MEDICAL BOARD OF AUSTRALIA and TEASDALE
[2012] WASAT 62
•30 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL ACT 1894 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and TEASDALE [2012] WASAT 62
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)
MR D LIGGINS (SENIOR SESSIONAL MEMBER)
HEARD: 5 DECEMBER 2011 TO 8 DECEMBER 2011
DELIVERED : 30 MARCH 2012
FILE NO/S: VR 192 of 2009
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
JOHN ELVIN TEASDALE
Respondent
Catchwords:
Medical practitioners - Disciplinary proceedings - Incompetence or carelessness - Vascular surgeon - Whether excessive skin punctures made to gain access to arteries - Turn on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P Tottle and Mr M Davies
Respondent: Ms G Archer SC and Mr N Cooper
Solicitors:
Applicant: Tottle Partners
Respondent: Clayton Utz
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Australia alleged that a vascular surgeon, Dr John Teasdale, was guilty of carelessness or incompetence in three respects in relation to transluminal balloon angioplasty procedures carried out on six patients. The particular allegations were that in carrying out the procedures, Dr Teasdale made an excessive number of skin punctures, that in one case he operated on both legs at one operation when he should have only operated on one, and that in one operation he withdrew a guide wire through a needle, contrary to the manufacturer's guidelines.
The Board had initially made a number of more extensive allegations, but they were abandoned at the conclusion of the evidence at the hearing.
The Tribunal found that none of the allegations of carelessness or incompetence were made out and the application was dismissed.
Introduction
Dr John Elvin Teasdale is a vascular and endovascular surgeon. He has been practising surgery since completing his specialisation qualifications in 1972. In recent years, he has predominately if not exclusively performed endovascular surgery. He roughly estimates that he has performed 8,000 to 9,000 endovascular procedures over the last 20 years.
Until the latter part of 2009, Dr Teasdale performed endovascular surgery at the Mount Hospital. He also operated (as he still does) at Swan District Hospital. In September 2009, the Mount Hospital suspended Dr Teasdale's operating rights at the Hospital by reason of concerns arising from procedures on six patients carried out between 10 March 2008 and 11 May 2009. The Hospital referred those matters of concern to the then Medical Board of Western Australia (Board) for investigation. Following the investigation the Board commenced an application alleging carelessness or incompetence on Dr Teasdale's part in relation to each of the six procedures.
The Board makes a number of criticisms of Dr Teasdale's choice of approach to the procedure, and his performance of the procedure. Some criticisms are made in relation to the procedures on all six patients, but there are some criticisms which relate only to some patients. Those criticisms initially gave rise to five issues, which were:
(i)whether Dr Teasdale made an excessive number of skin needle punctures to the lower abdomens of the patients, and if so whether doing so amounted to acting carelessly or incompetently;
(ii)whether choosing a bilateral intervention on patient 1 amounted to carelessness or incompetence;
(iii)whether choosing an antegrade approach to the femoral artery, and failing to consider alternative techniques, constituted carelessness or incompetence;
(iv)whether Dr Teasdale failed to apply manual pressure to the site of patient 2's right femoral artery when he removed a needle; and
(v)whether Dr Teasdale withdrew a hydrophilic coated guide wire back through a percutaneous needle contrary to the manufacturer's guidelines and thereby caused the coating of a guide wire to be retained in patient 5's left leg, whether he failed to ascertain the location of the retained section, and if so whether that conduct amounts to acting carelessly or incompetently.
The evidence in the case extended over three days. Before final submissions commenced on the fourth day, counsel for the Board advised the Tribunal that the Board no longer pressed the allegations which gave rise to the issues numbered (iii) and (iv) above, nor did it press the allegation that Dr Teasdale caused the coating of the guide wire to shear off or that he failed to ascertain the location of the retained section. The Board did maintain the allegation of withdrawing the guide wire contrary to the manufacturer's instructions.
Those concessions were made on the basis that the Board accepted that, as the evidence had emerged at the hearing, the allegations could not be established having regard to the Briginshaw standard of proof which applies in cases of this kind. (see Briginshaw v Briginshaw (1938) 60 CLR 336) Having heard the evidence, we agree that those concessions are appropriate and were properly made. It is not necessary to say anything further about those allegations or the evidence relevant to them.
Trans-luminal balloon angioplasty
Trans-luminal balloon angioplasty (TLBA) is a technique of treatment for peripheral vascular disease which is the depletion of the arterial blood supply to the legs due to stenosis (narrowing) or occlusion of the leg arteries. Peripheral arterial patients may suffer from intermittent claudication (limping or lameness), and more severe patients present with severe pain in their feet, especially at night, which may lead to extremely painful ulcers or gangrene. The condition can lead to severe restrictions on a patient's ability to walk even short distances. Initial treatment may consist of an exercise programme designed to encourage the development of a collateral blood supply. Where that is unsuccessful, and the symptoms continue, then TLBA may be appropriate. The consent form utilised in the cases the subject of these proceedings describes the procedure as follows:
The operation involves inserting a needle into either or both groins, so that a thin tube can be passed down inside the artery, and using special guiding wires the thin tube (catheter) is directed through the part of the artery that is narrowed or blocked so that a small balloon on the tip of the catheter can then be expanded to 'stretch out' the artery and make a satisfactory channel for the blood to flow through.
Normally nothing is left inside the leg, but occasionally a short metal tube - called a stent - is required to be placed permanently inside the artery in order to keep it open. The blood is thinned by special solutions during this procedure to stop it clotting.
It was not in issue that Dr Teasdale undertook procedures on difficult patients, the difficulty arising either by reason of their obesity or the extent of the occlusions to their arteries.
