Medical Board of Australia v Fitzgerald
[2014] QCAT 425
•11 August 2014 (ex tempore)
| CITATION: | Medical Board of Australia v Fitzgerald [2014] QCAT 425 |
| PARTIES: | Medical Board of Australia (Applicant/Appellant) |
| v | |
| Dr William Joseph Fitzgerald (Respondent) |
| APPLICATION NUMBER: | OCR219-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 11 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Eileen Burkett, Dr Stephen Pozzi, Mr Paul Murdoch |
| DELIVERED ON: | 11 August 2014 (ex tempore) |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 124(1)(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999, the Registrant has behaved in a way, more particularly described in the Statement of Agreed Facts, that constitutes unsatisfactory professional conduct. 2. Pursuant to section 241(2)(a) of the Act, the Registrant is reprimanded. 3. Pursuant to section 241(2)(b) of the Act, the following conditions be imposed on the Registrant's registration: a. The Registrant must participate in a mentoring program for 24 months which includes the following elements: i. The Registrant is to nominate a mentor, for the approval in writing by the Board (or its delegate), who is a practising medical registrant with specialist registration in general surgery and with at least 10 years' experience and who is actively involved in the Royal Australian College of Surgeons training program. ii. The Registrant must meet with the mentor at a frequency determined by the mentor, however not less than on a monthly basis. The first mentoring session is to be for a duration of not less than two (2) hours, with the following sessions to be for a duration of one (1) hour. The mentor is to include details of the duration of the mentoring sessions in his or her reports to the Board. iii. The mentoring relationship will be directed to reviewing, at the mentor's discretion, the Registrant's current patient management, in particular addressing post-operative care and the Royal Australian College of Surgeons competencies, specifically Medical Expertise, Judgement - Clinical Decision Making, Professionalism and Communication (with patients and their families). iv. The Mentor will conduct a clinical audit of a selection of not less than five (5) cases per month selected by the mentor for post operative complications, outliers, unplanned return to theatre and unplanned readmission. v. The Mentor will be provided with a copy of the clinical records for VW for her periods of inpatient care at the Mater Mackay and Mackay Base Hospitals in January 2009. vi. The Registrant will request and authorise the mentor to provide a report in writing to the Board at the end of each month for the first three (3) month period and thereafter quarterly reports and also at the end of the period of mentoring, or at such time or times as the Board (or its delegate) shall determine for the purpose of monitoring the Registrant's competence/performance and compliance with the mentoring program. b. The Registrant will complete the Royal Australian College of Surgeons course on ‘Management of Surgical Emergencies’ within one (1) year of this order (or by such other date as agreed with the Board or its delegate) and: i. Within three (3) weeks of completing this course, the Registrant will submit to the Board a report from the education facilitator, documenting evidence of the Registrant’s successful completion of the course; ii. The Registrant authorises the Board (or its delegate) and the course provider to exchange information, at such times or times as the Board shall determine, for the purpose of monitoring the Registrant’s clinical competence, performance or compliance with these conditions. c. The Registrant will request and authorise the Medicare Program, Department of Human Services, Queensland Health and private health insurance funds to provide information to the Board (or its delegate) about the Registrant's practise of the profession. d. The Registrant is to be responsible for paying any costs associated with these conditions. 4. The details of the reprimand and the conditions imposed upon the Registrant's registration be recorded on the Board's register for a period of two (2) years. 5. Pursuant to section 241(3) of the Act, the review period for the conditions imposed on the Registrant's registration is one (1) year. 6. The Registrant must provide a copy of this order, including these conditions, to all employers, partners, contractors of Health Services in any practice or facility in which he practices or seeks to practice. 7. Within seven (7) days of notifying the person described in condition 6 the Registrant will advise the Board (or its delegate) in writing of the name and contact details of those persons. 8. The Registrant pay the Board's costs of and incidental to these proceedings in the sum to be agreed or assessed on the District Court scale. |
| CATCHWORDS: | HEALTH PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where it is alleged and admitted that the respondent engaged in unsatisfactory professional conduct – where the conduct arose from postoperative treatment of a patient – where an agreed statement of facts and joint proposal on sanction are submitted – whether the sanction is appropriate Health Ombudsman Act 2013 (Qld), s 314 Medical Board of Australia v Martin [2013] QCAT 376 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr AR Forbes of Lander & Rogers |
| RESPONDENT: | Mr PD Corkery instructed by Norton Rose Fulbright |
REASONS FOR DECISION
The Medical Board of Australia (‘the Board’) has referred disciplinary proceedings to the Tribunal under the Health Practitioner (Professional Standards) Act 1999 (Qld) which is now known as the Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’). That Act has now been repealed. By operation of s 314 of the Health Ombudsman Act 2013 (Qld), the Tribunal can hear and determine the proceeding as though the Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) had not been repealed.
The referral alleges that the registrant, Dr William Joseph Fitzgerald, has engaged in unsatisfactory professional conduct as defined in the Disciplinary Proceedings Act. Dr Fitzgerald has made admissions which include that he has engaged in unsatisfactory professional conduct, and the matter has proceeded in the Tribunal today by way of an agreed statement of facts and a joint proposal as to sanction put forward by the parties.
The proceedings concern the postoperative treatment of a patient of Dr Fitzgerald in Mackay in January of 2009. On 5 January 2009, Dr Fitzgerald performed a laparotomy with adhesiolysis and a right ovarian cystectomy upon the patient at the Mater Hospital in Mackay. During that operation, Dr Fitzgerald identified two small perforations in the second part of the duodenum. He repaired the perforations and no leakage was detected on manual pressure testing. Dr Fitzgerald inspected all other parts of the small and large bowel after all the adhesions were divided and no further perforations were detected.
Postoperatively, by 9 January 2009, the patient’s medical condition had begun to decline. It continued to decline over the ensuing days. Ultimately, on 12 January 2009, the patient was transferred to the Mackay Base Hospital for emergency surgery. Four operations were performed upon her at the Base Hospital. The patient was operated on by Dr Adrian Westcott who identified two duodenal enterotomies that had been sealed and repaired. He identified one further enterotomy in the middle of the duodenum. He was unable to form any opinion as to the cause of that enterotomy. It was repaired. Dr Westcott also found 4.5 litres of small bowel content in the abdominal cavity which was suctioned out. The patient was lavaged with copious saline and her wound left open. She was then transferred to the intensive care unit.
The patient’s recovery has been long and difficult, and I am told she still suffers difficulties associated with the procedures.
On 6 and 7 January 2009, in the course of her care, blood tests were ordered by Dr Fitzgerald. On each occasion, those tests were reported with a white cell count within normal range. On 9 January 2009 at 8.30 am, Dr Fitzgerald made notes in the medical records referring to the patient having had a bad night, and suffering from restricted breathing. She reported no abdominal pain, but still had a sore right shoulder. Dr Fitzgerald made a note which stated, ‘Impression: ?Ongoing ileus, ?Peritonitis secondary to small bowel leak.’
He made a note to order as part of the plan of treatment an urgent CT scan of the abdomen that day. The CT scan was performed and was reported on 9 January 2009. The clinical details were recorded in the results as being ‘Post-laparotomy for adhesions. Post-op ileus? Bowel leak.’
The comment included in the report was:
Gross ascites with pneumoperitoneum with loculations and likely infection. No evidence of bowel obstruction is seen. Mild diffuse subcutaneous oedema. Bilateral mild to moderate pleural fusion with associated collapse/consolidation of both lower lobes
On 10 January 2009, notes made in the medical records by a registered nurse record the sister and husband of the patient expressing a wish for a physician to be consulted. It is recorded that this was discussed with Dr Fitzgerald and it is noted that he would review shortly. At 1 pm on that day, Dr Fitzgerald noted in the medical record that his impression was the patient had a slowly resolving peritonitis. During Dr Fitzgerald’s review of the patient at that time, the patient’s husband requested that a second opinion be obtained from a physician. Dr Fitzgerald says that while he thought that the patient may have had peritonitis he considered it was resolving, given her clinical condition at that time and the findings of the CT scan of her abdomen from the previous day.
He says that he advised the patient and her husband of that, but that the patient’s husband nevertheless requested a second opinion of his wife’s medical management. Dr Fitzgerald says that in response to the husband’s demand for a second opinion he, Dr Fitzgerald, responded in a frustrated manner, gesticulated with his arms, abruptly left the room and stated words to the effect of, ‘All right. I’ll get a second opinion if you insist, but he will only back up what I’ve already told you.’ Dr Fitzgerald says that in his manner he responded inappropriately to the request by the patient’s husband that a second opinion be obtained from a physician, but he says that after he left the room and telephoned Dr De Silva to arrange the second opinion, he returned to the room and apologised to the patient and her husband.
Dr De Silva ordered blood tests on that day and they, too, reported a white cell count within normal range, although slightly higher than the count in the previous tests taken on 6 and 7 January. Dr De Silva ordered further blood counts on 11 January 2009. The blood test results reported at 6.03 am included a white cell count result of 19.8. This was now outside the normal range which was 3.5 to 10. At about 12.25 pm on that day, Dr Fitzgerald telephoned the ward at the hospital and spoke with a nurse in relation to the status of the patient. He was advised that the patient’s condition was stable and no concerns were raised. He did not personally attend the patient on that day. He was not informed of the adverse or high blood count from earlier that morning.
At 1.30 pm on that day, Dr De Silva reviewed the patient and made notes in her medical records which indicated that he was aware of the abnormal blood test results. Further blood test results were reported at 7.40 pm that evening and showed the white cell count had now elevated to 24.7. The report included an observation finding of neutrophilia and monocytosis suggesting bacterial infection or inflammation. Neutrophils showed toxic changes. The patient’s weight was recorded on that day as 79.7 kilograms, which was a 15.1 kilogram increase in the six days that she had been in hospital. By 11 January 2009, the patient had developed significant fluid overload in her abdomen and that was observable.
