The big picture and a doctor's duty of care

21 July 2022

It is trite to say a doctor owes a duty of care to his or her patient. The duty was described by the High Court in Rogers v Whitaker (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.

The more difficult question, put before the courts time and time again, is whether that duty has been breached. Many cases have involved general practitioners who, by virtue of their unique role in primary care, are the first to provide advice and treatment.

GPs play an enormously important role in public health and wellbeing. They critically attend to patients in need of review, diagnosis and treatment from medical specialists or hospitals. Patients will place a great amount of trust and confidence in their local GP, presenting with a range of concerns from minor to life-threatening.

The consultation process undertaken by GPs often includes taking a detailed history of the patient, conducting an examination, ordering investigations and providing treatment and/or advice. GPs owe a duty of care to their patients when undertaking each of these steps, and a breach of that duty can occur when they do not exercise reasonable care and skill.

A recent case emphasises that in determining whether a duty of care has been breached, the Court will analyse the big picture.

The facts

In this case, a patient (the plaintiff) first consulted with the GP (the defendant) in October 2016. The history taken by the doctor noted pain in the patient's right leg for 8 days and a pain score of 8/10. The doctor conducted an examination, where he noted no swelling, tenderness, redness or back pain. The patient alleged that in fact she reported pain in her left leg as opposed to her right.

The doctor ordered blood tests as he made a differential diagnosis of iron deficiency. He prescribed Anaprox, as an anti-inflammatory and to provide mid-level pain relief. The results of the blood tests indicated a normal range for iron levels and the patient was told by the receptionist they were “all good”. The doctor did not call the patient or refer her for any further investigations.

In June 2017, the patient consulted with another GP at the same clinic. She reported pain in her left foot and leg for the last three nights. The patient was examined and the second doctor made the provisional diagnosis of nerve root compression or a disc prolapse. The patient was referred for a CT of the lumbar spine and blood tests. The CT was essentially normal, while the blood tests showed elevated alkaline phosphatase and CRP.

The patient consulted with her original doctor again in July 2017 and gave evidence that she complained of worsening lower back and left leg pain, as well as unexplained weight loss, lethargy and incontinence. The original doctor documented lumbar back pain after getting up from the chair, pain radiated to the left leg, no numbness, pain on left knee, severe hip pain and arthritis. The doctor also prescribed Anaprox and referred her for x-rays and an ultrasound of her left hip and left knee to investigate an arthritic process. He did not refer her to a specialist for further investigations to exclude possible causes of the pain.

The radiology report dated August 2017 recommended further evaluation with x-rays of the sacroiliac joints regarding a possible abnormality and if unremarkable, to consider CT or MRI of the lumbosacral spine. The doctor did not follow up the recommendations regarding possible sciatica.

In early September 2017, the patient was referred for an MRI of the lumbar spine which identified ‘bony lesions – metastasis multiple’ and she subsequently underwent a CT, whole-body scan and biopsies. In mid-September 2017, she was diagnosed with non-Hodgkin’s lymphoma which was then terminal.

The Court’s findings

The Court noted there were at times inconsistencies between the patient’s oral evidence and the clinical records. As such, a cautious approach was taken not to elevate the clinical records to a higher status factually than other evidence given in the proceedings.

The patient alleged that her original doctor failed to: properly investigate her symptoms and complaints; follow up after the consultation; refer for investigations; and refer to a specialist.

An expert GP gave evidence for the patient and a GP gave evidence for the original doctor. The defendant's GP was critical of the defendant's notes of the first consultation, describing them as substandard. However, she maintained that notwithstanding this, the doctor’s actions overall would be widely accepted in Australia as competent professional practice. She gave evidence that:

  1. The doctor’s limited investigations in the first instance were appropriate given that the condition had only been present for 8 days; and
  2. it was appropriate for a GP not to recall a patient if their complaint is short term pain, as the vast majority of musculoskeletal pain will get better on its own.

The expert evidence was critical of the lack of investigations or specialist referral at the second consultation.

The Court held that although the evidence established the doctor did not:

  1. investigate the patient’s symptoms and complaints as fully as what ought to have occurred;
  2. follow up with her after the consultation; or
  3. refer her for any further investigations or to a specialist;

These shortcomings did not prove that a breach of duty occurred. The Court found that the patient failed to establish that her doctor, acting with reasonable competence, ought to have been more proactive. In particular, it was reasonable to see whether the plaintiff’s pain dissipated over time with pain relief and see if she re-presented with unresolved pain. The expert evidence did not establish her symptoms were such that they would have caused the reasonably skilled general practitioner to take different precautions. Requesting x-rays of the patient's hip, left knee and a pelvic x-ray, and an ultrasound of her left gluteus muscles was reasonable insofar as those scans targeted areas where pain was reported.

The Court held that steps in the consultation process, including taking a history, conducting an examination and providing treatment or advice, may when viewed in isolation, be found to have been performed to a standard falling short of what would be expected of a reasonably skilled practitioner. However, when they are considered as one part of a number of steps being taken, individual failures may not be sufficient to establish a breach of duty. As the Court comments:

‘the consult as a whole and the circumstances that existed at that time must be viewed together to determine whether an individual failure was also sufficient to establish a breach of duty of care.’

Accordingly, the Court found that although the lack of detail in the history taken by the doctor did not meet the standard of a clinical record that would have been made by a reasonably skilled GP, ‘the clinical record is only part of the overall investigation and examination of the plaintiff’.

Likewise, ‘although in isolation [the examination] was not as thorough as it could have been, when considered as one part of a number of other steps being taken by the defendant, the examination was not so poor as to breach the duty of care owed by a reasonable general practitioner.’

In relation to the second consultation, it ‘was part of an iterative diagnostic process, which occurred throughout June to August 2017 between the second doctor and the defendant. Having regard to the circumstances of the previous consultation at the Practice, and the fact that the second consultation was a step in the process and not a concluded investigation or diagnosis, I find that the defendant’s conduct did accord with that of a reasonably skilled general practitioner.’

If the Court had found that the original doctor had breached his duty of care, the evidence did not establish that the breach caused a delay in diagnosis at that time. A haematologist and oncologist gave evidence for the patient and an oncologist gave evidence for the doctor. As at the time of the first consultation in October 2016, the Court held that the disease was in such an early stage (low-grade lymphoma) that reasonable testing (x-rays, CT and blood tests) would not have been likely to identify it.

Key takeaway

Ultimately, it appears a rounded approach will be taken by the Court in determining whether a breach of duty has occurred. Upon close inspection, experts may find imperfections with a particular step in the consultation process, or indeed with a consultation itself. However, when you zoom out and look at the big picture, these imperfections may become insignificant so that no breach can be established. Establishing a breach of duty on the basis of an individual failure will require a plaintiff to show that, when viewed together with the consult as a whole, it is sufficient to establish a breach on its own.

Anjali Woodford and Jimmy Zhang


AMA Victoria Preferred Suppliers