Sakalo v Medical Board of Western Australia

[2002] WASCA 178

SAKALO -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2002] WASCA 178

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 178
Case No:	SJA:1068/2002	Heard:	14 JUNE 2002
Coram:	WHEELER J	Delivered:	27/06/02
No of pages:	27	Judgment Part:	1 of 1
Result:	Appeal allowed in part
Category:	B
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Parties:	WASILY SAKALO THE MEDICAL BOARD OF WESTERN AUSTRALIA
Catchwords:	Appeals Boards and tribunals Medical Board Improper conduct in a professional respect Adequacy of intra-operative notes Proceedings before Coroner Procedural fairness Penalty Turns on own facts
Legislation:	Medical Act (WA) 1894, s 13
Case References:	Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990 Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Boerema v Medical Board; unreported; SCt of WA (Templeman J); Library No 980342; 19 June 1998 Felix v General Dental Council [1960] AC 704 Georgoussis v Medical Board (Vic) [1957] VR 671 Isaachsen v Medical Board (1991) 4 WAR 303 MacMillan v Pharmaceutical Council of WA [1983] WAR 166 McMullin v Crawford (1921) 29 CLR 186 Medical Board (Vic) v Meyer (1937) 58 CLR 62 Mercer v Pharmacy Board (Vic) [1968] VR 72 Powell v Streatham Manor Nursing Home [1935] AC 243 R v Syme; Ex parte Page [1970] WAR 153 Re Hodgekiss (1962) 62 SR (NSW) 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : SAKALO -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2002] WASCA 178 CORAM : WHEELER J HEARD : 14 JUNE 2002 DELIVERED : 27 JUNE 2002 FILE NO/S : SJA 1068 of 2002 BETWEEN : WASILY SAKALO

Appellant

AND

THE MEDICAL BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Appeals - Boards and tribunals - Medical Board - Improper conduct in a professional respect - Adequacy of intra-operative notes - Proceedings before Coroner - Procedural fairness - Penalty - Turns on own facts

Legislation:

Medical Act (WA) 1894, s 13

Result:

Appeal allowed in part

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr J R B Ley
Respondent : Mr D Wallace

Solicitors:

Appellant : Phillips Fox
Respondent : Mullins Handcock

Case(s) referred to in judgment(s):

Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990
Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992

Case(s) also cited:

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Boerema v Medical Board; unreported; SCt of WA (Templeman J); Library No 980342; 19 June 1998
Felix v General Dental Council [1960] AC 704
Georgoussis v Medical Board (Vic) [1957] VR 671
Isaachsen v Medical Board (1991) 4 WAR 303
MacMillan v Pharmaceutical Council of WA [1983] WAR 166
McMullin v Crawford (1921) 29 CLR 186
Medical Board (Vic) v Meyer (1937) 58 CLR 62
Mercer v Pharmacy Board (Vic) [1968] VR 72
Powell v Streatham Manor Nursing Home [1935] AC 243
R v Syme; Ex parte Page [1970] WAR 153
Re Hodgekiss (1962) 62 SR (NSW) 340

(Page 3)

1 WHEELER J: On 8 March 2000 at Joondalup Health Campus, General Surgeon, Mr Wasily Sakalo performed a gall bladder operation on Mr Kenneth Saunders, aged 67, who died soon after the procedure. On 5 April 2000 the Coronial Inquiries Section ("the CIS") of the State Coroner’s Department wrote to Mr Sakalo advising him of the Coroner’s intention to investigate the death of Mr Saunders (hereinafter "the deceased"), and requested a detailed account of the events and procedures that occurred pre-operatively, during surgery and post-operatively on the day of the deceased's death. Mr Sakalo provided a written response to the Coroner's request and a coronial inquest proceeded on 17-19 July 2001. As a result of the coronial proceedings on 28 March 2002, the matter came before the Medical Board of Western Australia ("the Board") pursuant to s 13(1) of the Medical Act (WA) 1894 ("the Act").

2 On 22 April 2002, the Board delivered written reasons and found that Mr Wasily Sakalo was guilty of improper conduct in a professional respect and ordered that:

"(a) Mr Sakalo be suspended from practice for a period of three months commencing from the date of the orders;

(b) Mr Sakalo be fined an amount of $10,000 to be paid to the Board within 28 days of the order;

(c) The Board reprimand Mr Sakalo for having failed to make adequate intra-operative notes, and for having failed to report adequately and comprehensively to the Coroner;

(d) Mr Sakalo pay the costs of the inquiry;

(e) If agreement cannot be reached by counsel assisting the Board and Mr Sakalo in the next 21 days as to the quantum of costs, that counsel assisting and Mr Sakalo make written submissions to the Board concerning quantum of costs, upon receipt of which the Board shall reconvene and determine quantum."

3 This is a hearing de novo pursuant to s 13(8) of the Act, and in which subsection (a) provides that:

"Any person who is or was registered as a medical practitioner and who is aggrieved by any decision of the [Medical] Board may in accordance with the Rules of Court, which the Judges of

(Page 4)

the Supreme Court are hereby authorised to make or prescribe, appeal to a Judge of the Supreme Court against such decision."

The principles applicable when a Judge re-hears a matter that has been before the Medical Board are not in dispute: Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322; Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990; Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992. While it is the duty of the appellate Judge to make up his or her own mind as to what facts are proved, and what inferences should be drawn from those facts, due weight must be given to the opinion of the specialist tribunal, and it is for the appellant to persuade the court that the decision appealed from was in error.

