MEDICAL BOARD OF WESTERN AUSTRALIA and MAJID
[2009] WASAT 258
•30 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL ACT 1894 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and MAJID [2009] WASAT 258
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
MS J MILLSTEED (SENIOR SESSIONAL MEMBER)
HEARD: 15 SEPTEMBER 2009
30 SEPTEMBER 2009
DELIVERED : 30 SEPTEMBER 2009
FILE NO/S: VR 32 of 2008
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
ABDUL MAJID
Respondent
Catchwords:
Allegations of gross carelessness or incompetency - 1894 Act - Referral to specialist - Xrays - Ultrasound or CT scan - Oesteogenic sarcoma - Amputation - Need for adequate diagnosis
Legislation:
Interpretation Act 1984 (WA), s 37(1)
Medical Act 1894 (WA), s 13, s 13(1), s 13(1)(c)
Medical Practitioners Act 2008 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P J Urquhart
Respondent: Mr P D Quinlan
Solicitors:
Applicant: Liscia & Tavelli Legal Consultants
Respondent: Clayton Utz
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Callaghan v the Queen (1952) 87 CLR 115
Jemielita v Medical Board of Western Australia, unreported SCT of WA (Full Court); Library No 920584, 13 November 1992
Medical Board of Western Australia and Roberman [2005] WASAT 81
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Western Australia brought allegations of gross carelessness and incompetence pursuant to s 13(1)(c) of the Medical Act 1894 (WA) against a general practitioner, Dr Abdul Majid. In substance, the allegations concerned the practitioner consulting a patient in March 2006, regarding a lesion behind the patient's left knee. At the time, the practitioner was working as a locum GP in a medical practice in the Perth suburbs. The practitioner made a differential diagnosis of possible meniscal injury or Baker's cyst and referred the patient to the orthopaedic specialist clinic at Royal Perth Hospital for investigation. The practitioner did not order any other followup investigations and did not follow-up on the outpatient appointment. The patient did not receive an outpatient appointment at Royal Perth Hospital until September 2007, which was 18 months after that initial consultation.
In September 2006 the patient was admitted to Armadale Hospital due to loss of movement and increased pain in his left knee. On investigation, the patient was diagnosed with a parosteal osteosarcoma.
The Tribunal found that while the practitioner had been careless in failing to conduct any additional followup investigations or to ensure the patient was seen by an orthopaedic specialist within a reasonable period of time, he had not been grossly careless or incompetent. The Tribunal thought it appropriate to consider the facts in the context of the practitioner being a locum seeing 50 60 patients a day in a corporatised practice which was not the usual medical centre where Mr W consulted his regular GP. In light of that factual matrix Dr Majid could not be expected to follow up every patient. However, he was required to explain clearly and comprehensively any subsequent action that the patient should take. Consequently, the Medical Board's application was dismissed.
Background
The respondent in this matter, Dr Abdul Majid, was at all relevant times a medical practitioner registered under the Medical Act1894 (WA) (1894 Act). He has worked as a medical practitioner in Western Australia for many years, including at Newman and Applecross, and as a locum practitioner at other locations. Dr Majid has also worked as a medical practitioner overseas and in other states of Australia. He completed locum placements in New Zealand and Ireland for the first six to seven months of 2005 before returning to Perth in approximately September 2005.
Between September 2005 and March 2006, the practitioner was employed as a locum general practitioner at the Champion Drive Medical Centre (practice).
On 13 March 2006 Mr W consulted Dr Majid at the practice in relation to a small lump behind his left knee.
Mr W was only seen by Dr Majid on that one occasion. During this consultation, Dr Majid undertook an examination of the lump behind Mr W's left knee. Dr Majid's clinical notes for this visit read as follows:
L?? bakers cyst
o/e loss of flexion
?? meniscial injury
adv orth opinion
quad exercises
referral to orthopaedic
Dr Majid made a differential diagnosis of possible meniscal injury or Baker's cyst. Mr W did not have private health insurance. Dr Majid referred Mr W to the outpatient orthopaedic department of Royal Perth Hospital (RPH) for assessment and management and in order to obtain a definitive diagnosis. The letter of referral noted that the referral was 'routine'. Dr Majid did not give Mr W the option of having an xray, an ultrasonography or a CT scan either before or instead of attending the orthopaedic clinic at RPH. Mr W would have had to pay for that kind of investigation as it is not covered by Medicare. Dr Majid also did not suggest that Mr W see a specialist privately, that is, an orthopaedic specialist who consults separately from a clinic at a public hospital.
