MEDICAL BOARD OF AUSTRALIA and BERNADT - [2012] WASAT 108

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)

CITATION: MEDICAL BOARD OF AUSTRALIA and BERNADT [2012] WASAT 108

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)

HEARD: 31 JANUARY AND 1 & 2 FEBRUARY

DELIVERED : 25 MAY 2012

FILE NO/S: VR 145 of 2010

BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
IAN BERNADT
Respondent

Catchwords:

Medical practitioner - Allegation of acting carelessly, incompetently or below required standards - Inadequate history - Performing adenoidectomy - Patient with submucous cleft palate

Legislation:

Dental Act 1939 (WA)
Medical Act 1894 (WA)
Medical Practitioners Act 2008 (WA), s 76(1)(b)(i), s 76(1)(b)(ii), s 76(1)(d)

Result:

Findings of carelessness in relation to two allegations

Category: B

Representation:

Counsel:

Applicant: Mr P Giles
Respondent: Mr J Ley

Solicitors:

Applicant: Moray and Agnew
Respondent: Tottle Partners

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

Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Medical Board of Western Australia and Richards [2010] WASAT 94
Ong v The Dental Board of Western Australia (unreported, WASC, Library No 950442, 25 August 1995)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Medical Board of Australia alleged that Dr Ian Bernadt failed to take an adequate history of an infant patient before performing an adenoidectomy on her, and that he knew, or ought to have known, that the child had a submucous cleft palate, and that adenoidectomy was contraindicated in a child with that condition. The Board also made allegations concerning alternative treatment that should have been considered.
The Tribunal examined the events which occurred at the consultation with the child and her father, and the difficulties which Dr Bernadt had in obtaining a medical history. It concluded that he should have made further enquires which would have elicited a more thorough history. The Tribunal also concluded that, having carried out an examination of the child while under anaesthetic, and having detected a strong indicator of the existence of a submucuous cleft palate, Dr Bernadt should not have continued with the operation. In those respects, the Tribunal found Dr Bernadt to have acted carelessly. It concluded that the other allegations had not been established.

Allegations

The Medical Board of Australia (Board) alleges that an ear, nose and throat surgeon, Dr Ian Bernadt, is guilty of carelessness, incompetence, or conduct falling short of the standards that the public may expect, in the treatment of a two and a half year old patient, S.
S had a submucous cleft palate, which she had had since birth. Dr Bernadt performed an adenoidectomy on S on 5 August 2008. Adenoidectomy is contraindicated in the presence of a cleft palate because of the substantial risk that the patient will develop velopharyngeal incompetence (hypernasal speech) following total adenoidectomy. The allegations, which will be dealt with in precise terms below, focus upon the adequacy of Dr Bernadt's preoperative history taking and management of the patient and his performance of the operation when he knew or ought to have known of the existence of the submucous cleft palate and the substantial risk of complications from total adenoidectomy.

