The lost referral: A doctor’s duty of care

Case history

July 2013: Mr P first consulted Dr Z regarding pain in his right foot. Dr Z diagnosed it as hyperkeratosis and gave general advice regarding footwear.

September 2013: Mr P returned as the lesion was tender. Antibiotics were prescribed.

February 2014: Mr P attended again, and Dr Z noted a tender and infected nodule.

March 2014: Mr P’s foot was still painful. Dr Z referred him for an ultrasound which showed there was a cyst. Dr Z referred Mr P to the Canberra Hospital for further management. The hospital received the referral, but Dr Z did not receive any correspondence from the hospital.

May 2014: Mr P advised Dr Z that he had not heard from the hospital, and Dr Z sent a further referral. The hospital noted this as a duplicate referral and cancelled it.

It is unclear what happened to the referral at the hospital, and the action against the hospital was resolved prior to the court hearing.

Throughout the remainder of 2014, 2015 and the early part of 2016, Mr P presented to Dr Z on numerous occasions with considerable pain from his foot – so much so that he was unable to walk or work and required regular Panadeine Forte.

Mr P also advised Dr Z that he had still not heard from the hospital following the second referral.

In August 2016, Mr P presented to another hospital as his foot was increasingly painful. He was referred back to Dr Z with a note requesting Dr Z to “chase surgical referral attended one year ago,” and to see a podiatrist in the interim to assist in management.

Mr P saw a podiatrist who described a large, complicated hyperkeratotic lesion on the plantar surface of his foot with a central crevice. The podiatrist rang Dr Z, and according to notes taken by the podiatrist, they discussed that the patient required a general surgical review, and that Dr Z would see to that.

Despite seeing Dr Z the next day, no further referral was arranged.

A few days later, Mr P attended the emergency department and was admitted to the Canberra Hospital. He was an inpatient for two weeks and underwent two surgeries for incision and drainage of an abscess.

The court’s findings

The court determined that from May 2014, after three months without a response from the hospital, a reasonable practitioner:

• would have followed up the referral to get an approximate timeframe for a specialist consultation and the timing of any potential surgery
• should have discussed with Mr P about how to treat his condition in the meantime.

After the consultation in May 2015, a reasonable practitioner would have the knowledge that his patient’s condition was not improving; that he had been on Panadeine Forte for over a year, was depressed and in significant pain, and still awaiting surgery in the public health system.

Expert medical evidence was given which supported that the delay in specialist review and treatment likely led to a substantially poorer outcome for Mr P.

The court found that the referral had not been appropriately managed by Dr Z, and that he should be liable for losses and damages that flowed from the delay.

Medico-legal discussion

A GP’s duty of care is not discharged by merely issuing a referral to a specialist or hospital.

If the patient returns to the referring practitioner for ongoing treatment of the relevant condition thereafter, and no communication from the specialist or hospital to whom they were referred has been received, the referring practitioner may need to make enquiries.

Depending on the circumstances, the referring practitioner should:

• check with the patient and/or follow up with the entity or specialist to whom the referral was issued to ascertain whether the patient was on a waitlist, and obtain an approximate timing for when the treatment or surgery might be provided
• formulate a treatment plan for the patient’s care until they can be seen by the entity or specialist to whom they have been referred.

This decision places the onus on GPs to continue to monitor a patient’s progress through the referral; and requires them to advocate on behalf of their patients to the specialist or hospital to whom they have been referred if necessary.

Reference

1. Rubino v Ziaee [2021] ACTSC 331 (23 December 2021)

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