The expert evidence
30 Expert evidence was given for Mr El Khoury by Dr Masson, Mr El Khoury's hand surgeon. Apart from evidence concerning the injury and the attempts made to surgically repair the damaged tendon, which has been summarised above, Dr Masson also gave evidence on the severity of the injury, its effect on Mr El Khoury's ability to play football, on pain reported by him and on a number of issues of medical practice.
31 Dr Masson gave evidence that Mr El Khoury's grip strength was "near normal". The left hand was "very functional" and any restrictions caused by the injury were not great. In relation to pain reported by Mr El Khoury Dr Masson said that "it is conceivable that there may have been some pain going up to the elbow" but he could not account for pain in the middle and ring fingers, neither of which were injured. He said, "It doesn't make sense to me, anatomically or physiologically."
32 Dr Masson also reported that the type of injury suffered by Mr El Khoury is not uncommon for people playing contact sport. He said that "there are many footballers playing without a flexor tendon in their fingers and functioning well". He did not think that the injury would be a significant problem for a footballer, whether it occurred on the dominant hand or not. Nothing about the injury prevented the plaintiff from playing football in his opinion.
33 Dr Masson agreed in cross-examination that the X-ray report had not mentioned or referred to an avulsion fracture of the distal phalanx of Mr El Khoury's injured finger and that it could be difficult to identify such a fracture from the film. He agreed with the suggestion that the primary task of a General Practitioner in a case such as Mr El Khoury's was to refer the patient immediately to a hand surgeon for assessment and treatment. In his opinion, part of the GP's task was to impress upon the patient the urgency of seeking specialist attention and part was to arrange the referral itself. He said, "I think that patient care extends… to a level of care where if [the GP] believes that patient has a sufficiently difficult problem they should ensure that the patient gets to see someone. If the patient then takes it upon himself not to follow up on that referral, I think that's the patient's decision…"
34 In his view, a proper referral consisted in more than simply advising a patient to go to hospital to seek treatment; it meant writing a letter of referral and telephoning the hospital to advise it that a patient was being sent with a nominated problem. He conceded, however, that there was a distinction to be made between a patient suffering an acute injury and one requiring an investigation to determine whether they have a condition.
35 He also agreed that it would have been reasonable to have place a splint on Mr El Khoury's finger to maintain the injured finger in one position on his way to hospital.
36 Dr Norman Walsh, who is a Fellow of the Royal Australian College of General Practitioners, gave expert evidence for the defendant.
37 In relation to whether there is some professional expectation or requirement that a GP follow up a patient who had been referred for treatment to a hospital, he gave evidence that in his experience hospitals perform and arrange all patient follow-up themselves. In his opinion, it would only be in unusual circumstances that a GP would become involved in the follow-up to an orthopaedic procedure carried out in a hospital. He said that if a GP were to be involved in the follow-up that would ordinarily be the decision of the treating orthopaedic surgeon or registrar.
38 He agreed with Dr Masson that a patient presenting with the type of injury seen by Dr Lee ought to have been urgently referred to a hospital or specialist hand surgeon because of the possibility of irreparable damage if treatment was delayed. He also agreed that it would be general practice to splint such an injury en route to hospital. He said that he would have been critical of Dr Lee had Dr Lee not referred Mr El Khoury for specialist treatment of the hand injury.
39 In relation to whether Dr Lee ought to have written a letter of referral and telephoned the hospital to warn it that Mr El Khoury was on his way, he said that he believed it is "ideal practice" to write a letter but that "when the need for hospital attendance is absolutely straightforward" and the patient is able to give the history directly "it could be argued that a referral was to some extent redundant". He thought that a substantial number of GPs would not have written a letter of referral "in such an acute situation where… the injury was so straightforward it needed intensive treatment." He conceded that hospitals prefer GPs to telephone when sending patients for treatment but, on the other hand, he thought that where an injury "spoke for itself" it might not necessarily be done.
40 He also was of the view that, once the patient had been referred to a hospital for intensive treatment, no obligation lay upon the GP to follow up the patient or to inquire whether or not the patient had attended the hospital. In his view, the duty of the GP was to ensure that patient was properly advised of the necessity to seek urgent treatment from a specialist.
