The decision of Mules v Ferguson1 explores the duty of a general practitioner, to refer a patient to a specialist.

Background

In early September 2008, the plaintiff began suffering from headaches and a sore neck.  She visited the defendant, her general practitioner, on 12 September 2008 and was advised to take analgesia and continue chiropractic treatment.

The plaintiff visited the defendant again on 18 and 19 September 2008 complaining of persistent symptoms. A CT scan was ordered and additional pain relief was prescribed. The plaintiff saw the defendant a fourth time on 25 September 2008 (following a hospital admission and discharge on 24 September 2008). The defendant arranged for her immediate admission to hospital where she was diagnosed with cryptococcal meningitis (an extremely rare infection) the next day. The plaintiff responded to treatment, however, she became blind and deaf as a result of the infection.

Claim

The plaintiff alleged that the defendant breached her duty in contract and tort to exercise reasonable care and skill in the provision of medical treatment.  The critical breach alleged was the failure to refer the plaintiff to a specialist at the consultations on 18 and 19 September 2008.

The plaintiff originally joined the hospital as a defendant, however, discontinued her claim on the basis that even if treatment had commenced on her first admission on 24 September 2008, the evidence was that the plaintiff would likely have suffered the   same injuries in any event.

Decision

The case revolved around the conflict between the plaintiff and defendant’s recollection of events, in particular, what symptoms the plaintiff had reported to the defendant.  The Court preferred the defendant’s recollection and concluded that the plaintiff’s symptoms suggested a musculo-skeletal cause was likely and that the CT scan supported that conclusion.  Consequently, the defendant did not breach her duty of care in not recognising that cryptococcal meningitis was developing, and by not referring the plaintiff to a specialist.

The one omission that the defendant made was not physically examining the plaintiff’s neck and querying the progress of past symptoms of headache and facial flushing.  This however, had no causal connection with the plaintiff’s harm.

The Court noted that it was likely that the defendant had an additional defence to the claim in any event as she had acted in a way that was widely accepted by peer professional opinion as competent professional practice.

Even if the plaintiff had successfully established a breach, the Court noted that causation had not been made out.

This was on the basis that a specialist was unlikely to have referred the plaintiff to a hospital for treatment.  Based on the development of the symptoms, diagnosis and treatment was unlikely to have occurred until 23 September 2008, and the same injuries were likely to have occurred.

Comment

The decision to refer a patient to a specialist will always be fact specific and, ultimately, issues of breach in failing to refer will need to be considered by reference to what was reasonable in all the circumstances.