Health Care Complaints Commission v Dr Malcolm Hughes

[2013] NSWMT 15

Medical Tribunal

New South Wales

Medium Neutral Citation:	Health Care Complaints Commission v Dr Malcolm Hughes [2013] NSWMT 15
Hearing dates:	26/08/2013 - 28/08/2013
Decision date:	28 August 2013
Jurisdiction:	Civil
Before:	Elkaim SC DCJ Dr P Truskett Dr E Tompsett Mr R Kelly
Decision:	Complaints 1 and 3 dismissed. Complaint 2 established in respect of Particular 1.
Catchwords:	Competence of surgery, standard of record keeping
Legislation Cited:	Health Practitioner Regulation National Law (NSW) Medical Practice Regulation 2008
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336
Category:	Principal judgment
Parties:	Health Care Complaints Commission (Applicant) Dr Malcolm Hughes (Respondent)
Representation:	C P O'Donnell (Applicant) P M Strickland SC (Respondent) Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2012/40015
Publication restriction:	Suppression order re the name of Patient A Suppression order re the name of Dr X

Judgment

1. The Tribunal has heard three complaints brought by the Health Care Complaints Commission ("HCCC") against Dr Malcolm Hughes ("the respondent").

1. Complaint 1 alleges "unsatisfactory professional conduct" within the meaning of Section 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the "National Law"). The complaint arises from tendon repair surgery carried out by the respondent at the Broken Hill Base Hospital on 6 February 2010.

1. Complaint 2 also alleges "unsatisfactory professional conduct" arising from the above surgery but is concerned with the record of the surgery including an allegation of unethical conduct in the manner that the record came to be prepared.

1. Complaint 3 is based on the same particulars as Complaints 1 and 2 but alleges "professional misconduct" within the meaning of Section 139E of the National Law.

1. The origin of the complaints is a letter from a Mr Stuart Riley dated 17 February 2011 (Exhibit A, Tab 2).

1. The HCCC relied on an expert report from A/Prof Kleinman in support of its case.

1. All of the complaints were denied. The respondent said the surgery was competently performed and the record of it was fair and accurate. He did concede the record was lacking in some detail, but not so as to establish the complaint.

1. The respondent relied on his own expert, Dr Long, who, in summary, made the following points:

(a)   On the description of the surgery given by the respondent, the actions of the respondent were appropriate. Dr Long would have used different sutures, but that was not a matter of significance.

(b)   Premature active movement on the patient's part may have disrupted the repair.

(c)   It was not unknown for evidence of a previous tendon repair to be absent on a subsequent repair.

(d)   The operation report of 6 February 2010 was unsatisfactory.

1. In approaching these allegations the Tribunal was mindful that, firstly the onus was on the HCCC to prove the complaints and, secondly that although the standard of proof is on the balance of probabilities it should nevertheless apply the standard set out in Briginshaw v Briginshaw (1938) 60 CLR 336.

Dr Hughes

1. The respondent was born in 1948. He obtained his MBBS in 1972 from the University of New South Wales. He became a Fellow of the Royal Australasian College of Surgeons in 1981. His working background is set out in his CV and also in the introduction to his statement dated 15 December 2012 (Exhibit 1).

1. The respondent can be described as a very experienced general surgeon who appears to have concentrated on colorectal and endoscopic surgery. At the present time the respondent operates from private rooms in Blacktown and Castle Hill and has a position as a general surgeon at Minchinbury Community Hospital. He is on the Medical Advisory Committee of this hospital. He does a fair amount of locum work at Gladstone Hospital in Queensland.

1. He suffered from a period of depression from about 2002 which led to some time off and then the imposition of conditions on his continuing practice. The conditions were removed in 2006.

1. As at February 2010 the respondent's experience with tendon repair was limited. Such surgery was normally undertaken by orthopaedic and plastic surgeons; however, he did perform tendon repairs "infrequently" when working in the country. He states that he was however "familiar with the technique required to perform a tendon repair". He estimated he had performed 10 to 20 tendon repairs through his consultant career, but none in the year before the subject procedure.