Dr Bernadt's treatment of S

S was born on 2 March 2006. Her parents, Mr and Mrs E, are Iranian, but came to Australia in 1985. Mr E qualified as a high school teacher in 2002 at Edith Cowan University, and has been employed as a teacher at a government high school since 2004. Mrs E has a diploma in applied science, and a degree in accounting which she obtained from Edith Cowan University in about 2002. She is employed in the administration section of a local government, in a position which she has held for some 10 years.
A few days after S was born, she was examined by doctors at Mercy Hospital who discovered that she had a submucous cleft palate. She was referred to a plastic surgeon, Dr Tony Baker, at 10 weeks of age in May 2006. The strategy for management adopted by Dr Baker was simply to observe her during her growing years with routine speech pathology follow ups. From time to time she underwent visits to a speech pathologist, Ms Narelle Pearce, and progress with her speech was good. In April 2008, Dr Baker noted that her speech was progressing well, and that it would be unlikely that she would require surgery.
Sometime in June 2008, S began to encounter breathing difficulties whilst asleep. Mrs E attributed this to the development of a cold. Mrs E said that S seemed to be struggling to breathe, and began to snore quite loudly. She was aware of this because she would lie next to S during the night and she could hear her struggling to breathe. She treated S with Demazin.
On about 9 July 2008, Mrs E asked Mr E, or perhaps Mr E volunteered, to lie with S overnight because Mrs E was very tired from the lack of sleep watching over her daughter. Mr E stayed with S that night. He observed that she was snoring and 'gasping while sleeping'. In his evidence in chief, Mr E said that S 'stopped breathing for up to 10 seconds at a time approximately 10 times during the night' and that he would have to wake her up to start her breathing. In crossexamination, Mr E said that S stopped breathing for a few seconds, maybe five or six seconds, or maybe two seconds. He said that her stopping breathing may have occurred more than 10 times that night.
This was the first time that Mr E had sat with his daughter overnight and observed her breathing problems. In the morning he was very concerned. He was then on holidays. He told his wife that he would take S to see a specialist. He obtained a list of specialists and began to work his way down that list in an effort to find somebody who was available to see his daughter that day. He spoke to someone at Dr Bernadt's office and was advised that Dr Bernadt could see his daughter, but that he would need a referral from a general practitioner.
Mr E then went to his family's general practitioner, Dr Sam. Dr Sam scrawled a brief letter of referral which read:
Is having nose block
? unusual sound
? sleep apnoea
parents are worried
Please see and advise
Mr E then took S to see Dr Bernadt. Although much of what occurred at that consultation was not in dispute, the accounts of the consultations by Mr E and Dr Bernadt differ in some respects.
Dr Bernadt made notes of the consultation. He made an annotation 'NO ++++ - 3/52' which he explained meant a severe nasal obstruction of three weeks duration. He then noted 'Demazin doesn't help - dad sits at her bed all night'. He noted 'snotty ++++' , and drew a diagram which indicated that he had noted that S had a bifid uvula. He noted 'huge ads' which is a reference to enlarged adenoids. He made annotation which represented a finding that her ears were normal. A note 'Try B' and an arrow pointing from those words to the reference '3/52' was explained by Dr Bernadt as recording his decision to try an antibiotic 'Bactrim' in view of the duration of the problem. An annotation 1/52 was explained as meaning 'to come back in one week'. Adjacent to that notation is '?Ads' which is presumably a reference to the possibility that an adenoidectomy may be necessary.
In his written witness statement, Mr E said that he did not recall Dr Bernadt asking him any questions about S's prior medical history. He was pressed on that evidence in crossexamination.
Mr E said that, in response to an enquiry from Dr Bernadt as to what the problem was, he said that S was having difficulty breathing at night, that her breathing was noisy and she was snoring. He was unsure whether he told Dr Bernadt that his wife had been lying with S at night for some time, but said that maybe he did. He did tell Dr Bernadt that he had been lying with S that night, and that he did that because she would stop breathing and had to be woken up again. Mr E said that he demonstrated the breathing pattern which was causing him concern. He said that he did not mention that S had a cold, and did not know, at the time, whether she did, in fact, have a cold. He confirmed that he told Dr Bernadt that he and his wife had been giving S Demazin. He was unable to say why S had been given Demazin, and said that he had no idea what Demazin does. That was because his wife had always been in charge of S, and he only knew that Demazin was the only medication which his wife had administered. He could not remember whether he told Dr Bernadt that S had been having breathing difficulties for three weeks.
