DR HENRY LIU

[2002] NSWMT 4

New South Wales

Medical Tribunal

CITATION:	DR HENRY LIU [2002] NSWMT 4
TRIBUNAL:	Medical Tribunal
PARTIES:	DR HENRY LIU
FILE NUMBER(S):	of 2000
CORAM:	Cooper, Judge - Keldoulis, Dr, T - Hely, Dr J - Ettinger, Ms G
CATCHWORDS:
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	6 May 2002

JUDGMENT:

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRPERSON: JUDGE COOPER

MEMBERS: DR T KELDOULIS

DR J HELY

MS G ETTINGER

MONDAY 6 MAY 2002

IN RE DR THOMAS JAMES ATKINS

IN RE DR HENRY LIU

JUDGMENT

DEPUTY CHAIRPERSON: In this case the Tribunal is dealing with two complaints, one against Dr Henry Liu, an ophthalmic surgeon, and the other against Dr Atkins, a general practitioner. Each of the complaints alleges that in the course of surgery for cataract removal, in which both participated, they failed to ensure that the solution EyeStream was appropriate and safe and inappropriately used that material for intra-ocular use.

The HCCC has indicated that it wishes to withdraw the complaints against each of the two respondents. Under clause 12 of schedule 2 the Tribunal may decide not to conduct an enquiry if the complaints are withdrawn. In addition the two respondents seek orders that the Complaints Commission pay their costs if the complaints are in fact withdrawn. For reasons which will appear clear when dealing with the issue of costs this Tribunal has determined to allow the complaints to be withdrawn, not to conduct an enquiry and to dismiss the complaints. On the issue as to the appropriate order for costs, it is necessary to look at the factual background.

As mentioned earlier, the essence of the complaint is that in the course of cataract surgery on a number of patients at Dubbo Base Hospital on 8 February 1999 an intra-ocular injection of EyeStream was carried out by Dr Liu. It is common ground that the use of EyeStream intra-ocularly is quite inappropriate. The issue however, if the matter were to proceed before this Tribunal, is whether each of the respondents was aware that that material was in fact being used and authorised its use.

The situation on 8 February 1999 was that Dr Liu, an ophthalmic surgeon, was performing the surgery. Towards the completion of the surgery in some cases it is necessary to inject a saline solution intra-ocularly. This is drawn from a bowl which is provided to the surgeon by the nursing staff. EyeStream contains a preservative which renders it quite unsuitable for such use. The evidence indicates that both Dr Liu and Dr Atkins flatly denied that they were ever told that EyeStream was being introduced into the operating theatre and certainly never authorised its use. However the Complaints Commission had statements from nurses that the use of EyeStream was discussed with both Drs Liu and Atkins at a point of time probably subsequent to 10am or about 10am and certainly before the fifth operation.

Following upon the surgery, Dr Liu discovered an adverse reaction amongst most of the patients on whom he had operated on that date. He tried to ascertain the reasons for this and details of his investigations are set out in his letter to the Director of Medical Services at Dubbo Base Hospital dated 12 March 1999. In this letter he said that at the time of leaving the operating theatre he was unaware that there was any change in the materials that would be used in the operating list. However he became aware in the first week following surgery of four patients who developed hazy corneas.

On 5 March 1999 he, together with another doctor, spoke to a member of the operating staff and a member of the nursing staff showed them the actual packages of balanced salt solution used. A 30 millilitre pack of EyeStream in a cardboard box was produced. This had not been seen by the doctors prior to that date and Dr Liu was not aware that it was used on any of his operating lists. The cardboard box was clearly marked “Not for injection or intra-ocular use” and contains Benzalkonium chloride which is not present in standard irrigating solutions used in eye operations. He expressed the view that this was the cause of the corneal complications. Thus it was Dr Liu who brought to the attention of the hospital the use, and inappropriate use at that, of the particular material used.

Following on this, Dr Atkins was advised on 16 July 1999 (see exhibit F) that a complaint had been received from Macquarie Area Health Service concerning the events of 8 February of that year during the operating lists at Dubbo Base Hospital and asking him for an account of what happened. On 5 August 1999 Dr Liu wrote confirming that neither he nor Dr Atkins was aware of the use of the EyeStream. On 6 October 1999 a letter from the Health Insurance Commission to the Complaints Commission set out the services rendered by Dr Atkins for various patients on a number of dates including 8 February 1999. This record shows that on that particular day Dr Atkins treated over 40 patients at his surgery so that he was clearly quite busy on that day.

The Complaints Commission asked Dr Atkins to provide his appointment diary entries for 8 February. By letter of 28 October 1999 a copy of Dr Atkins’ appointment diary entries for 8 February was furnished and it was indicated in that letter that the officers could inspect the original record in his surgery. This diary shows that he had quite a busy day on that day.

By letter dated 9 December 1999 from the Macquarie Area Health Service to the Complaints Commission the latter was advised that on 8 February 1999 Dr Atkins was paid sessional fees for assisting Dr Henry Liu in the operating theatres for the following sessions, 7.45am to 9.15am, 12.45pm to 2.10pm and 4.40pm to 6.20pm. Now at that particular stage it was clear that Dr Atkins was not charging for any work or any sessions between 9.15am and 12.45pm. An examination, had it been conducted, of the times of the various operations would have indicated that his assistance was limited to only the earliest of the operations.

On 30 December 1999 the Complaints Commission said that it had completed its investigations and proposed to recommend that disciplinary action be taken because of the use of EyeStream. In January 2000 Dr Atkins again advised what had already been supported by documentary evidence, namely that he was not present in the theatre when the first adversely affected patients were operated upon.

Now the evidence which the Complaints Commission had available to it consisted of statements by some three or four members of the nursing staff that Dr Atkins and Dr Liu were present at the same time when the use of EyeStream was discussed and its introduction into the theatre was authorised by them.

The issue which always loomed large in this case was whether Dr Atkins was present at the time that that conversation is alleged to have occurred. In exhibit B, which is a letter from Dr Atkins’ representatives to the Health Care Complaints Commission, reference is made to a letter from the Commission dated 7 November 2001 in which it is stated that it is not possible to identify with precision the time on 8 February 1999 when Nurse Eagle brought EyeStream into the theatre and raised with Dr Atkins and Dr Liu the question of its use.

That letter goes on to say it appears that Nurse Eagle physically introduced the EyeStream into the theatre and raised its use with Drs Atkins and Liu at some time prior to the carrying out of the procedure on patient five, that is some time prior to 10am. In fact the records show that the anaesthetic commenced at 10am and the operation at 10.27am.

Now the situation is that already there was evidence available to the Health Care Complaints Commission that after 9.15am Dr Atkins neither claimed nor was paid for any sessional services until some time after midday. There was also evidence available to it that on that day he had a very busy time in his own private practice. It was also aware that both Dr Atkins and Dr Liu denied the conversations which were alleged by members of the nursing staff and that that denial was supported by the letter from the Macquarie Area Health Service and by the letter from the Health Insurance Commission to which I referred earlier.

On 13 February of this year the representatives of

Dr Atkins wrote a detailed letter seeking that the complaint be withdrawn and pointing out Dr Atkins’ movements on that day which show that it was highly improbable that he was present at the hospital at the time at which the nurses say that he and Dr Liu were present authorising the use of EyeStream.

On behalf of the Complaints Commission it is said that the detailed material in this letter of 13 February 2002 cast a different light upon the evidence available to it and made it abundantly clear that the Complaints Commission would be unlikely to discharge the onus which was upon it of establishing that Drs Atkins and Liu in fact authorised the use of EyeStream.

It is the view of this Tribunal that what this letter of 13 February did was merely to put in a very convenient logical form information that had been in the possession of the Complaints Commission since the end of 1999, namely that Dr Atkins was not at the hospital and that Dr Atkins could not have been present at the time the conversations alleged by the nursing staff occurred.

It is also not without interest to note that in early 2000 proceedings were commenced by the Health Care Complaints Commission before the Nurses Tribunal against a member of the nursing staff for introducing EyeStream into the operating theatre. The doctors were not called on that occasion and a portion of the judgment has been read to us which indicates some concern on the part of that Tribunal. That however is to some extent beside the point.

The point is that with proper preparation the Complaints Commission ought to have been well aware prior to the commencement of the present proceedings that the evidence or statements of the two respondents that they gave no such authority for the use of EyeStream as alleged by the nursing staff was already supported by documentary evidence.

It is necessary first of all to say that in the light of the material before it, this Tribunal is comfortably satisfied that it is highly unlikely that the Health Care Complaints Commission would have succeeded if the matter went to a full hearing of an enquiry. Accordingly it notes that each of the complaints against the respective respondents are withdrawn and they are hereby dismissed.

On the question of costs, the principles to be applied appear clear in the decision of the Court of Appeal in Ohn v Walton 36 NSWLR p 77. As the then Chief Justice Gleason said at p 79:

“Two things follow:

(1) The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement.

(2) The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant is not whether he or she has done anything to warrant punishment, it is whether in the circumstances the defendant or respondent should be compensated.”

When one applies these principles to the present case, it must be said that there is nothing connected with the charge or the conduct of proceedings which make it unjust or unreasonable that the successful party should be reimbursed for the costs they incurred. Furthermore as pointed out in the circumstances it is appropriate that each of the two respondents should be compensated.

Accordingly the Tribunal orders that the complainant pay the costs of each of the two respondents. Exhibits can be returned.

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