Failure of general practitioner to refer for specialist treatment: Hand injury

Gulab Khan v Matthew Rathjen [2016] NSWDC 139 is a decision published today, arising from treatment and advice sought by the claimant after a hand laceration.

The claimant said that as a result of the attack, he suffered either complete or partial severance of two tendons in his left middle finger. He asserted a failure to properly assess and diagnose those injuries and to refer to either a hand surgeon or to an emergency department of a hospital for review and investigations.

The reasons for judgment include a detailed summary of conclave and concurrent expert evidence.

The Court held that there had been a causative breach of duty and that the peer opinion defence was not made out. In relation to the peer opinion defence, brief reference was made at [272] to McKenna v Hunter & New England Local Health District [2013] NSWCA 476, Macfarlan JA, (Beazley P agreeing) where it was said that to establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with the practice was in existence at the time the medical service was provided and, secondly, to establish that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice.

Leave for late service of a report was addressed in a separate judgment.

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