Overview of the patients' operations
The Board's allegations relate to the procedures performed on six patients (referred to in these reasons as patient 1, patient 2, patient 3, patient 4, patient 5, and patient 6) at the Mount Hospital between 10 March 2008 and 11 May 2009. A number of preliminary observations might be made about those patients and their procedures.
The first is that all were difficult patients. Only one, aged 48, was younger than 70, with the ages of the other five ranging from 70 to 88 years. Three (or possibly four depending on which records are relied upon) were obese and the remainder were, apart from patient 4, overweight.
Patient 1 had a long 15 centimetre complete occlusion of his left superficial femoral and popliteal arteries.
Patient 2 had a very long occlusion extending from the original of the right superficial femoral artery and continuing in the right popliteal artery. In a letter to the referring doctor, Dr Teasdale predicted that the extent of the occlusion may lead to difficulty of access.
Patient 3 had a complete occlusion of the right femoralpopliteal segment and significant narrowing of the left superficial femoral and popliteal arteries. On the right there was a complete blockage 22 centimetres above the patella which was very calcified.
Patient 4 had extensively calcified arteries and severe narrowing of the superficial femoral and popliteal arteries on both sides.
Patient 5 had a complete occlusion of the first few centimetres of the right superficial femoral artery and a long complete blockage down to about 6 centimetres above the patella. A scan also showed that there was severe narrowing of the superficial femoral artery on the left side.
Patient 6 had complete bilateral blocks in the femoralpopliteal arteries, commencing from flush with the origin of the right superficial femoral artery and extending to 8 centimetres above the upper border of the patella, and on the left the block extended from about 5 or 6 centimetres above the upper border of the patella.
Consistent with the extensive occlusions, all six patients were severely symptomatic when referred to Dr Teasdale.
At operation, Dr Teasdale successfully opened patient 1's left artery, but could not open his right artery which was subsequently operated on by another doctor in an open surgical procedure.
Dr Teasdale attempted to cannulate patient 2's right femoral artery using an antegrade approach, but was unsuccessful. He ultimately gained access to patient 2's right femoral artery by adopting a left femoral retrograde approach, and successfully opened up the artery.
Dr Teasdale was successful in cannulating patient 3's femoral arteries in both legs, but patient 3 required a blood transfusion following the operation.
The operation on patient 4 was also successful, with the arteries in both legs being opened. She too required a transfusion of two units of blood but a CT scan showed a superficial haematoma which had not continued to bleed.
Patient 5 had both arteries successfully opened by Dr Teasadle.
Cannulation of patient 6's left leg was successful with the artery in that leg being opened. The attempt to cannulate the right femoral artery in patient 6 was unsuccessful.
All six patients expressed satisfaction with their treatment, and reported improved symptoms following the operation (at least in respect of the leg where the artery had been successfully opened). No patient complained about their treatment, and none gave evidence at the hearing before the Tribunal.
There was no criticism of Dr Teasdale's conduct in relation to his clinical decisionmaking, nor as to the appropriateness of the procedure given the patients' presentation, nor of the manner in which the operation was performed once access to the artery had been gained.
Multiple skin punctures
The first allegation against Dr Teasdale is that he made an excessive number of skin needle punctures in the lower abdomens of certain named patients, and thereby acted carelessly.
The Tribunal was assisted by expert evidence of two vascular surgeons. Professor Michael Grigg was called by the Board and Professor John Fletcher was called by Dr Teasdale. Much of their evidence dealt with the appropriateness of an antegrade versus a retrograde approach to the femoral artery when performing TLBA, none of which evidence now requires consideration in the light of the concessions by the Board referred to above. They also expressed views, however, as to the number of needle punctures that should be made in an attempt to gain access to the femoral artery for the purpose of TLBA.
Dr Teasdale's evidence was that when arteries are heavily calcified, it is necessary to locate a soft enough area in the arterial wall to allow passage of the needle into the lumen, or the channel of the artery. He said that he does this by feeling the hard artery with his fingers and also through the use of fluoroscopy Xray which assists by showing opaque calcium which is to be avoided. He said that, even with the assistance of a fluoroscopy Xray, heavily calcified arteries may prove difficult to access, especially in obese patients. He said that on occasions when the artery wall was too calcified, he made multiple punctures of the skin but the punctures had no significant consequences. He said that they did not result in piercing of the artery wall because the artery was too calcified to pierce and the tip of the needle 'bounces off the artery wall'. Because the needle did not enter the blood flow inside the artery, no significant extra arterial bleeding occurs. The consequence of the punctures is simply that the skin and subcutaneous tissue has been pierced, which can cause a very small bruise and some minor bleeding and minor associated pain once the anaesthetic wears off.
Professor Grigg expressed the view that more than two skin punctures would raise concern because every passage of the needle risks damage to the artery or the surrounding structures of other vessels and may precipitate bleeding. Professor Fletcher said that the making of multiple needle passes may on occasions be required in order to obtain access to the femoral artery. Needle passes involve redirecting the needle within the subcutaneous tissue so as to change the angle of approach to the artery. Multiple needle passes do not involve additional skin punctures.
Professor Fletcher acknowledged that it is possible to make several passes through the subcutaneous tissue from one skin puncture. However, he expressed the opinion that the making of multiple needle skin punctures may on occasions be required in order to obtain access to the femoral artery for endovascular intervention. In a report dated 22 March 2010, he said that, depending on patient conduct and tolerance, between 612 punctures may be made in the occasional difficult case. In his subsequent conferral with Professor Grigg, he agreed, however, that the number of attempted punctures of the femoral artery should be limited. During oral evidence, Professor Fletcher said that, for difficult cases, it would not be unusual to make four or five passes at entry to an artery but it would be very uncommon to have four or five puncture marks. He emphasised however that what was important was the number of entries to the arteries rather than the number of skin punctures.