Findings of fact and conclusions
41 In his evidence-in-chief Dr Lee said that he had told Mr El Khoury that he should go to hospital because he had a fractured finger and that it was not his practice "to treat an acute fracture like that." In cross-examination he expanded on this evidence. He said that he had advised Mr El Khoury to hospital urgently. He said that he had explained to Mr El Khoury that it was important for him to see a hand surgeon urgently at the hospital. He said that he had explained to Mr El Khoury that, because it was a Sunday, it was necessary for him to go to hospital to see a hand surgeon because there was no hand surgeon available other than at the hospital. He said, "… because if he didn't get the treatment quickly he may get a number of nasty complications, that's what explanation is all about."
42 By this evidence Dr Lee implies, if he does not say so in terms, that he gave Mr El Khoury a clear explanation that, if he did not attend the hospital and see a hand surgeon, dire consequences could follow. It was so important an issue and, if Dr Lee's evidence is accepted, the advice was so clear and emphatic, that only a complete fool would have failed to attend the hospital and sought the urgent advice of a hand surgeon. Notwithstanding my reservations about Mr El Khoury, he did not appear to be a fool. Moreover, he was a keen rugby league player and it seems to me to be unlikely that he would have ignored clear advice that he had a serious injury which needed urgent treatment and which may develop "nasty complications" if not seen to immediately.
43 While the injury may have "spoken for itself" to doctors, it evidently did not to Mr El Khoury. In my opinion, it is more likely than not that Dr Lee either did not advise Mr El Khoury to seek urgent treatment from a hand surgeon at Concord Hospital, or, if he did, the advice and explanation given to Mr El Khoury was inadequate to convey to Mr El Khoury the seriousness of the nature of the injury, the types of possible complications which might flow if the hand was not urgently seen to by a hand specialist and the critical point that time was or may have been of the essence in having the injury treated if a tendon had been damaged.
44 It seems unlikely that a letter of referral was written to the hospital by Dr Lee and or that he telephoned. While I accept Dr Walsh's evidence that, if the situation is made clear to a patient and the doctor is satisfied the patient understands the urgency of seeking specialist attention it is not necessary that a letter of referral be written, or that a telephone call be made, it is obvious that if a doctor writes a short note of referral and gives it to a patient, this, in itself, is a means by which a doctor can emphasise to a patient that the doctor's advice is to see the specialist to whom the patient is referred. Similarly, if in the course of a consultation a doctor telephones a hospital and alerts it that he or she is referring the patient, and this is done in the patient's presence or the doctor informs the patient that he or she has done so, this serves to emphasise to the patient the urgency of the situation.
45 The general nature of a treating doctor's duty of care is well-established. The standard of care to be applied in this case was laid down in Rogers v Whittaker (1992) 175 CLR 479 and was more recently considered in Naxalis v Western Suburbs General Hospital. (1999) HCA 22. In that case McHugh J stated (at para 47):
In Rogers v Whitaker this Court rejected the Bolam test and held that a finding of medical negligence may be made even though the conduct of the defendant was in accord with a practice accepted at the time as proper by a responsible body of medical opinion. To many doctors, judges and lawyers, it must seem unsatisfactory that a doctor can be condemned as negligent by a jury when he or she has acted in accordance with a respectable body of medical opinion. But as long as there is evidence that other respectable practitioners would have taken a different view concerning what should have been done by the defendant, the issue is one for the jury, provided of course the evidence is reasonably capable of supporting all the elements of a cause of action in negligence.
46 Kirby J (at para 81) said:
In Rogers v Whitaker, this Court pointed out that the standard of care owed by persons possessing special skills is not determined "solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade." (1992) 175 CLR 479 at 487. The decision in Rogers v Whitaker amounted to a rejection of the so-called Bolam principle (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118). In Sidaway v Governors of Bethlehem Royal Hospital [1985] AC 871 at 881, the Bolam principle was stated by Lord Scarman in the following terms: "The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice." Instead, whilst evidence of acceptable medical practice is a useful guide for the courts in adjudicating on the appropriate standard of care, the standard to be applied is nonetheless that of the "ordinary skilled person exercising and professing to have that special skill." (1992) 175 CLR 479 at 487.