Grounds of Appeal

4 The appellant's complaints against the decision of the Board fall into four categories:

• the findings with respect to a failure to keep adequate intra-operative notes;

• the findings with respect to a failure to adequately supplement his report to the Coroner (the CIS) before the inquest into the death of the patient;

• the Board's alleged failure to accord procedural fairness to the appellant; and

• the excessive nature of the penalty imposed by the Board.

The grounds of appeal are very detailed and a number of them overlap so it is necessary to set out the particularised grounds in full:

"(1) The respondent erred in finding that there was during the procedure performed on the deceased ('the procedure') only one significant source of bleeding, which may have been intermittent, which was a finding which was against the evidence and against the weight of the evidence before the respondent. The respondent should have found that:

(a) when the appellant was endeavouring to isolate the gall bladder there was some bleeding from

(Page 5)

omental vessels and short gastric veins underneath the liver which bleeding the appellant quickly brought under control;

(b) as the appellant was preparing to close the abdominal wound, there was a small amount of bleeding in the porta hepatis from a source or sources unknown;

(c) there was a significant bleeding from a source or sources unknown from the time the gall bladder was dissected by Mr Weedon.

(2) The respondent erred in finding that it was likely that, early in the procedure, the appellant had inadvertently damaged the portal vein in the process of dissecting (with instruments or bluntly) the area between the liver and the stomach which was a finding which was not open on the evidence before the respondent, or alternatively, was a finding which was against the evidence and the weight of the evidence before the respondent.

Particulars
(a) In his evidence at the Coroner's Inquest into the deceased’s death ('the inquest') on 13 July 2001 ('the coronial evidence') the appellant had said that he 'must have' damaged the portal vein or that he had possibly damaged the portal vein either when he was using blunt dissection to try and identify the cystic duct at the junction of the common bile duct or when he was coming down from underneath the liver bed to try and isolate the gall bladder;

(b) In his evidence before the respondent ('the Board evidence'), the appellant had made it clear that, since the inquest, he had reconsidered the matter and concluded that he could not have damaged the portal vein while carrying out the blunt dissection to try and identify the cystic duct and that the opinion he had expressed at the inquest had been incorrect and had been expressed at the inquest had been incorrect and had been expressed

(Page 6)

without a full understanding of all of the evidence and largely out of a sense of responsibility as the surgeon in charge of the operation;

(c) There was no other evidence before the respondent that the appellant had damaged the portal vein whether during his dissection of the area between the liver and the stomach or otherwise;

(d) There was no evidence before the respondent that the appellant had damaged the portal vein during instrument dissection.

(3) The respondent erred in finding that the allegation in paragraph 1(a)(i) of the substituted notice of inquiry ('the notice')was substantiated when the allegation was that the appellant had kept inadequate intra-operative notes of the procedure in that the intra-operative notes which he kept ('the notes') failed to record adequately the history of intra-operative bleeding whereas the respondent's finding was that the extent and seriousness of a single bleed was not adequately recorded in the notes.

(4) The respondent should not have been satisfied to the required standard that the notes failed to record adequately the history of intra-operative bleeding during the procedure.

(5) The respondent erred in considering whether the appellant had omitted from the notes the fact that the portal vein had been damaged and repaired by Mr Heath and in finding that the appellant had omitted those matters from the notes when it was not alleged in the notice that the appellant may be guilty of infamous and improper conduct in a professional respect for having made such omissions. Those matters were, therefore, outside the scope of the inquiry conducted by the respondent.

(6) The respondent erred in finding that the appellant's dissection of the stomach off the liver would have brought the appellant's activities very close to the portal

(Page 7)

vein which was a finding which was against the evidence and against the weight of the evidence.

Particulars

(a) In both the coronial evidence and the Board evidence, the appellant said that he was not in the area of the portal vein when he bluntly dissected part of the lesser curve of the stomach off the liver and omentum.

(b) There was no evidence before the respondent which suggested that the appellant was near the portal vein when he performed that dissection.

(7) The respondent erred in finding that the appellant was working in the region of the portal vein when he was attempting to mobilise the gall bladder which was a finding which was against the evidence and the weight of the evidence.

(8) The respondent should not have been satisfied to the required standard that it was necessary for the appellant to record in the notes either the area of the adhesions or his dissection of part of the lesser curve of the stomach off the liver and the omentum.

(9) In finding that, in writing the notes, the appellant was concerned more about creating a favourable impression of his own actions than recording the true nature of the events, the respondent:

(a) erred, by making a finding which was not open on the evidence, and

(b) breached the rules of natural justice and procedural fairness by making a finding adverse to the appellant without first informing the appellant that it was contemplating making such a finding and giving him the opportunity of calling evidence and making submissions in respect of it.

(10) The respondent erred in finding that the notes failed to record adequately the removal of the gall bladder when:

(Page 8)

(a) the notes contained the notation 'GB – retrograde dissection' which indicated that the gall bladder had been dissected and removed; and

(b) the notes did not record the identity of the surgeon who removed the gall bladder; but

(c) the respondent expressed the view in its reasons that the identity of the surgeon who removed the gall bladder was of no great significance in itself.

(11) The respondent should not have been satisfied to the required standard that the notes failed to record adequately the removal of the gall bladder.

(12) In finding that in failing to include in the notes the full history of the bleeding, the adhesions between the stomach and the liver and the mechanism of how the gall bladder was removed, the appellant was actuated by a wilful blindness as to the need to include those matters in the notes which had the potential to mislead others caring for the deceased, the respondent:


(a) erred, by making a finding which was not open on the evidence; and

(b) breached the rules of natural justice and procedural fairness by making a finding adverse to the appellant without first informing the appellant that it was contemplating making such a finding and giving him the opportunity to call evidence and make submissions with respect to it.


