The facts
The respondent, Mr Rubino, suffered pain from a hyperkeratosis, more commonly known as a corn, on the sole of his right foot, which interfered with his ability to work. Mr Rubino attended approximately 19 consultations with Dr Ziaee, a general practitioner (GP), between July 2013 and August 2016.
On 6 March 2014, Dr Ziaee referred Mr Rubino to a surgeon working in general surgery at Canberra Hospital (the first referral). When Dr Ziaee saw Mr Rubino again on 2 May 2014, at which time no response had been received to the first referral, Dr Ziaee sent a further letter to the surgeon (the second referral). No response was received by Dr Ziaee or Mr Rubino to either referral, which was followed by a period of over two years during which Mr Rubino was treated predominantly with prescription painkillers. In August 2016, Mr Rubino’s foot became infected and very painful, and he was admitted to Canberra Hospital for acute care and surgery was performed to drain an abscess.
Mr Rubino sued Dr Ziaee, seeking damages in negligence.
Decision at first instance
At first instance, the primary Judge held that Dr Ziaee had breached his duty of care to Mr Rubino, and that the breach had caused the injuries suffered by Mr Rubino and awarded damages in the sum of $190,084.60 and his costs to be paid by Dr Ziaee.
In coming to her decision, the primary Judge accepted Mr Rubino’s contention that Dr Ziaee’s referral and follow-up of the referral fell below an appropriate standard, and that he owed Mr Rubino a duty to “do more than just prescribe Panadeine Forte and say ‘let’s just wait and hear from the hospital’”. Her Honour also accepted expert evidence provided on behalf of Mr Rubino that conservative treatment with painkillers for over two years was not an appropriate clinical response.
In relation to the question of whether Dr Ziaee’s negligence caused harm to Mr Rubino, specifically what would have happened if Dr Ziaee had followed up the referral he made, the primary Judge found that the reason for the long delay in surgical treatment for Mr Rubino was not that he was on a long waiting list and had been accorded low priority, but that something had gone “awry” so that Dr Ziaee’s referral to Canberra Hospital had not been effective. The primary Judge consequently held that Dr Ziaee’s breach was a necessary condition of a delay in Mr Rubino receiving effective treatment, and the ‘damage’ caused by Dr Ziaee included ongoing, severe pain that had psychological consequences for Mr Rubino.
Decision on appeal
Four grounds of appeal were pressed by Dr Ziaee:
- the primary Judge erred in describing the relevant duty of care of Dr Ziaee to be a duty to ensure Mr Rubino had access to specialised treatment thought necessary or desirable by Dr Ziaee at the time of referral, and to ensure that the referral was effective when the legal duty of care was limited to exercising reasonable care in the management of Mr Rubino as his patient;
- the primary Judge erred in finding that Mr Rubino’s referral to Canberra Hospital had gone “awry” or that Mr Rubino had “got lost in the system” because on the evidence, the finding ought to have been that the delay Mr Rubino had experienced was in fact the system as it operated at Canberra Hospital at that time;
- the primary Judge erred in finding that the scope of Dr Ziaee’s duty required taking action to follow up or escalate a surgical referral because the evidence did not allow a conclusion that a reasonable person in Dr Ziaee’s position would have taken those precautions as they would know that such steps, in the absence of a significant deterioration in Mr Rubino’s condition, would be futile;
- the primary Judge erred in the analysis of causation by assuming, without finding, that a follow up by Dr Ziaee to Canberra Hospital of the referral, would have resulted in Mr Rubino being seen by a surgeon at any material time earlier than he was, or if her Honour did so find, erring in that the evidence did not permit such a finding.
Grounds 1 and 3 – standard of care and whether it was breached
The Court of Appeal rejected ground 1 on the basis that it did not read the primary Judge’s reasons as a whole as turning on the existence of a duty of the kind described in ground 1.
Ground 3 was upheld on the basis that the primary Judge’s finding that Dr Ziaee breached his duty of care in not attempting to communicate with Canberra Hospital was erroneous. In coming to this decision, the Court explained that Mr Rubino needed to prove that a reasonable GP in Canberra between 2014 and 2016 would have recognised making inquiries, following up or escalating a referral to a specialist in the public hospital system as actions that had some reasonable prospect of shortening the time in which he would receive attention from that specialist. However, expert evidence called by Dr Ziaee explained that access to surgery for non-urgent conditions is limited in the public hospital system in Canberra and many non-urgent patients will wait very long periods, far in excess of one year, which is the recommended completion time for non-urgent surgeries. The expert also admitted that the waiting times in 2013 and 2014 for non-urgent patients were even longer.
The Court held that it was not open to the primary Judge to find that a reasonable GP in the ACT between 2014 and 2016 would have regarded contacting Canberra Hospital to follow up a referral as a useful or appropriate way to advance their patient’s interests. The Court also held that it was not open to find that a reasonable GP in Dr Ziaee’s circumstances would have taken this step. Dr Ziaee had made a referral in February 2014 and had followed it up in May 2014, seeking to highlight the case and make sure that those working at Canberra Hospital understood it properly.
The Court of Appeal highlighted that their decision did not involve imposing a different standard of care depending on the jurisdiction or location in which a GP practices. What is significant, the Court noted, is the circumstances in which the practitioner subject to the relevant duty, finds themselves. Where a particular precaution against risk is readily taken and effective, failing to take that precaution may constitute negligence. The reasoning is different though if the circumstances of the case make that precaution more onerous or less likely to guard effectively against the identified risk. Factual differences of that kind can arise between jurisdictions in Australia depending on the organisation and performance of their public health systems and other institutions.
Grounds 2 and 4 – causation
The Court dealt with grounds 2 and 4 together and held that both grounds were successfully made out by Dr Ziaee.
The Court did not think there was any support in the referral documents admitted to evidence for a conclusion that the referrals made by Dr Ziaee were the subject of some form of administrative error that led to them being lost in the system. In the Court’s view, the existence of an electronic filing system, and the fact that the referrals were registered in that system, was evidence against any such error.
The Court noted that the evidence did not establish that the course followed by the two referrals constituted anything other than the normal operation of a significantly overstretched public health system. The Court held that the reason for the long delay was that the respondent was on a long waiting list and had been allocated low priority.
Dr Ziaee’s appeal was therefore allowed, and the claim against him was dismissed with costs.
