Back in October 2013 Mr Walker attended the surgery of Dr Tucker. Mr Walker complained of:
… back pain and paraesthesia of both legs. Dr Tucker immediately referred him for a CT scan. That scan revealed that Mr Walker had a soft tissue density with possible appearances of a soft tissue oedema or a nerve sheath tumour in the area of his thoracic spine. Dr Tucker wrote a referral for the Princess Alexandra Hospital (“PA Hospital”) emergency department… Mr Walker was driven by his partner back to their home and subsequently by a friend to the emergency department of the Ipswich Hospital. He subsequently was transferred by ambulance to the PA hospital, had an MRI and was operated on later that evening. It is alleged that he was left with spinal injuries (Walker v Tucker  QSC 141, ).
Mr Walker commenced proceedings against his regular GP and the Ipswich Hospital ‘alleging that he had suffered personal injuries arising out of his spinal injuries as a result of alleged negligence by each of them’. As the case progressed the solicitors for Mr Walker obtained reports from the practitioners involved in Mr Walker’s care, and from experts. The original view of the experts was that Dr Tucker’s care had been in accordance with what could be expected from a reasonable medical practitioner and he was advised that there was no plan to join him as a defendant.
On 19 July 2017 one of the experts, ‘changed his opinion and stated he considered that Dr Tucker had not acted to the standard of a reasonable and prudent general practitioner in not calling an ambulance for Mr Walker to transport him to the PA Hospital. Mr Walker was informed of Dr Lynch’s changed opinion on 3 August 2017. Proceedings were filed against Dr Tucker by Mr Walker on 18 July 2018’ .
The report of 19 July 2017 said ():
“It is my opinion that, because of the significance of the diagnosis and the duration of the symptoms in the specific circumstances of Mr Walker with his shock and inability to comprehend the potential seriousness of the condition and the need for attendance at a specific Accident and Emergency Department, Dr Tucker ought to have advised, recommended and ordered an ambulance to take Mr Walker directly to the Princess Alexandra Hospital. This would have prevented a man with an abnormal spine, on a CT scan, from walking out the front door of the medical clinic to then be driven around the suburbs, in private transport, whilst he attempted to process and come to grips with and understand those parts of the consultation that he heard and remembered. Calling an ambulance is what a reasonable and prudent general practitioner would have done and Dr Tucker, had he acted to the standard of a reasonable and prudent general practitioner acting to the standard of his peers at the time the service was provided, ought to have done…
My opinion has changed because I have now been provided with different facts and different assumptions.
Specifically the access to ambulance transport in Queensland and the information as to how Dr Tucker provided the information to the patient and Mr Walker’s subsequent travels around the community, in a shocked state, whilst attempting to process the information that he, alone, had been provided.
It is further my opinion that Dr Tucker ought to have involved Mr Walker’s partner in the discussion of such a serious condition to ensure that Mr Walker comprehended the complexity of his problem and its need for treatment “as an urgency”.
It was negligent of Dr Tucker to allow Mr Walker to travel around the community to various sites when the easy and appropriate access to free emergency ambulance transport was available. Dr Tucker simply had to make a telephone call to order an ambulance. This would have ensured Mr Walker was immediately and urgently transported to the appropriate environment of the Princess Alexandra Accident and Emergency Department with a preceding telephone call by Dr Tucker.
The problem for Mr Walker was that this claim against Dr Tucker was ‘out of time’, that is the limitation period had expired in October 2016. To be allowed to continue with his claim Mr Walker needed the permission of the court. The actual legal principles upon which that decision was made is not of particular relevance to this blog. Suffice to say that Her Honour Justice Brown accepted that the change of opinion expressed by the expert in July 2017 represented a new ‘material fact’ and that Mr Walker could not have been expected to commence an action without knowledge of that fact. That, along with some other issues to be discussed below, meant the court allowed the extension of time and Mr Walker had a further 12 months from July 2017 to commence that action. He did file within that 12-month period (just) and the claim against Dr Tucker was allowed to continue.
The court in this case was only concerned with whether or not the claim should be allowed to proceed to trial, not the merits of the claim. As the judge said (at 75]) ‘There is no doubt that Mr Walker may have considerable challenges in convincing a Court to adopt the changed opinion of [the expert]…’ There would also be difficult issues of causation in effect proving that had Mr Walker been taken directly to the PA hospital by ambulance his surgery would have occurred sooner and avoided the long-term disability that he now has. Brown J said (at -)
There is evidence which, if uncontradicted, could establish a prima facie case of causation… The submission that there was no evidence as to causation in relation to Mr Walker’s case is incorrect.
That does not mean that the evidence, at trial, won’t be contradicted or otherwise rejected but that was not the question for Her Honour.