In response to questions as to whether Dr Bernadt had questioned him on the length of time that the difficulties been present, Mr E said that, until the previous night, he had no idea that she had breathing difficulties and no idea that she had a cold.
Mr E said that he could not remember whether Dr Bernadt asked him whether S had any previous medical history, or previous illnesses. He did recall that he was asked whether she was taking any medications, and that he responded that she was taking Demazin. He could not remember whether Dr Bernadt asked him if S had had previous breathing problems.
Mr E said that, at that time, he had no idea of any previous medical conditions suffered by S, apart from her cleft palate, which he knew because his wife had told him. He did not, however, consider that the cleft palate was relevant to her breathing difficulty. He therefore did not mention the cleft palate to Dr Bernadt. He accepted that Dr Bernadt may have asked him whether she had any previous medical conditions, but he did not consider a cleft palate to be relevant and thus did not mention it. He said that Dr Bernadt did not ask him directly if she had a cleft palate. He confirmed that he did not tell Dr Bernadt that S had been attending Princess Margaret Hospital for speech therapy, because he did not consider that to be relevant.
Dr Bernadt said that Mr E told him that S was having great difficulty breathing, particularly at night, and that he and Mrs E had been keeping vigil at her bedside because her breathing was so obstructed, and because she sometimes stopped breathing while she was asleep. He said that Mr E told him, when that happened, Mr E would wake S again to recommence her breathing. He confirmed that Mr E told him that S was taking Demazin and that she had been experiencing the breathing problems for approximately three weeks. He said that Mr E described the breathing problem, but did not make any attempt to demonstrate the noise which S was making at night.
In cross-examination, Dr Bernadt said that the consultation took much longer than normal, because he was having difficulty in getting information from Mr E. He said that he asked all of the routine questions, but the information mentioned in his notes represented all of the positive, relevant information which he was able to obtain. Dr Bernadt said that when he asked whether there were any other medical problems, Mr E could not give him any further information and, in effect, sat mute. Notwithstanding Mr E's reticence to respond to questions, Dr Bernadt accepted that he did not discuss S's bifid uvula, or ask any questions about it. He accepted that he did not ask a direct question to Mr E as to whether S had a submucousal cleft palate. That was because, he explained, he did not see the submucousal cleft, and it did not occur to him to ask that question.
When Dr Bernadt first saw Mr E, he wrote a referral for an xray and requested that he return later the same day with the xray and report. That was done, and the x-ray report noted that the enlarged adenoids resulted in a reduction of approximately 90% of the air space. It noted that there was no associated tonsillar enlargement.
It is common ground that Dr Bernadt examined S. As his notes indicated, he observed that she had an obvious bifid uvula, the uvula being the fleshy mass which hangs from the soft palate at the back of the throat. It is said to be bifid if it is cleft or spit.
As Dr Francis J Lannigan, a specialist head and neck surgeon called as an expert by the Board explained, a bifid uvula is a relatively common occurrence in approximately one or two people out of every 100. Of itself, it is not a contraindication to adenoidectomy. It is, however, well recognised as a warning sign for potential postoperative palatal insufficiency, as in some instances a bifid uvula is associated with an underlying submucous cleft palate. A submucous cleft palate is a rare occurrence in only about one in 1200 people.
Mr E said that S sat on his lap during the consultation with Dr Bernadt. He said that she opened her mouth cooperatively when asked to do so, and that Dr Bernadt used a metal tong to look into her mouth. Dr Bernadt said that S 'appeared to be quite distressed'. He agreed that he used a tongue depressor in S's mouth when he examined her. He said that she was 'not uncooperative' but would not open her mouth and was restless. His evidence in that respect differed from the evidence of Mr E. It is not necessary to resolve that conflict. Dr Bernadt said that he examined S's soft palate to see if he could locate a split, but was unable to do so. None of the experts was critical of the fact that S's cleft palate was not revealed by examination at the consultation on 10 July 2008, and accordingly it is not of significance whether S was cooperative with the examination.
Having confirmed his initial suspicions by xray, Dr Bernadt discussed the possibility of an adenoid operation to cure the problem. There is some conflict between the evidence of Dr Bernadt and Mr E in relation to that discussion. Mr E suggested that Dr Bernadt told him that S needed surgery 'to remove something' within the next few days. He said that Dr Bernadt told him he could do the operation on the following Tuesday, but that Mr E responded that he needed to discuss it with his wife. Mr E said that Dr Bernadt told him that if the surgery was not carried out on the following Tuesday, they would have to wait for two to three weeks as the anaesthetist was going away.
