Dr Juan SABAG

[2002] NSWMT 7

New South Wales

Medical Tribunal

CITATION:	Dr Juan SABAG [2002] NSWMT 7
TRIBUNAL:	Medical Tribunal
PARTIES:	Dr Juan SABAG
FILE NUMBER(S):	40018 of 1999
CORAM:	Patten DCJ - Crawford, Dr M - Ettinger, Ms G - Page, Dr S
CATCHWORDS:
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	18 October 2002

JUDGMENT:

IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES

THE MEDICAL PRACTICE ACT 1992

DEPUTY CHAIRPERSON: HIS HONOUR JUDGE D. PATTEN

MEMBERS: Dr M Crawford

Ms Geri Ettinger

Dr Sue Page

No: 40018 of 1999

Re:DR JUAN SABAG

Date: October, 2002

COMPLAINT:

The Tribunal has before it a Complaint (the Complaint) dated 8 September 2000 by the Health Care Complaints Commission (HCCC). The Complaint in its amended form, omitting formal parts, follows, but it should be noted that, at the commencement of the hearing, Mr Rushton, SC for the HCCC, indicated that his client no longer relies on particulars 2(a), 3(a), 4(a) and 5:-

“ that Dr Juan Sabag of Suite 17, 4 Station Street, Fairfield NSW 2165 (“the practitioner”) being a medical practitioner registered under (The Medical Practice Act 1992) (the Act) has been guilty of unsatisfactory professional conduct and professional misconduct within the meaning of section 36 and 37 of the Act in that he:

(i) has demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and/or

(ii) has been guilty of improper and unethical conduct relating to the practice of medicine.

PARTICULARS:

The practitioner, at all relevant times, was a general practitioner practising at rooms at Fairfield in New South Wales. Between 1 July 1994 and 30 June 1995 the practitioner performed or attempted to perform nerve block procedures and administered injections of local anaesthetic and cortisone to patients at his rooms.

During the treatment period the practitioner:

1. Incorrectly made claims on the Health Insurance Commission for the performance of the procedure described by Item 18290 of the Medicare Benefits Schedule as Cranial nerve, other than trigeminal nerve, destruction by a neurolytic agent on 101 occasions in circumstances where he had not performed the procedures so described on the relevant patients.

2. (a) Performed or attempted to perform the procedure described by Item 18252 of the Medicare Benefits Schedule as Cervical plexus, injection of anaesthetic agent on diverse occasions without using an X ray or image intensifier to ensure the needle was inserted into the right spot in circumstances where there was risk of inadvertent vascular and/or intrathecal injection,

Further or in the alternative to 2(a)
2(b) Incorrectly made claims on the Health Insurance Commission for the performance of the procedure described by Item 18252 of the Medicare Benefits Schedule as Cervical plexus, injection of anaesthetic agent on diverse occasions in that he did not perform a cervical plexus on the patients for whom the service was claimed.
3(a) Performed or attempted to perform the procedure described by Item 18286 of the Medicare Benefits Schedule as Lumbar or thoracic nerves, injection of anaesthetic agent (Paravetebral sympathetic block) on diverse occasions:

(i) without using an X ray or image intensifier to ensure the needle was inserted into the right spot in circumstances where there was a risk of inadvertent vascular, intrathecal and/or intrapleural injection,

(ii) for the relief of musculo-skeletal pain when the proper clinical indications for the procedures are the treatment and diagnosis of peripheral vascular disease or other vaso spastic conditions or certain diseases of the autonomic nerves in the case of the lumbar nerves and the treatment of chronic malignant cancer pain in the case of the thoracic nerves,

(iii) used needles of insufficient length to properly perform the procedure.

Further or in the alternative to 3(a);

3(b) Incorrectly made claims on the Health Insurance Commission for the performance of the procedure described by Item 18286 of the Medicare Benefits Schedule as Lumbar or thoracic nerves, injection of anaesthetic agent (Paravertebral sympathetic block) on diverse occasions in that he did not perform a paravertebral sympathetic block on the patients for whom the service was claimed.
4(a) Performed or attempted to perform the procedure described by Item 18276 of the Medicare Benefits Schedule as Paravetebral nerves, injection of anaesthetic agent, on diverse occasions:

(i) without using an X ray or image intensifier to ensure the needle was inserted into the right spot in circumstances where there was a risk of inadvertent vascular, intrathecal and/or intrapleural injection,

(ii) for the relief of musculo-skeletal pain when the proper clinical indication for the procedure is for anaesthesia during surgery in the upper abdomen and thorax area.

