MEDICAL BOARD OF AUSTRALIA and BOWLES
[2014] WASAT 115
•5 SEPTEMBER 2014
MEDICAL BOARD OF AUSTRALIA and BOWLES [2014] WASAT 115
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 115 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:147/2013 | 23 JUNE 2014 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MR T CAREY (MEMBER) DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER) | 5/09/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA THOMAS BOWLES |
Catchwords: | National Law Taking of biopsy Supervision of registrar |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010, s 196(1)(b), s 196(1)(b)(i), s 296(b)(iii) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Medical Board of Western Australia and Bham [2006] WASAT 190 Medical Board of Western Australia and Wright [2010] WASAT 48 |
Orders | On the application heard on 23 June 2014 by the President, Justice Curthoys, Member T Carey and Senior Sessional Member Dr A McCutcheon, it is on 5 September 2014 ordered that:,1. The application is dismissed. |
Summary | It was alleged that the biopsy of a polyp was taken too close to the tip of the ampulla, creating an unacceptable risk of pancreatitis.,It was held that the biopsy was taken from a position that was not too close to the top of the ampulla. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and BOWLES [2014] WASAT 115 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MR T CAREY (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
- Applicant
AND
THOMAS BOWLES
Respondent
Catchwords:
National Law - Taking of biopsy - Supervision of registrar
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 196(1)(b), s 196(1)(b)(i), s 296(b)(iii)
Result:
Application dismissed
Summary of Tribunal's decision:
It was alleged that the biopsy of a polyp was taken too close to the tip of the ampulla, creating an unacceptable risk of pancreatitis.
It was held that the biopsy was taken from a position that was not too close to the top of the ampulla.
Category: B
Representation:
Counsel:
Applicant : Ms P Giles
Respondent : Mr JRB Ley
Solicitors:
Applicant : Moray and Agnew
Respondent : Panetta McGrath Lawyers
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Medical Board of Western Australia and Bham [2006] WASAT 190
Medical Board of Western Australia and Wright [2010] WASAT 48
Introduction
1 On 5 October 2009 at Albany Hospital, Dr Thomas Bowles, a general surgeon, supervised Dr William Tjhin, a Registrar, in the performance of a colonoscopy and gastroscopy.
2 The colonoscopy was conducted first. Once the colonoscopy was completed, the gastroscopy was undertaken. In the course of the gastroscopy a polyp was observed to be located on the ampulla of Vater (the ampulla). The polyp was potentially malignant and it was decided that a biopsy of the polyp should be taken.
The Medical Board's allegations
3 The allegations of the Medical Board of Australia (the Board) (T:136) are:
13. Upon the identification of the ampullary polyp, [Dr Bowles] ought to have:
…
13.2 instructed the Registrar to refrain from using snare diathermy on the ampullary polyp;
…
13.3 provided close supervision of the Registrar to minimise risk to the patient in circumstances where:
(a) ampullary polyps are uncommon to rare; and
(b) the use of snare diathermy on ampullary polyps carried a risk of a complication of pancreatitis; and
…
14. [Dr Bowles] failed to take any of the steps identified above.
15 The Registrar, under [Dr Bowles'] supervision, used snare diathermy to remove the ampullary polyp, or part thereof.
16. By reason of the matters referred to in paragraphs 13, 14 and 15 above:
16.1 [Dr Bowles] has engaged in conduct that is substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience and therefore has behaved in a way that constitutes professional misconduct in terms of section 196(1)(b)(iii) of the National Law; and, or alternatively,
16.2 [Dr Bowles'] knowledge, skill and judgment possessed and care exercised in his treatment of the Patient is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience and therefore [Dr Bowles] has behaved in a way that constitutes unsatisfactory professional performance in terms of section 196(1)(b)(i) [of the National Law] .
4 Section 196(1)(b) of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) provides that after hearing a matter about a registered health practitioner the Tribunal may decide one or more of the following:
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
…
(iii) the practitioner has behaved in a way that constitutes professional misconduct[.]
5 The Tribunal is asked to make a decision as to whether Dr Bowles had behaved in a way that constitutes unsatisfactory professional performance or professional misconduct.