The subject surgery and discussion

1. The respondent was performing a locum at Broken Hill Base Hospital from 1 February to 8 February 2010. The patient upon whom the surgery was performed is referred to in the complaints as Patient A. The same description will be given to him in this judgment.

1. Patient A arrived at the hospital by ambulance at about 1.50am on 6 February 2010. He had either fallen through or stepped through a window. He may have been drinking alcohol and smoking marijuana. He had some lacerations to his right arm but his most significant injury was to his right leg. Patient A was then 16 years of age.

1. The Surgical Registrar on duty was Dr X. At that time Dr X had been in the surgical training programme for only three weeks. He had no experience with tendon repair. A decision was made that Patient A required surgery. He was prepared for surgery at about midday on the day of his admission. An anaesthetic was administered by Dr Rigg-Smith and surgery commenced at about 12.40pm.

1. The nature of the procedure then performed is at the core of the complaints. According to the HCCC a proper tendon repair was never performed. The repair envisaged was the joining together of the two ends of three severed tendons. These tendons were most likely the tibialis anterior and two of the extensor digitorum longus tendons (see Exhibit 4). The former is much larger than the other two.

1. According to Dr X the proximal (closest to the body) end of the tendons were attached to some loose tissue (fascia) on the dorsum (top) of the right foot. They were never attached, as they should have been, to the distal (furthest from the body) ends of the tendons.

1. According to the respondent the two ends of the respective tendons were attached using a procedure known as the Kessler Technique. He describes this technique in paragraph 5 of his statement (Exhibit 1).

1. Following the surgery an operation report was written by Dr X. Dr X says the report was "false" and dictated to him by the respondent (Exhibit A, Tab 9, paragraph 35). The respondent says the report is fundamentally accurate.

1. The use of the word "false" was misleading. It is clear from both the statement, and confirmed by Dr X in his oral evidence, that his intention was to convey that while the description of the record was inaccurate, that was not necessarily the opinion of the respondent. This is consistent with Dr X's evidence that the respondent told him that the stitching to the muscle would "create the same functional outcome as if it was tendon."

1. The question is not whether attachment to the fascia was an effective means of tendon repair. The respondent simply says he did not do this. It is agreed by all concerned that the alleged procedure would not be effective. The question is rather whether the respondent joined the opposing ends of the tendons or whether he joined one end to the loose fascia.

1. The use of sutures is independently confirmed in the nurse's report in Exhibit A (Tab 17A, page 34). "Needles" refers to needles with an attached suture.

1. Patient A was discharged on 8 February 2010. He returned on 15 February for review when a clinical assessment indicated functional deficiencies.

1. Between discharge and re-admission Dr X spoke to Dr Wilkinson, his head of department, and said he had concerns about the operation. Dr Wilkinson had been absent when the operation was performed.

1. Following an examination by Dr Wilkinson on 15 February, Patient A was sent to the Royal Adelaide Hospital. Further surgery was performed on 19 February 2010 by Dr Fassina, assisted by Dr Silveria. The operation note, written by the latter doctor, includes this sentence: "No evidence of tendon repair".

1. The sentence just quoted is prima facie inconsistent with the respondent having carried out a tendon repair some 13 days earlier. Resolution of this apparent inconsistency has been fundamental to the Tribunal's decision.

1. The HCCC relied heavily on the comment in the Adelaide Hospital notes that no evidence of tendon repair had been found. This, it was submitted, plainly corroborated the HCCC's case that a tendon repair had not previously taken place. The prime evidence of tendon repair that one would have expected to have found on the reopening of the wound was the sutures that would have been used in the first operation. None were found. This fact, however, is also the respondent's strongest point.

1. According to the respondent, and in particular his expert Dr Long, and as mentioned above, it is possible for sutures not to be found when a wound is reopened. The HCCC said this was not possible because the sutures would not have dissolved within the 13 days between operations. The difficulty is that if that were the case then why did Dr Fassina not at least find evidence of the sutures attached to the proximal ends of the tendons. On Dr X's evidence these sutures were unquestionably put in place.

