The practical realities of a general practitioner’s duty to follow up a referral

06 March 2023

The ACT Court of Appeal overturned a decision of the ACT Supreme Court which found that a general practitioner had breached their duty of care by failing to follow up two referrals to a surgeon at a public hospital.

The appeal decision highlights the importance of general practitioners having regard to the particular circumstances and considering whether taking additional precautions will safe-guard against the risk of harm to a patient.

In issue

  • The duty of care owed by a general practitioner and patient is well established. This case examined the standard of the duty of care required by a general practitioner, particularly in evaluating what precautions a reasonable general practitioner ought to have taken to guard against the risk of harm to a patient referred to a surgeon at a public hospital, and whether the general practitioner breached that standard.

The background

The patient (respondent) sued the general practitioner (appellant) in relation to treatment for pain caused by a corn on the sole of his right foot, which interfered with his ability to work. The general practitioner referred the patient to a surgeon at Canberra Hospital on two separate occasions. The second referral was made two months after the initial referral, following no response having been received by the general practitioner. The general practitioner did not ever receive a response to either referrals. The treatment of the patient entered a 'holding pattern' for approximately two years whereby the general practitioner continued to treat the patient with prescribed painkillers and antidepressants for mood issues associated with his condition.

The patient’s foot subsequently became infected and extremely painful. He was admitted to Canberra Hospital for acute care and surgery to drain an abscess. The patient later sued the appellant seeking damages in negligence.

The decision at trial

The patient argued that a reasonable general practitioner would have continued to follow up the referral and that the patient would have received treatment earlier, thereby avoiding injuries.

Expert evidence led at the trial by the general practitioner concluded that long wait times were common and that unless there had been significant change in the patient’s condition it was not necessary for the general practitioner to follow up the referral.

The trial judge found against the general practitioner and concluded the general practitioner had breached the standard of care required. The risk was that if the patient was left untreated, there was a risk of infection requiring surgery. The trial judge noted that the risks were plainly foreseeable and not insignificant. The judge examined what precautions a reasonable general practitioner would have taken to guard against the risks. The test applied 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 by reference to the usual practice. The trial judge concluded that a general practitioner has a duty to assist the patient to progress a resolution – that being, following no response from the second referral, and with the knowledge that the patient’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'; or attempting to have the patient seen by using a different referral pathway. The trial judge commented that a further referral would not have been unduly onerous or costly and the general practitioner owed the patient a duty to 'do more than just prescribe Panadeine Forte and say "let’s just wait and hear from the hospital"'.

Importantly, the trial judge noted that the standard of care was met by the general practitioner making the two referrals. However, the lack of response and progress from Canberra Hospital, should have given rise to a follow up phone call or some attempt at communication with the recipient of the referral and would have been a reasonable precautionary measure to take. The general practitioner did not take this step, or any step to satisfy themselves that the patient had not 'somehow got lost in the system'.

The issues on appeal

The appeal was based on consideration of the requisite standard of care and whether a general practitioner was required to follow up referral to a specialist in the public hospital system. Further, whether the follow up, if it had been made, would have resulted in the patient being seen by the surgeon at a materially earlier time.

The decision on appeal

In overturning the decision, the Court of the Appeal found that the general practitioner did not breach his duty of care by failing to attempt to communicate with the recipient of the referral. The relevant harm suffered by the patient was the pain and inconvenience that flowed from his corn not being the subject of surgical intervention or specialist advice until such time it became infected and was dealt with by emergency surgery. The patient failed to prove that a reasonable general practitioner in Canberra would have made enquires, followed up or escalated the referral and that those actions would have had some reasonable prospect of shortening the time in which the patient would have received attention. What the evidence demonstrated was the factual realities facing practitioners in the ACT area at the time. The evidence revealed the delay was reflective of the system working normally, and not attributable to any oversight or mistake that could have been remedied by further follow up from the general practitioner.

Implications for you

In this case, the particular circumstances in the ACT public health system had a bearing on the outcome. If those circumstances differ, the outcome may also differ.

If adopting a particular precaution (such as following up a referral) is likely to progress a resolution, failing to take that precaution may well constitute negligence. However, if the circumstances of the case make that precaution more onerous or less likely to guard effectively against the identified risk (that is that there was limited utility in following up a referral as it would not have materially changed the treatment timeframe), it is less likely that any negligence will be held to flow from failing to take that action.

Ziaee v Rubino [2023] ACTCA 7

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