Dr Bernadt said that he did tell Mr E that S's enlarged adenoids were causing her obstruction and stopping her breathing at night, and that those conditions could be alleviated by removing the adenoids surgically. He said, however, that he told Mr E that it appeared that S's adenoids were infected, and that he would first like to try a course of an antibiotic, Bactrim, to see if that helped her breathing difficulties. He said that he did not suggest that the surgery be conducted the following Tuesday, but rather he said that, unless the operation were done the following Tuesday, it could not be done for two or three weeks because the anaesthetist who assisted in operating was going away. He said that he made that comment simply in order to give Mr E an idea of when any operation could be done, but he did not suggest that it had to be done the following Tuesday.
Dr Bernadt's version of the conversation is more likely the accurate account. It is consistent with his note to 'Try Bactrim'. If, as Mr E suggested, he was to discuss the possibility of an operation on 15 July 2008, it might be expected that Mr or Mrs E would have given some evidence of a response to Dr Bernadt's office as to their decision whether to proceed. There was no such evidence. We accept, therefore, that at the initial consultation on 10 July 2008, the course of action adopted by Dr Bernadt was to try the antibiotic and review S the following week.
After seeing Dr Bernadt for the second time on 10 July 2008, Mr E obtained Bactrim from a pharmacy. S refused to take it because of its taste despite efforts by Mr and Mrs E to administer it to her. Mrs E explained that, after a few days of struggling to give S the Bactrim, she took S to a general practitioner and obtained a prescription for another antibiotic, Amoxil. S did take that antibiotic.
On 17 July 2008, Mr E returned with S to see Dr Bernadt as arranged. Her breathing difficulties at night had continued.
During that consultation, a phone call was made to Mrs E on Mr E's mobile phone. There is a dispute as to whether that call was made at Dr Bernadt's suggestion, as he maintains, or whether the suggestion was made by Mr E because he wanted Dr Bernadt to explain the proposed surgery to his wife, as Mr E maintains. Little turns on that question, and it is not necessary to resolve it.
It is common ground that the conversation with Dr Bernadt and Mrs E was brief. Dr Bernadt said that the purpose of the call was to enquire as to the duration of the breathing difficulties, and that he asked Mrs E whether Mr E's history that S had been experiencing breathing problems for about three weeks was accurate, to which Mrs E responded that the problem had been present for much longer than three weeks. Dr Bernadt said that after telling him that, Mrs E hung up the telephone.
Mrs E's account of the call was that Dr Bernadt said that S was going to have an operation and asked whether she had any questions for him. She said in her witness statement that Dr Bernadt did not ask her any questions about S's medical history, but in her oral evidence she confirmed that he asked her about the duration of the breathing difficulties and she responded in excess of three weeks.
Dr Bernadt's note of the consultation on 17 July 2008 records 'spoke to Mum by mobile; NO/apnoea for more than 3/52'.
That note supports Dr Bernadt's account of the telephone conversation with Mrs E. Arrangements were then made for Dr Bernadt to perform an adenoidectomy on S at South Perth Hospital on 5 August 2008. Pre-admission and consent forms were provided to Mr E at the appointment on 17 July 2008, but he took them away for his wife to complete. The forms were subsequently completed by Mrs E. They included a patient health history form and a pre-admission form. None of the questions on those forms were directed to the presence or otherwise of a cleft palate. Mrs E also completed a consent form for the hospital. That form had been signed by Dr Bernadt on 17 July 2008 and given to Mr E. It appears to have been completed by Mrs E on 5 August 2008. The form contains a section entitled 'Significant past history/medical/surgical/anesthetic' which was left blank.
The operation proceeded on 5 August 2008. Dr Bernadt said that, when S was anesthetised he palpated her palate. He said that he felt a bony notch on the palate. A bony notch, like a bifid uvula, is an indicator of the existence of a submucousal cleft palate. Dr Bernadt said that he palpated the palate but did not detect a split. Having not detected the cleft palate on palpation, Dr Bernadt proceeded with the operation and removed the adenoids. That procedure was carried out satisfactorily, and no criticism is made of the manner in which the surgery was performed.
Following the operation, S developed difficulties with speech, being the manifestation of the significant risk which is attended upon the performance of adenoidectomy in the presence of a cleft palate.

