Australia: C S v Anna Biedrzycka [2011] NSWSC 1213: Do administrative staff owe a duty of care to a patient's sexual partners?

This case concerned a patient (LB) of a medical practice in Eastern Sydney who, due to the negligence of medical practitioners and staff, was not informed that she was HIV positive. Unaware of her medical condition, LB had unprotected sexual intercourse with the plaintiff. The plaintiff contracted HIV as a result.

Two of the three doctors admitted liability for negligence, and paid damages to the plaintiff. The doctors then filed a cross claim against the fourth defendant medical practice seeking contribution towards damages paid to the plaintiff on the basis that the employees of the fourth defendant were negligent in failing to maintain proper medical records.

The case serves as a reminder that a duty to maintain accurate medical records extends beyond the patient-doctor relationship to medical administrative staff and members of the public. The detailed judgment of Latham J also provides useful insight into effective administrative policy and procedure, and the legal consequences of non-compliance.

Factual backgrounds

In the medical practice, all administrative services and facilities were supplied by Idameneo (No. 123) Pty Ltd (the fourth defendant) under a contractual arrangement with the doctors.

In 1999 LB attended the medical practice, and her then current residential address in Bondi was recorded by the administrative staff.

On 30 March 2004, LB attended the medical practice again, seeking a sexually transmitted diseases test. By that time, LB was living in North Bondi. At no time was her residential address confirmed by her treating doctors or the administrative staff.

During this visit, LB was referred to Dr Biedrzycka (the first defendant) for testing. The first defendant counselled LB, arranged for the pathology tests to be carried out by a nurse employed at the medical practice, and advised LB to return to the medical practice for the results in about a week.

On 5 April 2004, Dr Johnson (the third defendant) received a telephone call from the SDS pathology laboratory. The third defendant was the medical director of the fourth defendant medical practice, whose responsibilities included overseeing the administrative performance of the medical practice. The third defendant was informed in this telephone call and by letter that LB's results were equivocal with respect to the HIV test, and that as a result LB should be retested.

The third defendant noted in LB's medical records: By phone, needs bloods repeated, pos result, needs repeat, and directed the administrative staff to send a recall letter to LB's residential address in her medical records. That letter was sent to the residential address LB no longer occupied.

LB attended the medical practice of her own volition on 22 April 2004. The first defendant was not available to consult with LB, so LB saw the next available doctor, Dr Gross (the second defendant). The second defendant reviewed LB's medical records and interpreted her results as negative, except for candida. One test result stated: ... specimen status, original report to requesting doctor, ordered by Dr Biedrzycka, collected date 30 March 2004, reported date 5 April 2004. The second defendant carried out no further enquiries and, significantly, did not read the third defendant's notation. The second defendant advised LB that her tests were clear except for the candida swab.

LB had unprotected sexual intercourse with the plaintiff about a week later.

On 12 May 2004, the administrative staff advised the third defendant that there had been no response to the letter sent to LB. The third defendant requested that LB be called on her number supplied in 1999, which was unsuccessful. A further letter was sent to the same address, and was again not responded to.

On 13 May 2004, the administrative staff advised the third defendant that the telephone number in LB's records was incorrect. The third defendant then made various enquiries through the Sydney Hospital Sexual Health Clinic, successfully making contact with LB's father, and eventually LB was retested for the HIV virus.

LB tested positive.

The duty of care owed by the administrative staff

Latham J ultimately found that the administrative staff did owe a duty of care to the plaintiff that consisted, in part, of the requirement to maintain current and accurate records that ensured effective and timely contact with its patients when the need arose, particularly when a pathology sample had been taken.¹

His Honour took into account the following.

1. The potential widespread nature of the harm, recognised in the statutory scheme
   
   His Honour referred to the terms of the Public Health Act 1991 (NSW) imposing strict notification and treatment obligations for Category 3 and Category 5 medical conditions². His Honour also referred to Division 4 and Division 6 of the legislation, which impinges on the privacy and free conduct of the HIV patient in the interests of maintaining public health³, and noted that the effective exercise of these powers rely upon the integrity of the records relating to the patient's name and address kept by the medical practice.
2. The foreseeability of harm to others who came into sexual contact with LB.
   
   His Honour observed that the policies and procedures reflected an awareness of the importance of maintaining accurate and current patient records and awareness of the risk to members of the public posed by a patient engaging in unprotected sexual intercourse, who was ignorant of their medical condition.
3. The fourth defendant was in the business of providing health care and had constructive knowledge that the harm that would result from failure to promptly notify a patient of a serious medical condition.
   
   It was acknowledged that the fourth defendant might not have actual knowledge of the reason behind the pathology request, however the fourth defendant was held to have constructive knowledge of the risk, making it a foreseeable risk under s 5B(1)(c) Civil Liability Act 2002 (NSW).
4. The risk could have been avoided or minimised by compliance with procedures formed to address this risk.
   