As Dr Majid did not make the appointment for Mr W or arrange for any of the staff at the practice to make the appointment at RPH for Mr W; he handed the letter of referral to Mr W and advised him to arrange the appointment with the RPH orthopaedic department himself.
Shortly after obtaining the referral at the consultation with Dr Majid, Mr W made an appointment to see an orthopaedic consultant at RPH but the first available time was in September 2007. This date was approximately 18 months after the consultation with Dr Majid.
In April 2006 Dr Majid finished his locum position at the practice. Mr W did not return to Dr Majid or to the practice nor did he advise Dr Majid or the practice that RPH had provided him with an orthopaedic outpatient clinic appointment in September 2007.
On 16 September 2006 the pain in Mr W's left knee and leg was so severe that his wife arranged for him to attend the Emergency Department at Armadale Hospital which resulted in him being admitted to that hospital. The attending doctor examined Mr W and made the following provisional diagnosis:
A/? Bakers' cyst.
??? Tumour/sarcoma
P/x-ray, ultrasound
Ortho r/u arranged 10/7
Arrangements were made at Armadale Hospital on or around 25 September 2006 for xrays and an ultrasound of Mr W's left knee and leg. These further investigations revealed a mass behind Mr W's left knee which was reported as 'a 7 cm primary oesteogenic sarcoma of the posterior aspect of the distal femoral metaphysic extending to the epiphysis … The patient will require urgent orthopaedic opinion and MRI examination'.
Mr W was initially referred to the orthopaedic registrar at Fremantle Hospital on an urgent basis. The registrar then referred him to orthopaedic specialist, Mr RJ Beaver, again on an urgent basis. Following further investigation at RPH on 27 December 2006, and an open biopsy, Mr Beaver diagnosed the lump as a classical parosteal osteosarcoma of the distal femur. Mr W required immediate surgery to amputate Mr W's left leg from above the knee so as to allow a wide resection and to replace his left knee with an artificial joint.
The allegations
The Medical Board of Western Australia (Board) made several allegations against the practitioner which were primarily based on two grounds.
The Board alleged that Dr Majid was guilty of gross carelessness or incompetency pursuant to s 13(1)(c) of the 1894 Act in that, in the course of examining Mr W's knee and being unable to adequately diagnose the medical condition affecting Mr W's knee, Dr Majid failed to:
1.arrange for xrays, ultrasonography or CT scans of Mr W's knee to be undertaken and reported to him so as to assist him to:
a)diagnose Mr W's condition; or
b)determine whether an urgent referral to a specialist was warranted; and
2.in the alternative, ensure that Mr W was reviewed within a reasonable period of time by a specialist who would be able to diagnose Mr W's condition and to monitor Mr W's condition until he could be reviewed by the specialist.
The relevant legislation
The Medical Practitioners Act2008 (WA) came into operation on 1 December 2008. These proceedings were commenced in the Tribunal on 11 February 2008 and heard on 15 September 2009.
We accept the submissions of counsel for both parties that pursuant to s 37(1) of the Interpretation Act 1984 (WA), the practitioner's conduct is to be judged by reference to the 1894 Act.
Section 13(1) of the 1894 Act provides:
(1)Where it appears to the Board that a medical practitioner, not being a body corporate, may be
(a)guilty of infamous or improper conduct in a professional respect;
(b)affected by a dependence on alcohol or addiction to any deleterious drug;
(c)guilty of gross carelessness or incompetency;
(d)guilty of not complying with or contravening a condition or restriction imposed by the Board with respect to the practice of medicine by that medical practitioner; or
(e)suffering from physical or mental illness to such an extent that his or her ability to practise as a medical practitioner is or is likely to be affected,
the Board may allege to the State Administrative Tribunal that disciplinary action should be taken against the medical practitioner for that reason.
The relevant issues
The issue for determination by the Tribunal is whether or not Dr Majid is guilty of gross carelessness or incompetency pursuant to s 13(1)(c) of the 1894 Act. In determining this issue, the Tribunal must decide whether the practitioner:
1.should have arranged for further investigations, such as xrays, ultrasonography or CT scans to confirm or refute his provisional diagnosis;
2.instructed Mr W to return to see him or another medical practitioner if any of the following happened:
a)he did not obtain an appointment at a public outpatient clinic within three months from the date of the consultation with the practitioner;
b)the lump in Mr W's knee increased in size;
c)the lump in Mr W's knee caused an increase in pain; or
d)Mr W's knee became dysfunctional;
3.was reasonable in his assumption that a routine orthopaedic appointment would be provided to Mr W within a reasonable period of time, being a period of no more than three months;
4.was reasonable in not making enquiries prior to commencing practice on his return to Western Australia about the state of the public health system, and in particular the average waiting lists for routine appointments with specialists at public hospitals; and
5.should have considered the small possibility of a sinister diagnosis in the case of Mr W.
