BERNADT and MEDICAL BOARD OF AUSTRALIA - [2010] WASAT 164

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)

CITATION: BERNADT and MEDICAL BOARD OF AUSTRALIA [2010] WASAT 164

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR T CAREY (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)

HEARD: 19 OCTOBER 2010

DELIVERED : 9 NOVEMBER 2010

FILE NO/S: VR 196 of 2010

BETWEEN: IAN BERNADT
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Medical practitioners - Interim order to cease surgical practice - Whether risk of imminent injury or harm to any person - Experienced surgeon - Complaints relating to complications following surgery in relation to two patients - Audit of operations over one year showing no trends

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010
Medical Practitioners Act 2008 (WA), s 77, s 87, s 87(1), s 105, s 105(1), Pt 6, Div 7

Result:

Interim order is set aside

Category: B

Representation:

Counsel:

Applicant: Mr P Tottle
Respondent: Ms G Archer SC

Solicitors:

Applicant: Tottle Partners
Respondent: Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Dr Ian Bernadt brought an application to set aside an interim order of the Medical Board of Western Australia which prohibited him from practising all operative surgical practice for a period of 30 days from the date of service of the order. The Medical Board of Western Australia had issued the notice on the basis of its opinion that surgical practice by Dr Bernadt would involve a risk of imminent injury or harm to the health of patients. That opinion was substantially based upon a report which had been obtained by the Medical Board of Western Australia concerning two operations by Dr Bernadt during 2009 which had given rise to significant complications.
Dr Bernadt argued that the report relied upon by the Medical Board of Western Australia should be read in the context of his practice as a whole, and that the conclusions drawn in the report as to Dr Bernadt's competence were not reasonably open. He submitted that the materials considered by the Medical Board of Western Australia did not support a conclusion that his continuing to carry out surgical procedures presented an imminent risk of harm to any person.
The Tribunal considered the materials available to the Medical Board of Western Australia, and concluded that they did not provide a sufficient basis for the continuation of the interim order. Accordingly, the Tribunal ordered that the notice restricting Dr Bernadt's practice should be set aside.
Dr Bernadt recognised that the report relied upon by the Medical Board of Western Australia questioned his competence, and he expressed the view that it was important that any question of his competence be resolved as quickly as possible. Accordingly, he urged the Tribunal to make orders for the appointment of an assessor to review his clinical competence and volunteered an undertaking to consent to both retrospective and prospective audits of his practice at his own cost. The Tribunal noted the undertaking, and made orders as requested by Dr Bernadt.

Introduction

Dr Ian Bernadt is a consultant ear, nose and throat surgeon (ENT Surgeon). He became a fellow of the Royal College of Surgeons in 1971, and of the Royal Australian College of Surgeons in 1974.
Between 1974 and 6 April 2010, Dr Bernadt was an accredited practitioner at the South Perth Hospital. Since mid April 2010, he has practiced at Mercy Hospital where he conducts two regular operating lists each week.
Dr Bernadt had two regular operating lists at South Perth Hospital over some 36 years. On Tuesday 6 April 2010, he received a telephone call from Ms Marcia Everett, Chief Executive Officer / Director of Nursing at the South Perth Hospital. He was told that his accreditation at the Hospital had been suspended. Ms Everett had advised Dr Bernadt that she had referred two cases to the Medical Board of Western Australia (Board), and told him the names of the patients. Up until that time, Dr Bernadt said that he had not been given notice of any concern held by the management of the Hospital about his performance. He appealed against his loss of accreditation, but was given no details as to the reason for the decision, other than it related to his treatment of the two patients concerned. Eventually, his appeal was dismissed, although the letter advising of him of that contained no explanation of the reasons for the decision.
Since that time, Dr Bernadt has continued to operate at the Mercy Hospital, apparently without incident.
Earlier this year, an audit was undertaken, apparently by Ms Everett, of Dr Bernadt's 422 surgical cases undertaken during 2009. The results of that audit were apparently tabled and discussed at a medical advisory committee meeting of the hospital which concluded that 'no apparent trends are evident'. The audit commented that two of the patients transferred to other facilities had significantly poor outcomes, they being the cases referred to the Board.
Having been referred the two cases by South Perth Hospital, the Board sought documents and comments from Dr Bernadt in relation to those cases. Dr Bernadt provided the information requested. On 13 October 2010, Dr Bernadt was telephoned by his solicitor who advised that the Board had made an order under s 87 of the Medical Practitioners Act 2008 (WA). He was initially told that the order suspended him from practice, but that was subsequently corrected to prohibiting him from undertaking surgery.
Dr Bernadt then made an urgent application to the Tribunal to set aside the interim order made by the Board. An urgent hearing was arranged before the Tribunal on 19 October 2010 and after hearing argument, the Tribunal made an order setting aside the notice and providing for the appointment of an assessor to assess Dr Bernadt's clinical competence. The Tribunal indicated that it would provide written reasons for its order in due course, and these are those reasons.

