In CS v Biedrzycka [2011] NSWSC 1213, a woman attended a medical centre and requested HIV and other tests during 2004. Her HIV results were indeterminate (inconclusive) suggesting she may have HIV. Instead of telephoning the patient to arrange urgent follow-up tests, the medical centre sent her a letter recalling her for testing. The medical centre had not maintained the correct address for the patient, and so this letter was sent to an old address.
Some 3 weeks later, the woman returned to the medical centre of her own accord and saw a different medical practitioner. That medical practitioner failed to properly check her file and told her that her results were all clear (except for candida). Some 3 weeks after that, the medical centre contacted the woman by phone to tell her to come in for further tests. In the interim, the woman had unprotected sex with her partner and HIV was transmitted to the partner.
The woman’s (then former) partner initiated legal action against the director of the medical centre and the second treating medical practitioner, who admitted liability before the Supreme Court of New South Wales and agreed to pay damages and costs.
In 2011, the treating medical practitioners were successful in a cross-claim against the company that managed the clinic. They argued that they provided medical services, but the company ran the clinic, which included employing administrative staff responsible for maintaining patient records and implementing procedures for recalling patients. It was undisputed that the company had full ownership and control of patient records. The company’s Reception Training Manual, Policy and Procedures Manual and Treatment Room Policy (pathology collection) all emphasised the importance of keeping and maintaining current patient records, particularly when blood tests were carried out – yet neither the receptionist, nor the health practitioner taking the blood test had confirmed the patient’s current contact details.
The Supreme Court of New South Wales agreed that the company should share liability and that consequently the company should pay 40% of the damages.
That decision was upheld by the New South Wales Court of Appeal in late 2012 (see the decision here).
Although not critical to the case, the judgment considered the medical practitioner’s efforts to locate the patient once the error had been realised. This suggests that courts may expect significant efforts to be made in similar circumstances. The judgment describes the medical practitioner’s process of trying to obtain the patient’s telephone number using directory assistance, making numerous calls to a specialist sexual health clinic, and contacting the Department of Health as ‘not particularly impressive’. It stated:
‘there was no attempt to check relevant surnames in the telephone book, not only to locate [the patient], but a family member, no attempt to check the Electoral Roll and no attempt to locate [the patient] or a family member through the police service … I am satisfied that much more could and should have been done’.