1. Dr X was the principal witness for the HCCC. He was extensively and closely cross-examined. The cross-examination was unquestionably fair but nevertheless rigorous. In the opinion of the Tribunal Dr X was a very impressive witness. The Tribunal noted that there were a number of questions in respect of which he could not recall the answers. Often this is a sign of, at least, an unsure or unreliable witness. The Tribunal does not reach any such conclusion in respect of Dr X. The matters that he could not recall were often conversations and events, which were at the periphery of the core facts. As far as the actual operation was concerned, Dr X was certain.

1. There is some conflict between Dr X's evidence and that of Dr Rigg-Smith as to the respondent chatting to the anaesthetist and perhaps being distracted. The Tribunal does not think this conflict is significant and is of the view that the trainee surgeon's perception may well have been influenced by the difficulty that he was having with the procedure.

1. Dr Rigg-Smith forcefully, and with a degree of unnecessary professional outrage, rejected any suggestion of impropriety during the operation. He had known the respondent as an acquaintance and had some professional dealings with him over a number of years. He had no clear recollection of the procedure. His evidence was effectively a statement that if something untoward had occurred he would have recalled it.

1. Although Dr Rigg-Smith was perhaps a little too strident in his rejection of any fault occurring in his presence, the Tribunal is not in a position to reject his evidence. The Tribunal also notes that on the favourable impression it formed of Dr X that any protestations by Dr X would have been made in a quiet and respectful fashion and not likely to have attracted the attention of Dr Rigg-Smith.

1. Dr Rigg-Smith made no observations of the wound and his evidence is ultimately of little assistance to the Tribunal.

1. An important point in relation to Dr X's credit was that no credible explanation was given for his, on the respondent's case, invention of this version against the respondent. In one instance it was put to Dr X that his evidence was false. The closest that the respondent came to providing some sort of motive was as a diversion to Dr X being found responsible for the incomplete record of the operation. The Tribunal does not understand how such a motive would lead him to falsify the details of the operation.

1. Even in saying that the respondent dictated the operation report to him Dr X made the point that he did not think that the respondent believed that the operation had not been properly done. Dr X obviously saw himself as a very junior doctor in the presence of, and hoping to learn from, an experienced general surgeon. This attitude even emerged in his oral evidence when he said, "... I remember asking Dr Hughes to scrub in, which he very kindly did, and then ..."

1. Dr Fassina gave evidence via videolink from Adelaide. He has a good deal of experience with tendon surgery. He said that when exploring the wound he was not specifically looking for suture material, rather he was trying to identify the reason for the apparently failed previous tendon repair. He did not find any sutures. He said it was possible that there had been sutures present but not found. He rejected the possibility that sutures were found but not recorded. He also rejected the possibility that sutures had been lost within various tissues. He did not reject, but gave little credence to the possibility that the sutures (Vicryl) would have dissolved after a period of 13 days.

1. After Dr Fassina gave evidence the question arose as to the possibility that the missing sutures may have been 'hidden' in the sheaths surrounding the damaged tendons. Because this possibility had not been put to Dr Fassina he gave further evidence by telephone. When this possibility was put to him he accepted it as a remote possibility.

1. In giving his telephone evidence Dr Fassina was adamant: "There was no evidence of any other suture material. There was no evidence that the tendons had been opposed. There was no evidence of there being damage to the ends of the tendons that may indicate that the suture material had pulled out of the tendon. You know, there was no evidence of the tendons being repaired." (T 173.48)

1. The Tribunal has no reason to doubt the veracity of Dr Fassina's observations but remained with the problem arising from the undisputed evidence that sutures had been attached to the proximal ends of the severed tendons.

1. A/Prof Kleinman provided the HCCC's expert report (Exhibit A, Tabs 18 - 22). He also, during his oral evidence, made available the manufacturer's estimates of the period that it would take for sutures to be absorbed following insertion. It is clear from these statistics, in Exhibit B, that Vicryl would not be expected to dissolve within 13 days.