(13) The respondent should not have been satisfied to the required standard that the appellant had kept inadequate intra-operative notes of the procedure.

(14) Alternatively, if the respondent was correct in finding that the appellant had kept inadequate intra-operative notes of the procedure, it erred in fact and law in finding that that constituted improper conduct in a professional respect.

(15) The respondent erred in finding that, in his written report to the CIS dated 18 April 2000 ('the report'), the appellant

(Page 9)

failed adequately to identify the source, duration and extent of the intra-operative bleeding when:

(a) the respondent accepted that the appellant may not have been aware of all the sources of the bleeding or their causes;

(b) the only respect in which the respondent found that the appellant had so failed was that he had not said in the report that the portal vein had been damaged or that it was one of the sources of the serious bleeding;

(c) the appellant had said in the report that Mr Heath had sutured the portal vein, which indicated that it had been ruptured or cut, and that that had caused the bleeding to increase substantially.

(16) The respondent erred in finding that, in the report, the appellant had failed to adequately describe the area of adhesion between the stomach and the liver when, in the report, the appellant had said that:

(a) the gall bladder was stuck to the transverse colon and the duodenum with a number of intra-abdominal adhesions around the gall bladder which made it impossible to continue with the laparoscopy;

(b) the gall bladder was stuck 'like concrete' to the duodenum, the transverse colon and the omentum which made it impossible to proceed to a dissection as there were no normal tissue planes;

(c) he was unable to perform a normal open cholecystectomy operation by dissection down the cystic duct or artery due to the severe distortion in anatomy, adhesions and inflammations sustained from previous attacks of cholecystitis;

(d) he mobilised the duodenum off the fundus of the gall bladder;

(Page 10)

(e) he realised it was impossible to carry out a dissection of the gall bladder openly.

(17) The respondent should not have been satisfied to the required standard that it was necessary for the appellant to describe in the report his dissection between the stomach and the liver.

(18) The respondent erred in finding that the report was inadequate because it failed to identify who removed the gall bladder when:


(a) the identity of the surgeon who had removed the gall bladder was not a material feature of the events leading to the deceased’s death;

(b) the Coroner had found that the identity of the surgeon who removed the gall bladder was not relevant to the mechanism of the deceased’s death;

(c) the respondent itself had, in its reasons, expressed the view that the identity of the surgeon who removed the gall bladder was of no great significance in itself.


(19) In respect of paragraph 1(b) of the notice, the respondent failed to ask itself the question whether each of the appellant's failure[s] to identify in the report the source, duration and extent of the intra-operative bleeding, his failure to identify adequately in the report the area of adhesion and dissection between the stomach and the liver and his failure in the report to identify who had removed the gall bladder was materially misleading. It was not open to the respondent to find that the allegations in paragraphs 1(b) of the notice were proved without asking itself that question and answering it in the affirmative.

(20) The respondent should not have been satisfied to the required standard that in the report the appellant failed to identity material features of the events leading to the deceased's death.

(Page 11)

(21) Alternatively, if the respondent was correct in finding that, in the report, the appellant failed to identify material features of the events leading to the deceased's death, it erred in fact and law in finding that that constituted improper conduct in a professional respect, particularly having regard for the facts that:

(a) the report was written in response to specific enquiries from the Coronial Inquiry Section which could request further information; and

(b) the appellant could be called and was called as a witness at the inquest and was cross-examined as to the procedure.


(22) After having found the appellant guilty of improper conduct in a professional respect and upon hearing submissions from counsel as to penalty, the respondent breached the rules of natural justice and procedural fairness by:

(a) failing to inform counsel for the appellant that it was contemplating suspending the appellant from practice;

(b) receiving a submission from counsel assisting to the effect that suspension of the appellant from practice would not be appropriate and making no comment about it; and

(c) failing to give the appellant the opportunity to make submissions against such an order.


(23) Having found the appellant guilty of improper conduct in a professional respect in relation to the allegations made in paragraphs 1(a) and 1(b) of the notice, the penalty imposed by the respondent upon the appellant that:

(a) he be suspended from practice for three months;

(b) he be fined $10,000 being the maximum fine which the respondent was empowered by law to impose; and

(c) that he be reprimanded;

(Page 12)

was grossly excessive and unwarranted by both the evidence adduced at the inquiry and having regard for:

(a) the appellant's long and distinguished service as a surgeon in Western Australia and his unblemished record;

(b) the fact that, as a result of the inquest, the appellant’s operating rights at the Joondalup Health Campus and Glengarry Hospital had been suspended leaving only his list at Mercy Hospital intact;

(c) the fact that general practitioners had tended not to refer patients to the appellant because of his suspension from Joondalup and Glengarry;

(d) the appellant expected that if he were suspended from practice that would effectively end his surgical career;

the appellant had already suffered greatly as a consequence of the events arising from the operation."

5 At the commencement of the appeal the respondent conceded the appellant’s application for leave to amend the Notice of Appeal in terms of the minute of proposed amended notice of appeal dated 11 June 2002 by adding the following grounds:

"21A. In concluding that, in the inquiry conducted by the respondent, the appellant had, in his evidence, identified the first, second and third bleeds with the deliberate intention of misleading the respondent and in order to deflect attention away from his inadequate record keeping, the respondent:

(a) erred, by making a finding which was not open on the evidence;

(b) breached the rules of natural justice and procedural fairness by making a finding adverse to the appellant without first informing the appellant that it was contemplating making such a

(Page 13)

finding and giving him the opportunity of calling evidence and making submissions in respect of it.

