In a significant decision recently delivered by the ACT Court of Appeal, the Court upheld the primary judge’s findings that the realities of general practice and the circumstances of the case as a whole, meant that a general practitioner could not reasonably be expected to perform all possible investigations to detect what was a relatively rare condition.
- The Court’s primary consideration in this case was the scope of the duty of care of a general practitioner. A rather detailed analysis of the appropriate standard of investigations, follow-ups and what a general practitioner can expect from their patient provides instructive guidance.
On 17 October 2016, Sandra Austen (the plaintiff/appellant) presented to Dr Tuan Quoc Tran (the defendant/respondent), her general practitioner, complaining of leg pain which had recently worsened. Dr Tran prescribed mild pain relief medication and referred the plaintiff for blood tests on the basis of differential diagnoses of a muscle injury or a possible iron deficiency. A receptionist at the defendant’s practice subsequently phoned the plaintiff to relay the negative results of the blood test. Dr Tran did not arrange a follow-up appointment, further investigations nor otherwise formulate a diagnosis to explain the symptoms.
On 19 September 2017, Ms Austen was diagnosed with non-Hodgkins lymphoma (NHL). Ms Austen unfortunately passed away after the appeal was heard, but before judgment could be given. NHL is a type of cancer that forms in the lymph system, a part of the immune system that helps protect the body from diseases and infection.1 It is a rare explanation for complaints of leg or back pain.2
Ms Austen claimed that the respondent had breached his duty of care by not conducting further examinations following the 17 October 2016 consultation, by way of a follow-up appointment, and that this caused her to lose an opportunity to receive an earlier diagnosis and potentially progress into remission.
The claim was dismissed at first instance by the primary judge and the plaintiff appealed the orders.
The decision at trial
The primary judge found that the defendant did not breach the duty of care that he owed to the plaintiff. Briefly, the judge considered that:
- The risk was foreseeable and not insignificant given that NHL would progress if it was undetected, and it had the potential to be terminal.
- The defendant’s examination and differential diagnosis was sufficient, given the diagnosis of musculoskeletal pain was reasonable, the vast majority of leg pain resolves on its own and Dr Tran was entitled to consider that Ms Austen would have re-presented if her pain persisted.
- Having regard to the volume of patients at the medical practice, Dr Tran did not have to phone the plaintiff and insist on a follow-up appointment or further investigations.
- Dr Tran did not follow what might be described as 'best practice' because he 'did not investigate the plaintiff’s symptoms and complaints as fully as what ought to have occurred…' but the consultation in circumstances as a whole did not constitute a breach of the duty of care.3
- A PET scan could have detected the NHL at the time, but it was unlikely that Ms Austen would have been referred for such a scan earlier than when her condition escalated almost a year later.
- The plaintiff’s musculoskeletal pain ended up subsiding, and even if Dr Tran did further investigations and arranged a follow up consultation, it was unlikely to result in a PET scan being undertaken and a diagnosis of NHL.
The issues on appeal
The plaintiff appealed the orders on the following grounds:
- The primary judge erred in finding that the defendant had not breached his duty of care by:
- Not acting on an admission by the defendant that he would have sent the plaintiff to hospital straight away had he thought her pain was as severe as she stated it was.
- Finding that the defendant did not need to draft a strategy plan.
- Not addressing certain statutory criteria for breach of duty of care in his reasons (being the probability of the harm occurring and the likely seriousness of the harm) in circumstances where consideration of same would have necessitated a different outcome.
- The primary judge erred in various respects in relation to findings as to causation.
The decision on appeal
Breach of the duty of care
In relation to ground one, Ms Austen told the respondent that she had leg pain that she felt was an 8/10. In cross-examination before the primary judge, Dr Tran admitted that he would have sent her to the Emergency Department of a Hospital 'straight away' if he thought that she was suffering 8/10 leg pain. The Court of Appeal accepted the primary judge’s finding, relying on Dr Tran’s testimony, that he subjectively considered the rating was overstated and the plaintiff was suffering more moderate pain. Further, the plaintiff did not plead that the failure to refer her to hospital was a breach of the duty of care nor was it the subject of expert evidence.
In relation to ground two, Ms Austen’s legal team argued that the primary judge erred in finding the respondent did not need to take further steps as a ‘safety net.’ They argued that her medical history, socio-economic factors and education justified at least a follow-up booking. At the primary level, there was competing expert evidence about what a reasonable general practitioner should have done. The primary judge favoured the opinion that the reasonable course for a general practitioner would be to leave it to the patient to present again if their pain persisted. The Court of Appeal accepted this finding taking into account Dr Tran’s busy practice.
In relation to ground three, Ms Austen’s legal team argued that the primary judge gave insufficient reasons to justify his decision that a failure to develop a strategy plan was not a breach of Dr Tran’s duty of care (which is an appealable error4), and that consideration of same would have led to a different outcome. The appellant particularly submitted that the primary judge did not consider the statutory considerations of (i) the probability that the harm would happen if precautions were not taken and (ii) the likely seriousness of the harm.
The Court of Appeal found that the judge had discussed the statutory criteria. The primary judge acted upon expert evidence that NHL was a rare explanation for the leg or back pain, it is an uncommon presentation in clinical practice and NHL has an incidence of 0.015% in Australian women. Flowing from these findings, the primary judge concluded that a differential diagnosis not including NHL was reasonable.
Given that the defendant did not need to conduct further investigations for a differential diagnosis of NHL, the primary judge reasoned that the investigations were not unreasonable given that the vast majority of musculoskeletal pain will get better on its own, 'a reasonable general practitioner is entitled to assume that a patient in the plaintiff’s position would come back of their own volition if the pain persisted'5 and a reasonable general practitioner was entitled to see if the pain relief medication caused the pain to dissipate with time.
Having found that there was no breach of the duty of care, the Court of Appeal observed that it was unnecessary to consider causation.
Implications for you
The case provides welcome guidance on the extent or scope of the duty of care owed by GPs in Australia to their patients, particularly those in busy practices. The judgment acknowledges the realities of working in general practice will not always allow for all possible investigations to be made, and that a doctor is entitled to rely on a patient coming back to see him or her if their condition does not improve or deteriorates.
It is interesting to note that the court did not equate what might be described as 'best practice' to the legal duty of care owed by the GP to the patient.
While expert evidence was lead which opined that Dr Tran had failed to undertake all reasonable investigations, such opinion was affected by hindsight bias. The Court of Appeal specifically noted the realities of general practice, and indicated that cases should be assessed from the point of view of the doctor in the here and now, not in the rear view mirror, where a better approach can often be identified to avoid a tragic outcome.
For those involved in defending general practitioners, this decision is a welcome one, and a potentially valuable precedent in appropriate circumstances.
1 National Cancer Institute, Non-Hodgkin Lymphoma Treatment (PDQ®)–Patient Version (November 16, 2023)
2 Austen v Tran  ACTSC 114 
3 Austen v Tran  ACTSC 114 
4 DL v The Queen  HCA 26; 266 CLR 1 
5 Austen v Tran  ACTSC 114 , endorsed in Austen v Tran  ACTCA 44 at