The precise allegations against Dr Bernadt

The carelessness, incompetence or failure to meet appropriate standards alleged against Dr Bernadt is found in paragraphs 8 and 9 of the grounds of the application. Those paragraphs are as follows:
8At the time that he performed the adenoidectomy, the Respondent knew, or ought have known, that:
8.1[S] had, or was at risk of having, a sub-mucous cleft palate;
PARTICULARS
A.the Respondent knew that [S] had a bifid uvula;
B.the presence of a bifid uvula is strongly indicative of a cleft palate; and
C.the anaesthetic record of Dr Korman notes the presence of a 'cleft palate';
8.2adenoidectomy was contra-indicated in children with bifid uvulae or with sub-mucous cleft palates as it carried a substantial risk of post-operative:
(a)velo-pharyngeal incompetence; and/or
(b)speech impairment.
9In the circumstances, prior to recommending or performing the adenoidectomy, the Respondent ought to have:
9.1taken an appropriate medical history of [S] including:
(a) making enquiries and investigations to establish the existence of [S]'s sub-mucous cleft palate;
PARTICULARS
A.the Respondent knew that [S] had a bifid uvula;
B.the presence of a bifid uvula is strongly indicative of a cleft palate
(b) identifying [S]'s sleep patterns prior to her cold; and
(c)in relation to [S]'s apnoeic episodes, determining their:
(1)depth;
(2)duration; and
(3)frequency; and
(d)at the Second Consultation, making enquiries about [S]'s tolerance of Bactrim;
(e)in the absence of being able to take an appropriately detailed medical history from Mr and Mrs [E] in the first instance, consulted or used an interpreter;
9.2referred [S] to a hospital with appropriate observational facilities to assess the degree, severity and cause of [S]'s apnoeic episodes;
9.3recommended:
(a)non-surgical management of [S]'s nasal obstruction with:
(1)antibiotics and decongestants in the first instance; and
(2)appropriate observations in regard to breathing patterns during the course of this treatment;
(b)partial adenoidectomy as an alternative to, and in preference over, complete adenoidectomy; and
(c)complete adenoidectomy only as a last resort; and
9.4taken reasonable steps to ensure that Mr and Mrs [E] understood:
(a)his diagnosis of [S]'s condition;
(b)the treatment options available for managing [S]'s condition including:
(1) non-surgical management;
(2) partial adenoidectomy; and
(3)adenoidectomy as a last resort;
(c)the material risks associated with the various treatment options available for managing [S]'s condition; and
(d)the presence of [S]'s bifid uvula and its significance in relation to the risks of removing her adenoids and the risk of palatal incompetence associated with an adenoidectomy,
so that Mr and Mrs [E] were in a position to make an informed decision about [S]'s treatment.
PARTICULARS
In the absence of being able to discuss and disclose relevant information and advice to Mr and Mrs [E] in the first instance, the Respondent ought to have consulted or used an interpreter.

Carelessness

The conduct identified above is said to have been careless in terms of s 76(1)(b)(i) of the Medical Practitioners Act 2008 (WA) (MP Act), or carried out incompetently in terms of s 76(1)(b)(ii) of the MP Act or alternatively, falling short of the standard that a member of the public is entitled to expect of a medical practitioner, and that a member of the medical profession would reasonably expect of a medical practitioner in terms of s 76(1)(d) of the MP Act.
In Medical Board of Western Australia and Richards [2010] WASAT 94 (Richards), the Tribunal discussed the meaning of the expression 'acting carelessly' for the purposes of the MP Act. We adopt the approach taken by the Tribunal in Richards which was expressed at [26] - [28] as follows:
26In our view, acting carelessly for the purposes of the MP Act still requires that the carelessness requires that the conduct complained of assumes a scale of gravity which is sufficiently serious to warrant, in the eyes of professional colleagues of good repute and competence, punishment and disciplinary action for the protection of the public. That is because s 76 is concerned with professional disciplinary proceedings. The objects identified in s 3 of the MP Act are designed 'for the purpose of protecting consumers of medical services'. That object is the traditional object of professional regulatory legislation. The MP Act is not concerned with civil redress. The notion of carelessness for the purposes of s 76 differs from what is sometimes described as 'mere negligence' - see Pillai v Messiter (No 2)(1989) 16 NSWLR 197 per Kirby P at 200 201 (Pillai v Messiter). Acting carelessly involves, for the purposes of the MP Act, not giving sufficient attention or thought to avoiding harm or mistakes or showing no care or interest or effort in the treatment of a patient, but does not include trivial error not warranting disciplinary action.
27In our view, the term 'acted carelessly' does not encompass an error of judgment where the medical practitioner acts with care and diligence, but simply makes a wrong decision unless, to use the words of Kirby P in Pillai v Messiter, the decision involves a departure 'from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant'.
28In identifying whether a medical practitioner has acted carelessly, the assessment must be undertaken without the benefit of hindsight, and must be determined from the nature of the conduct and not from its consequences.