21B. The respondent erred in finding that the failure by the appellant to identify in the report the source, duration and extent of the patient's bleeding had the effect of misleading the reader concerning what occurred which was a finding unsupported by any evidence."

6 Before turning to the errors alleged it is necessary to outline the facts of the procedure that gave rise to this matter.

The Events Pre-Operative, Operative and Post-Operative

7 The deceased had been diagnosed by the appellant with acute cholecystitis with gallstones and advised to undergo a laparoscopic cholecystectomy or an open cholecystectomy for the removal of his gallstones.

8 The operation commenced at 9.15am. Upon commencing the laparoscopy, it became apparent to the appellant that the patient had extensive and severe adhesions in his abdominal cavity causing distortions. In that event the appellant converted the procedure to an open one, which he found difficult due to the distortion in anatomy, the adhesions and the inflammation.

9 The difficulties encountered by the appellant included bleeding, which prompted him to call upon another General Surgeon, Mr Weedon, operating at Joondalup that day, to assist him. Mr Weedon did so for a short period of time and then left the theatre. The nursing staff called for Mr Heath to assist, a Hepato-Pancreato-Biliary Surgeon, who also happened to be present at the hospital. At this stage the patient had lost a significant amount of blood and the appellant and Mr Heath decided to abandon the open procedure in an effort to correct this. Packs were inserted into the patient's abdomen, the cavity closed, and the patient was transferred to the intensive care unit. The appellant wrote a note of his operation: under the heading "Surgeon" he recorded W Sakalo, D Heath and B Weedon and under the heading "Operation Performed" he noted:

"Lap/chol converted to open cholecystectomy
repair CBD tear – T tube inserted
repair duodenum – two layers"

(Page 14)

Under the heading "Operation details and findings (final diagnosis)" he wrote:

"Lap/chol – gb 2 stuck down to duod and trans colon – no dissection

converted to open cholecystectomy –

duod – dissected off gb – small hole to duod – repaired in two layers

gb – retrograde dissection – bleeding from depth of wound

- extract x 2 large gall stones

fundus of gb removed only – Foley catheter introduced into gall bladder

continuing to bleed – Mr Bob Weedon and Mr Dugal Heath assisted

Mr D Heath → repaired hole to cbd with T Tube

- packed abdominal cavity with 10 packs

closure - ... ... "


He left to attend Mercy Hospital for his operating list. The deceased's condition deteriorated in intensive care and later that day Mr Heath took him back to theatre to attempt to identify the source of the bleeding that had not stopped. Unfortunately Mr Heath was unable to do so and later that night the patient died.

10 It is to be noted that there is a suggestion that bleeding from the depth of the wound (unquantified) occurred at or after the time of the retrograde dissection of the gall bladder, and there is the further reference to the deceased "continuing to bleed", but no indication of quantity of bleeding, or time, or the source of the bleeding, or what had been done at the time at which significant bleeding first commenced.

The Coronial Investigation

11 By letter dated 5 April 2000 the CIS wrote to the appellant advising him of the Coroner's intention to investigate the death of the deceased and requesting information pertaining to, and surrounding the procedure. The appellant responded in writing by letter dated 18 April 2000.

(Page 15)

12 The CIS requested from the appellant an outline of all previous consultations that the appellant had with the deceased and treatment received. In particular, it asked for a detailed account of all events and procedures that occurred pre-operatively during surgery, and post-operatively on the day of the deceased's death. The letter contained 12 detailed questions.

13 In his written response, the appellant proffered the following answers. For ease of reference the relevant questions asked by the CIS are interposed above extracts from the appellant's answers.

" ... I was unable to perform a normal open cholecystectomy operation, that is to dissect down to the cystic duct or artery due to the severe distortion in anatomy, adhesions and inflammations sustained from the previous attacks of cholecystitis. The duodenum was mobilized off the fundus of the gallbladder, it was so friable, a small hole was made. I recognised this and repaired the duodenum, in two layers. At this stage, I realised it was impossible to carry out a dissection openly, hence I proceeded to open the fundus of the gallbladder and managed to extract two large stones. I inserted a Foley's catheter and sutured this into the body of the gallbladder. I placed a large drain into the porta hepatis, I was ready to close the abdominal wound when I noticed a small amount of bleeding from the porta hepatis and the depths of the wound.

At this stage, I realised this was not a normal complication of an open cholecystectomy. I called my colleague, Dr Maxwell Weedon, who was operating in the theatre next door, for a surgical opinion. The Theatre Sister, Chris Whelan, took it upon herself to asked [sic] Dr. Dugal Heath, specialist in hepatobiliary surgery for his assistance. At this point, Dr Weedon took over with myself as assistant. He dissected around the porta hepatis, around the common bile duct region. Dr Weedon then left as he had to go back to theatre 6. Dr Dugal Heath took over. Again, I was acting as assistant. He extended the abdominal excision and proceeded to explore the portal vein. However, suturing the portal vein and hepatis caused the bleeding to increase substantially. At this stage, a small linear cut in the common bile duct was noticed in the area that had been dissected by Dr Weedon. A 'T' tube was placed into the common bile duct, the common bile duct was then repaired over the 'T' tube.

(Page 16)

The venous bleeding was being exacerbated with local suturing. Mr Heath abandoned the proceedure [sic] and ten packs were applied in the abdomen, especially around the porta hepatis, underneath the liver and in the gallbladder bed. The abdominal cavity was closed. Mr Saunders was transferred to the ICU.