1. A/Prof Kleinman said, in relation to sutures on the proximal ends of the tendons: "If it were in the tendon you would expect to see it on the end of the tendon." (T 87.20)

1. A/Prof Kleinman shared the Tribunal's difficulty in relation to the missing sutures. He said:

"Q. Could the first lot have disappeared?

A. It couldn't - it's too soon for them to dissolve at 13 days, they wouldn't have disappeared. If the tendon had retracted and the suture torn out, because apparently the registrar's note was that he'd stitched the tendon to the deep fascia and the muscle would contract, could have pulled out, but then the surgeon in, Dr Fassina saw no evidence of suture material, there was no evidence that the ..(not transcribable).. had been repaired, so I'm not quite sure what that means. It doesn't say there was a deep tendon, and doesn't say - it just says there was no evidence of repair, and I have been thinking about it a lot and I'm very confused." (T87.29)

1. The respondent gave evidence in a generally confident and straightforward manner. He recounted his version of events to the extent that his recollection permitted. He was adamant that he had joined the tendons and that he had not attached any of the tendons to the fascia.

1. He described an arguably patronising approach to his supervision of Dr X, at one stage stating that he had initially allowed Dr X to continue in the procedure in order, in effect, to test his mettle.

1. Dr Hughes said that it was an operation that he knew he would always have to do himself. This was because of Dr X's known inexperience.

1. There were inconsistencies in Dr Hughes' evidence but none that would lead the Tribunal to the conclusion that he was dishonest or would inescapably lead to a conclusion that he had not attempted a tendon repair as he alleged.

1. Dr Hughes described the operation as he would have performed it stating that in the order of 25cm of suture would have been used for the repair of the three severed tendons. He had no explanation for Dr Fassina not finding any evidence of tendon repair but this did not deflect him from his insistence that he had carried out the repairs.

1. The respondent was equally insistent that he had not attached the proximal ends of the tendons to the fascia. He said such a procedure would have been "inane".

Conclusions

1. The strength of the HCCC's case lies in the observations of Dr Fassina that there was no evidence of previous tendon repair. Basic to this evidence was the absence of any sutures. Had the contest been between absolutely no repair and a repair as described by the respondent, then the Tribunal would have had difficulty in rejecting Dr Fassina's observations.

1. As has been said before in this judgment the division of versions was not, however, so stark. It was complicated by the accepted evidence that at least one end of the tendons had been sutured. The otherwise very powerful effect of the evidence derived from the absence of any sutures being found in the second operation was significantly watered down by the acceptance that sutures were attached to the proximal ends of the tendons and should have been found. On this basis, and bearing in mind the onus of proof, in particular as applied on the Briginshaw standard, the Tribunal could not reject the possibility that there had been a repair of the tendons as described by the respondent.

1. As to the mystery of the disappearing sutures, the evidence of Dr Long was important. He gave evidence of his experience with sutures that, admittedly inexplicably, had disappeared as soon as five or seven days after an operation. Dr Long was not shaken in cross-examination. In fairness no attempt was made to discredit his opinion and the Tribunal could not reject it.

1. There thus being an explanation for the absence of sutures when the wound was reopened the Tribunal could not conclude that no sutures had been inserted and in particular that the sutures had only been attached as described by Dr X. Ultimately the contest came down to the observations of Dr X against the respondent's evidence of what he had done. Because the Tribunal could not reject the respondent's evidence as, in plain terms, false, it was bound to reach the conclusion stated above.

1. This raises the apparent inconsistency between the Tribunal's acceptance of Dr X's evidence in the face of a conclusion that it could not be satisfied that the respondent had not sutured both ends of the severed tendons.

1. The Tribunal's explanation of this inconsistency is two-fold.

(a)   The onus always remained on the HCCC to prove its case and absent a positive finding of dishonesty on the respondent's part (which the Tribunal could not make) together with the explanation for the absence of sutures provided by Dr Long, that onus had simply not been met.

