Mrs A suffered with depression and was seeing her GP, Dr P. During a consultation to review the efficacy of her lofepramine, Mrs A mentioned that she’d had a lump on the side of her face for a long time. Dr P examined Mrs A’s face and noted the presence of a mobile, 1 cm diameter lump over the left mandible.
Dr P intended to refer Mrs A to her local oral surgery service for advice. Unfortunately, she forgot to dictate the referral letter at the end of the surgery. Dr P’s normal practice was to tell patients to contact her if they had not heard about a referral once a month had passed. Mrs A had several further appointments at the surgery over the next few weeks, but failed to attend any of them.
She eventually came to see Dr P to discuss other matters, four months after the first consultation about the lump. The lump, and its assessment by the oral surgeons, didn’t come up in the consultation.
A month later, Mrs A was at the surgery again and saw Dr C. She mentioned that she’d heard nothing from the oral surgeons. Dr C left Mrs A’s notes out for Dr P, with a note explaining the lack of an oral surgical opinion. Dr P realised her error and dictated the referral shortly after. Mrs A was seen by the oral surgeon, Mr Q, within two weeks.
The lump was duly excised and a tissue diagnosis of acinic carcinoma made. This required further surgery, somewhat radical, involving bone grafting from the hip. Unfortunately this graft became infected, causing significant pain and disfigurement to Mrs A and necessitating further surgery.
Mrs A issued a legal action against Dr P, alleging negligence for failing to make a timely referral. It was obvious that Dr P was liable for her error in failing to refer Mrs A, and on this basis we made a small payment into court to cover Mrs A’s claim for five months of pain and suffering.
However, expert maxillofacial-surgical advice was that this rare tumour was low grade and unlikely to have grown significantly in the period between its detection and excision. It was considered that the delay wouldn’t have materially affected the treatment given, or the outcome. As much of the misfortune suffered by Mrs A was due to the postoperative infection, we argued that causation was not established.
There was conflicting expert opinion that, although the delay probably didn’t affect survival, it may have worsened morbidity. This was due to a purported need for more extensive extra-oral (rather than intra-oral) surgery and an increased chance of the complications that ensued. We conceded this point and increased our offered payment to the client, but the offer was refused.
The case proceeded to trial, where Mr Q testified that, in his opinion, the delay had not affected his approach to the surgery, or the outcome for Mrs A. The judgment went against Mrs A, who received our original offer, but was not able to recoup legal costs, due to her rejection of a reasonable offer of compensation for her pain and suffering.
- It’s an easy and understandable mistake for a busy doctor to forget to complete an intended specialist referral, due to pressure of time. Such an omission can have serious consequences for both patient and doctor. Keeping a record of intended referrals during a surgery could help to prevent such omissions.
- This case demonstrates the important difference between liability – a breach of a duty of care – and causation, i.e. any injury suffered by the claimant as a result of the breach of duty. Both of these must be established for a claimant to be eligible for compensation.