Further or in the alternative to 4(a):-

4(b) Incorrectly made claims on the Health Insurance Commission for the performance of the procedure described by Item 18276 of the Medicare Benefits Schedule as Paravertebral nerves, injection of anaesthetic agent, on diverse occasions in that he did not inject the paravertebral nerves of the patients for whom the service was claimed.

5. Performed the procedures referred to in Particulars 2, 3 and 4 above in his surgery in circumstances where he:

(i) did not have a tilting table, a self inflating bag for the administration of oxygen and a defibrillator,

(ii) without the presence and assistance of an assistant who was appropriately qualified and/or trained in resuscitation procedures,

(iii) in circumstances where he had not undertaken sufficient training and education to completely perform the procedures.

6. Failed to keep adequate patient records relating to the performance of, indications for and results of the procedures referred to in particulars 1, 2, 3 and 4 above.”
In light of what appears earlier, the enquiry before the Tribunal is confined to the matters alleged in particulars 1, 2(b), 3(b), 4(b) and 6.

Previous Proceedings:

The Complaint was previously enquired into by a differently constituted Tribunal which, on 16 February 2001, ordered that the name of Dr Sabag be removed from the register of Medical Practitioners in New South Wales and that an application for review of that order not be made until the expiration of a period of 3 years.

Dr. Sabag appealed against the Tribunal’s decision and on 16 November 2001 the Court of Appeal (Beazley J.A. Davies AJ.A. and Sperling J.) upheld the appeal, ordered that the decision be set aside and that the Complaint be remitted for rehearing by a differently constituted Tribunal. The rehearing before this tribunal was confined, strictly, to the particulars relied upon by HCCC and did not venture into the field of his general competence to practice medicine. As a consequence, the issues with which this determination deals are more restricted than those which were the subject of the appeal to the Court of Appeal. What this Tribunal must determine is whether, in relation to the matters admitted by, or proved against, Dr Sabag, professional misconduct or unsatisfactory professional conduct within sections 36 and 37 of the Act has been established and, if so, what orders are appropriate for the protection of the community.

Agreed Facts and Issues:

At the hearing before the Tribunal, a document headed “Dr Juan Sabag – Statement of Agreed Facts and Issues” was tendered as Exhibit B. In this document Dr Sabag made a number of formal admissions as follows:

“Dr. Sabag admits Particulars 1, 2(b), 3(b) and 4(b) and he admits unsatisfactory professional conduct in relation to those particulars. He does not admit particular 6.

Particular 1
During the relevant period 1 July 1994 to 30 June 1995 Dr. Sabag claimed item 18290 CRANIAL NERVE OTHER THAN TRIGEMINAL NERVE destruction by neurolytic agent 101 times attracting individual benefits of between $135.15 and $153.15 and a total benefit of $15,340.85.

The procedure described by Item 18290 requires the use of a neurolytic agent.

Dr. Sabag was interviewed by Dr Facer from the Health Insurance Commission in January 1995. During that counselling interview Dr Sabag was advised that his claiming for Item 18290 was inappropriate, as Dr Sabag was not using a neurolytic agent bur merely injecting the area with local anaesthetic.

After January 1995 Dr Sabag made a further 4 claims for item 18290 on the following dates – 4 March, […]; 6 April, […]; 20 April 1995, patient […] and 27 June 1995, […]

Dr. Chung is moderately critical of Dr Sabag’s conduct. (Reports of Dr. Chung dated 1 December 1998 and 11 August 2002).

Particular 2(b)

· During the relevant period Dr Sabag claimed item 18252, Cervical Plexus, injection of anaesthetic agent 54 times attracting individual benefits of between $54.50 and $61.80 and total benefits of $3,309.20

· Dr Sabag states his claims for this item were made when he injected a steroid and local anaesthetic in an area innervated by the cervical or brachial plexus regions in cases of chronic neck and shoulder pain. He injected solution around various nerves in the neck.