Acting incompetently

In Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) (Jemielita), Owen J discussed the concept of incompetency in the context of the expression 'gross carelessness or incompetency' as used in the Medical Act 1894 (WA). He concluded that the concept of incompetency involves an unfitness to practise in a particular field of medicine or an inability to perform the techniques or judgments needed for the proper practice of medicine in that field. He concluded that incompetency is usually suggestive of a generalised deficiency in the way in which a practitioner handles his or her affairs rather than individual or sporadic shortcomings.
In Ong v The Dental Boardof Western Australia (unreported, WASC, Library No 950442, 25 August 1995), Murray J considered the meaning of the expression 'incompetence' in the context of the Dental Act 1939 (WA). His Honour referred to Jemielita, and continued:
A case such as this will always involve a judgment about the standard of care and skill which, in the view of the Board, ought to have been brought to bear upon the treatment of the particular patient, in the particular field of professional discipline which was involved. Carelessness in that regard rather implies the falling short of appropriate standards of care and skill on the particular occasion in question. Incompetence in my opinion involves the view that such falling short of the proper standards of care and skill thought to be required on the occasion in question reveals a lack of knowledge or skill justifying an adverse judgment about the practitioner's professional capacity or fitness to practice in the particular field of expertise involved.
Murray J's comments suggest that incompetency may be found in relation to a single act. That approach is consistent with the ordinary and natural meaning of the words of s 76(1)(b)(ii) which identifies a disciplinary matter where 'a person in the course of his or her practice as a medical practitioner … acted incompetently'. A person may act incompetently on a particular occasion, notwithstanding that they may not be found to be generally incompetent to practice medicine, either generally or in a particular field.

Allegations 8.1 and 8.2

The substance of this allegation is that Dr Bernadt knew, or ought to have known that S had, or was at risk of having a submucous cleft palate, and that the performance of an adenoidectomy was contraindicated and carried substantial risks. A number of matters relevant to that allegation were admitted by Dr Bernadt. It was not in issue that he knew that S had a bifid uvula, or that he discovered a bony notch on examination of S's palate while she was anaesthetised. It was accepted by Dr Bernadt and all three experts that a bifid uvula and a bony notch are indicators of the presence of a submucous cleft palate. Nor it is it in issue that adenoidectomy is contraindicated in children with submucous cleft palates because it carried substantial post-operative risks of velopharyngeal incompetence or speech impairment.
The issue in relation to this allegation is whether Dr Bernadt knew, or ought to have known, that S had, or was at risk of having, a submucous cleft palate.
The original allegations relied upon a note on the anaesthetic record of the presence of a cleft palate, but reliance on that record was abandoned at the hearing on basis that there was no evidence that Dr Bernadt saw, or should have looked at, the anaesthetic record prior to performing the operation.
Dr Bernadt denies that he actually knew of the existence of a cleft palate at the time of operation. There is no evidence upon which a contrary inference could be drawn. The question becomes, therefore, whether Dr Bernadt ought to have known of the fact that S had, or was at risk of having, a submucous cleft palate.
The Tribunal had the benefit of the evidence of three expert witnesses, Dr Lannigan, Dr Michael Silverstein and Dr Terrance McManus. They agreed that there are three anatomical markers or identifiers of a submucosal cleft palate. The first identifier is a bifid uvula, although as mentioned above, that is a relatively common anatomical feature often presence in the absence of a submucous cleft palate.
The second anatomical sign is a bony notch, also referred to as a reverse notch at the back of the hard palate. It is possible that a small notch at the back of the hard palate may be felt on palpation where there is no submucous cleft palate. However, the experts agreed that the bony notch present in association with a cleft palate is very different from the small bony notch which might be present in the absence of a cleft palate.
The third clinical sign was described as 'the absence of a midline raphe', which is a narrow line crossing the hard palate to the uvula. That is associated with being able to detect the actual cleft in the palate by palpation, although the experts were agreed that palpation may occasionally be difficult.
As noted above, Dr Bernadt said that, at the operation, he palpated S's palate and felt a bony notch. He had already noted the presence of the bifid uvula. He said that he was, however, unable to detect a gap in the muscle of the palate, and thus did not conclude that there was a submucous cleft palate.
The experts were asked their view as to what a reasonably competent ear nose and throat specialist would do in circumstances where they had experienced difficulty in obtaining the patient's medical history, and then at operation had detected a bifid uvula and a bony notch, but were unable to detect the actual split in the muscle. Dr Lannigan said that he would first approach the examination of the muscle in a different way, but if, having done that, he remained unable to detect the cleft, he would have ceased the operation with a view to obtaining more information from the parents of the patient. Dr McManus expressed a firm view that, on detection of the bony notch, he would not have proceeded with the operation, notwithstanding an inability to palpate the cleft. Dr Silverstein agreed.
In our view, in a context where Dr Bernadt had experienced some difficulty in obtaining an adequate history prior to operation, his discovery, at operation, of the bony notch, coupled with his knowledge of the bifid uvula, required that he not proceed with the operation. If, as appears to be the case, on palpating the bony notch, Dr Bernadt dismissed its significance on the basis that a notch may be present in the absence of a submucous cleft palate, we considered that he acted carelessly in doing so. The experts were quite firm in their evidence, which we accept, that a bony notch associated with a cleft palate is very different from any notch not associated with a cleft palate. The significant risks of velo-pharyngeal incompetence and speech impairment following adenoidectomy in children with submucous cleft palates is clearly well known, especially to practitioners who are specialists in the field. The carelessness was, we consider, a departure 'from elementary and generally accepted standards' of which Dr Bernadt could 'scarcely be heard to say that he was ignorant' (to use the words of Kirby P in Pillai v Messiter).
The complaint of carelessness in relation to the allegations in paragraph 8 of the application is established.