I contacted Mrs Saunders and informed her of her husband's condition, that he had a venous bleed which required abdominal packing and at present was under control. At this stage, Mr Saunders was stable in I.C.U. ... "

14 At this stage the appellant left for Mercy Hospital, and as I have previously indicated, arrangements were made for the abdominal bleeding to be corrected, but nonetheless later the patient died.

15 Some of the CIS questions and the appellant's answers are as follows:

Question:

"8. What was the cause of the bleed? Could the internal bleeding suffered by MR SAUNDERS have been caused by the insertion of the Veress needle and or the Trocar instruments?"

Answer:

"8. We are awaiting a report from the coroner as to the cause of the internal bleeding. It has come to my attention that the family of the patient were told that I had cut the liver. I deny this charge as I was not using a scalpel or any other instrument that could have cut the liver. No cuts on the liver were found. Mr. Saunders [sic] internal bleeding could not have been caused by by [sic] the insertion of a Veress needle as I made and [sic] incision into the umbilicus and introduced a blunt nosed Hassan canula. All other instruments were introduced under direct vision."

Question:

"11. Was any cauterization used following the removal of the gallstones? Apparently the bleeding was not noticed until you were about to suture the abdominal incision, and

(Page 17)

stated that the bleeding appeared to be coming from under the liver – as it appeared to be substantial. Was the source of the bleed located and if so, was cauterization employed to stop it?"

Answer:

"11. No cauterization was used following the removal of the gall stones. A Foley catheter was inserted and sutures employed. I was preparing to close the wound, I noticed a small [emphasis included] amount of bleeding from the porta hepatis and the depths of the wound. The bleeding was not substantial. Dr. Dougal [sic] Heath attempted to stitch the portal vein which caused the bleeding to increase substantially. No cauterization was employed."

16 The material quoted above is to be seen against the background of an operation during the course of which the deceased lost at some stage in the vicinity of 6 to 6.5 litres of blood. By the time Mr Heath came to assist, it was estimated that he had lost between 4 and 5 litres. That volume can best be appreciated when one understands that a person of the deceased's size would have a total blood volume of approximately 5.5 litres. So far as the report to the Coroner is concerned, there is reference only to a "small amount" of bleeding at the time at which Mr Sakalo was preparing to close the wound, and no reference to any further bleeding until Mr Heath was alleged to have caused the bleeding to increase substantially by suturing the portal vein. It was conceded by Mr Sakalo at the inquest and before the Board that Mr Heath had not caused the bleeding to increase substantially; rather, there had already been very substantial bleeding, and Mr Heath's difficulty in attempting to suture the portal vein was that that suturing itself caused some further bleeding, rather than causing bleeding to cease. It appears from the findings of the Coroner that the repaired areas of the portal veins were the source of haemorrhage and that Mr Heath had in fact identified and repaired the source of bleeding, but by that stage the condition of the deceased was such that the repair failed to save his life.

The Evidence to the Board

17 Before the Board, Mr Sakalo gave evidence that there were in fact three bleeds which occurred during the course of the operation. He said that no excessive bleeding occurred during the initial laparoscopic approach. However, about 15 minutes after commencing the open

(Page 18)

procedure, as he was coming down to the porta hepatis, to try to isolate the gall bladder, the first bleed occurred. He concluded that it was coming from vessels and short gastric veins that were underneath the liver and that he immediately ligated the bleeding vessels with clamps and used long forceps and sutured them to tie them off. He said that this was not a significant source of bleeding, that it was brought under control, and that he did not record it in the notes or otherwise refer to it in the Coroner's report because of its routine nature.

18 As to the second bleed, Mr Sakalo said to the Board that he found dense adhesions covering the gall bladder and realised that it was not going to be possible to carry out a dissection of the gall bladder openly. He decided at that point to abandon any further attempt to perform a cholecystectomy, and decided to dissect only the fundus of the gall bladder and remove the gall stones. The second bleed he said occurred when he bluntly dissected the omentum and the adhesion surrounding it from the fundus of the gall bladder. He said he was ready to close the abdominal wound when he noticed a small amount of bleeding from the porta hepatis and the depths of the wound. This was apparently the bleeding referred to in the report to the Coroner. His evidence was that he looked, but could see no obvious source for the second bleed, and because it was not a normal complication of the procedure he had performed he called in Mr Weedon.

19 There are a number of difficulties which surround the account of the second bleed, and which need to be mentioned. It was Mr Sakalo's evidence before the Board that there had not been significant bleeding at the time at which he called Mr Weedon to assist. Rather, he had asked for assistance because the bleeding was abnormal. He agreed that he had, before the Coroner, estimated the amount of blood loss at that time at between 1 and 1-1/2 litres, but told the Board that this had been a serious over estimation and that the blood loss at that time had been closer to the order of 300 mls. He explained to the Board that he had been able to reconstruct what had occurred with some greater clarity after having access to the chart prepared by the anaesthetist, Mr Leong. He had not had access to this chart prior to the inquest, but had made a copy of it a week later. His evidence about the chart was not correct, insofar as he asserted that he had not had access to it until after the inquest, since the transcript of the inquest proceedings shows that he was shown the anaesthetist's chart during the course of his cross-examination and was asked a number of questions based upon it, but the Board apparently did not note this inaccuracy.