(b)   The Tribunal considers it possible that while absolutely honest, Dr X may have been mistaken in his observations. It is to be recalled that Dr X, in February 2010, was very inexperienced, had no previous experience with a tendon repair and may therefore have misinterpreted what he took to be an attachment of the tendons to the fascia. The Tribunal notes that Dr Long said an attachment as described by Dr X was "not reasonably possible." He did say it could be done but would be "a strange sort of exercise."

1. In summary, the view of the Tribunal is that notwithstanding its general acceptance of Dr X's credibility, it could not be satisfied on the Briginshaw standard that the evidence of Dr Fassina about an absence of any indication of tendon repair was sufficient to establish that fact and discharge the onus on the HCCC.

1. In relation to the breakdown of the repair the Tribunal cannot conclude what caused the mishap. In particular, the Tribunal could not be satisfied that the mere fact of the failure could be seen as proof that no proper repair had been done in the first place. In this regard, however, the Tribunal wishes to make it clear that there is absolutely no evidence that any action by Dr X may have contributed to the failure of the repair.

1. The result of the Tribunal's findings is that Complaint 1 must fail.

1. In relation to Complaint 2, Dr Long was critical of the operation report. The respondent accepted the criticism. He also accepted that even though the report was written by Dr X, he bore full responsibility for its contents. In the view of the Tribunal, accepting that the operation was as described by the respondent, the report was manifestly inadequate.

1. The Tribunal is satisfied that Particular 1 of Complaint 2 has been established. This is derived from the respondent's own evidence together with that of Dr Long. The Tribunal is satisfied that the absence of detail of the identity of the tendons that were repaired amounts to a breach of Clause 4(4)(b) of Schedule 1 of the Medical Practice Regulation 2008.

1. The respondent submitted that the description given in the operation report was sufficient to fall within the required obligation to describe the "nature of the treatment". The respondent submitted that "nature" required only a description of the inherent characteristics of the operation which was met by use of the phrase "repair of extensor tendons". Having regard to the number of tendons that are present in the lower leg and foot (Exhibit 4) the Tribunal is of the view that the nature of the operation must extend to the identification of the specific tendons that were treated. Although not the subject of discussion, the Tribunal notes that the operation report does not even refer to the tendons being in a leg (let alone left or right), as opposed to, for example, the hand. The very rough sketch is the only possible reference to a leg.

1. This finding results in an automatic conclusion of unsatisfactory professional conduct pursuant to Section 139B(1)(b) of the National Law.

1. Because of the conclusion reached as to Complaint 1 the second particular of Complaint 2 must be rejected.

1. The Tribunal is therefore satisfied that Complaint 2 has been established but only to the extent of the contravention of the Medical Practice Regulation 2008.

1. In relation to Complaint 3 the finding in Complaint 2 alone could not be regarded as professional misconduct under Section 139E of the National Law. The HCCC conceded this point. As Complaint 1 has not been established Complaint 3 must fail.

1. The Tribunal asked the parties to obtain instructions on the consequence of the findings as made having regard to the respondent's entitlement to a separate hearing on protective orders. The Tribunal indicated that its preliminary view was that on the establishment of only Complaint 2 (and only Particular 1) that the appropriate protective order would be a reprimand.

1. This view was based on the Tribunal's endeavour to ensure an appropriate order for the protection of the public and of the medical profession was made but also taking into account that the respondent had given evidence that since the operation he had been involved in the upgrading of standards of medical records, in particular in Queensland and had also reviewed his approach to his own operation records.

1. Both parties indicated that the imposition of a reprimand alone would not be contested. Accordingly, the Tribunal makes the following orders:

(1)   Complaints 1 and 3 are dismissed.

(2)   Complaint 2 is established but only in respect of Particular 1, as amended.

(3)   The respondent is reprimanded.

1. The Tribunal will hear the parties on costs.

1. (Further order made: Each party to pay its own costs of the proceedings.)

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Decision last updated: 29 August 2013