Particular 3(b)

· During the relevant period Dr Sabag claimed item 18286, Lumbar of Thoracic Nerves, injection of anaesthetic agent (Paravetebral sympathetic block) 159 times attracting an individual benefit of between $79.90 and $90.55 and total benefits of $14,307.75.

· Dr Sabag states he made an initial error that he kept repeating. Claims were made for this item when he blocked branches of the lumbar and thoracic nerves.

Particular 4(b)

· During the relevant period Dr Sabag claimed item 18276 Paravetebral Nerves, injection of anaesthetic agent 48 times attracting individual benefits of between $67.60 and $76.60 and total benefits of $3,664.45

· Dr Sabag states his claims for this item were made when he performed a procedure to relieve muscle spasm; by injecting a steroid and local anaesthetic in regions where the pain was.

Particular 6

· It is accepted that medical practitioners are required to keep records of treatment they provide, both as a way of providing good patient care and for medico legal purposes.

· Dr Sabag does not admit particular 6 because he did not perform procedures referred to in Particular 6.

Action Taken under the Health Insurance Act

The issues of appropriateness or correctness of Dr Sabag’s claiming for nerve block items was first investigated by the Professional Services Review Division of the Health Insurance Commission.

A Professional Services Review Committee was convened and the Committee inquired into the referral concerning Dr Sabag on 28 August and 4 September 1996

The report of the Professional Services Review committee was forwarded to Dr Sabag on 25 November 1996. The draft determination was forwarded to Dr Sabag on 4 May 1997.

The Statement of Reasons for the Final Determination was delivered on 7 August 1997.Dr Sabag was ordered to repay the sum of $37,492.70 for 223 regional and field block nerves.

Dr Sabag appealed against the Final Determination. His application for review of the Determination was determined by the Professional Services Review Tribunal on 19 June 1998. The findings previously made with respect to the inappropriate claiming for nerve block procedures by Dr Sabag were confirmed, as was the order that Sabag repay monies obtained from claims for nerve block procedures.

Dr Sabag has repaid the monies to the HIC.”

The Case for HCCC:

Apart from its reliance upon the “Statement of Agreed Facts and Issues” quoted above, HCCC tendered documentary material contained in a folder, Ex A and adduced oral evidence from Dr Ian Chung, whose two reports of 1 December 1998 and 11 August 2002, form part of Ex A. Dr Chung, a General Practitioner who provided peer review, said that he would be moderately critical of Dr Sabag’s claims to the Health Insurance commission (HIC) for items listed without actually having performed the services and opined that this conduct would attract the moderate disapproval of his peers of good repute.

Dr Chung’s opinion of the patient records kept by Dr Sabag (the subject of particular 6) is not entirely easy to assess. His first report, in which he concluded that he was strongly critical of Dr Sabag’s conduct in keeping poor documentation, seemed to proceed on the assumption that Dr Sabag actually performed the work in respect of which he claimed. A second report confirmed his earlier opinion, despite being predicated on the fact that Dr Sabag did not actually carry out the procedures claimed for, but merely infiltrated sites of pain and tenderness with cortisone or local anaesthetic.

In his oral evidence, Dr Chung asserted that while the records may be regarded as satisfactory for a General Practitioner to make, they were not satisfactory, in his opinion, in this case because of Dr Sabag’s special interest in musculo-skeletal medicine. The cross-examination by Mr Young, senior counsel for Dr Sabag, contained this exchange:-

" Q. You state in that report, as indeed in your earlier report, that generally speaking the records accord with the type of records kept by general practitioners in ordinary practice; that is, generally speaking.
A. I certainly do, that's correct.

Q. Is there any reason why a doctor has greater obligations in respect of records because that doctor, in general practice, expresses a special interest in any particular field of medicine?
A. Most decidedly.

Q. Do you say that the obligation in respect of record keeping is different?
A. Most decidedly.

Q. In what way is it different?
A. If one claims a particular skill or expertise in a particular area, one should indicate so in one's records. Just by pure chance of the fact that one has an interest in this area, one would think that one would indicate the areas of one's interests in the one's records.

Q. But isn't the obligation of a doctor in general practice the same, whether that doctor has a special interest in a particular area of medicine or not?
A. The obligations are specific to the particular activity, particular patient. It does change. It varies in the sense that if somebody comes in with a condition that is particularly of potential seriousness, one should take greater care to indicate that is so in one's records.

