Background

Mr Elysee (‘the patient’) was a patient at Bankstown Medical Centre over a period of about 10 years. He had a complex combination of conditions and saw many doctors over that time. During the time when he was attending Bankstown Medical Centre he was diagnosed with diabetes and had a number of other health complaints including high blood pressure and poor renal function. In April 2012, after referring the patient for a CT scan, Dr Ngo diagnosed the possibility of chronic renal disease and referred the patient to the emergency department at Liverpool Hospital. The patient was subsequently referred to a renal physician who diagnosed Stage III kidney disease.

The primary proceedings

The patient sued seven general practitioners, including Dr Ngo, in the District Court for negligence, alleging that they had failed to monitor and manage his various conditions or refer him for earlier specialist treatment. The patient alleged that he developed his chronic kidney disease (and other conditions) as a result of the alleged negligence. Following two conclaves of expert witnesses, much of the case was abandoned. The case ultimately proceeded only against Dr Ngo. 

The primary judge found that Dr Ngo was negligent “in failing to refer the plaintiff for specialist medical treatment when the test results indicated that such a course was required”. As to causation, his Honour found “that the plaintiff’s condition could have been delayed had he been referred to a renal physician” and that, had that occurred, the plaintiff “may have been able to postpone dialysis” for approximately two years. Judgement was entered in favour of the patient in the sum of $209,700.

Appeal

On appeal, Dr Ngo challenged the primary judge’s findings as to breach of duty of care and causation.

The court of appeal concluded that each of those findings by the primary judge was unsustainable and was satisfied that the patient could not establish causation of any damage.

The evidence did not support the conclusion that it was negligent of Dr Ngo not to refer the patient to a renal specialist on the strength of the creatinine and eGFR results of 16 April 2009. Further, Dr Ngo had demonstrated that, even if a breach of duty of care could be established (which may be doubted), the patient could not prove causation of any loss [at 134].

Accordingly, the appeal was allowed and judgement entered for Dr Ngo. To read the decision in Ngo v Elysee [2019] NSWCA 123, click here.