| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF AUSTRALIA and KIERATH [2011] WASAT 193 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)
DR M LEVITT (SENIOR SESSIONAL MEMBER)
HEARD : 4 NOVEMBER 2011 DELIVERED : 9 DECEMBER 2011 FILE NO/S : VR 132 of 2010 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant
AND
ANTHONY KIERATH
Respondent
Catchwords: Medical practitioner - Gross carelessness - Minute of consent orders - Suspension - Costs Legislation: Health Practitioner Regulation National Law (WA) Act 2010, s 17(2)(a)
Medical Act 1894 (WA), s 13, s 13(4)
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Medical Practitioners Act 2008 (WA), cl 3 Sch 2
State Administrative Tribunal Act 2004 (WA), s 87(1) Result: Finding of gross carelessness
Practitioner reprimanded, fined and to undertake suitable retraining Category: B
Representation: Counsel:
Applicant : Mr R Hooker
Respondent : Mr TJ Palmer
Solicitors:
Applicant : Tottle Partners
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S)
Medical Board of Western Australia and Pate [2007] WASAT 161
SRNA v The Medical Board of Western Australia [2004] WASCA 198
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Medical Board of Western Australia brought an application against a practitioner, alleging that his conduct in treating a patient in Perth and then transferring him to Pannawonica, following which surgical complications arose, constituted gross carelessness. 2 In the proceedings in the Tribunal, the practitioner accepted that his conduct constituted gross carelessness and the Tribunal made a finding to this effect. 3 After hearing submissions from the Board and from the practitioner, the Tribunal decided that a period of suspension of the registration of the practitioner was not in the public interest, noting the fact that the practitioner provides valuable medical services to the community in and around Karratha. The Tribunal instead reprimanded the practitioner, imposed a fine of $10,000, ordered that the Practitioner undertake retraining in certain surgical procedures and awarded costs against him.
Introduction 4 In its application to the Tribunal, the applicant alleged that the respondent (Practitioner) may be guilty of gross carelessness or, alternatively, incompetence within the meaning of s 13(1)(c) of the Medical Act 1894 (WA) (Medical Act). 5 At the hearing of this matter on 4 November 2011, the parties informed the Tribunal that they had reached agreement on the facts and the findings as to the Practitioner's conduct which they wished the Tribunal to make. They filed a minute of proposed consent orders which contained an acknowledgement by the Practitioner of his guilt of gross carelessness in the course of his practice as a medical practitioner. The parties then made submissions as to the appropriate disciplinary outcome. 6 The Tribunal delivered its decision at the hearing and confirmed that it would provide written reasons for its decision.
Agreed facts 7 For the purposes of these proceedings, the parties have agreed a statement of facts in this matter which are as follows: (Page 4)
1) On 28 April 2003, the Practitioner performed laparoscopic fundoplication surgery upon Mr Patrick Sinclair (the patient) and repaired his hiatus hernia at the Glengarry Hospital in Perth (first operation). 2) It is highly likely that during or shortly after the first operation, the patient's distal oesophagus was perforated as a consequence of the Practitioner performing the first operation. 3) Perforation of the distal oesophagus is a recognised complication of the first operation. 4) The Practitioner informed the patient about the risk of perforation prior to performing the first operation. 5) On 2 May 2003, the Practitioner discharged the patient to allow him to return home to Pannawonica. 6) The Practitioner knew at the time he discharged the patient that: (a) the patient was experiencing pain on swallowing; (b) he had recorded in the Glengarry Hospital total care progress notes on 30 April 2003 that the patient was 'much better'; (c) the patient wanted to return home to Pannawonica; (d) Pannawonica is a remote community with limited medical facilities; (e) the patient was exhibiting symptoms of pneumonia; (f) he had reviewed a chest xray taken at Glengarry Hospital on 29 April 2003 which raised the possibility of a post operative leak when viewed in conjunction with the patient's pain on swallowing and his symptoms of pneumonia; and (g) the patient was on a course of amoxicillin. 7) Pannawonica Medical Centre Progress Notes dated 4 May 2003 record that a telephone conversation took place on 4 May 2003, and that the Practitioner was told that: (a) the patient was attending a nurse at the Pannawonica Medical Centre; (Page 5)
