GP who ‘failed’ to chase patient’s lost hospital referral overturns $190,000 negligence ruling

The ACT Court of Appeal found the events were merely ‘the normal operation of an overstretched health system’.

A GP accused of failing to follow up a patient’s surgical referral has had a $190,000 negligence ruling against him overturned on appeal.

The original judgement handed down in 2021 alarmed the specialty, suggesting there was a medicolegal obligation to follow up on referrals.

The judge presiding over the case concluded the GP should have contacted Canberra Hospital about his patient’s referral for “further evaluation and management” by a general surgeon after an ultrasound revealed a walnut-sized cyst containing debris on his patient’s right foot.

But appeal findings handed down on Wednesday said this would have made no difference in an “overstretched health system”.  

The patient had first presented five months before the GP made the referral with a hard and sore lump on the plantar surface of the second and third metatarsal, with the GP providing treatment for hyperkeratosis and a cyst.

The GP sent a second referral after two months but otherwise left the case in the hands of the hospital while providing ongoing care to the patient, including scripts for oxycodone and tramadol. 

The patient claimed he did not see a surgeon some two years later in 2016, when he underwent emergency surgery to treat a fast-spreading foot infection.

He sued the GP over the cost of future medical care and lost earnings, claiming that, if the GP had chased the referral, he would have been treated sooner and not experienced the acute infection.

In the original case, the ACT Supreme Court found the referral was accepted and triaged as category 3 (non-urgent). 

But it ruled the GP should have called the hospital after around eight months to ensure the referral was not “lost in the system”. 

The judge also said the GP was responsible for following up the referral because he had contacted the hospital directly rather than giving the patient a written referral. 

“[By December 2014], in light of the silence from Canberra Hospital and apparent lack of progress, a follow up phone call or some attempt at communication with the recipient of the referral was a reasonable precautionary measure to take in order to ensure that the [GP’s] selected treatment course through referral was effective,” she said.

“I am not satisfied the [GP] took any step from that date to satisfy himself that the plaintiff, as his patient, had not somehow got lost in the system. In that regard, there was a breach of [his] duty of care.”

But the GP has successfully appealed the decision to the ACT Court of Appeal. 

His lawyers argued that a reasonable GP would know it was futile to chase up the referral with the hospital unless the patient was deteriorating significantly.  

There was also the expert witness who backed the GP. Dr Paul Gooding, a Canberra GP himself, described the wait times in the case as “not a matter of particular surprise” based on his personal experience dealing with the ACT hospital system.

This was in contrast to the patient’s expert: a GP based in Double Bay in Sydney. 

The three Appeal Court judges agreed with Dr Gooding. 

“In relation to patients placed in category 3, Dr Gooding observed that surgery is recommended to be completed within 365 days, [but] in 2013 and 2014, waiting times were even longer,” they wrote. 

“Consequently, it was not open to find that a reasonable GP in the circumstances in which the [the GP] found himself would have taken that step.”

The patient’s reports of depression were unlikely to have swayed the hospital triage decision, they added. 

Even if the GP had chased up the referral, “it is most likely that that would not have changed the categorisation the [patient] had been given,” the judges said.

“The evidence therefore 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. 

“Therefore, [it] would not have resulted in him seeing a surgeon at any time before August 2016 when his condition became urgent.” 

The patient was ordered to pay the GP’s appeal costs.

More information: