MEDICAL BOARD OF WESTERN AUSTRALIA and PATE
[2007] WASAT 161
•29 May 2007
MEDICAL BOARD OF WESTERN AUSTRALIA and PATE [2007] WASAT 161
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 161 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:47/2007 | 29 MAY 2007 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MS D DEAN (MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) DR P MELLING (SENIOR SESSIONAL MEMBER) | 29/05/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Finding of gross carelessness Practitioner suspended for two months | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA DAVID PATE |
Catchwords: | Medical practitioner Gross carelessness Failure to examine motor vehicle accident patient Two months' suspension |
Legislation: | Medical Act 1894 (WA), s 13(1), s 13(3), s 13(4) |
Case References: | Jemielita v The Medical Board of Western Australia (Unreported, SCWA, Library No 920584, 13 November 1992) |
Orders | 1. The Tribunal finds that the practitioner is guilty of gross carelessness on the following grounds: ,(a) failing to conduct a medical examination of the patient;,(b) failing to take sufficient steps in his attempt to conduct a medical examination of the patient;,(c) failing to ensure that the patient remained in the custody of the emergency department for an appropriate amount of time to ascertain the true medical status of the patient following the motor vehicle accident; and,(d) allowing the patient to be discharged into police custody knowing that a medical examination had not been performed on the patient;,in circumstances where the practitioner knew:,(e) the patient had been involved in a motor vehicle rollover accident;,(f) the patient had been admitted to the hospital for the purpose of a medical examination; and/or,(g) ought to have known of the potential for motor vehicle accidents to cause serious and life threatening injuries.,2. The practitioner is suspended from practice for two months commencing 29 May 2007.,3. The practitioner pay the costs of the application fixed in the sum of $6000. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and PATE [2007] WASAT 161 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MS D DEAN (MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
DR P MELLING (SENIOR SESSIONAL MEMBER)
- Applicant
AND
DAVID PATE
Respondent
Catchwords:
Medical practitioner - Gross carelessness - Failure to examine motor vehicle accident patient - Two months' suspension
Legislation:
Medical Act 1894 (WA), s 13(1), s 13(3), s 13(4)
(Page 2)
Result:
Finding of gross carelessness
Practitioner suspended for two months
Category: B
Representation:
Counsel:
Applicant : Ms F Vernon
Respondent : Mr D Bourke
Solicitors:
Applicant : Tottle Partners
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Jemielita v The Medical Board of Western Australia (Unreported, SCWA, Library No 920584, 13 November 1992)
(Page 3)
Summary of Tribunal's decision
1 The Medical Board of Western Australia brought an application against Dr David Pate, the practitioner, alleging that his conduct in discharging a patient from the emergency ward at the Derby Regional Hospital in September 2003, following which the patient died, constituted gross carelessness.
2 The events relating to the death of the patient were earlier the subject of a coronial inquest.
3 In the proceedings in the Tribunal, the practitioner accepted that his conduct constituted gross carelessness and the Tribunal made a finding to this effect.
4 After hearing submissions from the Board and on behalf of the practitioner, the Tribunal decided that a period of two months' suspension of the registration of the practitioner was called for. The Tribunal had regard to the prior dedication of the practitioner in the provision of medical services at Derby and in the Kimberley region. It noted his clinical commitment, expertise and judgment were accepted by his medical colleagues as being of a high order. The Tribunal accepted the practitioner's conduct in this instance constituted an aberration to his normal exemplary behaviour.
5 The Tribunal expressed the hope that following the period of suspension, the practitioner would be able to return to Derby to continue to serve the people of Derby and the Kimberley region in the manner to which they had become accustomed.
Allegations of gross carelessness
6 In its application to the Tribunal, the Medical Board of Western Australia (Board) alleged that Dr David Pate (practitioner) may be guilty of gross carelessness or incompetency in a professional respect contrary to s 13(1)(c) of the Medical Act 1894 (WA) (Medical Act).
7 For the purposes of these proceedings, the facts have been agreed between the parties and they are as follows.
8 The practitioner is and was at all material times a medical practitioner under the Medical Act.
(Page 4)
9 At all material times he practised as a general practitioner at the Derby Regional Hospital and possessed qualifications in anaesthetics, a diploma in obstetrics and training in paediatrics.
10 The practitioner was on call in the emergency department of the hospital on Monday 22 September 2003 between 5 pm and 8 o'clock the following morning. The patient to whom this application relates was a 20-year-old Aboriginal man. On the night of Monday 22 September 2003, the patient was injured when the four-wheel-drive that he was driving rolled over. The patient was subsequently found at the accident site pinned beneath the vehicle. After the accident he was taken to the hospital by ambulance. At or about 10.23 pm on 22 September 2003, the practitioner received a page from the hospital. He subsequently spoke by telephone to the nurse in charge of the emergency department.
