Critically, general practitioners act as a pivot or a facilitator for patients in need of review, diagnosis and treatment from hospitals or medical specialists. So, what does the law say about the extent of the duty of local doctors (GP’s) in relation to referral of patients to specialists (for example surgeons) and other health services?
GP’s play an enormously important role in public health and wellbeing. And a quick glance inside the waiting room of a busy clinic shows that the role is a difficult one. Patients put a huge amount of trust and confidence in their local doctors, presenting them with a kaleidoscope of concerns ranging from the trivial or administrative to the life-threatening.
Often, GP’s will need to refer their patients to a specialist for more specific treatment options. A common question is then; “what responsibility does your GP have to follow up on the progress of that referral?”
The judgement in the case of Rubino v Ziaee, in late 2021, looked at this important issue for GPs and their patients.
Mr Rubino attended his local GP Dr Ziaee in relation to a corn on his right foot between 2013 and 2016.
In 2014 Dr Ziaee referred Mr Rubino to a surgeon through the ACT’s public health system.
Mr Rubino alleged that from that time of referral until 2016, despite attending for a number of consults with his GP, Dr Ziaee did nothing to follow up on the referral.
What happened in those consults was the subject of a factual dispute between the patient and doctor.
Dr Ziaee’s evidence was that Mr Rubino told him that he was on the waiting list for surgery. On that basis, Dr Ziaee was of the view that no follow-up was required.
Mr Rubino’s evidence was that from 2014 to 2016 he went back several times to see Dr Ziaee, complaining of pain and discomfort, and advising that he had not had any contact from the surgeon. He said that at one attendance he asked for the specialist’s phone number so that he could follow up directly, but that the Doctor gave him a wrong number.
The Court ultimately accepted Mr Rubino’s evidence.
Mr Rubino alleged that as a result of the delay, Mr Rubino needed surgery to treat an infection to the right foot, leaving him with a limp and difficulty walking.
There were a number of questions for the Court to consider, including whether prompt follow up would have (more likely than not) meant that Mr Rubino avoided at least some of his injuries. However, the key issue discussed here is in relation to the standard or care provided by Dr Ziaee; was the GP negligent in failing to follow up on the referral for Mr Rubino?
The Court’s Findings
In making its determination, the Court (at paragraph 101) relied on the key legal principal regarding a failure to follow up a referral for surgical treatment, quoting the following from Tai v Hatzistavrou:
“It seems to me that, in a case such as 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.”
The Court determined that after 3 months without a response from the specialist, a reasonable GP in Dr Ziaee’s position would have followed up the referral to get an approximate time frame for a consultation with the specialist, and/or the timing of any potential surgery. It also found that a reasonable GP acting reasonably should have discussed with Mr Rubino how to treat his condition in the meantime, including by seeing a podiatrist.
The Court found that the referral had not been appropriately managed by Dr Ziaee and that as a result, Dr Ziaee should be liable for losses and damages caused by that medical negligence.
It is important to understand here, that even if a GP or other health professional is found to be negligent, they are not required to pay compensation if reasonable treatment would not have been likely to have changed the outcome, or if no loss or damage flowed from the negligence.
This leads to 2 complex questions which the Court had to resolve
- If Dr Ziaee had followed up with the specialist referral, would Mr Rubino have attended the appointment and followed the advice of the specialist?
Courts have previously found that a GP’s duty of care does not extend to following up on a patient who will not accept advice. In the case of Varipatis v Almario (2013) NSWCA, in which a GP successfully defended a claim by an obese patient for failure to follow up a referral to a bariatric, the Court determined:
“A general practitioner may be obliged, in taking reasonable care for the health of a patient…to offer (and encourage acceptance of) referrals to appropriate specialists or clinics but … no obligation, or indeed power … to do more than that. If the plaintiff refused to take the firm advice of his general practitioner, and of experts to whom he had been referred, there was no breach of duty on the part of a general practitioner in failing to write a further referral. The duty of care stopped short of requiring an exercise in futility.”
- Was Mr Rubino’s outcome substantially worse off a result of the negligence of Dr Ziaee?
In Mr Rubino’s case, the Court considered expert medical evidence which supported that the delay in specialist review and treatment had likely led to a substantially poorer outcome for Mr Rubino.
In finding in favour of Mr Rubino, the Court awarded $184,645 in compensation to him.
What are the key takeaways?
GP’s have a duty to promptly follow up referrals for their patients and to ensure timely review and treatment.
The duty of GP’s is not limitless. For example, a GP might not be found to be negligent for not following up on a referral if that referral is futile or would not produce a different outcome because of a lack of compliance by the patient.
Medical records are critically important when a Court is determining factual disputes between patients and doctors. Incomplete medical notes of attendance by a doctor, increase the likelihood that a patient’s evidence about what was said and done during a consult will be accepted. You can read more about the importance of medical records, in our article, “Your word against the doctor’s: Medical negligence cases and the accuracy of medical records.”
Where there is a factual dispute between doctor and patient, corroborative evidence such as witness statements, photographs and medical records of other practitioners can be helpful in resolving that dispute.
Negligence is not the only requirement in a successful claim. Not every driver who fails to stop at a red light injures another person. In the same way, not every error by a GP will result in a viable claim for compensation. Compensation for medical negligence must include proving that the negligence was a cause of substantial damage or loss.