Standard of proof
The requisite standard of proof is on the balance of probabilities. However, in view of the gravity of the allegations, we must find that standard to be proved in accordance with the test in Briginshaw v Briginshaw (1938) 60 CLR 336 at 36 363. This test requires us to have an actual persuasion of the occurrence of the events in issue and said to constitute gross carelessness or incompetency. The Board bears the onus of proving the allegations to that requisite standard.
Evidence before the Tribunal
The parties filed an agreed statement of facts and we accept those facts (as outlined above). There were, however, some important facts that remained disputed, such as whether gout was diagnosed by the practitioner at the consultation on 13 March 2006; whether the lump was hard or soft at the time of the consultation; whether the practitioner took steps to familiarise himself with the usual timeframes for and delays in obtaining routine specialist appointments in public hospital outpatient clinics; whether the practitioner considered the possibility of a sinister diagnosis; whether drugs to treat Mr W's epilepsy were prescribed; and what parting comments were made by Dr Majid as the patient left.
Witness statements were filed for both Dr Majid and Mr W and both men gave evidence at the hearing. The Tribunal also heard concurrent expert evidence from Professor Bernard PearnRowe who was called by the Board and Dr Peter Winterton and Dr Peter Maguire who were called by the practitioner.
Mr W
In his witness statement, Mr W says that on or about 1 March 2006 he noticed a hard lump the size of a 20 cent piece behind his left knee. He says the lump was 'about as hard as a squash ball' and that he was unable to fully bend or straighten his leg due to the pain it caused (witness statement at [4]).
Mr W says that his wife organised his appointment with Dr Majid as he was unable to get an appointment with his regular general practitioner (GP) who he saw at a different medical centre. During the appointment on 13 March 2006, Dr Majid examined Mr W's knee in both a sitting and laying position and when Dr Majid tried to straighten Mr W's leg, Mr W says that he told Dr Majid that it was too painful and asked him to stop; he further says that when Dr Majid tried to bend his leg it would not bend fully as the lump was in the way and it caused him pain (witness statement at [7]).
In his witness statement, Mr W testifies that he could not recall Dr Majid asking him any questions about the history of the lump nor about his medical history generally, yet in his oral evidence, Mr W said that Dr Majid provided him with a handwritten prescription for an epilepsy drug (T: 19 and 21, 15.09.09). When Mr Quinlan, counsel for the practitioner, asked Mr W that, if this was in fact the case, how would Dr Majid know any of his medical history, Mr W responded that it had been four years since the event and he could not recall (T: 22, 15.09.09).
Mr W says that after the examination Dr Majid told him that it may be a Baker's cyst or gout and that he would be referred to RPH for a definitive diagnosis (T: 19, 15.09.09). There was no mention of a possible diagnosis of gout in Dr Majid's notes of the consultation and when pressed on whether or not Mr W may have been mistaken about the diagnosis of gout, Mr W emphatically stated that Dr Majid 'definitely said gout or it could be a Baker's cyst' (T: 25, 15.09.09). When asked by Judge Eckert whether he had known what gout or a Baker's cysts were at the time of the differential diagnosis, Mr W recalled that his father and some of his colleagues had a history of gout, but he did not know what gout or a Baker's cyst were.
Mr W cannot recall Dr Majid advising him to return to see him or any other doctor if the lump changed, the pain increased, or if he had any problems obtaining a specialist appointment. Mr W told us that Dr Majid did not hand him the referral letter, but said that he received a letter dated 30 March 2006 from RPH telling him that the referral letter from Dr Majid had been received and reviewed and that he would be sent an appointment 'in due course' (T: 18 19, 15.09.09; witness statement at [13]). He did not contact the hospital to make the appointment.
He received a second letter from RPH saying that his appointment was for September. On receipt of the letter, he says his wife telephoned RPH to clarify the date of the appointment and was told that the appointment was for September 2007, not September 2006 (witness statement at [15]). Mr W said in reexamination that had Dr Majid advised him to return to him if there was a problem getting a specialist appointment within a reasonable time, he most certainly would have returned to the practice or to his usual GP (T: 28, 15.09.09).
Mr W says that the pain in his leg and shin began to increase over the next five months and the lump increased in size (witness statement at [16]). Mr W said in crossexamination that the lump also hardened (T: 20, 15.09.09). By about September 2006 the pain had increased to the point that Mr W's wife admitted him into Armadale Hospital where he was seen by a doctor who told him that there was a possibility he had cancer (witness statement at [17]).
Scans and xrays were taken and he was quickly referred to Dr Beavis at Fremantle Hospital who confirmed the diagnosis of cancer and that surgery was necessary (witness statement at [18]). As a result, Mr W says that he is no longer able to work and will need future surgery to his knee and leg.
Dr Majid
In his witness statement, Dr Majid agrees that the consultation with Mr W on 13 March 2006 was the one and only time he consulted the patient. Given the passage of time, he is unable to recall the specifics of the consultation; however, he does recall that he consulted Mr W at or about 4.00 pm regarding a pronounced lump or swelling behind his left knee which was causing slight limitation of movement in the left knee joint (witness statement at [18]).
He says it was his usual practice to take a brief medical history from the patient and he would have done so on this occasion (witness statement at [19]). When asked about Mr W's claim that a handwritten prescription for an epilepsy drug was written by Mr Majid at the consultation on 13 March 2006, Dr Majid responded that he could not recall having done so. He advised that all prescriptions he wrote whilst at the surgery were computer generated, not handwritten and that he would have made mention of this prescription in his clinical notes if the prescription had been given (T: 33, 15.09.09).
Dr Majid says that in accordance with his usual practice, he would have performed a routine examination of the swelling in Mr W's knee in both a standing and supine position, looking at both the knee and the popliteal fossa (witness statement at [20] [21]). This examination would have involved an inspection for any signs of swelling, deformity, tenderness, skin changes, redness and areas of warmth or coolness. He would also have tested the range of motion by moving Mr W's leg and knee joint and asking Mr W to move the leg and knee joint, examining the joint margin, cruciate and menisci, bending and straightening the knee, checking flexion and movement and listening for sounds (witness statement at [22] [23]). An examination of this kind is substantiated by Mr W's evidence.
Dr Majid's clinical notes of this consultation record a loss of flexion in the left knee but no pain (T: 75, 15.09.09). He says that on examination of the swelling on the back of Mr W's knee, he was led to a provisional diagnosis of a possible Baker's cyst or meniscal injury as indicated by his clinical notes. He says that he would have explained his provisional diagnosis and the nature of a Baker's cyst to Mr W at this time (witness statement at [34]).
Dr Majid explains at [27] of his witness statement that despite having made no specific notes as to the consistency of the lump behind Mr W's left knee, he believes that the lump must have been soft and cystic at that time to have led to his provisional diagnosis of a Baker's cyst; however, in response to questioning from Senior Sessional Member Dr Quatermass, Dr Majid said that the degree of softness or firmness would have changed depending on whether Mr W was sitting or laying at the time of examination (T: 79, 15.09.09). Dr Majid draws attention to the fact that when Mr W consulted an orthopaedic registrar at Armadale Hospital almost five months later, the provisional diagnosis of the registrar also included a Baker's cyst (witness statement at [28]).
The practitioner disputes the claim that he diagnosed Mr W with gout. He says that if he had been of the opinion that Mr W was suffering from gout, he would have prescribed anti-inflammatory medication and arranged to review Mr W in two to three days time to see if the condition had settled. He further elaborates that he would not refer a patient he suspected to be suffering from gout to an orthopaedic specialist (witness statement at [29]).
Dr Majid says that he was comfortable with his provisional diagnosis of a Baker's cyst, but felt that it was necessary to refer Mr W to a specialist orthopaedic department so that further investigations could be undertaken to confirm or refute the diagnosis and to exclude the small possibility of a more sinister diagnosis (witness statement at [31]). Based on the nature of his provisional diagnosis, Dr Majid says that he did not believe that Mr W required an urgent appointment.
He admits that he did not consider it necessary to order any investigations such as xrays or CT scans at the time of the consultation as magnetic resonance imaging (MRI) was his investigation of choice; such an investigation could only follow the referral to the orthopaedic department (witness statement at [33] and [42]). During crossexamination, Mr Urquhart, counsel for the Board, questioned Dr Majid thoroughly on his decision not to undertake any followup investigation other than the specialist referral. Dr Majid submitted that, as his provisional diagnosis was a Baker's cyst, it was not his usual practice to order an x‑ray, ultrasound or CT as these would not be very helpful in showing the extent of any meniscal injury (T: 37, 15.09.09). Dr Majid submitted that after a diagnosis of meniscal injury, his standard practice was to refer the patient for an orthopaedic review.
However, later in his cross-examination, Dr Majid conceded that whilst a CT scan would not have shown meniscal injury, in this instance a CT scan may have shown Mr W's tumour (T: 67, 15.09.09). He also conceded that if a patient with the same symptoms as Mr W were to consult him today, he would conduct further follow-up investigations, including xrays, possibly a CT scan and he would find out how long it would take to secure an appointment with an orthopaedic specialist (T: 69, 15.09.09).
Dr Majid says that he explained to Mr W that he would be referred to a specialist so that an orthopaedic opinion could be obtained and definitive diagnosis reached; this, along with his advice that Mr W regularly exercise his quadriceps to increase his mobility and strength, is indicated in his clinical notes (witness statement at [35]).
The 'request for teaching hospital outpatient appointment' referral form was given to Mr W at the end of the consultation and Dr Majid says that he advised Mr W to make an appointment at RPH Orthopaedic Clinic as soon as possible. Dr Majid says that he handed the referral form to Mr W, rather than following the practice's usual procedure of faxing the referral to RPH directly, as he wanted to avoid faxing the hospital late in the day and risking the referral going missing. He further states that there was nothing to indicate to him that Mr W was not capable of sending the referral form to the orthopaedic department (witness statement at [38]).
On the referral form, Dr Majid noted that Mr W's current problem was pain in the left knee and the knee 'giving way'. He also noted that there was swelling on the popliteal fossa and that his provisional diagnosis was a small Baker's cyst or meniscal injury (witness statement at [39]). Dr Majid stated that the two most likely causes of a Baker's cyst are injury and arthritis. When questioned about whether he had asked Mr W whether he had recently injured his knee or had a history or arthritis, Dr Majid said that he could not recall and could only rely on his notes which made no mention of these issues.
Dr Majid concedes that he does not specifically recall the advice he gave Mr W in respect of the orthopaedic appointment; however, he submits that it was his usual practice to advise patients that if there were any problems with obtaining an appointment, or if new symptoms developed or the condition worsened, to return to see him or another GP (witness statement at [40]). He would also have told Mr W to let him know how things go, or words to that effect.
Dr Majid says that he expected that Mr W would receive an orthopaedic appointment within a reasonable period of time. He clarified that his expectation was that the waiting time would be approximately six to eight weeks and certainly not 18 months (witness statement at [43]). He said that it was possible this expectation was based on an assumption that the waiting periods in 2006 would be the same as those in 1991 when Dr Majid ran his own practice and was familiar with the waiting periods (T: 39, 15.09.09).
He completed his locum placement with the practice in April 2006 and had no further contact with Mr W after the consultation on 13 March 2006. He says that he is now aware that Mr W was not given an orthopaedic appointment until September 2007 and says that in the circumstances, he would have expected Mr W to return to him or another GP in order to get an earlier appointment. He says he would have also expected Mr W to return to him or another GP if there was an increase in pain or the size or texture of the lump. He stresses that the standard advice he gives according to his usual practice would have covered all of these eventualities (witness statement at [44] [49]).
Experts
Professor Bernard PearnRowe, a general practitioner in private practice and Professor at the University of Notre Dame's School of Medicine was called by the Board to provide an expert medico-legal opinion. The practitioner called general practitioners Associate Professor Peter Winterton and Dr Peter Maguire to provide their expert opinions. Each expert provided an individual opinion. Further, in accordance with the Tribunal's usual procedure regarding expert witnesses, the experts conferred prior to the hearing and a joint statement was filed outlining the issues upon which they are qualified to provide opinion, any matters upon which they agree and disagree and the reason for any disagreement; the experts also provided concurrent oral evidence before the Tribunal.
Four main issues were put to the experts for their opinion:
1.should Dr Majid have arranged further investigations such as x-rays, ultrasonography or CT scans to confirm or refute his provisional diagnosis or was it reasonable for Dr Majid not to have done so, given that referral to an orthopaedic specialist was made?
2.should Dr Majid have been aware that the waiting lists for treatment at public hospitals, including reviews at clinics such as the RPH orthopaedic clinic, were approximately 18 months and was it reasonable for Dr Majid to assume that an orthopaedic appointment would be provided to Mr W within a period of six to eight weeks?
3.should Dr Majid have taken steps to monitor the time within which an orthopaedic appointment was provided by the RPH orthopaedic clinic and to ensure that an appointment was provided within a particular period of time? If so, what period of time should Dr Majid have ensured an appointment was obtained?
4.given that an entirely reasonable provisional diagnosis of a Baker's cyst or meniscal injury was made by Dr Majid, should Dr Majid have considered the small possibility of a sinister diagnosis in the case of Mr W? If yes, was it reasonable for Dr Majid not to have taken any further steps to conclude the small possibility of a sinister diagnosis?
The experts were largely in agreement in both their written and oral evidence. It is common ground that Dr Majid made an acceptable provisional diagnosis of a Baker's cyst, that an MRI is the investigation of choice in the event of a diagnosis of meniscal injury or a Baker's cyst and that referral to a specialist orthopaedic clinic was an appropriate form of follow-up investigation. The experts also agreed that it was more than likely that Dr Majid had, in March 2006, been looking at the same lesion that was later diagnosed by staff at Armadale Hospital to be a parosteal osteosarcoma (T: 85, 15.09.09).
In response to the first question outlined above, all three experts thought that it was likely that Mr W's lesion would have shown up on an xray had one been conducted in March 2006; however, an unequivocal answer could not be given without knowing further details specifically about Mr W's lesion. Likewise, the experts thought that an ultrasound was highly likely to have displayed a Baker's cyst (T: 92 93, 15.09.09). However, the experts did not agree on whether Dr Majid in fact should have ordered these investigations. Professor PearnRowe felt that an xray should have been ordered in order to confirm the provisional diagnosis and establish whether there was any urgency to the referral; Dr Winterton felt that an xray should have been ordered but that it was not unreasonable not to have done so, especially when Dr Majid had planned to send the patient for referral to RPH; and Dr Maguire's view was that where a soft tissue diagnosis was made, the decision not to order imaging was reasonable (joint statement of experts at 1).
We note that in the advice initially given to each of the experts by solicitors for both the Board and the practitioner, on which the experts based their individual written opinions, Mr W's diagnosis was listed as an osteogenic sarcoma, rather than the rarer parosteal osteosarcoma. When asked by Senior Sessional Member Dr Quatermass whether they felt this error in instructions significantly affected their reports, Professor PearnRowe said that his view was not affected in any way 'because the view I've expressed in my reports is that it was not appropriate to leave the patient without any reasonable plausible diagnosis for that length of time' (T: 87, 15.09.09). Both Dr Maguire and Associate Professor Winterton however, agreed that the texture of these two types of tumours is quite different. An osteogenic sarcoma is a tumour of bone, whereas a parosteal osteosarcoma is a tumour of soft tissue and would likely have presented as a softer swelling. Dr Macquire continued to say that this 'perhaps strengthens my idea that there is some mitigation in not having ordered that investigation. So in a sense it strengthens my opinion slightly' (T: 88, 15.09.09).
On the issue of waiting lists, all three experts reported different experiences in obtaining information about waiting lists in Western Australian public hospitals. It was agreed that whilst the issue of waiting times is reported by hospitals and in the media, the information provided is often not accurate or reliable. In consequence, the answer agreed by the three experts was 'no'. They said in their joint statement that 'it is not necessarily well known amongst all members of the medical profession that the waiting list would be 18 months but all experienced GPs would know the waiting lists are of many months' (at 1). As such, whilst the experts were unanimous in their view that it is impractical for Dr Majid to be expected to monitor appointments at public hospitals, or to even be expected to call the hospitals and make appointments for each patient he referred, it was not reasonable for Dr Majid to assume that a 'routine' orthopaedic appointment would be provided within a period of six to eight weeks (T: 91 and 102, 15.09.09; joint statement of experts at 1 2).
Some of the expert panel were of the view that it would have been good practice to ensure that an appointment was obtained within a reasonable timeframe of three months, but that it is not always possible to do so. Professor PearnRowe felt that as Dr Majid had not initiated any further investigations, it was absolutely mandatory that he ensure that the orthopaedic referral was fulfilled within a timeframe of no greater than three months (joint statement of experts at 3).
Finally, on the question of whether Dr Majid should have considered the possibility of a sinister diagnosis, the experts were undivided in their opinion that Dr Majid should have considered the small possibility of a sinister diagnosis; sinister diagnoses always have to be in the back of the mind of any practitioner (joint statement of experts at 2).
In Professor PearnRowe's view, Dr Majid had two options to undertake simple confirmatory investigations himself, or ensure the patient received an expedited outpatient appointment within a timeframe of weeks, not months. Every practitioner has to consider a sinister diagnosis and has to advise the patient that recall and revisiting within a well defined period of time is in the patient's best interest. This encourages the patient to return for review and further investigation if the simple diagnosis that was initially entertained is not fulfilled.
Dr Maguire's view is that there is an inevitable degree of uncertainty in medical practice and where the statistical likelihood of sinister pathology is very low, it is neither practical nor possible to investigate to a level of absolute certainty.
The Tribunal's decision
The allegations made by the Board against the practitioner are in the alternative. We, therefore, need to look initially at the first allegation and if we find that proved on the evidence, then that is the end of the matter; if we find it not proved, then we look to see if the second alternative allegation is proved.
The Evidence
We accept Dr Majid's evidence that the lump at the March 2006 consultation was soft, as this is consistent with his tentative and provisional diagnosis of a Baker's cyst arising from a possible meniscal injury. Dr Majid's notes and evidence both his witness statement and oral crossexamination are consistent with that provisional diagnosis. It appears that the Board does not challenge the practitioner's initial provisional diagnosis of a Baker's cyst and all three experts accepted it as a reasonable diagnosis. In fact in September 2006 at Armadale Hospital, Dr Ellery also thought at first that Mr W was presenting with a Baker's cyst. The treatment adopted by him is also consistent with that and represents one possible means of dealing with the problem that was presented, although as it transpired it was not the most efficient or timely proposed treatment available.
Dr Majid was a locum doctor in a surgery that was not the practice that the patient usually went to. It is the convergence of these issues into this scenario that in our view causes some of the problems that are before us. There was no usual doctor/patient relationship in existence where the doctor had the knowledge that the patient would return or that he would necessarily see the patient again.
We are not entirely sure what the focus of the appointment was, but it seems likely that the reason for the consultation was the knee and the pain then felt by Mr W. We base this on Dr Majid's notes. We accept that Dr Majid's notes would have recorded that a prescription had been provided if one had been given to Mr W. He said it was a handwritten prescription, but the practice had an electronic system of computerised prescriptions and it would have recorded it in the notes.
On balance, we are of the view that Mr W has collapsed several consultations into his recollection of this consultation and he has perhaps also collapsed into that some discussions with friends; for example, the issue of gout. We accept though that it has been three and a half years and, as Mr W said, he is not a doctor and thought that quite relevant.
First allegation
The relevant test of gross carelessness and of incompetency is set out in Jemielita v Medical Board of Western Australia, unreported SCT of WA (Full Court); Library No 920584, 13 November 1992 (Jemielita) and is well summarised in Medical Board of Western Australia and Roberman [2005] WASAT 81 at [41] (Roberman): 'Gross carelessness is a significantly higher degree of carelessness and want of due care than that which will satisfy the description of negligence for the purpose of civil liability: Callaghan v the Queen (1952) 87 CLR 115 at 119 - 124.'
In the context of s 13 of the 1894 Act, it is necessary that the carelessness or incompetency should 'assume a scale of gravity which was sufficiently serious to warrant denunciation by professional colleagues of good repute and competence': Jemielita at 121 122. It must also have reached a scale that such other practitioners regard as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public: Jemielita at 18 19; Roberman at [41].
The concept of gross carelessness involves unacceptable conduct without any intentional wrongdoing on the part of the practitioner and suggests that the practitioner is unable to give the care required or is indifferent to the need for such care, notwithstanding that he may have the intellectual and technical ability to supply the care that is required.
The concept of incompetency, on the other hand, involves an unfitness to practise in the particular field of medicine under examination or an inability to perform the techniques or reach the judgments needed for the proper practise of medicine in that field. Incompetency is usually suggestive of a generalised deficiency in the way in which a practitioner handles his or her affairs rather than individual or sporadic shortcomings.
We find that in this case there is no evidence of generalised deficiency. We had evidence before us of matters relating to the practitioner's conduct with respect to Mr W. As referred to above, the diagnosis of Baker's cyst was a reasonable diagnosis. We do not think there is any issue with that. The practitioner conceded that there was in his mind, as always, a possibility of a more sinister diagnosis.
We are mindful though that the ultimate diagnosis was of a very rare tumour. It is a diagnosis of an extremely rare condition that most medical practitioners would be unlikely to see in general practice. This was agreed by the experts, none of whom had been presented with a patient with this form of tumour.
The practitioner referred Mr W to RPH orthopaedic clinic. It transpired that Mr W received an appointment 18 months later. He did not go back to the practitioner or the practice or indeed, it seems, he did not even go to his usual GP to ask if this could be somehow fasttracked. There is dispute as to whether Dr Majid told Mr W that he should come back or that he should go to his doctor. We find it is likely that Dr Majid would have said, 'If you have any problems, come back.' It is also likely that Mr W did not consciously hear that or recall it. Mr W was unfamiliar with the system, but it appears that the practitioner was also unfamiliar with the system.
We think it either unlikely or unreasonable that the practitioner held the view that the patient would receive an appointment within six to eight weeks. The practitioner concedes it was unreasonable. As Dr Winterton pointed out, the difference between the waiting time for appointments at public clinics and the waiting times for surgery, are different. Certainly it is the waiting times for surgery that receive a lot of media publicity, but nonetheless Dr Majid should have been aware of the waiting time for appointments or had some reasonable idea of it. He should have had that knowledge or at some point he should have made an inquiry if he was in the habit of referring patients to public clinics.
Much was made of whether Dr Majid should have referred Mr W for an xray or CT or an MRI. He was of the view that this would be done by RPH, and certainly an MRI - the investigation of choice by both Dr Majid and the expert witnesses had to be through specialist referral at the time. Arguably, an xray of a Baker's cyst would have achieved little in reaching a final definitive diagnosis. The experts were all of the view that Dr Majid could or should have arranged for further investigation, although they conceded that a referral to the RPH clinic is a form of further investigation or treatment, and we accept that it is.
In an ideal world, imaging would have been arranged, but we must look at the reality of modern medical practice. Dr Majid sees 50 to 60 patients a day. Medical practices are run by corporations, but this must never be allowed to result in or excuse gross carelessness or incompetency; however it is a factor which is balanced into the matrix of facts before us.
As we have said, at the back of Dr Majid's mind always was the possibility of a sinister diagnosis and the issue is whether he should have then gone further in ascertaining whether a sinister diagnosis was a reality. Mr Quinlan in closing said to us and we accept this submission that 'there is a difference between always keeping in mind the probability of a sinister diagnosis and taking steps to eliminate such a possibility from the differential diagnosis in every case'. That is certainly the reality as we see it, and we think it is relevant to the decision that we have to make.
Our health system would grind to a halt if every lump had to be comprehensively investigated. This is why Dr Majid and the experts identified situations where further investigation is warranted and is in fact required. In this case the relevant scenario was where pain is present, so Dr Majid ordered further investigation by way of referral to RPH. As it turned out, that was inadequate.
It was, in our view, careless. Dr Majid should have been familiar with waiting times and explained that in much more depth to the patient. He should have made it absolutely clear that Mr W should come back or see his GP if the pain grew worse, if the lump grew in size, or if the appointment was a long time away. He should have known that the appointment would have been a long time away and explained this to Mr W in some depth, and said, 'If it is a long distant appointment, make sure that you see me or your regular GP if there is an increase in size or pain or the texture changes'. It was careless of him not to have gone into this sort of detail with the patient; but we find that it was not grossly careless and that it was not incompetent as defined in Roberman at [41] [43].
Dr Majid failed to send Mr W to have some form of imaging prior to referral to a specialist. The experts were not in agreement as to whether the GP should do this before the patient sees the specialist, but Dr Majid was a locum and that creates some special obligations. He must take extra care to be familiar with referrals and the public system processes, because it is unlikely that he will have the luxury of seeing the patients again for followup.
Being a locum creates a different situation to that of a GP steadily running a practice or being in a practice, but we do not accept that Dr Majid or any practitioner is bound to follow up every patient to the degree suggested by Professor PearnRowe. However, Dr Majid's failure, as we said, was not grossly careless or incompetent, but it was careless.
Second allegation
The alternative allegation, as we said, is that Dr Majid should have ensured that the patient was reviewed within a reasonable period of time. Again, we find that he was neither grossly careless nor incompetent with respect to the second allegation. It would be impossible for every GP to follow up every patient and ensure that they are seen by a specialist within a reasonable time. However, it was careless of him not to have gone into some depth about this with the patient.
Consequently, there has been no breach of s 13 of the 1894 Act.
Order
1.The application is dismissed.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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