8) On 5 May 2003, the patient was admitted to Nickol Bay Hospital. 9) On 8 May 2003, the patient was admitted to Royal Perth Hospital (RPH). 10) On 8 May 2003, whilst at RPH the patient underwent a CT scan (the first CT scan) and a report dated 8 May 2003 (the report) was prepared in respect of the first CT scan. 11) The first CT scan showed a posterior mediastinal multioculated collection of gas and liquid extending from the upper border of the patient's heart down to the crus, a significant pleural effusion on the right and a smaller one on the left, and bilateral consolidation (pneumonia) with the right worse than the left. 12) On 8 May 2003, the Practitioner was notified that the patient had been admitted to RPH and arranged for the patient to be admitted to the St John of God Hospital (SJOGH) under his care. 13) On 8 May 2003, whilst at RPH the patient underwent a Gastrografin Swallow which was requested by the Practitioner. (14) The Gastrografin Swallow should have been interpreted by the Practitioner as showing a contained perforation to the left of the patient's distal oesophagus in the mediastinum. 15) The Practitioner was provided with the first CT scan, the report, and the Gastrografin Swallow. 16) On 9 May 2003, at SJOGH, the Practitioner performed a laparoscopy on the patient which was subsequently converted to a laparotomy (the second operation). 17) During the second operation, the Practitioner: (Page 6)
18) On 21 May 2003, at SJOGH, the patient underwent a further CT scan (the second CT scan) and a report dated 21 May 2003 (the second report) was prepared and provided to the Practitioner. 19) The second CT scan showed: (a) evidence of bilateral consolidation and of air fluid levels within a septated collection in the patient's posterior mediastinum; (b) evidence of a continued large right pleural effusion with air in the pleural cavity; (c) a visceral perforation; and (d) a posterior mediastinal collection of approximately 10 cm in height, 10 cm in width and 5 cm in depth. 20) On 23 May 2003, at SJOGH the Practitioner performed a further laparotomy on the patient (the third operation) to drain the Abscess further. 21) On 26 May 2003, after obtaining a second opinion from Mr Jeffrey Hamdorf, the Practitioner, with Mr Hamdorf assisting, performed a posterolateral thoracotomy and undertook drainage of an empyema and drainage of the totality of the abscess loculations in the patient's posterior mediastinum.
Minute of proposed consent orders 8 The minute of proposed consent orders contained the following acknowledgements by the Practitioner:
First matter 9 On 4 May 2003, having regard to: (a) the patient's history; (b) the remoteness of Pannawonica; (c) the limited medical facilities in Pannawonica; and (d) the information provided to the Practitioner about the patient's condition on 4 May 2003, (Page 7)
the practitioner should have advised the patient to return to Perth to enable his condition to be reviewed, monitored and managed and in failing to do so was grossly careless.
Second matter 10 On 23 May 2003, having regard to: (a) the patient's history; (b) the Practitioner's knowledge of the first operation; (c) the Practitioner's knowledge of the second operation; (d) the first CT Scan and the report; (e) the Gastrografin Swallow; and (f) the second CT scan and the second report, the Practitioner should have considered and in fact performed a thoracotomy to drain an empyema in the patient's right pleural cavity, and to allow for drainage of the totality of the Abscess loculations in the patient's posterior mediastinum, and in failing to perform a thoracotomy on 23 May 2003, drain an empyema in the patient's right pleural cavity, and drain the totality of the Abscess loculations in the patient's posterior mediastinum, the Practitioner was grossly careless. 11 The first and second matters detailed above, either alone, or taken together, constitute gross carelessness in the course of practice as a medical practitioner, contrary to s 13(1)(c) of the Medical Act.
The Tribunal's findings as to conduct 12 Being satisfied by reason of the Practitioner's admission that proper cause exists for disciplinary action against the Practitioner, the Tribunal finds that the first and second matters detailed above, either alone or taken together, constitute gross carelessness on the part of the Practitioner.