(Page 19)

20 There was evidence before the Board which clearly contradicted the appellant's assertion that there had not been significant blood loss at the time at which he requested assistance from Mr Weedon. The evidence of Dr Harris, who was assisting Mr Sakalo, was to the effect that there had been significant bleeding which Mr Sakalo and she had attempted to stop for some time (she estimated 10 minutes to half an hour) before Dr Weedon assisted. She also gave evidence to the Coroner that Mr Sakalo did attempt to dissect the gall bladder off the liver and that the bleeding occurred at that stage. The best record of the course of the bleeding, the Board accepted, was kept by the anaesthetist Dr Leong. His evidence before the Coroner was that there had been very significant bleeding and a drop in the deceased's blood pressure before Mr Weedon was asked to assist. Indeed, before the Coroner, Mr Sakalo gave evidence that the bleeding from the wound and the porta hepatis had "increased" by the time he asked Mr Weedon for assistance. The Coroner noted that Mr Weedon's evidence was that he saw bleeding from the porta hepatis when he came to assist.

21 There is an issue as to who removed the gall bladder, since it appears from Dr Harris' evidence that she was of the view that Mr Sakalo had done so, and Mr Weedon apparently had given evidence to the Coroner that there was no gall bladder when he assisted, while Mr Sakalo gave evidence that Mr Weedon had removed the gall bladder and that this was a cause of further bleeding. The question of who removed the gall bladder was not able to be determined either by the Coroner or the Board.

22 Mr Sakalo's evidence to the Board was that after the second bleed, the third bleed occurred while Mr Weedon was performing a dissection around the porta hepatis and the common bile duct region. He said that at that time he observed further bleeding from the depths of the wound made when the gall bladder was dissected. He said that the notes which he prepared recorded the second and third bleeds, although out of order, with the third bleed represented by the words "bleeding from depth of wound" and the second bleed recorded by the words "continuing to bleed". The reason they were out of order was because he had been extremely upset when writing his notes.

23 The Board noted a number of difficulties with the evidence given to it by Mr Sakalo. An obvious one was that the account differed from that which was given either in the report to the Coroner or Mr Sakalo's oral evidence at the inquest. Another was that in his evidence-in-chief before the Board he said that at the time of the first bleed he asked Dr Leong to cross-match some blood because in his view that type of bleeding was

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abnormal for an open cholecystectomy, while in cross-examination he said that the first bleed was part of the routine procedure which was why he had not mentioned it. Finally, the clear suggestion from Mr Sakalo's evidence that the third bleed was the significant bleed and was the one which occurred as a result of Mr Weedon's intervention, is at variance with the evidence of Dr Harris to the Coroner, and with the timing and sequence of blood loss recorded in Dr Leong's chart.

The Board's Findings

24 The Board, having considered all of the evidence before it, made a number of findings. It found that this was a difficult and complex procedure due to the adhesions in the deceased's abdomen. It found that it was likely that early in the procedure Mr Sakalo inadvertently damaged the portal vein while in the process of dissecting the area between the liver and stomach, and that substantial blood loss commenced some time prior to the intervention of Mr Weedon, most likely from the portal vein. The Board found that there was only one significant source of bleeding, which may have been intermittent (ie the portal vein) and that Mr Sakalo was likely to have been aware of the seriousness of the situation from approximately 10.00am when he asked Dr Leong to cross-match some blood.

25 These findings necessarily carry with them the consequence that Mr Sakalo's note was inadequate, since it failed to indicate the stage at which the bleeding occurred, failed to indicate what procedure was being performed when serious bleeding first occurred, failed to indicate the extent of bleeding, and failed to indicate any damage to the portal vein. The Board also noted that even if Mr Sakalo's account of the bleeding given before the Board had been accurate, the sequence of the three bleeds and their apparent causes were not adequately recorded in Mr Sakalo's note.

Were the findings open – intra-operative notes

26 Although the grounds of appeal are detailed and repetitive, it appears that a principal thrust of the appellant's complaint about the Board's findings in respect of the notes is that it was not open to the Board to make the finding which it did that it was likely that Mr Sakalo inadvertently damaged the portal vein early in the procedure and that that damage was the source of most of the very substantial bleeding which occurred. It is submitted that the Board was not required to make a

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finding of what actually happened; rather, what it was required to do was to assess what Mr Sakalo had observed and to judge his notes against those observations. It is submitted that without Mr Sakalo's evidence there was no basis upon which the Board could make a finding about the source and nature of the bleeding or about his observation of it.

27 In my view, these submissions suggest a misconception of the way in which a body such as the Board is entitled to approach the material before it. The Board had before it the Coroner's reasons for decision, the operation note, Mr Sakalo's report to the Coroner, Dr Leong's anaesthetic chart and transcripts of the evidence of Dr Harris, Dr Leong and Mr Sakalo at the inquest. In addition, Mr Sakalo gave oral evidence and was cross-examined and was questioned by the Board. Members of the Board put to him the proposition that he must have damaged the portal vein. He was given an opportunity to respond and they no doubt considered his response. However, it seems clear from the finding of the Coroner and from all of the evidence that damage to the portal vein was the principal source of the excessive bleeding. The evidence which the Board considered to be accurate, and in particular the evidence of Dr Leong, can only lead to the inference that that damage occurred prior to Mr Weedon's attendance. The only person who could therefore have been responsible for that damage was the appellant. It follows therefore that it was open to the Board to find that the appellant had damaged the portal vein early in the procedure.

28 The Board did not accept Mr Sakalo's evidence of the three bleeds. It is apparent from the material to which I have referred that there was ample reason for them to reject that account, given its inconsistency with the earlier evidence of Mr Sakalo and the evidence of other witnesses. It appears that the Board also considered that account to be inconsistent with the view it took having regard to the expertise of its members, which view, as I have noted, was put to Mr Sakalo during the course of his cross-examination. It follows then that the Board could not and should not have accepted Mr Sakalo's explanation of what occurred and judged the adequacy of his note against that. Rather, the note was to be judged against the Board's findings as to what actually occurred. Mr Sakalo was not only the surgeon in charge of the operation, but was at the time at which the damage occurred, on the Board's findings, the only surgeon carrying out any dissection upon the deceased. Judged against the Board's finding as to what actually occurred – and therefore, against the inferences which can be drawn as to what Mr Sakalo must have observed – the Board's view that the note was inadequate in failing to record adequately the history of intra-operative bleeding was plainly open to it.

