The decision of Idameneo (No 123) Pty Ltd v Dr Colin Gross1 demonstrates that medical practices may owe a duty of care to patients which is quite independent of the duty owed by the doctors who operate within the practice.
This is a particularly significant decision for practices which do not actually employ the practitioners who operate within them, and so would not be vicariously liable for the negligence of those practitioners.
A patient who had HIV tests carried out at the Bondi Junction Medical Centre (BJMC) changed address and phone number, but did not inform the BJMC. The medical centre staff had also failed to inquire about any changes to the patient’s contact details at the time of her appointment.
As a result, the patient did not receive notification that her tests for the presence of the HIV virus were unresolved and that she required further testing. The patient had unprotected sex with her partner, CS, and the disease was transmitted to him.
BJMC was owned and operated by Idameneo, which provided administrative services, equipment and clerical staff. The doctors against whom CS brought his claim for damages operated under individual practitioner contracts with Idameneo, but were not its employees.
CS’s claim against the doctors settled before trial; however the doctors involved brought claims for contribution and breach of contract against Idameneo under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
The doctors were successful in obtaining a 40% contribution from Idameneo towards damages paid to CS. It was found that Idameneo breached the duty of care it owed to CS by failing to update the patient’s contact details, and, that as a result of the inability to contact the patient, CS contracted the HIV virus.
Court of Appeal
Idameneo appealed to the Court of Appeal, and the doctors cross-appealed. The Court of Appeal upheld the trial judge’s findings in most instances and found that Idameneo had breached a duty of care to CS. In arriving at its conclusion, the Court noted:
- Although the duty of care raised ‘novel issues in unusual circumstances’, Idameneo assumed responsibility for the full control and maintenance of patient records. It therefore owed a duty of care to maintain current and accurate records to ensure effective and timely contact with patients.
- The Public Health Act 1991 emphasises the importance of reporting communicable diseases, and emphasises the role of accurate record-keeping. The contents of Idameneo’s own training and policy and procedure manuals signified an awareness of this importance.
- It was reasonably foreseeable that serious harm could eventuate from a failure to keep patient records current and to notify a patient. The Court said that Idameneo’s procedure policies showed foresight of this risk, and CS was part of a legitimately ascertainable class of persons who may have a duty owed to them by Idameneo.
- On the issue of causation, had up to date medical records been kept, the patient would have received notification of the need to attend BJMC, and would have done so. The Court emphasised that more than one ‘necessary condition’ may materially contribute to the harm and go to satisfying the ‘but for’ causation test. In this instance, these conditions were the negligence of both BJMC and the doctors.
The Court also addressed indemnity clauses that were part of the practitioner contracts. Idameneo was not entitled to be indemnified by the doctors as the clauses only indemnified BJMC against claims arising from the conduct of the doctors. Idameneo’s relevant liability arose from its own conduct (the failure to maintain current and accurate patient records), not acts or failures to act of the doctors.
This case is a stark reminder to medical practitioners and operators of medical facilities to ensure that their policies and procedures are both adequate and strictly complied with. The failure to comply with the duty to maintain accurate patient records may give rise to a duty to third parties. Depending on the management structure and relevant practitioner contracts, this duty to third parties may apply to both practitioners and medical centres.