Penalty
Statutory framework 13 Section 13(1) of the Medical Act relevantly provides that, where it appears to the applicant that a medical practitioner may be guilty of gross (Page 8)
carelessness or incompetency then the applicant may allege to the Tribunal that disciplinary action should be taken against the medical practitioner for that reason. 14 When dealing with such an allegation under s 13(1) of the Medical Act the Tribunal may under s 13(3) of the Medical Act (a) order the removal of the name of the medical practitioner from the register; (b) order that the registration of the medical practitioner be suspended for such period not exceeding 12 months as is specified in the order; (c) impose a fine not exceeding $10,000; and (d) reprimand the medical practitioner. 15 Section 13(4) of the Medical Act relevantly provides that the Tribunal may, in lieu of making an order under subsection (3)(a) or (b), require the medical practitioner to give a written undertaking to the Board to be of good behaviour for such period as the Tribunal thinks fit and to comply, during that period, with such restrictions or conditions, or both, if any, relating to the practice of medicine and training for that practice as the Tribunal thinks fit. 16 The Medical Act was repealed on 1 December 2008 by the Medical Practitioners Act 2008 (WA) (Medical Practitioners Act). Clause 3 of Sch 2 of the Medical Practitioners Act provides, in effect, that the Board under the Medical Practitioners Act is a continuation of, and the same legal entity as, the Board under the Medical Act and the rights and liabilities of that entity are not affected. 17 The Medical Practitioners Act was repealed on 18 October 2010 by the Health Practitioner Regulations National Law (WA) Act 2010 (National Law). Section 17(2)(a) of the National Law provides that a complaint or matter is to be dealt with by the National Board as if a reference to the Board in the Medical Practitioners Act were a reference to the National Board.
The principles 18 The parties have referred us to a number of authorities outlining the wellknown principles in relation to penalty. None of those principles are in dispute. The purpose of disciplinary action is not to punish, but to (Page 9)
protect. The public interest is paramount consideration in determining what penalty is appropriate. There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community. Further, there is a need to deter others who may be of a like mind to transgress in the future. The Tribunal is required to consider all of the circumstances surrounding the act or omission and exercise its discretion accordingly.
The parties' submissions and the Tribunal's findings 19 The parties are in agreement that an appropriate sanction in this case at least is a reprimand and a fine of $10,000. The issue between the parties is whether or not the Tribunal should order that the registration of the Practitioner ought also to be suspended or whether the Practitioner instead should be ordered to undergo appropriate retraining. 20 We are in no doubt that it is open to the Tribunal to make an order that the registration of the Practitioner be suspended for a period of time. In SRNA v The Medical Board of Western Australia [2004] WASCA 198, Pullin J at [104] relevantly said: … I do not mean to say that a single instance of gross carelessness cannot attract suspension or even deregistration. For example, if the incident is provably representative of a course of grossly careless conduct, if the incident has disturbing features indicating a callous disregard for the patient, if it amounts also to improper or infamous conduct to a significant degree, if it indicates incompetence or if the practitioner has a record, then deregistration or suspension may be appropriate. I am not here providing an exhaustive list of circumstances and nor am I attempting to lay down any rule on the point. The matter of penalty is within the Board's discretion. 21 The case of Medical Board of Western Australia and Pate [2007] WASAT 161 (Pate) concerned a practitioner who discharged a patient from hospital, following which the patient died. The practitioner in that case accepted that his conduct constituted gross carelessness and the Tribunal decided that a two month suspension of the practitioner's registration was called for. The then President of the Tribunal said at [21]: The Tribunal considers that suspension is the appropriate penalty. This is a case where the conduct of the practitioner, in failing to examine the patient before he was discharged from the hospital, is a matter of some considerable moment. The practitioner acknowledges that his conduct constitutes gross carelessness. Conduct of a medical practitioner of this type must be marked with an appropriate penalty that emphasises the high (Page 10)