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29 I note that at one point in the grounds of appeal the appellant complains that the Board's opinion that the "extent and seriousness" of the bleed was not adequately recorded was not an allegation found in the Notice of Inquiry, but it appears to me that this is merely an expression of the Board's opinion that that aspect of the history of the bleeding is inadequately recorded.

30 It is in the light of the finding that the damage, and hence the bleeding, occurred most probably while the appellant was attempting to dissect the area between the stomach and liver, that the Board found that the notes were inadequate in failing to record adequately the area of adhesions and dissection in that area. It is in my view correct to say that that is a matter which should have been recorded, given its close connection with the damage and with the bleeding which occurred. It is not open to the appellant to submit that it was a matter in which his opinion did not appear, based on his observations, to be of significance, since the Board has rejected his account of his observations.

31 So far as the removal of the gall bladder is concerned, even on Mr Sakalo's own evidence the removal is recorded out of sequence. If one accepts his evidence that he was "horrified" at the way in which Mr Weedon went about that procedure, then it was plainly something which should have been recorded; otherwise, the flaw in the notes lies simply in the fact that it is impossible to ascertain from them precisely when the gall bladder was removed or by whom. Given the possibility that the reference to retrograde "dissection" of the gall bladder need not necessarily mean its complete removal, and the fact that that reference precedes references to extraction of gall stones and removal of the fundus of the gall bladder only, the note is, to say the least, confusing.

Were the findings open – report to the Coroner

32 Many of the observations which I have already made are apt to deal with those grounds of appeal also. The particulars in the Notice of Inquiry in relation to that report are very similar to the particulars in relation to the intra-operative notes, although somewhat more confined. Instead of asserting that the report failed to record the "history" of bleeding, the allegation is that the report failed adequately to identify the "source duration and extent" of the bleeding, while the allegation in relation to the gall bladder is simply that the report failed to identify who removed it. The particular in relation to the area of adhesion and dissection between the stomach and liver is the same.

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33 In my view, when one compares the report to the Coroner with the findings of the Board as to what must have occurred, it is plain that the report does fail to identify the source, duration and extent of the intra-operative bleeding. As I have already noted, there is a reference to a "small amount" of bleeding at the time at which the appellant was ready to close the abdominal wound relatively early in the operation, and the bleeding increasing substantially at the time of suturing of the portal vein by Mr Heath. What occurred in between is, so far as the report is concerned, a mystery. The significance of the area of adhesion and dissection between stomach and liver I have already noted.

34 So far as the gall bladder is concerned, it is true that the Coroner found that the identity of the surgeon who removed the gall bladder was not relevant to the mechanism of death. However, in a situation where it is for the Coroner to determine how death occurred, it is necessary for the Coroner to be able to ascertain with some precision what was done and by whom during the course of an operation. As the Coroner noted, it is not clear why a surgeon called in to assist in locating the source of uncontrolled bleeding should decide to remove the gall bladder. If Mr Weedon had done so, at a time when his attendance was required for another purpose, without good reason, and at the expense of time which could have been spent on locating the source of the bleeding, that would have been a matter for concern. It is in my view obviously something which should have been reported to the Coroner.

35 The Board found the report to the Coroner misleading in a number of respects. They found that the references to bleeding "severely downplayed the actual reality of the situation, and had the effect of misleading the reader concerning what occurred". As to the inadequacy of the reporting of adhesions and dissection between the stomach and liver, the Board found that it "had the potential to throw the investigation off track" and presented an incomplete picture of the whole operative dissection.

Natural justice – reflections on Mr Sakalo's motives

36 So far as the alleged failures of natural justice are concerned, it is complained that at a number of points the Board made findings adverse to the appellant without putting the possible finding to him and giving him an opportunity to answer it. This complaint is made in relation to the finding that the appellant was, in writing his intra-operative notes, concerned more about creating a favourable impression of his own actions than recording the true nature of the events, a finding that in failing to

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include the full history of the bleeding and other matters in the notes the appellant was actuated by a "wilful blindness" as the need to include those matters in the notes, and in relation to questions of penalty with which I will deal separately. It seems to me that the findings as to the appellant's motives are not separate findings of improper conduct of which the appellant has had no notice. Rather, they appear to be findings which go to questions of credit, and which are steps in the process of drawing inferences from the facts found by the Board.

37 By this, I simply mean that the Board was concerned to assess the appellant's account of what had occurred, and to make findings, in the light of that evidence, as to what had actually occurred and as to the adequacy of the appellant's notes against those events which had actually occurred. In the course of that process, it had to decide whether to accept or reject the account given by the appellant, who was the medical practitioner present at the scene throughout. Normally, his observations would be entitled to weight. In determining whether or not to accept the evidence of the appellant, it was relevant to consider what motive, if any, the appellant may have had for giving an account which was not accurate. The Board was able to do that based upon its observations of the appellant, and the responses which he gave in answer to questions put to him.

38 Although they reflect adversely upon him, these observations were in my view no more than steps in the process of reasoning undertaken by the Board, rather than separate findings which should, for example, have been contained in the Notice of Inquiry. There is in any event of course a logical difficulty in putting to the appellant that his motive for compiling an inadequate note was a motive of a particular kind, when the whole thrust of his evidence, which was carefully explored with him by the Board, was that his note had not been inadequate.