Allegation 9.1- Failure to take appropriate medical history

Dr Bernadt's evidence was that, at the consultation on 10 July 2008, he 'asked the routine questions'. He described Mr E as 'taciturn' in his responses, generally answering questions with 'I don't know' or 'No' or simply 'sitting mute'. Having heard evidence from Mr E, we accept that he was a poor historian with limited knowledge of his daughter's condition. He did, however, know that S had a submucous cleft palate, and that she had been attending a speech pathologist at Princess Margaret Hospital.
Dr Bernadt's questioning failed to evince information as to a significant aspect of S's medical history. In his responsive witness statement, Dr Bernadt said that his usual practice was to ask whether S had any medical conditions, whether she was taking any medications and whether she had any breathing difficulties in the past. He said in his written statement that he found it 'very difficult indeed' to obtain any answers to all those questions but, ultimately, Mr E answered them all in the negative. In his oral evidence, he said that, in response to the questions about past medical history, he either said 'I don't know' or sat mute.
The experts were asked what they considered a reasonably competent ear nose throat specialist should do, faced with difficulties in obtaining an adequate history. They agreed that, if they assess that the patient's parent understood the questions clearly, and gave a clear negative response to questions about past medical history, they would take that response at face value. If, however, the parent's response was equivocal, or they were not satisfied that the parent understood the questions, they would make further enquiries.
In our view, Dr Bernadt should have gone further in his questioning of Mr E. Dr Lannigan suggested he would approach a difficult historian by asking questions like 'Has she ever been to hospital?', 'Has she ever had any problems which have required her to see a doctor?' and so on. In the circumstances of this case, where Dr Bernadt was conscious of his difficulties in obtaining information, we consider that more thorough questioning, of that character, was called for. Although no decision was made on 10 July 2008 necessarily to proceed to operation, that was clearly in Dr Bernadt's contemplation when he examined S for the first time. A more complete history was called for, and with more thorough questioning, would almost certainly have been obtained.
The second consultation on 17 July 2008 added little to Dr Bernadt's knowledge of the patient. He did not examine her again, and sought clarification only as to the duration of the symptoms by speaking to Mrs E by telephone. He then proceeded to operation.
We do not consider that Dr Bernadt's failure to obtain an adequate history can be said to amount to acting incompetently. We do, however, consider that the failure amounts to not giving sufficient attention or thought to avoiding a mistake, and does amount to acting carelessly. We also consider that the failure to obtain an adequate history amounts to conduct in a professional respect that falls short of the standard that a member of the public is entitled to expect of a medical practitioner.
Accordingly, we find that the allegation contained in paragraph 9.1(a) is made out.
We do not consider that the allegations in 9.1(b) to 9.1(d) are made out. Opinions were expressed by Dr Silverstein and Dr Lannigan that it may have been appropriate to refer S to a public hospital so that a sleep study could be undertaken to determine the extent of S's sleep disturbance before proceeding to surgery. Dr McManus did not share that view in the circumstances of the present case. In our view, the evidence does not support a conclusion that a failure to refer S for sleep studies or to obtain more information in relation to S's apnoeic episodes could be said to amount to carelessness, or a failure to meet appropriate standards.
The allegation in paragraph 9.1(e) to the effect that Dr Bernadt should have consulted or used an interpreter was abandoned by the Board at the hearing, and appropriately so. Mr and Mrs E had a strong command of the English language and Mr E's reticence to provide information was not a result of any limitation of his knowledge of the English language.