Ultimately, as I have said, on 12 January 2009 she was urgently transferred to the Mackay Base Hospital where the further surgical procedures were performed.
Dr Fitzgerald has made a number of admissions in relation to his postoperative care and treatment of the patient. Particularly, he admits that he expressed some frustration in his communications with the patient and her husband during his review on 9 January 2009. He admits that the patient remained under his care and management up until her transfer to the Mackay Base Hospital on 12 January 2009. He admits that the patient’s clinical presentation on 10 January 2009 was strongly suggestive of peritonitis. He admits that the patient’s clinical presentation on that day was strongly suggestive of a return to theatre on that day. He admits having made a clinical error in not returning the patient to theatre on 10 January 2009. He admits that he did not personally attend the Mater Mackay to review the patient on 11 January 2009. He admits that he did not personally review the test results obtained on 11 January 2009 in respect of the patient’s clinical condition.
He admits that he did not request the results of any test results obtained on 11 January 2009 during his communications with nursing staff on that date. He admits that on 11 January 2009 until the early hours of 12 January 2009, Dr De Silva was placed in a position where he maintained responsibility for the care of the patient, which was inappropriate. He admits that he ought to have directly maintained and monitored the patient’s health and care throughout 11 January 2009 and the early hours of 12 January 2009, including reviewing the test results obtained and actively seeking reports from hospital staff and Dr De Silva about the patient’s condition during that period.
As I have already noted, he admits that his conduct constitutes unsatisfactory professional conduct pursuant to s 124(1)(a) of the Disciplinary Proceedings Act.
As I have also already noted, the parties have proposed jointly a sanction to be imposed by the Tribunal. The matter of an appropriate sanction, notwithstanding agreement between the parties, remains a matter of discretion for the Tribunal, in any particular case. In Medical Board of Australia v Martin [2013] QCAT 376 (‘Martin’), the Tribunal observed that where parties have jointly proposed a sanction, the Tribunal ought not to depart from that proposed sanction agreed between the parties, unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive: see Martin at [91] to [93]. The Tribunal noted that there were important public policy reasons why a proposed sanction, within a permissible range, ought not be departed from by the Tribunal.
The sanction which is jointly proposed by the parties in this instance includes the reprimand of Dr Fitzgerald, pursuant to s 241(2)(a) of the Act. That, in my view, is appropriate. The sanction also includes the imposition of conditions upon Dr Fitzgerald’s registration. The conditions have two aspects to them. The first is that Dr Fitzgerald must participate in a mentoring program for 24 months. That, in my view, is a significant condition to be imposed upon a registrant’s practice. The mentoring includes the requirement for the mentor to conduct, amongst other things, a clinical audit of a selection of not less than five cases per month, selected by the mentor for post-operative complications, outliers, unplanned returns to theatre and unplanned readmissions. There are reporting requirements for the mentor to provide reports to the Board concerning Dr Fitzgerald’s competence, performance and compliance with the mentoring program.
The second aspect of the conditions is that Dr Fitzgerald is to complete a Royal Australian College of Surgeons course on management of surgical emergencies within one year of the date of this order. In my view, the conditions are appropriate.
Section 242(1)(a) of the Disciplinary Proceedings Act requires that where the Tribunal makes a decision imposing conditions on the registration, the Tribunal must also decide whether details of the conditions must be recorded in the Board’s register for the period for which the conditions are in force. The proposed sanction provides for the recording of those conditions for the period for which they are imposed. That, in my view, is appropriate in this case. Section 241(3) also requires the Tribunal to decide a period, which is to be no more than three years from the date on which the decision takes effect, within which the registrant may not apply for a review of the decision by the Tribunal under Part 9, Division 4 of the Disciplinary Proceedings Act. The parties have proposed a review period of one year, which again, in my view, is appropriate.
I am of the view that the sanctions included in the draft proposal by the parties are within a permissible range and are, indeed, appropriate in this case. Dr Fitzgerald has no prior history of any complaints having been made in respect to surgery. These complaints relate to post-operative care and not the performance of any surgery by him. He has practised in medicine in North Queensland for nearly 20 years.
The parties have not been able to identify any matters before this Tribunal where a medical practitioner’s registration has been suspended in respect of one particular procedure. In my view, the sanctions imposed meet the protective purposes of the Act, and particularly the objects of disciplinary proceedings of protecting the public by ensuring that health care is delivered in a professional, safe and competent way; upholding the standards of practise within the health profession; and in maintaining public confidence in health professionals.
For those reasons, the Tribunal will make orders in terms of the draft which has been provided.
I note that the orders include that Dr Fitzgerald is to pay the Board’s costs of and incidental to these proceedings in the sum to be agreed or assessed on the District Court scale. That too is an appropriate order in this matter.
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