The basis for the interim order

Section 87(1) of the Medical Practitioners Act 2008 (WA) (MP Act) provides:
(1)If the Board is of the opinion that an activity of a medical practitioner involves or will involve a risk of imminent injury or harm to the physical or mental health of any person, the Board may, without further inquiry, do any or all of the following -
(a)give to the medical practitioner who is carrying on that activity an order prohibiting the carrying on of the activity for a period of not more than 30 days;
(b)give to the medical practitioner -
(i)an order to comply, for a period of not more than 30 days, with such conditions as the Board thinks fit in relation to the practice of medicine by that medical practitioner; or
(ii)an order suspending the person from the practice of medicine, either generally or in relation to any specified circumstances or service, for a period of not more than 30 days.
The notice issued to Dr Bernadt indicated that, in reaching its opinion that his surgical practice involves or will involve a risk of imminent injury or harm to the physical or the mental health of patients, the Board had regard to the complaint from South Perth Hospital, and an opinion of Dr Michael Silverstein which the Board had obtained. The complaint from the South Perth Hospital related, in substance, to cases of two patients identified for present purposes as Patient A and Patient B.
In his response to the Board, Dr Bernadt explained that Patient A underwent a tonsillectomy at South Perth Hospital on 12 October 2009. He had earlier seen Dr Neill on 3 September 2009 complaining of recurrent attacks of tonsillitis almost every three weeks which were significantly affecting his lifestyle and health. The tonsillectomy was complicated by a severe primary haemorrhage which Dr Bernadt described as 'the worse case of tonsillectomy haemorrhage in my experience over 35 years'. He said that this was due to the extensive fibrosis, infection and the presence of multiple enlarged blood vessels in both tonsil beds. He said that the tonsil tissue itself was friable. The bleeding was eventually controlled by Dr Bernadt by 'patiently, methodically and meticulously diathermizing the multiple blood vessels, and suturing the tonsil beds over packs of gelfoam'. Dr Bernadt said that this was only the second occasion, after performing more than 6,000 tonsillectomies, that he has had to suture the tonsil fauces.
In the postoperative period, Patient A developed total dysphagia. Dr Bernadt accepts that the dysphagia is a result of bilateral nerve damage and that that damage must have occurred in the course of the tonsillectomy.
Dr Silverstein provided his opinion on the basis of the medical notes provided to him from both the South Perth Hospital, and from Royal Perth Hospital where Patient A underwent subsequent treatment.
From those notes, he concluded that the surgical procedure was appropriate given the history, but that the surgery was not performed in a competent manner. He considered that 'the surgical emphysema which occurred was a direct result of the division of the muscular envelope lateral to the tonsils', which would be 'extremely rare in most situations'. He regarded the glossopharyngeal paralysis, which was bilateral, as indicating to him that 'the dissection which had occurred had been significantly incompetent on the grounds that he had in fact dissected lateral to the tissue planes which normally contain the tonsils'. He expressed the opinion that 'this is grossly incompetent' and that 'obviously there is a problem in technique because it was a bilateral situation and assuming that there was some abnormal pathology on one side it seems incredible that this should occur bilaterally'. He considered that the blood loss (which he took to be 150 ml from a reference to that amount in the operating notes) could have been easily managed with the application of local pressure, simple diathermy or suture. He said that suture 'would have been a last resort situation and oversewing the pillars and placing the packs in the tonsil would significantly increase the risk of nerve damage'. He concluded with an opinion that 'the excision has been extremely severe and demonstrates … a significant lack of knowledge of the gross anatomy of the tonsil and its relations to neighbouring connective tissue'. He described Dr Bernadt's reference to literature concerning bilateral nerve damage as being 'quite ludicrous'.
