SOAPBOX

DUTY OF CARE AND URGENCY OF REFERRAL

Amedical practitioner's duty of care to a patient is well entrenched in law. The classical statement of a medical practitioner’s duty of care was eloquently conveyed in the landmark decision Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483:

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’ ... it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case... (citations omitted).

In relation to diagnosis and treatment, section 5O of the Civil Liability Act 2002 (NSW) provides a defence and precludes a finding of negligence if a medical practitioner has “acted in a manner that... was widely accepted in Australia by peer professional opinion as competent professional practice”1 . Section 5P of the Act provides that section 5O does not apply to liability in connection with the giving of advice or information.

A recent case in the NSW Court of Appeal: Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 (Makaroff), explored the scope of the duty of care surrounding the referral of a patient.

For present purposes, the facts of Makaroff can be briefly stated. A patient attended a hospital for treatment of a shoulder injury following an incident with a horse. She was given some treatment and told to see an orthopaedic surgeon. The patient attended for orthopaedic review several months later and by that time the injury could not be repaired.

The patient commenced proceedings in the NSW Supreme Court against the hospital alleging negligent care. The trial judge found that the hospital had not breached its duty of care, however, the majority of the NSW Court of Appeal allowed the patient's appeal on the basis that the hospital had breached its duty of care by not advising the patient of the "urgency" of the need for orthopaedic consultation2 .

The majority of the court found that had the urgency of the referral been conveyed, the patient would have attended in a timely manner for orthopaedic review and the injury could have been repaired resulting in a better outcome. Accordingly, causation was established.

Optometrists refer a range of diseases, including those that are sight and life-threatening such as tumours and retinal detachments.

Makaroff is significant and instructive, as it establishes that for an optometrist to discharge their duty of care, the optometrist is not only required to use their professional and clinical judgment to appropriately refer a patient, but the urgency or timeliness of the referral should be communicated to the patient and the same should be well documented.

The immediacy of the referral will be influenced by a number of factors, but the potential medical and ocular consequences of delayed treatment (or further investigation) such as irreversible vision loss (or death if a life-threatening condition such as a brain lesion is suspected) should be at the forefront of an optometrists consideration when they are referring a patient.

Legal Disclaimer: The article is intended to provide general information but is not intended to constitute legal advice and should not be relied upon as such. Formal legal advice should be sought for particular matters and circumstances. Liability limited by a scheme approved under Professional Standards Legislation. n

REFERENCES 1. See Dobler v Halverson [2007]

NSWCA 335 at [60]-[61]. This article focuses on the NSW position.

Different legislation and case law will apply in other states and territories. 2. It should be noted that simultaneous proceedings brought against the patient’s general practitioner were dismissed as it was held that he had not breached his duty of care.

Name: Mr Bachier Mawassi Qualifications: LLB (Hons 1) B.Optom (Hons) Business: Seven Wentworth Selborne Position: Barrister and optometrist Location: 7th Floor, 180 Phillip Street, Sydney NSW 2000 Years in profession: Optometry – 17; Legal – 10. THE URGENCY OR TIMELINESS OF THE REFERRAL SHOULD BE COMMUNICATED TO THE PATIENT AND THE SAME SHOULD BE WELL DOCUMENTED.