The risk associated with multiple skin punctures, or for that matter multiple needle passes, is that there may be inadvertent puncturing of the femoral artery which can cause major bleeding internally. Minor bleeding, resulting in haematoma, may occur without a puncture to the arterial wall, but this would not be considered a significant complication.
Both Dr Teasdale and Professor Fletcher considered that the entry into the arterial lumen is confirmed by 'flashback' of pulsating arterial bleeding which, Dr Fletcher considered, should be apparent to even an inexperienced operator. Professor Grigg considered that penetration of the arterial wall may not always result in a flashback of blood through the needle, and that penetration of the artery may occur without the surgeon becoming aware of the penetration.
It is relevant to note that there is no evidence to support a conclusion that, in respect of any of the patients the subject of these proceedings, there were multiple penetrations of the artery.
The evidence of multiple skin punctures
With all six patients, Dr Teasdale had no independent recollection, nor any record, of the precise number of skin punctures made in the course of the TLBA. As already noted, he accepted that on occasions he made multiple skin punctures with a view to finding a suitable part of the artery to penetrate.
It emerged in evidence that skin punctures are also made in the administration of local anaesthetic. Professor Fletcher's evidence was that there could be up to four or five puncture marks attributable to local anaesthetic.
Dr Teasdale operates with the assistance of a surgical assistant who administers the local anaesthetic around the site of the proposed insertion of the needle for cannulation. Dr Paschal Stynes has worked with Dr Teasdale as his surgical assistant for about 15 to 18 years at various hospitals. He said that when he assists, it is his usual practise to make two to three skin punctures when he administers the local anaesthetic to ensure that he has a good spread of anaesthetic around the site. He assisted in the operations on patients 1, 3 and 5. Dr Stynes gave evidence that the task of puncturing the skin to attempt access to the artery was usually shared by Dr Teasdale and himself. It is not possible to say on the evidence how many of the number of puncture marks on a particular patient related to the injection of local anaesthetic or how many may have been made by the surgical assistant.
Dr Teasdale also operates routinely with an anaesthetist present in the operating room. Dr Graeme Johnstone and Dr David Sleator are both anaesthetists who have worked extensively with Dr Teasdale. Both spoke highly of his surgical practice, and confirmed that he tended to operate on difficult patients. Dr Johnstone was the anaesthetist during the operation of patient 4 and Dr Sleator was the anaesthetist in relation to patients 2, 5 and 6. Neither recalled anything unusual about any of the operations which they attended.
The evidence as to the number of punctures in the various cases came from nursing staff. It is quite apparent that the relationship between the nurses who gave evidence and Dr Teasdale was not good, and it is reasonable to conclude that the level of communication between the nurses and Dr Teasdale was poor. That was most starkly illustrated in relation to evidence concerning the observation by the nurses of what was said to be coating of guide wire which, it was thought, had sheared off within patient 5's leg. That aspect of the allegation was abandoned by the Board at the end of the evidence, but it is remarkable that, despite several nurses' observations during or immediately after the operation, not one said anything to Dr Teasdale. The attribution of fault for that lack of communication is not a matter for the Tribunal to undertake, but it is obvious that patients' safety demands that there be open communication amongst a team in an operating environment. The apparent nature of the relationship between Dr Teasdale and the nurses who gave evidence raises the possibility that those witnesses' evidence may be coloured by that underlying relationship. Apart from highlighting the need for the Tribunal to carefully scrutinise all of the evidence, we have put aside that possibility and it does not influence the conclusions that we have reached.
Patient 1
Registered nurse, Daniel Hammersley was the postoperative care nurse for patient 1. He took over the care of patient 1 when the patient arrived in the recovery room following his operation. He said that he noticed that patient 1 had multiple skin puncture wounds to his right upper thigh and groin and multiple skin puncture wounds to his left lower abdominal quadrant and upper thigh left groin. He said he did not recall precisely how many punctures there were. He said that all of the skin punctures to patient 1's upper thigh/groin were retrograde or 'uphill', and the puncture wounds on the left side were both retrograde and antegrade (or downhill). One of the complaints abandoned by the Board was that Dr Teasdale failed to use a retrograde approach. Dr Teasdale said that he did not use a retrograde approach. It follows that Mr Hammersley's references to retrograde punctures are unlikely to be references to punctures of the skin made by Dr Teasdale. Mr Hammersley's recollection may simply be wrong, or he may have observed local anaesthetic punctures which he interpreted to be retrograde punctures.
Regardless of that uncertainty, it is not possible to identify with any confidence the actual number of punctures made by Dr Teasdale in relation to patient 1.
Ms Denyse Coutts, (formerly Denyse Atheis) was shown on the hospital procedure report as having been the scrub nurse at patient 1's operation. Strangely, although she gave evidence concerning patients 2, 3 and 5, she gave no evidence in relation to patient 1.
Patient 2
Ms Coutts was in the catheter lab recovery room at the time of patient 2's procedure. She entered the catheter lab (cath lab) (where the procedure was being carried out) to provide support for a scrub nurse who was assisting Dr Teasdale for the first time. She said that she saw Dr Teasdale remove a percutaneous needle on numerous occasions, but did not provide any detail. The thrust of her evidence was as to a concern that Mr Cooper appeared to be moving his legs while attempts were made to cannulate the artery, which she assumed to suggest that he was in pain. Her evidence was not specifically directed to the number of punctures to the skin.