It is clear that the operation in relation to Patient A involved significant complication. There is no reason not to accept Dr Bernadt's evidence that the tonsil tissue was friable, and dissection was difficult because of the presence of extensive fibrosis on each side, making the tissue very hard. There were multiple enlarged blood vessels in both tonsil beds which haemorrhaged. Dr Bernadt says that the reference in the operation notes to approximately 150 mls of blood was reference only to the blood collected by suction and that in addition he used 20 gauze pads and had to suture the tonsil beds over packs of gelfoam, so that the total blood loss was in fact somewhat greater. It was in fact a surgical emergency which involved a lengthy period of time endeavouring to bring the bleeding under control. The possibility of nerve damage occurring in the course of dealing with the friable tissue, the process of diathermy and suture needs to be considered in that context. The proposition advanced by Dr Silverstein that Dr Bernadt had dissected along the wrong tissue planes is, in the Tribunal's view, too simplistic in the context of inflamed friable tissue and extensive bleeding.
Counsel for Dr Bernadt criticised Dr Silverstein's conclusions on the basis that he has, in effect, reasoned backwards from the outcome and speculated about the surgical techniques used based on that outcome. He argues that the inference which Dr Silverstein draws, to the effect that the applicant's knowledge of the relevant anatomy is defective, should not be drawn against a background of Dr Bernadt's extensive experience as an ENT Surgeon both before and after the operation on Patient A.
We agree with that criticism. Counsel for the respondent argued that the trenchant nature of Dr Silverstein's criticisms in relation to Patient A may be because in Dr Silverstein's eyes, the bilateral nerve damage was so clearly a result of incompetence. That is not a view shared by the Tribunal, and in particular the medically qualified members of the Tribunal, in light of Dr Bernadt's explanation of the circumstances of the operation, and the pathology of the patient.
Dr Silverstein's conclusions in relation to Patient B are confusing. He initially expresses the conclusion that 'more than likely the surgery was performed in a competent manner'. He then expresses a concern in relation to repeat bleeding in an operation done by other medical practitioners a week later when complications emerged. Dr Bernadt's evidence in relation to Patient B was that he was discharged from South Perth Hospital the day following the operation with no post-operative bleeding, and he was eating well with no more than normal discomfort. A serious secondary haemorrhage from his right tonsil bed subsequently required treatment at other hospitals. Dr Bernadt said that an angiogram showed a massive abnormal collateral arterial circulation with abnormal commissural arteries forming a vascular plexus around his pharynx. Following the secondary haemorrhage, Patient B underwent further operative procedures.
Dr Silverstein said that 'it is very difficult to make an absolute conclusion in regard to the surgery contributing to postoperative complications'. However he expresses concern about certain findings by the vascular surgeon in the subsequent operation which suggests 'there is a possibility that there was incompetence on the part of (Dr Bernadt) in the dissection' and that he would 'evaluate the possibilities there of approximately 80% the surgeon being incompetent'.
Precisely what Dr Silverstein is saying is by no means clear. To the extent, however, that he asserts incompetence on the part of Dr Bernadt in relation to Patient B, the assertion appears to be entirely conjectural, and contrary to his earlier conclusion that the likelihood is that the surgery was competently performed.
In our view, the materials relating to Patient B, and Dr Silverstein's conclusions, do not provide an adequate basis for concluding that there is an imminent risk of harm or injury if Dr Bernadt continues to operate.
Apart from Dr Silverstein's conclusions in relation to Patient A and Patient B, there is nothing in the materials which were before the Board, and in turn the Tribunal, which would support a conclusion that there exists any risk of imminent injury or harm to the health of any person, in Dr Bernadt continuing to operate. Although the Board recited the complaint of the South Perth Hospital as one of the matters taken into consideration, that complaint appears to comprise no more than a reference of the operations on three patients to the Board. Two of those patients were Patient A and Patient B, and the third is a patient in respect of whom no adverse conclusion in relation to Dr Bernadt is now pursued. The complaint by the South Perth Hospital adds nothing.

