The tragic experience of a woman who unwittingly infected her partner has forced the medical giant Primary Health Care to defend its role in patient care, writes Natasha Wallace.
IT WAS a chain of small errors at a Bondi Junction medical centre, but with tragic consequences.
A female patient had an inconclusive HIV test but never received an urgent recall letter because it was sent to an old address. She was later wrongly told she had the all-clear by a doctor at the centre, who was unaware of the test, and then had unprotected sex with her partner while menstruating and infected him.
Now, six years on, a court battle is under way between two of the doctors who saw her and the corporate giant, Primary Health Care, over ultimate responsibility.
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The case in the NSW Supreme Court will set a precedent for whether such seven-day operations act merely as ”landlords” providing back-office support with no duty of care to patients – despite having control over their records.
Last year the two doctors, Harry Johnson and Colin gross, admitted liability and agreed to pay the woman’s former partner $745,000 plus $197,500 in court costs.
However, they are now claiming in the NSW Supreme Court that Primary’s company, Idameneo, which runs the centre, was also negligent in failing to update the woman’s records.
Idameneo is vigorously defending the claim, even though both the reception and in-house pathology staff failed to follow Primary’s policy and procedures manual and check the patient’s address. The company is pursuing its own claim, saying it was contractually indemnified by both doctors.
The infected man, who lives in Queensland, said it was ”unreal that a mistake like this is possible”.
”I believe this could have happened in Africa or India, not in Australia,” he told the Herald.
He said the couple are no longer together but the woman had become gravely ill recently.
He believes he became infected due to several errors.
”There was probably some administrative issues, some computer problems. It’s just not one person involved.”
Justice Megan Latham said it was ”surprising” that there had not been similar litigation before, noting Idameneo had attempted to indemnify itself ”for every possible situation under which negligence might arrive”.
Primary, a publicly listed company, is one of two big companies in the country’s seven-day medical centre and pathology market and runs a tight, integrated operation.
Its founder and managing director, Edmund Bateman, has built a fortune on a business model that essentially provides administrative support for doctors in return for an attractive upfront lump sum for their practice. Primary then generally takes a 50 per cent cut of the doctors’ Medicare earnings under a strict, typically five-year, contract. The doctors are engaged as independent contractors, not employees.
The Herald recently revealed that Idameneo had a long history of suing its doctors over contractual disputes and Primary is now threatening to sue the newspaper.
This case will have huge ramifications for the way Primary does business.
It dates back to 2004 when Dr Johnson, the medical director of the Bondi Junction Medical and Dental Centre, failed to contact the patient by phone about her inconclusive HIV result before a recall letter was sent to her for urgent retesting.
Dr Johnson, who is still medical director of the centre, told the court this month that he had ”almost never” had a lunch break since 2002.
When the woman returned three weeks later, Dr gross, who is now retired, wrongly gave her the all-clear, apart from herpes, because he failed to properly check her records. He was thus also unaware of the inconclusive HIV test.
The patient’s original doctor who had ordered the tests, Anna Biedrzycka, could not see her.
The woman and her partner cannot be named legally due to their HIV status.
Idameneo’s barrister, Geoffrey Watson, SC, argued that the failure of Dr gross was the ”critical act of negligence” – not the letter sent to the wrong address – because the patient did not have unprotected sex until about a week after that consultation.
Mr Watson said it was unreasonable to hold the company accountable due to ”a practice generally adopted at Idameneo where somebody would be asked their address and secondly references in some manuals to taking an address”.
But the patient told the court that had she received a recall letter or phone call she would have urgently returned.
The doctors’ barrister, Alan Sullivan, QC, said Dr gross would then also have been made aware of the inconclusive test.
”Then this unfortunate and tragic result would have been averted,” mr Sullivan said.
”So a very sensible system [was] put in place, in its manual, but not implemented. but obviously of fundamental importance to contact the patient or ask the patient for current details for the purposes of enabling a speedy recall,” he said.
”[Idameneo] did owe a duty of care to its patients and to all those people who may be foreseeably injured as a result of dealings with the patients of the practice … the duty of care which was owed was one to maintain adequate and proper contact details for a patient.”
Mr Sullivan said the demise of family GPs made it a complicated case.
The case has been adjourned for judgment.
WHOSE RESPONSIBILITY?
March 30, 2004 Blood taken for HIV test
April 5, 2004 Recall letter sent to wrong address
April 22, 2004 Patient wrongly told all-clear
April/May, 2004 She infects her partner with HIV
May 13, 2004 Patient contacted by phone and told she needed HIV retesting
June 2004 Her partner goes to hospital with flu-like symptoms
July 2009 Doctors Johnson and gross agree to pay $745,000 plus $197,500 court costs to the woman’s partner who has been infected with HIV
November, 2010 Court battle between Idameneo and the doctors over liability