11 During the telephone call the nurse asked the practitioner to come to the hospital to attend a patient who was experiencing supra ventricular tachycardia (SVT), and a patient who had been involved in a motor vehicle rollover. The practitioner understood that a person involved in a motor vehicle rollover could be potentially seriously injured. The patient arrived at the hospital emergency department at about 10.30 pm. The patient remained at the hospital for approximately one hour and 10 minutes. During that time, two police officers were present in the emergency department. The practitioner arrived in the emergency department shortly after the patient.
12 The practitioner was the sole medical practitioner assigned to the treatment of patients in the emergency department, including the patient. After the practitioner arrived in the emergency department, he was asked first to attend to the patient experiencing SVT. The practitioner attended the SVT patient in an examination cubicle adjoining the examination cubicle in which the patient was lying on a trolley. Whilst the patient and the practitioner were in the emergency department, the practitioner observed the following things:
• The patient was aggressive towards nursing staff and police while the nursing staff attempted to take a blood sample from him.
• The patient appeared to be drunk.
• The patient was covered in red dust.
(Page 5)
- • The patient had a graze on his right buttock.
• The patient threw himself from his bed, which had been lowered, to the floor.
• The patient dragged himself to a hand basin to get a drink of water.
• After having a drink of water at the hand basin, the patient complained that he could not urinate and vomited a brown liquid which contained a blue piece of paper or plastic.
13 The practitioner did not examine the patient at any time while the patient was at the hospital. After the patient had been at the emergency department some time, the nurse informed the practitioner she believed the patient could be discharged.
14 At some time prior to 11.40 pm, the practitioner formed the view that the patient did not require a medical examination and authorised the patient's discharge from the hospital. The patient was discharged into police custody at about 11.40 pm. The patient was transported to and placed into a cell by police at about 11.56 pm. The patient was found dead in the cell at about 12.55 am - that is, in the early hours of the morning on 23 September 2003. The patient died from injuries sustained during the accident.
15 A post-mortem examination of the patient disclosed a severely-fractured pelvis and chest injuries consistent with impact with a steering wheel. The Tribunal has been additionally told that death was due to loss of blood from the injuries sustained. They were the findings from the coronial inquest. Reference was also made to presence of alcohol and cannabis in the blood of the patient.
Finding of gross carelessness
16 In these circumstances, the practitioner in his answer in these proceedings accepts that his conduct constituted gross carelessness. The Board in its submissions in relation to penalty on this application notes that in circumstances such as these, the appropriate characterisation of the conduct of the practitioner is gross carelessness. The Tribunal considers that characterisation to be appropriate.
(Page 6)
17 The distinction between gross carelessness and incompetency has been considered in other cases. In Jemielita v The Medical Board of Western Australia (Unreported, SCWA, Library No 920584, 13 November 1992), Owen J, in summary, at p 18-19, dealt with the distinction in this way: incompetency involves an unfitness to practise medicine or an inability to perform the techniques or reach the judgments necessary. It suggests a generalised deficiency in the practitioner's practice. Gross carelessness, on the other hand, involves unacceptable practice without intentional wrongdoing and may be limited to individual or sporadic incidents. It suggests that whilst the practitioner may have the skills to give the care required, he or she is unable to do so, or is indifferent to the need of such care.
17 In the particular circumstances of this case, it is clear that the practitioner's conduct involved gross carelessness. There is no suggestion that the practitioner is incapable of providing competent services to patients and the public generally.
Penalty
18 Under the Medical Act, where a finding of gross carelessness is made, the Tribunal may do any of the following under s 13(3) of the Medical Act:
• remove the practitioner's name from the register;
• suspend the practitioner's registration for a period of up to 12 months;
• impose a fine of up to $10 000; and/or
• reprimand the practitioner.
20 In the particular circumstances of this case, the Board submits that the appropriate penalty is a period of suspension for three months, which would be one-quarter of the maximum period of suspension that the Tribunal can impose. The practitioner, through counsel, accepts that a period of suspension is appropriate, but submits that the period should be a period of two months.
(Page 7)
21 The Tribunal considers that suspension is the appropriate penalty. This is a case where the conduct of the practitioner, in failing to examine the patient before he was discharged from the hospital, is a matter of some considerable moment. The practitioner acknowledges that his conduct constitutes gross carelessness. Conduct of a medical practitioner of this type must be marked with an appropriate penalty that emphasises the high professional standards the profession of medicine strives to uphold for the benefit of their patients.
22 This is not a case where a suspension needs to be imposed in order to protect the public from an incompetent practitioner, but rather to let the public know that medical practitioners aim to uphold high standards. A penalty of suspension will transmit that message to members of the profession and to the public generally. It is therefore not necessary to remove the practitioner's name from the register. The imposition of a fine in such circumstances would be inapposite and the mere reprimand of the practitioner similarly would not be appropriate. The question really is what period of suspension is required.
23 The Board suggests that a quarter of the maximum suspension period would seem appropriate in the circumstances. Counsel for the practitioner points out that any suspension is going to have a financial impact on the practitioner and has detailed what the extent of that penalty would be. If a three month penalty suspension period were imposed, the loss in financial terms to the practitioner, practising as he would be in the Kimberley region, would amount to some $50 000. A suspension for two months would result in the practitioner suffering a financial loss of about $35 000. We think that the financial impact of a suspension is something that can be taken into account, although it ought not always determine the question of what the appropriate period of suspension should be.
24 In the event, the Tribunal has decided that a period of two months' suspension should be imposed. There are some special circumstances relating to this case. They include the fact that the practitioner has, for some 15 years or more, been serving the people of Derby and the Kimberley region, as a general practitioner on call and providing a range of obstetric, anaesthetic and other services to the community. We accept what we have been told in materials we have received and by his counsel that he has a long term commitment to being a medical practitioner in that region.
25 The commitment of the practitioner to the provision of medical services to the people of Derby and the Kimberley region of
(Page 8)
- Western Australia has been demonstrated by the materials provided to the Tribunal. Additionally, the practitioner's medical colleagues have attested to his competence and commitment. Dr JP Keenan, then Director of Medical Services – North West, Department of Health, has noted that, as a senior practitioner of long standing in the north-west, the practitioner has been a cornerstone of stability in Derby, providing an experienced, dedicated medical relationship to the community, based on a GP/anaesthetic skill base which has provided core community services in an area which can experience a medical staff turnover as high as four out of seven doctors annually. Dr Keenan notes the practitioner's respect for the values and mores of the Aboriginal community and that Derby is his second home. He also notes that in an area where there are chronic staff shortages, the practitioner has not been found wanting in working long, fatiguing hours to ensure that services are still available. He notes that he is held by the hospital staff and the community in high esteem.
26 To similar effect, at the coronial inquest, Dr Fiona Purcell, a former senior medical officer at the hospital in Derby, said of the practitioner:
"It's not just my view, but it's the view of every medical officer that has worked with Dr Pate in Derby that he is one of the best doctors in the Kimberley, certainly, and probably in Western Australia, and that is beyond doubt in terms of the medical officers that work with him. And so it then becomes what occurred that day that was so different from his usual practice, because Dr Pate is the – has been the doctor in critical situations. He is the man you want to help you because he is highly skilled. He is very dedicated and he has saved many, many patients in his time in the Kimberley."
27 The Tribunal accepts that over a number of years the practitioner has displayed clinical commitment, expertise and judgment as a medical practitioner at Derby and in the Kimberley region and that his conduct which is the subject of these proceedings constitutes an aberration of his normal exemplary behaviour.
28 We think that the people of the Kimberley region will ultimately be well served by the practitioner having the opportunity sooner rather than later of being able to return to medical practice in Derby. We would hope, from what we have heard, that when a two-month period of suspension is over, the practitioner will be able to return soon afterwards to serving the people of Derby and the Kimberley region.
(Page 9)
Findings and orders
29 The Tribunal makes the following findings and orders:
1. The Tribunal finds that the practitioner is guilty of gross carelessness on the following grounds:
(a) failing to conduct a medical examination of the patient;
(b) failing to take sufficient steps in his attempt to conduct a medical examination of the patient;
(c) failing to ensure that the patient remained in the custody of the emergency department for an appropriate amount of time to ascertain the true medical status of the patient following the motor vehicle accident; and
(d) allowing the patient to be discharged into police custody knowing that a medical examination had not been performed on the patient;
in circumstances where the practitioner knew:
(e) the patient had been involved in a motor vehicle rollover accident;
(f) the patient had been admitted to the hospital for the purpose of a medical examination; and/or
(g) ought to have known of the potential for motor vehicle accidents to cause serious and life threatening injuries.
2. The practitioner is suspended from practice for two months commencing 29 May 2007.
3. The practitioner pay the costs of the application fixed in the sum of $6000.
(Page 10)
- I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
5
0
1