There was no other evidence on the point.
Patient 3
The evidence in relation to skin punctures in relation to patient 3 came from Ms Coutts, who was assisting in the catheter lab during patient 3's procedure. She said that she saw Dr Teasdale make numerous antegrade skin puncture wounds on patient 3's right and left lower abdominal quadrants during the procedure.
Dr Teasdale said that he made a number of punctures to the skin and subcutaneous tissue in patient 3's left and right upper thighs in order to cannulate his arteries. He said that patient 3 was an obese patient. Dr Teasdale said that extensive calcification was evident throughout patient 3's arteries and it was necessary to find a soft enough area for needle puncture. That required a number of punctures.
Patient 4
Registered nurse Robert Caswell was the scrub nurse in the catheter lab during the procedure on patient 4. He also assisted in the sheath pulling bay after the procedure was complete. He said he saw Dr Teasdale use a needle to make more than 10 skin punctures in patient 4's right lower abdomen area in an attempt to cannulate her right femoral artery.
Patient 4's procedure was bilateral. Dr Teasdale said that he made antegrade right and left punctures, and it was necessary to perform multiple punctures because patient 4 had extensively calcified arteries. He recalled that patient 4's right, femoral artery was difficult to negotiate and required about three punctures. He did not say how many punctures were required on the left side.
Patient 5
The scrub nurse for patient 5's procedure was Mr Caswell. He said that he saw Dr Teasdale make multiple skin punctures to patient 5's left and right 'lower abdomen area' and that he counted 16 punctures on the right lower abdomen and 12 punctures on the left lower abdomen area. It is apparent that the reference to the 'lower abdomen area' is a loose and somewhat inaccurate description of the operation site, and we do not consider there is any basis on the evidence for a suggestion that the location of the puncture marks was other than in the appropriate area for gaining access to the common femoral artery.
Registered nurse Ms Michelle Nedelof is the nurse unit manager of the catheter lab. She said that she was not present at the start of patient 5's procedure, but was called to the cath lab by a radiographer because he had noted what he took to be part of a hydrophilic wire retained in patient 5's body. She said that following patient 5's procedure she noticed that the patient had 12 skin punctures to his left lower abdominal quadrant and 16 skin punctures to his right lower abdominal quadrant. That is the same number of punctures as referred to by Mr Caswell. Mr Caswell does not say when he counted the number of punctures, although he says that during the procedure he saw Dr Teasdale make multiple punctures. Because there must inevitably have been punctures caused by the injection of local anaesthetic, and because Ms Nedelof said that she noted the number of punctures following the procedure, the reasonable inference is that Mr Caswell counted the punctures at the same time as Ms Nedelof. As a result, it is likely that the figure of 16 and 12 punctures respectively includes anaesthetic puncture marks.
Dr Teasdale's evidence was that patient 5's artery was extremely calcified and as a result the area for arterial puncture was extremely limited. He accepted that he made punctures until he was able to locate a suitably soft area to pierce the arteries. He asserted that the punctures were to skin and subcutaneous tissue only, and did not involve piercing the artery. The punctures, he said, had no deleterious effect.
It is not possible to say with confidence what number of punctures were made by Dr Teasdale in an attempt to cannulate patient 5's femoral arteries. We note as well that Dr Stynes assisted at patient 5's procedures, and it is not clear whether Dr Stynes might have been responsible for any of the puncture marks.
Following the operation, patient 5 reported that he was very happy with the operation and had no symptoms of intermittent claudication.
Patient 6
Mr Caswell was the scrub nurse at patient 6's procedure. He said that, during the procedure, he saw Dr Teasdale make 12 antegrade punctures to patient 6's 'right lower abdomen area'.
Ms Coutts, who was shown in the hospital procedure report as present at the operation gave no evidence in relation to patient 6.
Patient 6 was operated on bilaterally. A TLBA on the left anterior tibial artery was successfully performed. Dr Teasdale said that, on the right, the superficial femoral artery was blocked flush at its origin from the common femoral artery, and 'despite several needle punctures I was unable to introduce the guide wire into the artery'. He elected not to proceed to attempt a retrograde crossover technique because he assessed it as being unlikely to succeed.
The procedure resulted in significant resolution of patient 6's left leg problems, although his right side problems remained. Subsequent review showed improvement in patient 6's symptoms in his right leg by reason of improved collateral circulation as a result of the patient's increased capacity to exercise following the successful procedure on his left leg.
Were multiple skin punctures careless or incompetent?
The evidence does not support a conclusion that Dr Teasdale acted carelessly or incompetently by reason of making an excessive number of skin needle punctures.
The evidence of the experts was to the effect that a surgeon should not make an excessive number of skin punctures. We accept, however, that, depending on the circumstances of the case, it may be necessary and appropriate to attempt a number of punctures in order to successfully gain access to the artery. Precisely how many in any given case will necessarily involve a clinical decision having regard to the circumstances of the particular case. The danger to be avoided is the danger of multiple penetrations of the artery wall. We accept that Dr Teasdale has extensive experience with the TLBA procedure. There is no evidence that, in any of the cases, Dr Teasdale made more than one puncture of the arterial wall.
Broadly speaking, the operations were successful. Whilst some of the patients required intensive postoperative care, there is nothing to suggest that Dr Teasdale's complication rates exceeded the normal expected complication rates of the procedure, and indeed the evidence is that his complication rates are generally lower than the published expected rates. There is nothing to suggest that, apart from minor haematoma in a couple of cases, the making of multiple skin punctures gave rise to any significant adverse effect on the patients. The choice not to abandon the procedure on failing to gain access to the artery at the initial puncture site appears, in all cases, to have led to a successful outcome.