Onus and burden of proof
6 The Board bears the onus of proof. It is to the civil, not criminal standard, but the principles of Briginshaw v Briginshaw(1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
7 By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
The witnesses
8 Dr Bowles gave evidence of what he could remember about the procedure. He had a good visual recollection of the ampulla but a poor recollection of the conversation between him and Dr Tjhin about the decision to use diathermy. He gave his evidence in an honest and open manner. He was not evasive. We accept that he was a credible witness endeavouring to recall events to the best of his ability. We accept his evidence.
9 Dr Tjhin gave evidence. He had no independent recollection of the specific procedure conducted on this patient (T:15). His evidence relied on case notes (T:15) and his usual practice when performing gastroscopies under Dr Bowles' supervision. Dr Tjhin was also an honest and open witness. We accept his evidence.
10 Expert reports were filed and joint expert evidence was given by Professor John Olynyk, Dr Craig Hendry and Mr Michael Warner.
11 The experts acted in a most cooperative manner, entirely consistent with the aims of the joint experts' process. They are to be commended for their conferral beforehand and their manner of giving evidence.
The primary question for determination
12 The primary question for determination in this case is relatively simple. Where was the polyp situated that was biopsied, and was the manner of biopsy appropriate for the polyp's location?
13 The ampulla is the point at which the bile duct and the pancreatic duct enter the duodenum. The bile duct and the pancreatic duct are side by side at this point. The point at which they enter the duodenum is the ampulla. The ampulla is commonly described as a volcanolike structure.
14 There are a number of ways in which a biopsy such as this could have been taken. In this case, a snare was used. The snare was used with diathermy. Diathermy is a short burst of electrical current sent through the snare which has the effect of preventing any bleeding as a result of the taking of the biopsy (T:17).
15 Any procedure in or around the ampulla needs to be conducted with a great deal of care and precision due to the well-recognised risk of pancreatitis.
16 When diathermy is used in association with a snare, it may cause direct injury to the pancreatic duct or oedema, and inflammation following diathermy resulting in a narrowing and compromise of the drainage of the pancreatic duct causing acute pancreatitis.
17 The experts agreed that the closer the biopsy by snare diathermy was taken to the tip of the ampulla, the greater the risk of damage to the ampulla opening and therefore the greater the risk of pancreatitis. Conversely, the further from the tip of the ampulla the biopsy was taken, the lower the risk.
18 Tragically, in this case, pancreatitis did develop and, as a consequence, the patient died.
Where was the polyp from which the biopsy was taken?
19 Prior to the hearing, there was limited evidence relating to the location of the polyp from which the biopsy was taken.
20 The contemporaneous medical records (Exhibit 1, page 25) refer to 'D2 Polyp > snared' and to 'Large ampulla with frond-like structure at end' (Exhibit 1, page 28). They do not offer any assistance in resolving where the polyp was located.
21 The size and location of the polyp was described by Dr Bowles in various terms:
1 'a large ampulla with frondlike lesion arising from its side' (Exhibit 6, p 2 of Bundle of documents);
2 'located off the side of ampulla' (Response Statement filed 26 August 2013; Amended Response Statement filed 27 November 2013);
3 arising 'from one side of the ampulla' (Further Amended Response Statement filed 15 May 2014; Re Amended Response Statement handed up 23 June 2014);
4 'a "frond like'' lesion or polyp arising from one side of the ampulla of Vater but some distance from the opening of the ampulla' (Exhibit 3, [58]); and
5 'very large … between 2.5 centimetres and 3 centimetres in circumference'(Exhibit 3, paragraphs 64 65).
22 Dr Bowles' evidence (Exhibit 3, paragraph 58) was:
As Dr Tjhin was performing the endoscopy, and when the patient's duodenum could be seen on the screen, I saw that there was a 'frondlike' lesion or polyp (polyp), arising from one side of the ampulla of Vater (ampulla) but some distance from the opening of the ampulla.
23 Dr Bowles described the polyp as 'very large', 'between 2.5 centimetres and 3 centimetres in circumference', and extending 'below the mucosa of the ampulla' (Exhibit 3, paragraphs 64 66).
24 Dr Bowles considered that:
[T]he polyp was sufficiently far away from the opening of the ampulla, to enable a snare to be used to take a biopsy, without distorting the opening of the ampulla. (Exhibit 3, paragraph 83)
25 During the hearing, Dr Bowles drew a diagram of the polyp which placed it at the junction of the base of the ampulla and the duodenal wall (Exhibit 5).
