The Background
Dr Sorough Ziaee was ordered to pay damages to his patient, Mr Michael Rubino after he failed to adequately follow up after a referral to a surgeon in the public system in the ACT.
Mr Rubino consulted Dr Ziaee at first in July 2013, in relation to the treatment and management of hyperkeratosis on his right foot. He first complained of pain in the sole of his right foot. Dr Ziaee initially prescribed antibiotics for the condition.
By 5 February 2014, the condition had not resolved. There was an evidentiary issue about what occurred at the consultation on that date. The Court held that Mr Rubino’s corroborated version of events was more likely to have occurred. That is, Dr Ziaee performed an excision of a lesion on Mr Rubino’s right foot. An ultrasound then revealed a chronic cyst with debris inside.
On 6 March 2014, Dr Ziaee referred Mr Rubino for surgery. After hearing nothing in response to this referral, Mr Rubino attended on Dr Ziaee again on 2 May 2014. Dr Ziaee sent a follow up referral.
Mr Rubino’s evidence (which was accepted by the Court) was that he had not been contacted by a surgeon or anyone at Canberra Hospital to be put on a surgical waiting list at any time. He also gave evidence that he went back to see D Ziaee multiple times between 2014 and 2016 reporting that he had not heard from the surgeon and that he was in considerable and consistent pain.
Mr Rubino’s condition deteriorated. On 4 August 2016, Mr Rubino attended on Dr Ziaee reporting pain in his foot. He also reported he had attended the emergency department and a podiatrist, who had indicated surgery was necessary. On 7 August 2016, he presented to the Emergency Department with a lump in his right foot the size of his hand and excruciating pain. He had surgical drainage and debridement of the abscess.
The Outcome
The primary issue here was whether the duty of a reasonable general practitioner, which was to ensure the patient had access to specialised treatment that the general practitioner thought desirable, ceased at the writing of the second referral letter.
Reasonable precautionary measures were required to ensure Dr Ziaee’s treatment course was effective. After December 2014, it would have been a reasonable precaution to follow up the referral. This was particularly so in light of the pain and psychological distress that Mr Rubino was in. After consultation in May 2015, according to the Court there was “no question” that a reasonable practitioner would have taken action to follow up or escalate the referral.
In August 2016, a reasonable practitioner with knowledge of the additional circumstances (that Mr Rubino had attended the emergency department with acute pain and had seen a podiatrist who had recommended surgical debridement), would have examine the foot and, if there was evidence of or concern about, prescribed antibiotics and strong painkillers, whilst awaiting the outcome from treatment by the podiatrist.
The Court held that the referral pathway was not managed with due care and skill. There was a failure to ensure that Mr Rubino received specialist surgical treatment in a timely manner.
The Court was at pains to highlight that this was not to be taken as a finding that a general practitioner has a more general duty to follow up any time a referral is made for consultation by a specialist.
There was an incidental finding that Dr Ziaee did not exercise due care and skill in treating Mr Rubino because there was a failure to develop any treatment strategy separate to waiting for surgery and providing analgesia. This finding did not result in any outcome for Mr Rubino because his pleading did not outline what would have constituted an effective treatment plan.
The Implications
Noting the Court’s careful warning that this case should not be extrapolated to impose a general duty to follow up all referrals, general practitioners should be aware of the case in situations involving public waiting lists, long waiting times and when patients are in acute clinical situations involving pain. In these situations, general practitioners should consider regular and well-documented follow up.
To read the decision in Rubino v Ziaree [2021] ACTSC 331 click here.