professional standards the profession of medicine strives to uphold for the benefit of their patients. 22 The then President went on to say: This is not a case where a suspension needs to be imposed in order to protect the public from an incompetent practitioner, but rather to let the public know that medical practitioners aim to uphold high standards. A penalty of suspension will transmit that message to members of the profession and to the public generally. It is therefore not necessary to remove the practitioner's name from the register. The imposition of a fine in such circumstances would be inapposite and the mere reprimand of the practitioner similarly would not be appropriate. The question really is what period of suspension is required; see Pate at [22]. 23 In that case, the Tribunal took account of the practitioner's past exemplary behaviour and the fact that the practitioner concerned had for the previous 15 years been a general practitioner on call in the Derby and Kimberley region. The Tribunal observed that 'the people of the Kimberley region will ultimately be well served by the practitioner having the opportunity sooner rather than later of being able to return to medical practice in Derby'; see Pate at [28]. 24 This is certainly not a case where a practitioner has an exemplary record. The Practitioner concedes that he has been the subject of disciplinary sanctions in both 2001 and 2006. However, the Practitioner contends that, unlike the case in Pate where the result of the carelessness was fatal, in this case his treatment of his patient was regarded as 'too conservative in circumstances which called for more aggression'. He submits that the result of his carelessness was not fatal and his patient was left with an untreated complication rather than a life threatening illness. 25 Also, the Practitioner submits and the Tribunal accepts that: 26 There is no doubt, in the view of the Tribunal, that the Practitioner's misconduct is serious. However, the Tribunal considers that the finding of gross carelessness itself will have consequences for the Practitioner. (Page 11)
While in other circumstances we might have considered that a period of suspension of the Practitioner's registration is warranted, in this case we are also mindful of the effect that a period of suspension, even a short one, could have on the community in and around Karratha. 27 Counsel for the Practitioner also points out that any suspension will have a financial impact on the Practitioner to the order of some $60,000 per month. We believe that the financial impact of a suspension is something which may be taken into account, at least to the extent that it would cause hardship for the Practitioner concerned, but it is not determinative as to whether a period of suspension should be imposed or for how long. The Tribunal does not understand the Practitioner to be claiming hardship and accordingly has given no weight to this submission. 28 In the circumstances, the Tribunal considers that an appropriate penalty is a reprimand, a fine of $10,000 and, in addition, the Practitioner must, pursuant to s 13(4) of the Medical Act undertake suitable retraining in laparoscopic surgery procedures.
Costs 29 Notwithstanding the general position espoused in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in the prosecution of those proceedings, the affected person should be ordered to contribute to the cost of the proceedings incurred by the vocational regulatory body; see Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S) at [25] (Benari). 30 The contribution the affected person should be required to make lies in the discretion of the Tribunal, having regard to all of the circumstances of the case. Special matters can be taken into account to determine what is a fair and reasonable costs order; see Benari at [26] [27]. 31 The Practitioner opposes an order for costs on the basis that he had been successful in persuading the Tribunal not to order a suspension of his registration. However, the Tribunal takes the general position which it adopts in vocational regulatory proceedings that a successful prosecution will usually lead to an order for costs being made in favour of the regulatory authority. The liability for costs forms part of the disincentive to the Practitioner's conduct and of the demonstration of the seriousness of that conduct. The Tribunal therefore orders that the Practitioner pays the applicant's costs of these proceedings. (Page 12)
Orders 1. The respondent be reprimanded. 2. A condition be imposed on the respondent's practice, to commence on 9 December 2011, that he must not undertake laparoscopic surgery procedures involving hiatus hernia repair, reconstruction of the lower oesophageal sphincter, and fundal wraps until: i) the applicant and the respondent have agreed on a suitable laparoscopic surgery retraining course which includes a period of study, subsequent supervision and review; (course) and ii) the respondent has, at his own expense, and to the satisfaction of the applicant, completed the course. 3. The respondent be fined the sum of $10,000, which sum is to be paid within 28 days of the date of delivery of these reasons. 4. The respondent pay the applicant's costs of these proceedings, to be assessed if not agreed, within 28 days of the date of delivery of these reasons. |