26 The Board sought to make much of the fact that up and until the hearing, the polyp had been described by Dr Bowles as arising from the side of the ampulla. The Board argued that, prior to the hearing, Dr Bowles' statements as to the position of the polyp were essentially that the polyp was on the side of the ampulla. Despite the Board's submission, Dr Bowles drawing (Exhibit 5) showing the position of the biopsy at the junction between the ampulla wall and the duodenal wall is capable of being understood as being located at the side or off the side of the ampulla. We do not draw any adverse inference from Dr Bowles' earlier descriptions of the location of the polyp.
27 The Tribunal accepts that the location of the polyp from which Dr Tjhin took a biopsy was as identified by Dr Bowles in Exhibit 5.
Did Dr Bowles instruct Dr Tjhin to use diathermy?
28 The next question that arises for determination is whether Dr Bowles instructed Dr Tjhin to use snare diathermy.
29 Dr Bowles (Exhibit 3, paragraph 84) and Dr Tjhin (T:15, T:37 and Exhibit 2, paragraph 23) were aware of the risks of pancreatitis arising from procedures near the ampulla.
30 Dr Tjhin's evidence was that prior to performing steps during any procedure, he discussed and assessed the risks and benefits of such steps with Dr Bowles (T:15-16, 20, 38 and Exhibit 2, paragraph 24).
31 Dr Bowles said:
After I had formed the view that we should take a biopsy of the polyp using a snare, I am sure that I would have discussed my view with Dr Tjhin.
I cannot recall exactly what we discussed, but [the patient's] medical discharge summary, which was completed by an intern later that day, indicates that a polyp was removed with a snare, and, therefore, I believe that Dr Tjhin and I would have agreed that he would take a biopsy of the ampullary polyp, using a snare. (Exhibit3, paragraphs 88 89)
32 Dr Tjhin gave evidence that it was unlikely he would have utilised diathermy without being instructed to do so by Dr Bowles. (T:16 and Exhibit 2, paragraph 27); (T:3132, 3436).
33 In circumstances where:
a) Dr Bowles and Dr Tjhin typically discussed the procedure between them before taking steps in the procedure, which is entirely consistent with Dr Bowles' role as Dr Tjhin's teacher;
b) Both Dr Bowles and Dr Tjhin were aware of the risks of pancreatitis; and
c) A polyp on the ampulla is rare (Exhibit 3, paragraphs 70 73) and is likely to have produced a discussion,
- the Tribunal finds that Dr Bowles and Dr Tjhin did discuss the procedure and agreed on the use of a snare with diathermy.
Was Dr Bowles aware diathermy had been used with the snare by Dr Tjhin?
34 Much of the crossexamination of Dr Tjhin and Dr Bowles was directed to whether the diathermy machine could have been activated and diathermy used without Dr Bowles' knowledge.
35 In his witness statement (Exhibit 3, paragraphs 97 - 101)) Dr Bowles stated that he did not recall whether he instructed Dr Tjhin to use diathermy in conjunction with the snare and that he did not know why he was unaware that Dr Tjhin was using diathermy.
36 Dr Bowles' statement that he was unaware that Dr Tjhin was using diathermy is to be seen in the context that he was unable to recall whether he instructed Dr Tjhin.
37 Dr Bowles accepted that diathermy was used (T:42 and Exhibit 3, paragraph 100). In the light of Dr Bowles' acceptance and our findings that Dr Bowles instructed Dr Tjhin to use snare diathermy, no issue arises as to whether Dr Bowles knew that diathermy was used. Plainly he did.
38 The Board argued that Dr Bowles' statement that he was unaware whether diathermy was used constituted a failure to supervise. Since we have found that Dr Bowles and Dr Tjhin did discuss the procedure, we are satisfied that Dr Bowles was aware of the use of diathermy. It follows that this aspect of an alleged lack of supervision is not made out.
The experts' positions prior to the hearing
39 Prior to the hearing, the experts conferred and agreed on the issues that were relevant and the position they took on each of them (Exhibit 10).
40 The relevant results of the conferral are set out below:
…
2. Whether, regardless of the outcome of the procedure, it was reasonable and acceptable for the registrar to use diathermy in conjunction with the snare which he used to take a biopsy of the ampullary polyp.
John Olynyk responds: NO
Michael Warner responds: YES
Craig Hendry responds: YES
However, all wish to qualify that absence of detail regarding where precisely in terms of the polyp size and location the diathermy was used means that there is some qualification of these responses which could not be resolved due to the lack of that information.