In respect of a couple of the patients examined, Dr Teasdale discontinued attempts to gain access to arteries where access proved too difficult. This is not, therefore, a case of a surgeon who simply continued at all costs with the procedure rather than making a clinical decision to cease further attempts and thus avoid unnecessary risk.
We accept that Dr Teasdale does appear to be prepared to make more skin punctures than either Professor Grigg or Professor Fletcher might undertake in the same circumstances. Dr Teasdale's history of involvement in peer review and the maintenance of standards in relation to vascular surgery demonstrate an appreciation of the importance of the view of professional colleagues. No doubt these proceedings will cause him to reflect on his practices in relation to the number of skin punctures.
In only three of the six cases is there any evidence that the number of skin punctures may have been excessive. In those three cases, it is difficult to determine any particular number that might have been attributable to Dr Teasdale's attempts to gain access to the artery. Even if it is accepted, however, that the number of punctures made by Dr Teasdale exceeded the number which might normally be thought appropriate, we do not accept that the clinical decision made as to the extent of the attempts to be made to gain access to the artery could be said to be careless or incompetent.
Bilateral operation on patient 1
The Board alleges that Dr Teasdale acted carelessly or incompetently in relation to patient 1 in that he:
… chose to intervene on both of patient 1's leg by way of bilateral antegrade skin punctures in circumstances where:
i)only patient 1's right leg was significantly symptomatic; and
ii)patient 1 had undergone a coronary angioplasty in January 2008 and had been prescribed significant antiplatelet therapy.
This allegation stems from an expert report by Professor Grigg of 23 April 2010 in which he states that Dr Teasdale chose to intervene on both legs at one 'sitting' by way of bilateral antegrade punctures even though only the right leg appears to have been significantly symptomatic.
Dr Teasdale's evidence was that patient 1 lived in Geraldton, 420 kilometres north of Perth. Patient 1 told Dr Teasdale that, because he lived in Geraldton, he wanted both legs operated on at the same time while he was in Perth. Dr Teasdale said that when patient 1 saw him at his surgery, he complained that both of his legs were affected but the right leg was slightly worse. The patient told him that those problems were impacting on his lifestyle in that he could not walk more than 30 metres before experiencing significant pain. Dr Teasdale performed duplex vascular ultrasound scan on patient 1 which showed a 90% occlusion at the site of the placement of an angioseal which had been inserted following heart surgery which patient 1 had undergone some time earlier. The angioseal was in the right superficial femoral artery. On the left, Dr Teasdale identified a 10 centimetre long recurrent occlusion on the left femoralpopliteal segment. He concluded that both legs had significant ischaemic problems due to lack of blood supply which were consistent with the reported symptoms.
Professor Fletcher acknowledged that performing bilateral interventions at one sitting increases the risk of complications compared to a unilateral intervention. He noted that patient 6 lived in the country and said that the increased risk would have to be weighed against the practical difficulties in arranging a second admission.
There was no evidence that bilateral procedures lead to more complications, or more serious complication than two separate procedures. Professor Grigg, in his oral evidence, maintained that he personally would not have undertaken a bilateral procedure. Both Professor Grigg and Professor Fletcher accepted that the operator's experience was relevant in exercising judgment as to whether to do a bilateral procedure. They also appeared to accept that the increased risk in a bilateral procedure arises because there are more risks than in a unilateral procedure and those risks are logically doubled in a bilateral procedure.
Dr Teasdale expressed the view that a bilateral procedure whereby both arteries are operated on at the same operation minimises the number of times a patient is exposed to anaesthetic, and the physical and mental stress of a procedure, expenses of travel, cost of health provider funds either public or private, and time off work. He said that, the first seven months of 2010, he had performed 143 TLBA's in 82 patients. He had used a bilateral approach in 51 of those cases. Of the 37 subintimal angioplasty procedures performed in that period, 20 were for bilateral procedures at the same operation. The only significant complication which had arisen in relation to the 143 cases occurred in a unilateral procedure.
Accepting that Professor Grigg would not have chosen to operate on patient 1 bilaterally, and probably nor would Professor Fletcher, the evidence does not support a conclusion that Dr Teasdale's choice to accede to his patient's request to operate bilaterally could be said to amount to carelessness or incompetence.
Withdrawal of the guide wire
This allegation originally arose in the context of a composite allegation. The composite allegation alleged the withdrawal of the guide wire, contrary to the manufacturer's guidelines, with the consequence that the guide wire sheared and a section of the hydrophilic coating was retained in the patient's leg. When the Board abandoned its allegation in relation to the guide wire shearing, it maintained its allegation of the withdrawal of the guide wire contrary to the manufacturer's guidelines.
It was not in issue that the manufacturer's guidelines specify that the guide wire should not be withdrawn through the percutaneous needle.
Dr Teasdale explained that the TLBA procedure involves inserting the hollow percutaneous needle and then inserting a guide wire, and then a sheath through the needle. He said that on occasions it may be necessary to adjust the guide wire and in this regard, it was his usual practise to advance, rotate but not withdraw the guide wire through the needle.
Evidence on this point was given by a radiographer, Mr Peter McCloughney, who was the radiographer for the procedure performed on patient 5. In his witness statement, Mr McCloughney said that, from his position behind a glass screen in the cath lab, he watched Dr Teasdale make multiple attempts to cannulate patient 5's left and right femoral arteries. He said that during one of those attempts, he saw Dr Teasdale withdraw a guide wire through a 'Cook' needle, shearing the coating of the guide wire and leaving a portion of the coating within patient 5's left leg. In his oral evidence, Mr McCloughney said that he did not, in fact, see the coating being stripped from the wire, but rather only saw what he took to be coating on the xray screen. It follows that he resiled from his evidence that he saw the guide wire withdrawn through the needle.