   His Honour made this finding on the evidence adduced during the hearing.

Summary of non-compliant administrative practices at the relevant time

Latham J identified the following non-compliant practices by administrative staff in the medical practice conducted by the fourth defendant:

1. Non-compliance with practices in the Reception Training Manual
2. Failure to carry out duties conveyed in the company job descriptions
3. Failure to carry out duties conveyed in administrative agreements
4. Non-compliance with policies and procedures in the Policy and Procedure Manual (PMM)
5. Failure to maintain a 'Recall Register'.

Latham J reviewed the fourth defendant's Reception Training Manual, which instructs the fourth defendant's reception staff to ask a number of questions, including⁴

1. whether the patient had attended the centre before;
2. confirmation of the patient's address and telephone number; and
3. if the patient is not willing to repeat their address and phone number, request the patient to instead complete a patient information sheet.

On the evidence, the job description for the position of receptionist included: ...maintain[ing] accurate patient computer records, including updating and modifying existing records.⁵ Latham J also reviewed the fourth defendant's PMM, which instructed the staff member where a sample of blood is requested by a treating doctor to: ...ensure that all the patient details are written and legible on the request form, and mandated that: ... the patient...identify themselves to you by stating their name, date of birth, address and phone number.⁶

The fourth defendant's PPM also referred to a Recall Register, to be kept at the front desk. In the event that a doctor asks a member of staff to recall a patient urgently, the PPM provided that on the date of the request the staff member was to enter the patient's name, date of birth and address in the Register then attempt to phone the patient to request attendance. If the patient was not contactable, a recall letter was to be sent and the attempts noted in the Register.⁷ Administrative staff were to check the Register each Saturday morning and attend to any non-completed entries⁸. In the event that there were three recall letters to the patient that were not responded to, the administrative staff were to contact the electoral office to establish a correct address.⁹

At no stage after LB's details were initially collected were they updated or confirmed. In addiction, there was no Recall Register kept at the front desk of the practice.¹⁰

The arguments against a duty of care being imposed

Counsel for the fourth defendant argued that imposing such a duty of care would expose the fourth defendant to a duty of care to an indeterminate number of people with whom the patient may have contact¹¹.

This was rejected by Latham J, who viewed the duty of care as being a duty to adhere to procedures to confirm with the patient their current address of the taking of a pathology sample, so that the transmission of an infectious disease by a patient might be prevented or minimised¹².

Counsel for the fourth defendant also argued that LB was not vulnerable as in cross-examination it was revealed that she knew it was her responsibility to return to the medical centre to receive the test results and did not volunteer her address. This was dismissed because the question of vulnerability was one in relation to the plaintiff, not the patient, and the plaintiff was unable to take steps to protect himself as he and LB were not aware of LB's medical condition.¹³

Establishing causation

The primary causation issue was s 5D(1)(a) Civil Liability Act 2002 (NSW), which required the second and third defendants to establish that it was more probable than not that, but for the failure on the part of the fourth defendant to keep current and accurate records of LB's address, the transmission of the HIV virus to the plaintiff would not have occurred.¹⁴

Latham J held that it was more probable than not that LB's attendance at the medical practice after 5 April 2004 would have alerted the treating doctor as to the unresolved nature of the HIV test results, which would have resulted in LB being counselled against engaging in unprotected sexual intercourse until the results of a further test were available, which would have resulted in the plaintiff not contracting HIV.¹⁵

A doctor's negligence did not break the chain of causation

As LB had returned to the medical practice and consulted with the second defendant, counsel for the fourth defendant argued that the second defendant's negligence in failing to review all of LB's test results was an intervening act that made LB's ignorance of the contents of the recall letter irrelevant.¹⁶

Latham J held that this case, as was the case in Elayoubi v Zipser¹⁷, could be analysed by considering independent acts of negligence, each of which gave rise to a risk that did in fact materialise.¹⁸ Applying the 'but for' test, Latham J held that if either the second or fourth defendant were not negligent, in both cases the risk would not have materialised. Because receipt of the recall letter would have averted the risk of an incomplete consideration of LB's patient history, the fourth defendant's negligence was a necessary condition of the harm materialising.¹⁹

The administration company could not seek indemnity for their negligence from the doctors

Counsel for the fourth defendant attempted to seek indemnity from the doctors pursuant to a 'Performance Guarantee' entered into by the second defendant and 'Provision of Services to Medical Practitioner' agreement entered into by the third defendant.

