Does a specialist have a duty of care not just to their patient, but also the family who have to settle their estate after death?

That question could soon be answered after a NSW Supreme Court judge allowed a novel negligence action against a Sydney geriatrician to go ahead.

The case had been brought against the specialist by the son of his patient, and relates to the clinician’s assessments of the father’s testamentary capacity in the years prior to his death in 2017.

The son was the beneficiary and executor of his dad’s substantial estate, under a will created in 2010. But probate was only granted for that will after a dispute over six other wills that he later made.

Those wills were made between 2012 and 2014. During several consultations and reviews throughout that time, the father’s geriatrician insisted he had the capacity to make his own legal and medical decisions.

His death certificate in 2018 listed dementia “lasting for years” as one of the causes of death. His geriatrician said this should be amended to dementia lasting only two years on the death certificate.

In 2021, the court granted probate to the son according to the 2010 will, finding that the father did not have capacity to make those later wills, after health issues including a stroke and suffering vascular dementia.

That case drew on expert evidence that showed the father was in significant ill health during the time he wrote the new documents.

The man’s son subsequently brought legal action against the geriatrician, claiming he failed to diagnose or disclose that his father suffered dementia and had cognitive limitations during the period when he was updating his estate planning and entering into other financial transactions.

Dual care obligations to be tested

The geriatrician has applied twice to have the claims against him summarily dismissed.

In the first instance, Justice Tim Faulkner struck out the son’s statement of claim, but gave him the opportunity to file a new one.

The amended statement of claim argued the specialist had dual duties of care: one set of responsibilities to the father, and another to the executor of his estate to act in a way which would prevent any economic losses after death.

Acting Justice Monika Schmidt has run the ruler over the argument to decide whether this novel claim can reasonably be tested in court.

The son argued that if the specialist did not exercise reasonable care and skill in the examination and diagnosis of his father, there was a risk of harm not just to the father but also to his estate after his death, including a disputed and costly probate.

Acting Justice Schmidt found the amended statement of claim was in line with civil procedure rules and she was not satisfied the case was “doomed to fail” if it were to proceed.

“It also appears to me to be arguably just that if the result of a geriatrician’s negligent advice about the patient’s capacity is improvident steps taken by the patient which materialises in foreseeable loss after his or death, which has the result that an intended testamentary gift is frustrated, that may also be the obvious result of the breach of the duty owed to the patient,” she said in her judgment.

Acting Justice Schmidt ordered the geriatrician to file a defence to the claim within 28 days.

The matter was listed for further directions on July 9 [link here].