Assessment of Dr Bernadt's competence

The original complaint by the South Perth Hospital was, in substance, a complaint about a competence matter within the meaning of s 77 of the MP Act. The complaint could have been referred for action under Div 7 of Pt 6 of the MP Act. That action could have included making an order that Dr Bernadt submit to an assessment by an assessor appointed by the Board pursuant to s 105(1) of the MP Act. The Board chose not to take that course in respect of this matter. Whilst, as counsel for the Board submitted, the Board is not obliged to deal with an incompetency matter under s 105 and is at liberty to make an order, as it did, under s 87(1), it is somewhat surprising on the facts of this case that the former course was not undertaken.
At the hearing of this matter, Dr Bernadt tendered a minute of proposed orders that there be an assessment of his competence. He proposed those orders on the basis that he accepted that the Board's proper role was the protection of the public and the maintenance of proper standards within the profession, and, given that his competence had been called in question, he considered it appropriate that his competence be assessed. He therefore urged the Tribunal to make orders to that end. The Board submitted that, were the Tribunal to set aside the s 87 notice, the orders proposed by Dr Bernadt would be appropriate.
In those circumstances, we considered it to be appropriate to make the orders in the terms sought to Dr Bernadt. We also noted that Dr Bernadt voluntarily proffered an undertaking to the Medical Board of Australia (which became the responsible regulatory authority following the commencement of the Health Practitioner Regulations National Law (WA) Act 2010), to have his surgical practice audited.

Orders

The orders made by the Tribunal were as follows:
1.The order by the Medical Board of Western Australia dated 13 October 2010 prohibiting the applicant from practicing all operative surgical practice for a period of 30 days is set aside.
2.The applicant is to submit to an assessment of his clinical competence. The assessor shall be one of three assessors nominated by the President of the Australian Society of Otolaryngology Head and Neck Surgery and appointed by the respondent. The nature of the assessment shall be determined by the respondent.
3.The respondent is to give to the applicant written notice stating:
(a)the name of the assessor appointed by the respondent to conduct the assessment;
(b)the nature of the assessment that the Board has determined should be made;
(c)the time and place at which the assessment is to be conducted; and
(d)the consequence if the applicant, without reasonable excuse, fails to comply with the order.
4.There is liberty to apply.
5.The Tribunal notes the voluntary undertaking given by the applicant to the Medical Board of Australia in the following terms:

VOLUNTARY UNDERTAKING

I, DR IAN NOLAN BERNADT undertake to the Medical Board of Australia (the Board) as follows:
a)I will consent to a retrospective audit of my surgical practice between 7 April 2010 and 13 October 2010 (the retrospective audit) by a consultant ear nose and throat surgeon appointed by the President of the Australian Society of Otolaryngology Head and Neck Surgery and approved by the Medical Board of Australia (MBA) and me (the auditor) and will commission the auditor to provide a report of his findings as soon as possible.
(b)I will provide the audit report to the Board as soon as it is made available to me.
(c)I will consent to my surgical caseload undertaken by me between the date of this undertaking and the final determination of the allegations against me, being audited by the auditor at the end of each calendar quarter (the quarterly audits) and will commission the auditor to provide quarterly reports on his findings and will provide those to the MBA with the first such report to be made available to the MBA on or before 14 January 2011.

(d)I will bear the cost of the retrospective audit and the quarterly audits.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT