A patient who developed chronic kidney disease and who successfully sued his GP for failing to refer to specialist treatment earlier, has had his judgment overturned on appeal, with the Supreme Court of New South Wales Court of Appeal finding that breach of duty of care and causation could not be established.
Sam Elysee had a complex medical history and was a patient at Bankstown Medical Centre over a 10-year period. During that time, he was diagnosed with diabetes, high blood pressure and also suffered from poor renal function. In April 2012, Dr Ngo referred Mr Elysee for a CT scan, after which Dr Ngo diagnosed the possibility of chronic renal disease and referred Mr Elysee to the emergency department at Liverpool Hospital. Mr Elysee was subsequently referred to a specialist who diagnosed Stage III kidney disease.
Mr Elysee commenced proceedings in the District Court of New South Wales against seven general practitioners including Dr Ngo, in negligence and claimed damages. He alleged that the doctors failed to monitor and manage his various conditions or refer him for earlier specialist treatment, and that he developed his chronic kidney disease (and other conditions) as a result of the alleged negligence. After an expert conclave, the majority of the allegations were abandoned and the matter proceeded to hearing as against Dr Ngo only.
The primary judge found that Dr Ngo was negligent in failing to refer Mr Elysee for specialist medical treatment when the test results indicated that such a course was required, and that Mr Elysee’s condition could have been delayed had he been referred to a renal physician. Further, had that occurred, Mr Elysee may have been able to postpone dialysis for approximately two years.  His Honour found in favour of Mr Elysee and awarded damages in the total sum of $209,700.
Dr Ngo appealed the primary judge’s findings. He argued that the primary judge erred in his findings as to breach of duty of care and causation.
The court found that each of the findings by the primary judge is unsustainable and Mr Elysee cannot establish causation of any damage. Further, that it is a case in which the appellate court is in a position to resolve the disputed issues of fact without remitting the matter for a new trial.  The evidence did not support the conclusion that it was negligent of Dr Ngo not to refer Mr Elysee to a renal specialist on the strength of the creatinine and eGFR results of 16 April 2009. Further, Dr Ngo had demonstrated that, even if a breach of duty of care could be established (which may be doubted), Mr Elysee cannot prove causation of any loss. 
Accordingly, the court upheld Dr Ngo’s appeal and dismissed Mr Elysee’s claim.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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