Was the conduct improper?

39 It follows from the reasons which I have given, that I would not uphold any of the grounds of appeal which deal with the findings of fact made by the Board. Once those findings of fact were made, it was open to the Board to conclude that the conduct of the appellant had been improper. Improper conduct in this context is conduct which is reasonably regarded as improper by professional colleagues of good repute and competency: Cranley at 6.

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40 So far as the notes are concerned, the Board observed that notes are made not only to provide a record of what has happened for legal purposes, but are made for the primary purpose of providing all those caring for a patient with a detailed exposition of the history of the clinical care of the patient. At the time at which this note was prepared, the deceased was still alive but in an extremely grave condition and, as the Board observed, it was possible that all of the sources of his extensive bleeding had not at that time been identified. The importance of an adequate note in those circumstances is plain. The Board's finding of "wilful blindness" on the part of Mr Sakalo in relation to the note suggests that it formed the view that Mr Sakalo did not properly turn his mind to that primary purpose of the note when he was preparing it, with the result that he prepared a note which had the potential to mislead others caring for the deceased.

41 So far as the report to the Coroner is concerned, the Board took the view that the Coroner was entitled to the highest standard of reporting by medical practitioners and that the Coroner took the view that the approach taken by Mr Sakalo on this occasion made her task much more difficult and prevented her from finding precisely the cause of the damage to the deceased's portal vein which ultimately took his life. In that context, it was open to the Board to take a serious view of the inadequacies in the report.

42 It was submitted to me that at most, the inadequacy in each case could be regarded as gross carelessness or incompetency on the part of Mr Sakalo. There is a view of those expressions which suggests that the concept of gross carelessness or incompetency tends to focus upon the actions and the ability of the practitioner in caring for a patient; Jemielita at 18 – 19. Accepting that those concepts may well apply in other areas of a practitioner's conduct, it was not I think open to the Board in this instance to take the view that the inadequacies in the report and the notes were due to incompetence, since there was no suggestion that Mr Sakalo was not able to produce an adequate note or report if he had chosen to do so. So far as carelessness is concerned, there may well be occasions on which conduct can be considered either to be careless or to be improper. It was, I think, accepted by the counsel for the appellant during the course of argument that there could be an overlap between these concepts. Having regard to the fact that the Board found not only that the note was inadequate but that the inadequacy was repeated, in effect, in the later report to the Coroner, it is difficult to see that Mr Sakalo's conduct overall could be regarded as simple carelessness. It was, in my view, open to the Board to form the view that in the circumstances of this case, and having

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regard to the degree of inadequacy in each case, the inadequacy in each of the notes and the report was such as to constitute improper conduct.

Natural Justice - Penalty

43 So far as penalty is concerned, the hearing took a somewhat unusual course. Submissions were made as to whether findings of improper conduct should be made, and at the same time, and prior to any findings being made by the Board, submissions were made as to penalty. Although the transcript suggests that this course of proceeding was one suggested by counsel for the appellant, it was common ground before me that it was suggested by counsel because it reflects a practice which has occurred on other occasions. Such a practice, at least where a view may be taken that conduct warrants suspension or removal from the roll, is highly undesirable.

44 In the present case, it appears that the views which the Board took of the appellant's motivation, during the course of reaching its findings, may well have been a factor in its arriving at the view that the penalty imposed was appropriate. The appellant had no opportunity, being unaware of those views, to make submissions as to why such a motivation should not result in suspension in all the circumstances of the particular case, or as to why, even if the conduct was such as to warrant suspension, there were nevertheless aspects of the appellant's history which suggested that it was unnecessary.

45 It is a matter of common sense that submissions in mitigation will need to address the particular facts found by the Tribunal which is to impose the sentence. In this case, depending on the view taken by the Board, there may have been no need to make any submissions in mitigation or the Board may have found the appellant guilty of only certain of the conduct referred to in the Notice of Inquiry and may have been inclined to take a lenient view of it. In that situation, in contrast perhaps to the position where it is plain from the Notice of Inquiry that the conduct alleged is so serious that suspension is a likely outcome, the appellant was not really in a position to make submissions in mitigation consistent with the gravity of the findings made by the Board. It is my view that this was a breach of natural justice and that the penalty should therefore be set aside.

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Orders

46 In considering whether the matter should be remitted to the Board to impose a penalty afresh, I have noted that the respondent advises that it will be difficult to reconstitute the same coram in the near future, as one member of that Board is currently overseas. In those circumstances, and having regard to the fact that the appellant is still serving his suspension, it appears to me appropriate to substitute what I consider to be the appropriate sentence. I note that the Board accepted that Mr Sakalo had an excellent record and that he had suffered greatly as a consequence of the events arising from this operation. The suffering consists no doubt in part of the knowledge of the censure which his conduct has attracted, and also stems from the fact that his operating rights have been suspended at two of the three hospitals at which he practices. I note the Board's view that had Mr Sakalo made full and frank disclosure in his original notes and continued to do so to the Coroner, it is unlikely that any inquiry would have been initiated, and I note also its finding that Mr Sakalo had continued to fail to take responsibility for his actions. Nevertheless, it appears to me that under the circumstances the imposition of a fine together with a period of suspension is excessive. I would not disturb the order that the appellant pay a fine of $10,000 in total, being the maximum fine available to the Board, nor would I disturb the reprimand given by the Board, which seems to me to be entirely appropriate. No issue has been taken with the costs orders. However, I would vary the orders made by the Board by quashing the order suspending Mr Sakalo from practice for a period of three months.