Supreme Court of New South Wales1
The facts
This case involved a cross-claim by Drs Gross and Johnson against Idameneo (No 123) Pty Limited, a company that provided them with administrative services and facilities.
A patient visited the Doctors' clinic in March 2004 requesting tests for STDs. She had last visited the practice 5 years earlier.
Blood tests were taken by a nurse employed at the clinic and, after testing was carried out, Dr Johnson was advised the patient needed to be retested for HIV as her results were equivocal.
Dr Johnson asked one of the clinic staff to send a letter to the patient requesting that she return to the surgery as soon as possible.
Unfortunately, between the patient's first visit to the clinic in 1999 and her return in 2004, she had changed address. Nobody asked her if her contact details were correct so, although a letter was sent, it did not reach her.
Having heard nothing, the patient returned to the clinic in April to get her test results. She was seen by Dr Gross (not the doctor who ordered the initial tests) who did not properly read the patient's records and advised her that her tests were clear.
In mid May, Dr Johnson was told that there had been no response to the letter advising the patient she needed further tests. The patient was not told she needed to be retested until June.
In the meantime, the patient had unprotected sex with the plaintiff who contracted HIV. The plaintiff sued the Doctors who admitted they had been negligent and Idameneo which did not.
The Doctors cross-claimed against Idameneo seeking contribution towards the damages paid to the plaintiff on the basis that Idameneo's employees were negligent in failing to maintain proper records.
Was there a duty?
The major issue in the case was whether Idameneo owed the plaintiff a duty of care. It said no; the Supreme Court said yes.
The starting point for the Judge was that the harm suffered by the plaintiff was caused by the transmission of a disease scheduled under the Public Health Act 1991 which imposes strict obligations on doctors with respect to notification and treatment.
Her Honour said in a very real sense the competency of GPs underpins the operation of the Act and a medical practice's failure to maintain accurate records could seriously compromise the objects of the Act.
Idameneo had in place systems, set out in various manuals, requiring reception and pathology staff to confirm a patient's contact details. There were also procedures to deal with the recall of patients.
Pursuant to the agreement between the Doctors and Idameneo, Idameneo had ownership and conduct of all patient records. The doctors at the clinic gave evidence that they did not check patients' contact details during the course of consultations because that was a task for which reception staff were already responsible.
Latham J said Idameneo's policies and procedures showed it was aware of the importance of keeping accurate patient records, particularly where a pathology sample had been requested. The procedures adopted by Idameneo to ensure current patient data was held, however, were not implemented at this practice.
Latham J found that the risk inherent in failing to notify the patient promptly of the need for re-testing was something of which Idameneo had, at least constructive knowledge, and the risk was therefore foreseeable.
Idameneo argued that the Doctors were asking the Court to find a duty of care based solely on the practice manual and said that to do so would extend that duty of care to an indeterminate number of people with whom the patient may have contact.
Latham J did not agree. She said this was not a case of imposing on Idameneo an obligation to warn an indeterminate class of people. It was a case of adhering to procedures to ensure the transmission of an infectious disease by a patient might be prevented or at least minimised.
The Court was of the view that the potential widespread nature of the harm and the fact that Idameneo was in the business of providing health care justified the imputation of a duty of care. That duty included a requirement to maintain accurate records to ensure effective and timely contact could be made with its patients when the need arose.
Idameneo acknowledged that if a duty existed, it had been breached so the Court moved to the issue of causation.
Latham J said the circumstances of this case required the Doctors to establish that it was more probable than not that, but for the failure of Idameneo to keep current and accurate records of the patient's address, the transmission of the HIV virus to the plaintiff would not have occurred.
Idameneo argued that the failure to send the recall letter to the correct address was rendered irrelevant by Dr Gross' negligence in failing to properly review the patient's records when she attended the clinic in April.
Latham J resolved this issue by asking whether the harm to the plaintiff would have been avoided if either negligent act (the failure to obtain a current address from the patient or Dr Gross' failure to properly read the medical notes) had not occurred.
The Court was satisfied that if Idameneo had maintained current and accurate records allowing the recall letter to be sent to the correct address, the HIV virus would not have been transmitted to the plaintiff.
Idameneo was ordered to contribute 40% towards the damages paid to the plaintiff.
Implications
Despite Idameneo's protestations, the Court had little difficulty in finding that it owed a duty to persons with whom the patient came into contact, particularly having regard to the public health considerations that underpinned the need for maintaining proper patient records in a medical practice.
It is unclear whether such a duty would extend to cases not subject to the Public Health Act or where the disease was communicable by less intimate means thus broadening the range of people to whom a duty might be owed.
Footnote
1 Latham J
