Articles and Case Studies

Duty to Follow Up Revisited by the Courts

22 Feb 2013

by Allyson Alker

In October 2012, the case of Grinham v Tabro Meats Pty Ltd & Anor; Victorian WorkCover Authority v Murray [2012] VSC 491 was heard in the Victorian Supreme Court. The decision provides some clarification on the legal duty of medical practitioners to follow up patients.

Case history

Between 2002 and 2006, Stephen Grinham was employed in an abattoir owned by Tabro Meats Pty Ltd. In 2002, he presented to Dr Murray, a GP, for testing and immunisation for Q fever, which can occur in people who work in close contact with animal faeces, urine, blood, pregnancy fluids or inhalation of dust particles from abattoirs. The results of the tests were inconclusive in that blood testing indicated Mr Grinham was low positive for Q fever, even though skin testing indicated he was negative. Following review of these results, Dr Murray provided Mr Grinham with a pathology request form, advised him he could not be vaccinated at that time and requested he return to the practice after having the Q fever blood test repeated in one month's time. Mr Grinham did not re-present to the practice and he subsequently contracted Q fever in 2006.

Medico-legal issues

Mr Grinham sought damages from his employer (this was settled part way through the trial) and Dr Murray, alleging that she was negligent in failing to provide adequate and appropriate advice on the seriousness of his situation and had failed to recall him when he did not re-present the following month or have further testing done as requested. The Victorian Workcover Authority and the employer sought reimbursement from Dr Murray of money paid to Mr Grinham alleging she had breached her duty of care to the patient.

The Court held that Dr Murray's actions were reasonable and that her failure to follow up was not negligent, nor did she breach her duty of care to him. The Court considered that Dr Murray could have implemented a follow up system, however found her actions in this case to be reasonable on the basis that:

(a) the patient was cognisant of the advice given to him by the GP

(b) there was nothing to suggest that the patient would not attend for the recommended blood test and present for a further doctor's appointment

(c) there was nothing to suggest that the patient was suffering from a life threatening illness at the consultation

(d) the patient knew that he was still at risk of contracting Q fever, and that "it was his (not Dr Murray's) decision not to undergo further testing and to not make an appointment to return for further advice and treatment".

The Court accepted evidence from other general practitioners that Dr Murray's actions were consistent with practice at the time and that each one would most likely have acted accordingly.
In determining whether follow up is required, a medical practitioner may need to consider and evaluate the specific factors for each patient. For example, if there are possible life threatening implications or consequences of not attending the test, and whether there are any cognitive or language impairments of the patient which can prevent their understanding of the possible risks.


Were Dr Murray's actions appropriate?

It was alleged that Dr Murray had failed to provide appropriate information to Mr Grinham so that he was fully cognisant of the risks of contracting Q fever and that she had a duty to recall Mr Grinham given the seriousness of the situation when he failed to re-attend.

As initial testing was inconclusive, further testing was indicated and immunisation could have placed Mr Grinham at risk of a severe vaccine reaction. Expert evidence presented at trial indicated that Dr Murray had acted appropriately in ordering re-testing in one month after the initial test in May 2002.

One GP expert stated that given Mr Grinham's type of employment and the risk posed to him, a recall system would have been prudent. Further, the expert also stated that the doctor was entitled to make an assessment of the reliability of the patient to attend for follow up. Dr Murray gave evidence that she considered Mr Grinham would have further testing done and attend for follow up.

It is widely accepted at common law and in legislation that the duty owed by a medical practitioner to the patient is assessed on the basis of reasonable skill and care, but also the standards as practised by the practitioner's peers at the time the service was provided. Critically in this case, most experts agreed that it was very unlikely in 2002 that any medical practice had a consistent system for recalling patients.

Risk management

The benefit of good clinical notes

Dr Murray's medical records included notes on her discussions with the patient, with her supervisor at the practice, with the Health Department about vaccination in view of the inconclusive tests, information given to Mr Grinham about Q fever and a further pathology request.

Mr Grinham however stated he could not accurately recall the consultations and denied having received the pathology request form. He gave evidence at the hearing that he would definitely have attended for re-testing had he been given a request form.

Given the consistency between both Dr Murray and her supervisor's evidence and the detailed medical records, their evidence was accepted by the Court where Mr Grinham's was not.

An effective recall system

In 2011 – 2012, 41% of risk management recommendations made to MDA National Members were concerned with systems issues.1 This category includes recall and patient follow up.

The recommendations made are generally designed to assist medical practitioners to set up and maintain a recall system.

Summary Points

From a risk management perspective, this Court decision highlights a number of key points:

  • Good medical records are essential.
  • All medical practices should have an effective recall system in place.
  • The system needs to take into consideration individual patient circumstances.

In essence, any medical practice should:

  • have a simple yet effective system that allows tracking of test results for patients of concern, which includes routine review to alert practitioners of any test results which have not been received over a period of time
  • have clear understanding of the roles each practice staff member takes in the test tracking and recall system (for example, once the doctor reviews the test result and marks the patient for recall, who is to contact the patient to book a follow up appointment)
  • expand the test tracking and recall system to include factors reflective of an individual patient's condition, the reason for the investigation or referral, the patient's history of compliance / non-compliance and their level of understanding.

By Allyson Alker, Risk Adviser, MDA National

Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Practice Manager Or Owner, Psychiatry, Radiology, Sports Medicine, Surgery


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