Allegation 9.2 - Referral of S to a hospital

As discussed above, the evidence does not support a finding that Dr Bernadt acted carelessly, incompetently, or in a way that falls short of the required standards by failing to refer S to a hospital for observation.

Allegation 9.3 - Recommendation of alternative treatments

We accept that Dr Bernadt endeavoured initially to treat S with antibiotics before proceeding to surgery. As already indicated, we do not consider that a failure to recommend appropriate observations in regard to breathing patterns can be said, in the circumstances of this case, to have provided a foundation for disciplinary action. Accordingly, the allegation in paragraph 9.3(a) is not made out.
Paragraph 9.3(b) asserts that Dr Bernadt should have recommended partial adenoidectomy as an alternative to, and in preference over, complete adenoidectomy. That allegation appears to be based on an assumption that the operation should have proceeded at all. The failure by Dr Bernadt in this case was a failure to appreciate the presence of the submucous cleft palate. The allegations in paragraphs 9.3(b) and 9.3(c) fall away in light of the conclusion that we have reached in relation to the earlier allegations. We would add that none of the evidence supported a conclusion that, in the presence of a submucous cleft palate, Dr Bernadt should have recommended 'complete adenoidectomy as a last resort'. The experts agreed that, if presence of the submucous cleft palate was known, adenoidectomy was contraindicated.

Allegation 9.4 - Failing to ensure informed consent

This allegation was not given any attention by the parties at the hearing. That is probably because the particulars to the allegation assert the proposition that the respondent ought to have consulted or used an interpreter. Although the allegation was not formally abandoned at the hearing, it appears not to have been pursed by the Board.
Dr Bernadt did provide information as to the risks of the procedure. No criticism is made of that information. The allegation in paragraph 9.4 is not established.

Conclusion

For the foregoing reasons, we find that:
1.The respondent acted carelessly in that he ought to have known that his patient S had, or was at risk of having, a submucous cleft palate, and he proceeded to perform an adenoidectomy on her knowing that an adenoidectomy was contraindicated in children with a submucous cleft palate.
2.Dr Bernadt acted carelessly, and in a manner which fell short of the standard that a member of the public is entitled to expect from a medical practitioner, in that he failed to take an appropriate medical history of his patient S by making adequate enquires and investigations to establish the existence of her submucous cleft palate.
3.The other remaining allegations of acting carelessly, incompetently or in a manner short of the required standards are dismissed.

Orders

1.The Tribunal finds the following disciplinary matters exist:
(a)The respondent acted carelessly in that he ought to have known that his patient S had, or was at risk of having, a submucous cleft palate, and he proceeded to perform an adenoidectomy on her knowing that an adenoidectomy was contraindicated in children with a submucous cleft palate.
(b)Dr Bernadt acted carelessly, and in a manner which fell short of the standard that a member of the public is entitled to expect from a medical practitioner, in that he failed to take an appropriate medical history of his patient S by making adequate enquires and investigations to establish the existence of her submucous cleft palate.
(c)The other remaining allegations of acting carelessly, incompetently or in a manner short of the required standards are dismissed.

2.The applicant is to file and serve submissions on penalty within 14 days of the date of these orders.
3.The respondent is to file and serve submissions in response on the question of penalty within 28 days of the date of these orders.
4.The question of penalty is to be heard on a date to be fixed by the Tribunal.
5.On or before 5 June 2012, the parties are to notify the Tribunal of available dates between 27 June 2012 and 31 July 2012 for the hearing on penalty.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT