as having been triaged again on 19 May 2014 at 13.01. The proper inference is that, when staff at the Canberra Hospital recognised the second referral as relating to the same patient and the same complaint, they cancelled it but revisited the triage process undertaken in relation to the first referral.
(e)The priority of the first referral remained at “3”. (Answers to interrogatories confirmed that the triage status did not change at this point and that, probably, nobody with surgical qualifications was involved in the decision.)
(f)The first referral was triaged again on 3 March 2016 and remained listed as “3”. There was no evidence as to what prompted this.
(g)On 9 August 2016 (the day the respondent was admitted for surgery) the status of the referral changed to “active” (at 11.07) and then “expired” (at 15.43). These changes can be taken to relate to the surgery performed on that day.
(h)A note on the record reads “Additional referral information received. Spoke to patient and he has seen the surgeon already”. There is no evidence of when this note was added. However, the respondent’s evidence (which the primary Judge accepted) was that he did not speak to a surgeon at all until his admission in August 2016. No other evidence contradicted this. The appropriate inference, therefore, is that the note was added around the time of the surgery on 9 August 2016 and probably reflects a discussion that led to the referral being cancelled on that day.
65․We do not think there is any support in these documents for a conclusion that the referrals made by the appellant were the subject of some form of administrative error that led to them being lost in the system. The existence of an electronic filing system (which presumably keeps track of all records, and can do things such as sort cases by age and generate reminders or prompts), and the fact that the referrals were registered in that system, is evidence against any such error. The record of a further triage on 3 March 2016 (a time when there is no evidence of any contact with Canberra Hospital by the appellant or any other doctor) also suggests that some feature of the Canberra Hospital’s system prompted a staff member to review the case on that day. If the referral had somehow been forgotten as a result of an earlier error, leading to an abnormally long delay, one would expect more than a one-line entry recording that it was triaged again.
66․Ground 2 is therefore made out.
67․The evidence therefore did not establish that the course followed by the two referrals constituted anything other than the normal operation of a significantly overstretched public health system. Contrary to the primary Judge’s finding at [157], the reason for the long delay was that the respondent was on a long waiting list and had been allocated low priority. What follows is that there is no reason why the experience of Dr Gooding and the appellant, referred to above, does not provide a sound guide to what would have occurred if the appellant had followed up a referral or tried to “escalate” it within the public hospital system. It is most likely that that would not have changed the categorisation the respondent had been given, and therefore would not have resulted in him seeing a surgeon at any time before August 2016 when his condition became urgent.
68․Ground 4 is therefore also made out.
Conclusion
69․The orders of the Court will be:
(1)The appeal is allowed.
(2)Set aside the orders made on 3 February 2022 and, in lieu thereof, order that the Originating Claim be dismissed with costs.
(3)The respondent is to pay the appellant’s costs of the appeal.
| I certify that the preceding sixty-nine numbered paragraphs [69] are a true copy of the Reasons for Judgment of the Court. Associate: Date: 15 February 2023 |
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