Ziaee v Rubino [2023] ACTCA 7

In the matter of Ziaee v Rubino [2023] ACTCA 7, the plaintiff, Mr Michael Rubino, commenced court proceedings against the defendant general practitioner/doctor, Soroush Ziaee, seeking damages for injuries and losses as a result of an alleged a breach of duty to follow up a referral. The plaintiff was suffering pain as a result of hyperkeratosis (otherwise known as a corn) on the sole of his right foot, which started interfering with his ability to work. Between July 2013 and August 201, the plaintiff attended approximately nineteen consultations with the defendant doctor at the Tristar Medical Group. On 6 March 2014, the defendant doctor referred the plaintiff to a surgeon. On 2 May 2014, the defendant doctor sent a further referral to the surgeon after no response had been received from the first referral. No response to the first or second referral was received by either party and there followed a period of over two years, during which the plaintiff was treated predominately with prescribed painkillers. In August 2016, the plaintiff’s foot had become infected, and the plaintiff was in extreme pain. The plaintiff was admitted to hospital for acute care and surgery was conducted to drain an abscess.  

At the trial, it was not in dispute that the defendant owed the plaintiff a duty of care to exercise reasonable care in treating the plaintiff, however, the other elements of the cause of action and the quantum of damages were in dispute. Ultimately, the trial judge found the plaintiff to be successful.  

The defendant appealed the trial judge’s decision, submitting four grounds which can be summarised as follows:

  1. The trial judge erred in describing the relevant duty of care of the defendant doctor to be a duty to ensure the plaintiff “had access to specialised treatment” thought necessary or desirable by the defendant doctor at the time of referral and “to ensure … the referral was effective” when the legal duty of care was limited to exercising reasonable care in the management of the plaintiff as the defendant doctor’s patient.  
  2. The trial judge erred in finding that the plaintiff’s referral to the hospital had gone “awry” or that the plaintiff had “got lost in the system” because on the evidence the finding ought to have been that the delay the plaintiff had experienced was in fact the system as it operated at the hospital at that time. 
  3. The trial judge erred in finding that the scope of the defendant doctor’s duty required taking action to follow up or escalate a surgical referral because the evidence did not allow a conclusion that a reasonable person in the defendant doctor’s position would have taken those precautions as they would know that such steps, in the absence of a significant deterioration in the plaintiff’s condition, would be futile.  
  4. The trial judge erred in the analysis of causation by assuming, without finding, that a follow up by the defendant doctor to the hospital of the referral would have resulted in the plaintiff being seen by a surgeon at any material time earlier than he was, or if the court did so find, by erring in that the evidence did not permit such a finding.
The Court of Appeal found that grounds 2, 3, and 4 were made out, however, rejected ground 2. Ultimately, the decision of the trial judge was overturned on appeal.  
The court concluded at [67], saying:

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. Contrary to the primary Judge’s finding at [157], the reason for the long delay was that the respondent was on a long waiting list and had been allocated low priority. What follows is that there is no reason why the experience of Dr Gooding and the appellant, referred to above, does not provide a sound guide to what would have occurred if the appellant had followed up a referral or tried to “escalate” it within the public hospital system. It is most likely that that would not have changed the categorisation the respondent had been given, and therefore would not have resulted in him seeing a surgeon at any time before August 2016 when his condition became urgent.

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