Most medical negligence claims involving GPs arise from single missed opportunities or inactions rather than multiple consultations or deliberate actions.

Most commonly, they involve missed opportunities for diagnosis through investigation, referral, or recall within an increasingly pressured healthcare system.

As a medical negligence lawyer, I’ve seen how these situations unfold. While every case is different, there are recurring themes. Understanding those themes may help reduce medico-legal risk while also supporting better patient outcomes.

Does a poor treatment outcome mean negligence?

The short answer is no.

To be successful in a medical negligence claim, an injured patient (known as a plaintiff) must prove various key elements, but importantly they must prove that:

1. There was a breach of that duty of care (i.e. the medical treatment, management or advice fell below the standard reasonably expected in the circumstances); and

2. There was harm caused by that breach (known as ‘causation’, or alternatively, the ‘but for’ test – i.e. but for the negligence, the outcome would have been different.

Independent medico-legal experts provide evidence to prove or defend these two elements.

Medicine is inherently uncertain. Even where appropriate care is provided, some patients will unfortunately experience poor outcomes. This is not negligent care. Even if a poor outcome was suffered, it is difficult for a plaintiff to prove negligence, as GPs and health professionals have many possible defences available to them, depending on which state or territory they practice medicine in. In many states in Australia, there is an inherent risk defence (where there is no liability for the materialisation of an inherent risk) and a peer professional opinion defence (where there is no liability if the health professional acted in accordance with what was widely accepted in Australia by peer professional opinion as competent professional practice at the time).

The most common circumstances that give rise to claims

Medical negligence claims involving GPs most commonly arise from the GP causing a delay in diagnosing a condition, disease or illness. As a result, the delay has caused the condition, disease or illness to worsen, or the patient has lost the opportunity for improvement or a better outcome. Allegations of negligence against GPs include:

• Failure to properly consider symptoms that a patient presents with
• Failure to take a proper history from a patient
• Failure to refer a patient to a specialist
• Failure to refer a patient for investigations
• Failure to recall a patient to discuss abnormal test results
• Inadequate clinical documentation

One of the most common scenarios involves a patient presenting with symptoms that warranted further investigation. Cancer claims are a frequent example. A patient may present with symptoms such as rectal bleeding, which might be a condition such as haemorrhoids, but if appropriate investigations or referrals are not arranged, a diagnosis of bowel cancer can be delayed.

Practice tip: GPs are not expected to know everything, but there is an expectation to recognise red flags and ensure appropriate investigations, referrals and recalls are made when clinically indicated.

Assessing causation of delayed diagnosis

Often, the causation element is assessed before the breach of duty of care element. The question of causation inherently involves putting a timeframe on when the latest opportunity for intervention was before the condition or disease was progressed or the outcome was irreversibly worsened. Sometimes, the question is medically impossible to answer.

Using a delayed diagnosis of bowel cancer claim as an example, medical negligence lawyers would ask an independent expert to review all the relevant medical records and estimate when the cancer metastasised, or what stage the cancer was at the time the patient presented with symptoms that could have warranted a referral.

If the cancer was likely stage 1 at the time, but spread to later stages because of the delay, the plaintiff can be compensated for the pain and suffering associated with more intensive treatments required or worsened prognosis.

Case study example: failure to recall for abnormal test results

Not acting upon abnormal test results is one of the most preventable causes of medical negligence claims.

Ordering an investigation is only one part of the process. Ensuring the result is reviewed, communicated and appropriately actioned is equally important.

In one recent case, a woman in her early 30s underwent a cervical screening test performed by her GP. The results identified a high-grade abnormality with possible invasion. The result was not communicated to the patient and there was no effective recall process within the practice to ensure the patient was advised of the abnormal results. Almost two years later, the patient returned with symptoms that prompted further investigation. The evidence showed that she was diagnosed with a much more advanced stage than had she been diagnosed earlier.

Cases such as this highlight the importance of robust recall systems and clear processes for communicating abnormal results. Practices should ensure recall reminders remain active until contact has been made and the patient has been appropriately informed. Reviewing only the most recent consultation note may also create risk. Important information can sometimes be identified by reviewing a broader history of presentations and investigations.

Why clinical documentation still matters

Clinical records play a critical role in both patient care and medico-legal proceedings. Good records help establish:

• What information was provided by the patient
• What examination findings were recorded
• What differential diagnoses were considered
• What investigations or referrals were recommended
• What advice was provided to the patient

Factual disputes can arise where records are incomplete, and a medical negligence case is brought by the patient (sometimes many years after the allegedly negligent consultation).

The increasing use of AI-powered clinical scribes may help improve documentation and reduce administrative burden. However, clinicians should continue to review AI-generated notes carefully to ensure they accurately reflect the consultation.

Four practical ways to reduce risk

Several practical steps may help reduce the likelihood of adverse outcomes and subsequent claims.

1. Document thoroughly

Clear clinical notes remain one of the strongest protections available to practitioners. Document not only findings and decisions, but also differential diagnoses or excluding factors. Also document the reasoning behind decisions and the patient’s response.

2. Take a comprehensive history

Take a detailed history from the patient. Even better practice would be to advise the patient of the importance of giving a proper history and the consequences of not giving a proper history.

3. Investigate and refer

Where symptoms persist, evolve or cannot be adequately explained, further investigation is often the safest course for both the patient and the practitioner. This is sometimes described as “defensive medicine” – a concept where a patient is perhaps over-investigated out of fear of the healthcare professional being sued by that patient. The concept has attracted criticism because it can contribute to increased healthcare costs and resource utilisation. However, from a patient safety perspective, thorough investigation of potentially serious conditions remains one of the most effective ways to reduce the risk of adverse outcomes.

4. Maintain robust recall systems

A test result cannot improve patient outcomes if it is not communicated to the patient and acted upon. Effective recall systems are essential to ensuring abnormal findings do not fall through the cracks.

Elizabeth Utting is the Medical Negligence Practice Group Leader at Law Partners Personal Injury Lawyers.