…
4. Whether, regardless of the outcome of the procedure, the Respondent ought to have:
…
(b) instructed the registrar to refrain from using snare diathermy on the ampullary polyp;
John Olynyk responds: YES
- Michael Warner responds: YES
Craig Hendry responds: NO
However, all wish to qualify that was really dependent on the location of the polyp.
6. Whether, regardless of the outcome of the procedure, (individually, in combination or collectively):
…
(b) by failing to instruct the registrar to refrain from using snare diathermy on the ampullary polyp;
…
the Respondent's knowledge, skill and judgement possessed and care exercised in his treatment of the patient below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
…
6(b) John Olynyk responds: YES
- Michael Warner responds: NO
Craig Hendry responds: NO[.]
41 The experts made it clear that their assessment of Dr Bowles' conduct really depended on where the biopsy of the polyp was taken from.
42 Professor Olynyk's evidence was:
Well, the basis of my response to issue 2 is that the main issue is not so much the use of the snare itself, but it's the use of the electricity in proximity to the opening of the ampulla or the remaining course of the duct and where this figure shows the polyp will be is in fact further away rather than closer to you know, it's almost sitting on the duodenal wall. It's at the junction between the two. So the further away that lesion is from the opening of the ampulla and along the ampulla and out onto the duodenal wall, the less likelihood there would be that you would predict that diathermy would cause a problem.
So there's actually more opportunity there for there to be a debate between the clinicians at the time of the procedure to discuss the risk/benefit profile of using that diathermy. So I hope from my statement you can see it's not a categorical yes or no. There's a judgment required and that judgment required an interaction between the supervising consultant and the registrar at the time and they would have made that call.
…
So I think there's certainly more scope for you to use diathermy where this drawing conveys the polyp is, notwithstanding I think it was about two and a half or three centimetres in, and I think that it's described in circumference rather than diameter.
43 The opinion expressed by Professor Olynyk, as a result of the joint conferral, was based on his original interpretation that the polyp was located closer to the tip of the ampulla than where the polyp is shown in Exhibit 5 (T:95). He stated that the risk profile of snare diathermy decreased as the location became more distant from the tip of the ampulla (T:108).
44 Professor Olynyk's opinion was that, if the polyp was located as shown in Exhibit 5, and Dr Bowles had discussed the use of snare diathermy with Dr Tjhin, then it was 'not unreasonable at all' to have used snare diathermy (T:108).
45 Dr Warner's opinion was that:
[T]he further away the polyp was from the opening the less likely it was that there would be any serious complications and therefore if this diagram is how it was, then one would think that using the snare with or without diathermy was not unreasonable.
(T: 91, T:110)
46 Dr Hendry also agreed that the diagram (Exhibit 5) showed that:
[T]here was scope to use diathermy in this case[.]
(T:8991)
47 Professor Olynyk's opinion was that:
[O]n the basis that a procedure was being performed, a trainee was present, the supervisor was present, there was clearly an interaction between them going on so all the requirements for adequate supervision in general were in the room at the time.
…
48 Both Dr Warner and Dr Hendry remained of the opinion that the level of supervision was adequate (T:110-112).
49 The conclusions reached by the experts were accurately summarised by Ms Giles, for the Board, in her closing:
… At the hearing the experts were asked to comment on the appropriateness of use of diathermy if the polyp was located as drawn in exhibit 5. Mr Warner and [Dr Hendry] said that the use of diathermy would be acceptable. Professor Olynyk stated that while it was not his comprehension that the diagram [Exhibit 5] was where the polyp was located, if the polyp was in that location, then provided that there was an appropriate assessment of the risks and benefits of the use of diathermy and a proactive decision made by the supervisor and trainee to use diathermy, then he would be less concerned about the use of diathermy and said the use of diathermy would have been reasonable. (T:135)
Conclusion: Application dismissed
50 In these circumstances, there is no basis to find that Dr Bowles engaged in conduct that is substantially below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. Nor is there any basis to find that Dr Bowles' knowledge, skill and judgment possessed and care exercised in his treatment of the patient is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience.
Order
1. The application is dismissed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
Key Legal Topics
Areas of Law
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Medical Law
Legal Concepts
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Medical Professional Standards
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Regulatory Oversight
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