Q. But that depends upon the seriousness of the patient's condition, doesn't it, rather than whether the doctor is particularly interested in that area of medicine or not?
A. I would think that most conditions which are of a pain that is particularly difficult to manage, is of particular importance; and a doctor who has a particular interest in such matters, I think should note such.

Q. Would you agree that this is a fair summation of what you're saying in this second report: that because Dr Sabag claims this particular interest, as you understood it, in musculoskeletal medicine, his medical records in respect of that area of medicine carried a higher obligation for him than in the other areas?
A. That's correct.”

The Case for Dr Sabag:

A statement of evidence from Dr Sabag was tendered, Ex 1, and he gave oral evidence. His statement included the following paragraphs:

“10. I admit particulars 1, 2(b), 3(b) and 4(b) of the Amended Complaint.

11. In relation to particulars 1, 2(b), 3(b) and 4(b), I accept that my conduct amounts to unsatisfactory professional conduct under section 36 of the Medical practice Act 1992.

12. I was advised in January 1995 by the Health Insurance Commission’s Medical Advisor, Dr Facer, that my use of Item 18290 was incorrect as I was not injecting a neurolytic agent but only introducing a local anaesthetic.

13. At the time that I made the claims under item 18290 I believed that I was right and Dr Facer was wrong. I accept that this was an arrogant posture for me to take and that I should have heeded the advice which was given to me. In retrospect, I accept that Item 18290 requires a neurolytic agent to be used. I honestly believed at the time I was entitled to claim under item 18290.

14. In relation to item 18286 I accept that I made an initial error that I kept repeating. I believed that I was entitled to claim under this item because I was blocking the branches of the lumbor lumber (sic) or thoracic nerves. I was working in areas of thoracic lumbar regions innervated by branches of that plexus.

15. In relation to Item 18252, I thought I was entitled to claim under item 18252 when I was working in an area innervated by the cervical plexus or brachial plexus. I injected local anaesthetic and steroids into the outer branches of the cervical or brachial plexus from where I though pain was emanating in cases of chronic pain of the neck and or shoulder.

16. The way I located the site of the injection was by finding the points of maximum tenderness. I then injected the combined solution around the greater and the lesser occipital nerve or the transverse nerve of the neck which are branches of the cervical plexus. Other nerves injected were the suprascapular nerve, the supraspiniatus nerve branch of the suprascapular nerve, the deltoid nerve which is a branch of the circumflex nerve and I also sometimes blocked the lateral cutaneous nerve, depending on the site of the pain that needed to be blocked.

17. My claims in relation to item 18276 related to a procedure to relieve muscle spasm by injecting Celestone Chronodose or Depo Medrol with a local anaesthetic on those regions from where the pain was emanating.

18. At the time I believed I was entitled to claim under item 18276 because paravertebral injection of local anaesthetic with steroid were injected close to the vertebral bodies in and around the transverse processes and sometimes into the ligaments between spinous process of the vertebrae.

19. My claims under Medicare did not have sufficient regard to my professional obligation to ensure that claims made by me under the Medicare scheme were accurate. I did not have sufficient regard to the descriptors in items 18290, 18252, 18286 and 18276. This resulted in me being paid for claims under Medicare, which I was not entitled to make. I sincerely regret that I made those claims and received payments for amounts to which I was not entitled. I accept that there is heavy onus upon medical practitioners to make accurate claims. There was in fact no item appropriate for the procedures which I was carrying out. In such circumstances a practitioner is not entitled to make a Medicare claim at all other than in relation to the consultation.

20. My errors were in part the result of my erroneous thinking that there would be a Medicare item to correspond with the procedures that I was undertaking.

21. The complaint relates to the period of 1 July 1994 to 30 June 1995. Since that time I have taken great care to ensure that my claims on the Medicare system are accurate and I do not claim for items for which I am not entitled to payment.

22. Generally in relation to the descriptors I paid greater attention to the words in capital letters in the descriptors. The capitalised parts of the descriptors relate in some cases to the part of the body affected and in other cases to the agent used. For example Item 18213 capitalises the words Intravenous Regional Anaesthesia and has word limb in small case. In the cases such as 18290 it is the Cranial nerve which is capitalised.

23. The Medicare Benefits Schedule Book which I had reference to at the time was similar to the document contained in the annexure 6 of the HCCC documents.

24. I have from time to time used the expression “nerve block injections” when referring to injections into area of muscle where I used a local anaesthetic or anaesthetic plus steroid solution. I accept that it is not accurate to describe these as “nerve block injections” as I did not carry out regional nerve block injections but pain blocking at the neuromuscular junction.”

Dr Sabag gave oral evidence upon which he was cross-examined by Mr Rushton. The cross-examination included the following passages:-

" Q. Did you, before Dr Facer spoke to you in January 1995, have any experience at all in using neurolytic agents to carry out nerve blocks?
A. Yeah, he asked me that question before.

Q. Don't worry about what Dr Facer asked you, I'm just asking you now, did you have any experience, before January 1995, of carrying out nerve blocks with neurolytic agents?
A. Many years ago, yes.

Q. You had carried out such procedures in Cuba, had you not?
A. I was trained there to - yes, 1983-84.

Q. You knew, did you not, that if you used a neurolytic agent to carry out a nerve block, then it would be a permanent block?
A. Yes.

Q. And you knew that as of January 1995.
A. Yes .

Q. Do you know that one of the complaints of the commission is that on 101 occasions, you claimed for item 18290 where you had not used a neurolytic agent?
A. Yes.

Q. You now admit, don’t you, that you had not used a neurolytic agent?
A. Yes.

Q. At the time that you made those claims, you knew, did you not, that you had not used a neurolytic agent?
A. Yes.
And

Q. Do you accept that another reason why it was wrong to claim for item 18290, was that you had never destroyed the cranial nerve when carrying out such procedures?
A. That's right.

Q. Would you mind telling the tribunal how it could be that you had any belief at all, as of January 1995, that it was proper to claim for 18290 when, firstly, you hadn't used a neurolytic agent, and secondly, you hadn't destroyed the cranial nerve?
A. The first part of your question, I will answer that the item is referring to the nerve block of the - the cranial-nerve block is referring to the fifth cranial nerve, which is the trigeminal nerve. My explanation to the tribunal will be this: at that time I thought that working on the 11th cranial, nerve which is also an intracranial nerve - I was blocking branches of this nerve ..(not transcribable).. 11th cranial nerve - still it's intracranial. I was therefore - I was not using the neurolytic agent. Mainly, I was working on the upper part of the neck and shoulder area, so I thought that, for purposes of being an intracranial nerve, that would cover it; because it specifically says, other than trigeminal nerve. That was my understanding. Where I was wrong - I agree with that - is that in the little small print it reads, "Destruction with neurolytic agents." I should be more careful than that - actually learn with more severity what - from that mistake. Yes, it took - we had to convince Dr Facer. Finally, yes, it was my mistake.

Q. Are you saying that you mistakenly claimed for item 18290 because of the small-print size? Is that what you're saying?
A. No, I'm not saying because of that. That couldn't be - anyway, that helped to make my judgment in a fashion that - I'm working with the cranial nerve, it's not the trigeminal nerve - actually, that will do. Despite that, it's not going to be the trigeminal - the other thing - I think that the tribunal - the doctors are here because I also had discretion. I don't think any neurolytic agents must be using any cranial nerves, because that will totally destroy and cripple the person forever. So it didn't make much sense to have any neurolytic agent in the cranial nerves. I went ahead and I said, "I'm working on intracranial nerve number 11 and I'm blocking the branches that are ..(not transcribable).. by that nerve," and that was it.

Q. You weren't destroying any intracranial nerve, were you?
A. No, no.

Q. To the extent that you were blocking it, you were blocking it--
A. Blocking the pain--

Q. --temporarily.
A. Yes, that's right.

Q. You weren't using a neurolytic agent?
A. No.

Q. Dr Facer told you, didn't he, in January 1995 that you weren't entitled to claim?
A. Yes.

Q. And you chose to ignore him, did you not?
A. Sorry?

Q. You chose to ignore him.
A. I was foolish to ignore that.”

In assessing the credibility of Dr Sabag, the Tribunal has had regard to three somewhat confusing and conflicting letters written by him to doctors investigating his conduct on behalf of the HIC. The earliest of these 3 letters dated 30 March 1995 contained this paragraph:

"Furthermore, if we gave for the working of the nerves that we deal with and that I have dealt with, as explained to Dr Facer, I am only concentrating on the item 18290 which is for other cranial nerve other than Trigeminal nerves. Precisely, I have not done according to what it reads there a trigeminal nerve blockage with a neurolytic agent. My procedure has consisted with using it Phenol or sometimes cortisone under local anaesthetic to block for the purpose of treatment of my patients. The same as using item 18286 as an example of another nerve block. But this specific item 18290 as it reads in the book of Medical Benefits it said Cranial Nerve other than Trigeminal so that is why I have mentioned to you that the eleventh cranial nerve has been the one that I have always dealing with and treating with. The purpose of my treatment for that is to relieve two things. One, when a patient has chronic all-cranial nerve neuralgic pain or migraine headaches, or also to alleviate chronic muscular spasms which affect the cervical spine by contraction of the trapezial muscle mainly at the junction of the occipital trapezial point and sometimes on the mid trapezial point also. So therefore I did not incur, in my opinion, any malpractice or misleading Medicare Benefits by using 18290 item."

Dr Sabag’s second letter dated 26 July 1995, takes a somewhat different stance, omitting formal parts, it reads as follows:-

"In reference to our conversation regarding item18290, I’m writing to state that I never did block procedure of the 5th cranial nerve, nor did I use phenol alcohol or any other substances.

I use local anaesthetic and cortisone to block any other nerve.
Criteria on lesser occipital nerve plus branches. To release – prevent reoccurrence of migraine Holo - hemicranial headaches, severe trapezial contraction (stiff neck)

On view of better than optimal results, to reverse such complaints, minimise number of frequent visits to my practise and avoid taking unlimited number of analgesics and exaggerated expenses to patient and to taxpayers."

The third letter, that of 11 August 1995, commences with this paragraph:

"In relation to my previous letter dated 26/7/95, my procedure has consisted in using phenol with almond oil in different concentrations mainly for superficial use with local anaesthetic. I used 1.5ml to 2.5ml for blocking of distal lesser occipital branches of the accessory nerve. I mainly used cortisone under local anaesthetic for such procedures when deeper block-bundle is required to be blocked. This is of the territory of pain management, I had referred patient when required to block proximal part of the nerve."

Taking into account Dr Sabag’s letters quoted above, his statement and his, somewhat unimpressive, oral evidence, the Tribunal feels bound to say that it does not regard him as a witness of truth and finds it difficult to accept the explanations upon which he now seeks to rely.

Findings of the Tribunal:

The Tribunal concludes that Dr Sabag did not, on any relevant occasion, use a neurolytic agent for a nerve block. It appears that, to the contrary, he used cortisone as a local anaesthetic for pain relief, injecting such agent into the site of the pain.

In light of that finding, the Tribunal regards, very seriously indeed, the complaint against Dr Sabag, particularised as Item 1. The Tribunal is of the opinion that a competent medical practitioner could not have innocently, or inadvertently, confused the procedure which was, in fact, carried out, with the procedure covered by item 18290, involving the destruction of a cranial nerve by neurolytic agent. It is inescapable that Dr Sabag was improperly motivated by monetary gain. The seriousness of his conduct was, of course, magnified by the fact that, on four occasions as alleged, he made incorrect claims after being spoken to upon the subject by Dr Facer.

The conduct was, in the opinion of the Tribunal, such as to fall within sec 37 of the Act, namely, unsatisfactory professional conduct of a sufficiently serious nature to justify his suspension from practicing medicine or the removal of his name from the Register.

The Tribunal regards less seriously the matter alleged in Particular 2 (b). Although Dr Sabag has admitted his errors and that they constituted unsatisfactory professional conduct, the Tribunal is not of the opinion that they should be categorised as more serious than that. The reason for this is that injection of local anaesthetic into the region of the cervical musculature will upon many, if not most occasions, pick up aspects of the cervical plexus and will constitute a cervical plexus block, partly or in toto.

In a more serious category, however, in the opinion of the Tribunal, is the matter alleged in Particular 3 (b). Assuming an appropriate knowledge of anatomy on the part of Dr Sabag, the Tribunal is of the opinion that he could not possibly have inadvertently confused his false claim for a paravertebral sympathetic block with an injection into the ligaments and paravertebral muscles of the back. In the opinion of the Tribunal, Dr Sabag’s conduct in relation to this matter was again sufficiently serious to warrant categorisation as professional misconduct within sec 37 of the Act.

Dr Sabag has admitted that the allegation made against him in Particular 4 (b) constituted unsatisfactory professional conduct. The Tribunal is not persuaded that his conduct should be categorised more seriously than this. It is possible with the equipment available to him that, on occasions, he performed a block of the paravertebral nerves by injecting a steroid and local analectic to relieve muscle spasm at the site of the pain.

As to the matter alleged in particular 6, in the opinion of the Tribunal, the reasons why it is necessary for a medical practitioner to make patient notes include, that they serve as an aide memoir for the practitioner, and that they serve as a record for other practitioners assuming conduct of the patient’s case. The notes should, in the opinion of the Tribunal, include a record of the symptoms complained of at examination; a note of the diagnosis made by the practitioner; a note of proposed management; a note of any drugs prescribed and a note of any intended follow-up treatment.

In all, or almost all cases, notes tendered in evidence as Ex C, do not meet the standards suggested above. Generally, anatomical markings of injection sites are not given, for instance, regions are referred to by broad description such as “lumbar” with no indication of the level at which the injection is administered. For the most part, there is no description of the nature or severity of the pain complained of to justify the treatment given and diagnoses, as opposed to patient complaints, are absent. Frequently, medication or agents prescribed are not identified and where they are identified, there is no mention of their strength or quantity. Further, there is no record, in most instances, of the efficacy of the treatment given.

In all the circumstances, including the fact that many of the notes in Ex C were purportedly taken at a long consultation, the Tribunal is satisfied that the complaint particularised as 6 has been established to the requisite standard of proof. The Tribunal does not however, categorise the conduct of Dr Sabag, in this regard, as higher than unsatisfactory professional conduct.

Conclusions:

The Tribunal, in respect of the allegations of professional misconduct proved, and, in respect of the allegations of unsatisfactory professional conduct admitted or proved, comes to the question of what orders it should make for the protection of the community. In this connection, the Tribunal is of the opinion that it is appropriate to take into account that, in the period between 16 February 2001 and the decision of the Court of Appeal on 16 November 2001, the name of Dr Sabag was removed from the Register of Medical Practitioners and he was unable to practise medicine. Moreover, despite its misgivings about his testimony, the Tribunal accepts that he is remorseful for his previous conduct and that he now takes care to ensure that his claims to the HIC are accurate and appropriate.

In those circumstances and taking into account the testimonials as to Dr Sabag’s character and competence, tendered in evidence, the Tribunal is of the opinion that the protection of the public does not require that he be further prevented from practising medicine. It proposes, however, to make orders, pursuant to section 61 of the Act, which will operate in addition to any conditions presently applicable to Dr Sabag.

Costs:

It was submitted that, in considering what order for costs should be made, the Tribunal should take into account the impact upon Dr Sabag of the costs of the previous proceedings, and the hardship arising from the fact that he was prevented from practising his profession for some months, upon Dr Sabag. The Tribunal accepts that these are relevant considerations in the exercise of its discretion but, nonetheless, concludes that it is appropriate that Dr Sabag pay the costs of the hearing on 19 August, this year. He put the HCCC to proof of particular 6 and he failed to convince the Tribunal that no more than a finding of unsatisfactory professional conduct should be made against him.

Orders:

The Tribunal makes these orders:-

1. That, pursuant to sections 36 and 37 of the Act, there be recorded against Dr Sabag the findings that he has been guilty of Professional Misconduct and Unsatisfactory Professional Conduct.

2. That the following condition be imposed on the registration of Dr Sabag to practise medicine.

“That for a period of 2 years he make available, on request, the patient records of his practice for inspection by a person appointed for the purpose by the Medical Board of NSW at intervals not more frequent than six monthly.”

3. That within 6 months he attend and complete a course approved by the Medical Board, conducted by, or under the auspices of, the Health Insurance Commission relating to the proper utilisation of medical schedule item numbers and that he report his compliance with this order to the Board within 14 days after completion of the course.

4. That Dr Sabag pay the costs of HCCC in respect of the hearing on 19 August, 2002, otherwise no order as to costs.

5. Exhibits may be returned