47 If Dr Lee's evidence were accepted, it appears to me that it would be difficult to make a finding that he had breached the duty of care imposed upon him. The evidence of Drs Masson and Walsh was largely consistent on that point. Dr Masson placed greater emphasis on the desirability of writing a letter of referral and telephoning the hospital to notify it of the impending arrival of Mr El Khoury and to alert it to the general nature of the injury. Dr Walsh did not contradict that evidence in terms but qualified to some degree. On the basis of that evidence, I do not think that there is a general standard of practice in relation to referrals which applies in virtually all circumstances. Whether a failure to follow those desirable practices will constitute a breach of the duty of care will depend on all the circumstances peculiar to the case. In this case, I would not be satisfied that Dr Lee had breached his duty of care if his alleged breach had consisted only in failing to write a referral letter or to telephone the hospital. That would set the standard unreasonably and unrealistically high if reference is made to the general standards of GPs. Whether a failure to write a referral letter or to telephone a hospital with depend on the all the circumstances. In this particular case, I would accept Dr Walsh's assessment that it was, in effect, desirable rather than necessary that a letter be written or a telephone call be made.
48 Dr Lee's case is that his duty consisted in examining Mr El Khoury, giving him first aid and referring him urgently for specialist treatment. The expert evidence called for both parties is consistent with this. This implied a further duty to ensure that the patient understood clearly that the injury was significant and, if not urgently treated, could result in significant impairment of the function of the finger. Dr Walsh's evidence was very clear on this point. It was, in my opinion, not only incumbent on Dr Lee to tell Mr El Khoury to go to hospital but to ensure that Mr El Khoury knew why he should do so urgently and to convey to him the possible risks of ignoring the advice. The critical function of the GP was to convey the required message to the patient himself and not so much notifying the hospital or writing a referral letter.
49 Even if Dr Lee's notes are accepted as genuinely contemporaneous, they do not record the nature of the explanation and advice Dr Lee claims he gave Mr El Khoury. And it was obvious during the course of the evidence that Dr Lee was merely reconstructing his evidence on that point. I suspect that magistrates and judges, who also deal with large volumes of persons, and most of whom do not recall the fine details of all the cases they see over the years, would have a very similar experience as Dr Lee if put to the test. Thus I emphasise that when I say that I believe that Dr Lee is largely reconstructing his evidence it is not meant to convey a belief that he is intending to lie or deliberately mislead the Court; it is a comment about the fallibility of human memory. (The reliability of the notes, however, is another question.)
50 I believe that Mr El Khoury also reconstructed his evidence to some degree but probably to a lesser degree than did Dr Lee if for no other reason that he had a deep personal interest in his finger, the advice he received and the treatment he was given. Dr Lee is a busy GP who, no doubt, tries as hard as possible to remain objective and disinterested in making his assessments of a patient. Mr El Khoury was not a regular patient of his and there was no special reason for Dr Lee to have made an particular mental note of his encounter with Mr El Khoury. In Mr El Khoury's case, the question is not so much whether is honestly reconstructing his evidence but whether he is fabricating it for monetary gain.
51 I am hesitant to accept Mr El Khoury's version that he was merely told by Dr Lee that he was suffering from a fracture and that he would be back playing rugby league in a month's time, and that the only advice he had received had been at his own prompting of Dr Lee. What he reported may well have been part of what he was told by Dr Lee but it is difficult to believe that this was all he was told. Ms Totino's evidence does not really assist in this regard, her statement having been made years after the events in question. While her evidence is relevant, it is also probably a reconstruction to some degree. In my opinion, however, Dr Lee exaggerated the strength and clarity of the advice he claimed to have given Mr El Khoury.
52 Having considered the possibilities open on the evidence, and while granting there are obvious difficulties in making such a finding of fact, because this is a case of word against word, it seems to me that Dr Lee may have given some advice to Mr El Khoury but did not convey to him adequately the necessity of urgently seeking specialist attention because he faced the real prospect of significant, permanent impairment to his little finger if he did not and did not check to confirm that Mr El Khoury understood the advice given to him and the consequences of not heeding it. Although a failure to properly advise, by which I mean also a failure to ensure that the patient understood the advice given, is not specifically particularised in the plaintiff's statement of claim, it was, I think, implicit in the plaintiff's case as pleaded and as presented. The case presented by the defendant was that the advice had been given strongly in clear terms. I do not think that the failure to particularise this point in terms prejudices the defendant in any way.
53 I think that it is implausible that any rational person advised in the fashion Dr Lee claims Mr El Khoury was would then have waited four weeks, with his or her finger in a splint, before seeking specialist treatment. There is no question that Mr El Khoury is a rational person. It is possible that Dr Lee believed at the time that he had adequately conveyed the message he needed to get across to Mr El Khoury but, in my opinion, the weight of evidence demonstrates that he did not. It follows, therefore, that Dr Lee breached his duty of care to Mr El Khoury.
54 In the light of this finding, it is unnecessary to consider whether that duty of care may have been breached in other ways.