The plaintiff having established the grounds that would allow an extension of time, Her Honour then had to consider whether she should allow the extension. She said (at -,  and ):
In the present case, Mr Walker had made a deliberate decision not to commence proceedings against Dr Tucker based on the medical opinions received at the time and had communicated the fact that no such claim would be made in 2015.
I accept Dr Tucker has suffered some prejudice arising from the fact that Dr Tucker was given an assurance that he would not be the subject of a claim and, in reliance on that assurance, provided a witness statement that he had previously provided to the solicitors for the Ipswich Hospital without seeking advice is of some relevance, as it shows that Dr Tucker took steps potentially to his detriment, by not seeking advice prior to doing so.
Having given the matter careful consideration, I do not, however, find it has caused significant prejudice to Dr Tucker precluding a fair trial…
The matters which indicate that Dr Tucker can have a fair trial are the fact that the medical records are still in existence and that he has been able to obtain some expert reports, the authors of which did not identify any difficulty with providing an opinion due to incomplete records. His recollection of events on the day of the consultation with Mr Walker, although no doubt affected by delay, is still reasonable and not significantly impaired by the passing of time. I do not consider any prejudice suffered from the fact that the impressions of Mr Walker’s presentation are no longer as clear as they were is significant. He was also aware to some extent of the proceedings which are on foot between Mr Walker and Dr Mogg and the Ipswich Hospital and had recorded some of those events in a preliminary statement to the Ipswich Hospital…
Dr Tucker has provided evidence showing he has a strong defence to the proposed claim against him by Mr Walker. That supports the fact a fair trial can be conducted. The evidence provided on behalf of Mr Walker, while it has weaknesses as identified above, is not such as to satisfy me that a fair trial cannot be conducted and that the Court’s discretion should be exercised against granting the extension. The fact that a case as presented in an application such as the present is a weak one has some relevance to the exercise of the discretion, but it must be borne in mind that the authorities with respect to s 31 of the Act do not require that a plaintiff present all evidence that they would present at trial or even present the evidence in an admissible form. I am satisfied that the applicant has shown that there can be a fair trial.
In some ways this case is of little significance because it has not yet determined whether there was negligence in not calling an ambulance or whether or not calling an ambulance would have made any difference to the outcome for Mr Walker.
I raise this here because it is of interest that there is a claim for negligence in failing to call an ambulance.
As a segue from that it is I think important for people to note that there can be such allegations. This is relevant in the first aid context where people may not want an ambulance called because of the cost; see for example:
- Paying for ambulance services (October 4, 2014);
- Subtle change in the way ambulance fees are recovered in NSW (June 1, 2015);
- Paying for ambulance services in the ACT (July 16, 2018); and
- Chasing up debts for emergency ambulance services in Victoria (July 20, 2018).
This may be less of an issue in Queensland and Tasmania where ambulance services are provided free to residents (Ambulance Service Act 1991 (Qld) s 53B; Ambulance Service Act 1982 (Tas) s 36) but it may be relevant for inter-state and international visitors.
In a first-aid context people claim to be reluctant to call an ambulance in the face of the patient’s objection as they cannot treat ‘without consent’. That principle says that you cannot touch a person without their consent, it does not say you cannot call triple zero without their consent. If a first aider believes a person really needs an ambulance, they should call an ambulance. If the person wants to refuse ambulance treatment or transport he or she can take that up with the paramedics, but having two paramedics on scene confirming that they too think the person needs ambulance services may well go some way to persuading the patient that they do need care that they don’t think, or want to believe, that they need.
Universities are like micro-cities with a diverse population of students, staff and visitors from around the block and around the world. Students, particularly international students, may be very reluctant to accept an offer of an ambulance where they aren’t sure whether their insurance will cover it or the processes that are involved in the Australian health care system and where English may not be their first language. When I worked at a different university to the one I now work at, we did not want our staff, who were paid a first aid allowance, to feel constrained in their care of people who were sick or injured. Equally we could not allow a person who was unwell to just remain in say the library, because they did not want to seek help. The (then) OHS committee, of which I was chair, advocated and had approved a policy where the University agreed to meet any uninsured ambulance liability where a university first aid officer made the decision to call an ambulance for anyone on campus.
Even without such a policy, first aiders should call an ambulance where they think the patient’s clinical condition warrants that care. The first aider has a duty to take reasonable care in the care of their patient. That cannot extend to treating a person who refuses consent but as noted that does not mean that the first aider cannot call an ambulance if he or she thinks it is required.
The outcome of this case remains to be seen. It may settle, it may go onto a hearing. If it does whether Dr Tucker was found to have been negligent will depend on the facts that have not yet been tested in a court room. If and when there is a judgement, I will expect to report it here.
In the meantime, there is a salutary lesson that at least in some circumstances there may be a duty to call an ambulance. Anyone providing care for another person should call an ambulance if they honestly believe the patient’s condition is urgent and requires ambulance assistance.