The former clause read:

7.1 As between the Company on the one hand and the IMP and Doctor on the other hand, the IMP and the Doctor are jointly liable for, and by this Deed indemnify the Company against, any liability whatever arising from the Doctor rendering medical services as a consequence of IMP being a party to this Deed or otherwise in connection with this Deed or other acts or failure to act on the part of the Doctor or the IMP, whether of a medical service nature of otherwise.

The latter clause read:

7.1 The Doctor is liable for, and by this Deed indemnifies the Company against, any liability whatever arising from the Doctor rendering medical services pursuant to or in connection with this Deed or other acts or failure to act on the part of the Doctor, whether of a medical service nature or otherwise.

Counsel asserted that these provisions compelled the doctors to indemnify the fourth defendant, not only for their negligence but also for liability arising from the fourth defendant's negligence.

This was rejected by Latham J. His Honour noted that each doctor sold their medical practice to the fourth defendant in the latter years of their extensive careers, and a prevalent motivation for that sale would be to limit their negligence to their own acts, rather than being liable for the acts of their staff members who carried out administrative duties. Latham J referred to ^{Franklins Pty Ltd v Metcash Trading Ltd20} as authority against accepting the interpretation submitted by the fourth defendant²¹, and dismissed the interpretation as irreconcilable with the intentions of a reasonable person contracting under the agreement²².

Contribution: competing breaches of contract between doctors and administrative staff

The fourth defendant sought damages for breach of the service contracts between it and the second and third dependants on the basis that, if successful, the amount of the damages was equal to the amount it would be required to pay by way of contribution for its negligence and any costs.

The argument was successful, however the third defendants' counter-argument that the fourth defendant also breached their agreement with them and that those breaches had contributed to the plaintiff's loss was also successful. As a result, the claims cancelled out and the fourth defendant could not avoid paying damages to the third defendant.²³

The second defendant also counter-argued breach of contract, however, this was unsuccessful as the contractual agreement in question was between his company vehicle and the fourth defendant. This meant that the second defendant as an individual could not recover against the fourth defendant for breach of the service agreement.²⁴

Message to medical practices and practitioners: is your administration sufficient?

The factual circumstances of this plaintiff's loss exemplify the importance of maintaining accurate medical records, including ensuring that administrative data is correctly recorded and its currency confirmed, for the well-being of patients as well as the health of the general public.

Medical administrative staff who fail to comply with policy and procedure relating to maintenance of accurate medical records may be found to have breached their duty of care not only towards a patient but also to a member of the community that has been adversely affected. It is important that this duty of care extend to members of the community, as a failure to maintain accurate medical records of a patient can have life-altering health implications to a third party, as tragically experienced by the plaintiff in this case.

It would be prudent for medical practitioners and medical practice managers to review existing policies and procedures relating to the collection and maintenance of medical records, and consider whether they are adequate. However, it is not enough to have relevant policies and procedures. These must be implemented and monitored. For this reason, an effective system of monitoring compliance may assist in avoiding medical negligence due to inadequate record-keeping.

This case is also a reminder of the importance of being clear on how it is intended that risk will be distributed in the event of materialisation and that any agreement provides, as best can be done, for the intentions of the parties, including any indemnity that might be granted, to be relied upon in the event of materialisation of a subject risk.

Footnotes

¹ [2011] NSWSC 1213 at 49.
² An HIV virus falls under both categories.
³ Division 4 compels a medical practitioner to supply the name and address of the HIV patient to the Director General, where the Director General has obtained an order from the District Court on the grounds that the identification of the person is necessary to safeguard the health of the public; and Division 6 relates to compulsory testing of the HIV patient and the making of public health orders to prohibit the patient from engaging the specified conduct that might have health implications to others.
⁴ [2011] NSWSC 1213 at 31.
⁵ [2011] NSWSC 1213 at 32.
⁶ [2011] NSWSC 1213 at 37.
⁷ [2011] NSWSC 1213 at 38.
⁸ [2011] NSWSC 1213 at 39.
⁹ [2011] NSWSC 1213 at 39.
¹⁰ [2011] NSWSC 1213 at 40.
¹¹ [2011] NSWSC 1213 at 43.
¹² [2011] NSWSC 1213 at 45.
¹³ [2011] NSWSC 1213 at 47.
¹⁴ [2011] NSWSC 1213 at 59.
¹⁵ [2011] NSWSC 1213 at 59.
¹⁶ [2011] NSWSC 1213 at 60.
¹⁷ [2008] NSWCA 335.
¹⁸ [2011] NSWSC 1213 at 61.
¹⁹ [2011] NSWSC 1213 at 63.
²⁰ [2009] NSWCA 407.
²¹ [2011] NSWSC 1213 at 80.
²² [2011] NSWSC 1213 at 79.
²³ [2011] NSWSC 1213 at 123.
²⁴ [2011] NSWSC 1213 at 122.

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.