In view of that clarification of Mr McCloughney's evidence, there is no direct evidence that Dr Teasdale withdrew the guide wire through the needle. No inference to that effect can be drawn, given the very considerable doubt that what was thought to be guide wire coating retained in patient 5's leg was in fact guide wire coating.
Accordingly, we are not satisfied that the Board has established that the guide wire was withdrawn through the needle, and this aspect of the complaint must also fail.
Order
The application is dismissed.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and TEASDALE [2012] WASAT 62 (S)
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 1 MARCH 2013
DELIVERED : 22 APRIL 2013
FILE NO/S: VR 192 of 2009
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
JOHN ELVIN TEASDALE
Respondent
Catchwords:
Costs - Disciplinary proceedings - Some allegations abandoned at hearing - Whether continuing proceedings unreasonable
Legislation:
Medical Practitioners Act 2008 (WA), s 84, s 87
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
Application for costs dismissed
Summary of Tribunal's decision:
Following the abandonment by the applicant of several allegations at the conclusion of the hearing, and findings by the Tribunal that the balance of the allegations were not made out, the respondent sought an order that the Medical Board of Australia pay a portion of his costs.
The Tribunal reviewed the applicable principles in relation to costs of proceedings in the Tribunal in relation to vocational matters, and considered whether, in all the circumstances of the case, the continuation of the proceedings by the Board should lead to an order that the Board pay some of the applicant's costs. It concluded that while criticisms of the Board's case could be made with the benefit of having heard three days of evidence, the Board was entitled to have the evidence, both as to fact, and as to opinion, tested through the hearing process, and that an order for costs should not be made.
Category: B
Representation:
Counsel:
Applicant: Mr P Tottle and Mr M Davies
Respondent: Mr PD Quinlan SC and Mr N Cooper
Solicitors:
Applicant: Tottle Partners
Respondent: Clayton Utz
Case(s) referred to in decision(s):
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Medical Board of Australia and McCarthy, (unreported, VR 21 of 2011, 30 January 2013)
Medical Board of Australia and Teasdale [2012] WASAT 62
Medical Board of Western Australia and Roberman [2005] WASAT 81(S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 30 March 2012, the Tribunal dismissed a number of allegations brought against a medical practitioner, Dr John Elvin Teasdale - see Medical Board of Australia and Teasdale [2012] WASAT 62 (the substantive decision). Dr Teasdale now seeks to have the Medical Board (Board) pay a portion of his costs. The Board contends that, in accordance with the usual practice of the Tribunal, each party should bear its own costs.
The applicable principles
There was no issue between the parties as to the general principles applicable to the question of awards of costs in relation to vocational disciplinary matters before the Tribunal. Those principles are now well established.
The starting point, is that generally, pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) parties will bear their own costs. Section 87(2) of the SAT Act empowers the Tribunal, however, to make an order for the payment by a party of all or any of the costs of another party. Particular practices have developed in the Tribunal in relation to the question of costs of vocational disciplinary matters. Generally speaking, where a vocational regulatory body is successful in prosecuting disciplinary action, a respondent will be ordered to pay the vocational regulatory body's costs for reasons which were explained in Medical Board of Western Australia and Roberman [2005] WASAT 81(S) at [30]. The position where, as in this case, the prosecution of a vocational disciplinary matter is unsuccessful, the position was recently confirmed in Lourey v Legal Profession Complaints Committee [2012] WASCA 112 per Murphy JA (with whom Pullin JA agreed) at [81] - [83] where it was said:
81The general considerations relevant to the award of costs in disciplinary proceedings in the Tribunal were outlined by Barker J in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 [43], [47] - [48]:
So far as the general question of costs is concerned, s 87(1) of the SAT Act provides the starting out rule that parties to proceedings should bear their own costs in the absence of an order of the Tribunal to the contrary. However, s 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party.
...
The decision in the Roberman case does not support the view that [a successful respondent] in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case.
82Barker J's observations in Motor Vehicle Industry Board and Dawson at [47] as to what would 'ordinarily' be the position were cited with approval by this court in Paridis at [36].
83The Victorian decision of Re Chen and Chiropractors Registration Board of Victoria [2000] VCAT 1461, dealing with a broadly analogous (but more prescriptive) legislative provision in Victoria, provides an example of where costs have been ordered against a vocational body, notwithstanding that the vocational body had proceeded in good faith and on reasonable grounds. In that case, the regulatory body was ordered to pay certain costs arising from an adjournment which was, in effect, unnecessarily caused by the regulatory body's conduct of the proceedings (see at [41] - [43]).
The case against Dr Teasdale
The allegations against Dr Teasdale involved six patients. The issues which arose were summarised by the Tribunal in the substantive decision at [6] where it said:
The Board makes a number of criticisms of Dr Teasdale's choice of approach to the procedure, and his performance of the procedure. Some criticisms are made in relation to the procedures on all six patients, but there are some criticisms which relate only to some patients. Those criticisms initially gave rise to five issues, which were:
(i)whether Dr Teasdale made an excessive number of skin needle punctures to the lower abdomens of the patients, and if so whether doing so amounted to acting carelessly or incompetently;
(ii)whether choosing a bilateral intervention on patient 1 amounted to carelessness or incompetence;
(iii)whether choosing an antegrade approach to the femoral artery, and failing to consider alternative techniques, constituted carelessness or incompetence;
(iv)whether Dr Teasdale failed to apply manual pressure to the site of patient 2's right femoral artery when he removed a needle; and
(v)whether Dr Teasdale withdrew a hydrophilic coated guide wire back through a percutaneous needle contrary to the manufacturer's guidelines and thereby caused the coating of a guide wire to be retained in patient 5's left leg, whether he failed to ascertain the location of the retained section, and if so whether that conduct amounts to acting carelessly or incompetently.
