A GP’s duty to follow up: just because you can doesn’t mean you must; and would it even make any difference?
The ACT Court of Appeal has overturned a decision by the Supreme Court of the ACT that found a GP had breached his duty of care by failing to follow up on two referrals to a public hospital.
Take away: The case is a useful reminder to ensure that when considering breach, attention is directed to any practical realities that existed at the relevant time and that may inform the reasonableness of a particular course of action. Additionally, it highlights the importance of having sufficient evidence to discharge the onus of establishing factual causation when alleging that action taken by one practitioner would have resulted in earlier treatment having been provided by another.
The case: The matter involved a patient (the Respondent) who had consulted with his GP (the Appellant) in relation to a corn on his right foot. The Appellant had made a referral to the Canberra Hospital on 6 March 2014 for the Respondent to consult with a general surgeon. The Appellant sent a further referral on 2 May 2014 after the Respondent had not received a response to the first referral. The Respondent continued to be treated by the Appellant. The Respondent ultimately presented to the Calvary Hospital on 2 August 2016 due to severe pain from the corn. He presented again on 7 August 2016 and was ultimately transferred to the Canberra Hospital due to the spreading of an infection, where he received treatment for his corn more than two years after the initial referral by the Appellant.
At trial, the Respondent argued that a reasonable GP in the position of the Appellant would have, inter alia, continued to follow up the referral with the Canberra Hospital before August 2016 and that such action would have culminated in the Respondent receiving earlier treatment and avoiding his injuries. The Appellant led evidence from a GP in the ACT area, who opined that the two referrals made by the Appellant were adequate and reasonable. In the expert’s opinion, which was based upon their experience practising in the ACT, further referral to the Canberra Hospital would have been futile without a significant change in the Respondent’s condition (which had not occurred before August 2016, and which did not include the experience of pain) such that no reasonable GP would have done so. The expert further opined that long wait times in the ACT public health system were common. Notwithstanding this opinion, the Court found against the Appellant and considered that following up the referral would not have been unduly onerous or costly.
In overturning the decision, the Court of Appeal found the Appellant’s expert’s opinion decisive, shedding light on the factual realities facing practitioners in the ACT area at the time. While the Court stressed that it was not imposing a different standard of care depending on the jurisdiction, it did acknowledge that factual differences can arise between jurisdictions in the Australian federation depending on the organisation and performance of their public health systems. Those differences can impact the calculus of negligence if they result in a precaution being more onerous or less likely to guard effectively against the identified risk (such that a reasonable person also would not have taken that precaution).
Additionally, the Court of Appeal found that there was no evidence to enable the trial judge to find that further follow up of the referral would have resulted in the Canberra Hospital expediting treatment of the Respondent. The evidence revealed that the delay, while long, was consistent with the system working normally and was not attributable to some oversight or mistake that could have been remedied by further follow up or resulted in any different outcome to the Respondent.
The appeal was allowed and the judgment against the Appellant was set aside, with the claim being dismissed.