Two of those issues, being issues numbered (iii) and (iv) were not pursued by the Board after the evidence, which extended over three days, was completed. The Board accepted that, as the evidence had emerged at the hearing, the allegations could not be established having regard to the requisite standard of proof. Issue (v) was not pursued in its entirety. The allegation that the withdrawal of the guide wire caused the coating to be retained in the patient's leg, and that Dr Teasdale failed to ascertain the location of the retained section, was abandoned, so that the allegation pursued was simply that he withdraw the wire through a needle contrary to the manufacture's guidelines.
The Tribunal concluded that none of the other remaining allegations was made out, accordingly the application was dismissed.
The respondent's submissions
Counsel for the respondent noted that, notwithstanding the reference in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 to demonstration 'that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith', Murphy JA in Lourey noted that those observations related to what would 'ordinarily' be the position, but in every case there remain a discretion to order costs in the circumstances of a particular case. In other words, he submitted that a finding of unreasonableness or lack of good faith were not necessary prerequisites to the making of an order. He contended that, in the circumstances of this case, the general rule in relation to costs should be departed from having regard to the particular context in which the allegations against Dr Teasdale were made.
The respondent noted that while the complaints against Dr Teasdale appear to have been precipitated by a complaint from the Mount Hospital, the complaints had the following features:
(a)all of the patients were difficult patients (Reasons, [12]);
(b)all the patients were satisfied with their treatment (Reasons, [26]);
(c)all the treatment was, relevantly, successful - that is, insofar as improvement in the patients' arterial occlusions could be opened, they were (Reasons, [26]);
(d)there was no criticism of the Respondent's clinical decisionmaking or the appropriateness of the procedures (Reasons [27]);
(e)no medical practitioner who attended the procedures were critical of the Respondent. Indeed, their evidence was to the opposite effect - they spoke highly of Dr Teasdale's surgical practice (Reasons [39]);
(f)insofar as the allegations related to the risks associated with some of the allegations (such as arterial penetration from multiple punctures) in no case was that risk said to have eventuated (Reasons [35]); and
(g)the allegations ultimately determined by the Tribunal were not based on precise objective evidence as to inappropriate technique being employed but to generalized - and necessarily subjective - observations made by nursing staff (see e.g. Reasons [41], [42], [46], [53].
The respondent also submits that the initial report of Professor Grigg dated 23 April 2010, which was Professor Grigg's primary report upon which the Board relied, was drawn in terms which essentially expressed a preference for a different approach from that taken by Dr Teasdale in relation to the patients, using expressions such as 'It may have been preferable' or 'I have doubts as to appropriateness …' fall short of an opinion which would support findings of carelessness or incompetency.
Counsel for Dr Teasdale also submitted that the Board should have, but did not, ascertain the views of the other medical practitioners present at the various operations such as the anaesthetist, to ascertain whether they had concerns about Dr Teasdale's operative techniques. Rather, Counsel observed, it was left to Dr Teasdale to call those assisting him in the operation to give evidence at the hearing, and the evidence was to the effect that they all regarded Dr Teasdale's skills highly and had not had any concerns about techniques utilised in the particular cases under review.
The respondent submits that a proper, more critical, review of the evidence should have been taken by the Board, and that review would have revealed the evidentiary difficulties which led to the abandonment of several of the allegations. Because there was a link between the allegation concerning the number of skin punctures to the choice of an antigrade approach to the arteries, that that review would also, it was submitted, have led to a realisation that the other allegations would fail, or did not need to be pursued in the public interest.
The respondent also notes that the Tribunal's observations in the substantive decision at [29] that much of the expert evidence dealt with the appropriateness of an antegrade versus a retrograde approach, being the subject matter of one of the allegations which was abandoned late in the hearing and submits that that issue led to unnecessary costs being incurred by the respondent in meeting that allegation and adducing expert evidence in support of his response.
As to the abandonment of parts of the guidewire allegation, the respondent submits that proper examination of the witnesses prior to hearing would have resulted in a realisation that the allegation could not succeed, at least as initially drawn.
Finally, the respondent relies on the fact that in November 2009, his solicitors wrote to the applicant's solicitors setting out in some detail his response to the allegations which had led to the making of an order under s 84 of the Medical Practitioners Act 2008 (WA) (MP Act) based substantially on the matters which ultimately fell for determination in these proceedings. In December 2009, the respondent's solicitors wrote to the Board in the context of negotiations in relation to proceedings concerning that order, and in that letter sought payment of Dr Teasdale's costs on the basis that the allegations against him lacked substance.
The applicant's submissions
The applicant points out that the initial complaint against the respondent was made by the General Manager of Mount Hospital concerning the treatment of the six patients whose treatment became the subject of these proceedings. The Hospital had terminated the respondent's clinical privileges as a result of the concerns underlying that notification to the Board. The Board appointed their investigator, and subsequently received a recommendation from the Complaints Assessment Committee that the Board seek an undertaking from the respondent to cease practising certain particular operations. That undertaking was not proffered, and accordingly the interim order under s 87 of the MP Act was made. These proceedings subsequently ensued.
The applicant notes that the letter written in December 2009 seeking costs was written following the receipt by the respondent of Professor Fletcher's expert report, but at that time the opinions in that report were at odds with the expressions of opinion in an expert report which had been obtained by the Board. The Board submits that it is only with the benefit of hindsight, and having the Tribunal's views after hearing the evidence in detail, that the respondent seeks to recover costs against the applicant. It submits that it was necessary for the Tribunal to hear both the witnesses of fact and the expert witnesses called by the parties, and to have that evidence tested in crossexamination, before the conclusions ultimately reached by the Tribunal could be reached.
The respondent points to evidence in relation to different allegations which was capable of supporting the conclusion originally contended for in each of the abandoned allegations, notwithstanding that, after all of the evidence was heard, the Board accepted that those allegations could no longer be sustained.
Conclusion
The arguments for and against the making of a costs order in the circumstances of this case are finely balanced. The applicable principles set out above draw upon, and give weight to, the role of vocational regulatory bodies to pursue allegations of breaches of professional standards in the public interest. The role of such bodies, acting in the public interest, underlies the reasoning as to why, in the absence of unusual circumstances, a vocational regulatory body will generally be awarded costs in the Tribunal if it is successful in establishing the complaints against a practitioner, but will not usually be ordered to pay the costs of a respondent where the Tribunal finds the allegations are not established.
In a recent decision on costs delivered orally immediately following argument (Medical Board of Australia and McCarthy, (unreported, VR 21 of 2011, 30 January 2013)) the Tribunal referred to that general approach and said:
The reasons for that have been discussed in the various authorities like Roberman and Dawson and they exist for the good reasons set out in those decisions. But attendant with that privilege is an obligation that it not be open to any form of abuse; that is, it behoves regulatory authorities to continue to monitor whether or not the public interest which they sought to serve by instituting the proceedings, remains to be served by their continuation.
In that case, the Tribunal ordered the Board to pay costs in circumstances where, in the course of proceedings in relation to very old allegations, the Board's case changed 'relatively fundamentally', and a critical analysis would have revealed that the complaints had no reasonable prospect of success. Accordingly, the Board was ordered to pay costs after the filing of the substituted application upon which the final hearing proceeded.
While accepting merit in many of the submissions made by the respondent in this case, I have reached the view that the circumstances are not such as to justify the Tribunal departing from the usual position that parties should bear their own costs. To a certain extent, the force of the respondent's submissions comes with the benefit of hindsight. I acknowledge that, from as early as late 2009, the respondent asserted that the allegations against him lacked substance, and that he provided some independent expert opinion to support that contention. However, the Board had evidence, both as to factual matters and as to expert opinion, which was capable of supporting its position.
It is true that, after three days of hearing, the Board itself recognised that some of its allegations could not succeed, and the Tribunal found the other allegations not to have been established. Those outcomes emerged, however, when both the Board and the Tribunal were in a position to assess all of the evidence having regard to detailed (and able) crossexamination of the various witnesses and thus the opportunity to have regard to all of the evidence in its totality.
It is necessary that a vocational regulatory body continually review and assess its allegations, in the case which it is to present, during the currency of proceedings before the Tribunal. The process of mediation which the Tribunal usually undertakes (and undertook in this case) often throws light on the issues in a way which calls for critical review by both parties as to their respective positions. There will be cases, however, where it is necessary for a hearing to take place before final conclusions can be drawn on the evidence. Depending on the nature of the allegations, there will be cases where it is in the public interest for the issues to be fully ventilated at a hearing rather than simply abandoned by a vocational regulatory body because, depending on how the evidence emerges, the allegations might be dismissed at hearing.
It needs also to be recognised that, in a practical context, any critical review of the evidence by the Board, or those advising it, will lack the benefit of a full testing of all of the evidence which is achieved by a hearing.
In my view, this case falls amongst those where the Board was entitled to test the allegations which it made against the respondent by a full hearing. The Board should not be, in effect, penalised by its abandonment of some of the allegations once all of the evidence was in. Abandonment of the complaints was simply a responsible and appropriate step by counsel for the Board having regard to the way that the evidence had emerged.
It is relevant that these proceedings came to the Board's notice following the removal of Dr Teasdale's operating privileges at the Mount Hospital. That was a serious step for the Hospital to take, and the Board was entitled to be concerned about the circumstances which led to that action. Its initial investigation and assessment by the Complaints Assessment Panel, and initial expert advice reinforced that concern. Although, looking back, it is possible to identify weaknesses in evidence which was then gathered, I do not consider that it is possible to identify a point of time where pursuit of the Board's case could be said to have become unreasonable.
In reaching this conclusion, I am mindful of the devastating effect that the costs of proceedings of this nature can have on a member of a regulated profession, especially where that member has to bear those costs personally. Although the amount of costs which the respondent sought to recover, were an order to be made, was only a fraction of the overall costs, the correspondence tendered in relation to the application for costs reveals total costs incurred which are likely to have a devastating effect on a respondent. The complexity of the issues in medical disciplinary proceedings which concern allegedly inadequate or incompetent medical procedures commonly results in very high costs for both parties. That may sometimes be inevitable, but it highlights the need for care in the management of such cases on the part of all concerned to avoid situations where the costs of proceedings can be potentially as, if not more, devastating to a practitioner than an adverse outcome of the proceedings. That reality reinforces the need for applicants in vocational proceedings to critically review the strength of the evidence supporting allegations, and the public interest in pursuing those allegations, as matters develop during the course of proceedings. For reasons which I have expressed, however, this is not a case where it can be said that the Board has acted unreasonably in pursuing the matter.
Orders
The application for costs is dismissed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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