Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel' - Findings) - [2003] NSWADT 95

No judgment structure available for this case.

Set aside by Appeal: Set aside by appeal in part on 13/10/2003

CITATION: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95

DIVISION: General Division

PARTIES: APPLICANT
Veterinary Sugeons Investigating Committee
RESPONDENT
Ronald George Lloyd

FILE NUMBER: 40004 of 1998

HEARING DATES: 15, 16,17, 18, 19, 23, 24/03/1999, 3, 22/10/2002, 29/11/2002

SUBMISSIONS CLOSED: 11/29/2002

DATE OF DECISION:
05/09/2003

BEFORE: O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member

APPLICATION: Veterinary surgeon - misconduct in a professional respect - Veterinary Surgeons Act - veterinary surgeon - misconduct in a professional respect

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Legislation Amendment Act 1997
Administrative Decisions Tribunal Act 1997
Veterinary Surgeons Act 1986
Veterinary Surgeons Regulation 1995

CASES CITED: Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 2: 'Gypsy' - Findings) [2003] NSWADT 96
Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285
Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284
Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98
Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26
Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224
Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233
Re Lloyd, unreported, 16 December 1994
Briginshaw v Briginshaw (1938) 60 CLR 336

REPRESENTATION: APPLICANT
S Burchett, barrister (to July 2002);
M Linkenbagh, secretary to Committee (since August 2002)
RESPONDENT
B Green, solicitor

ORDERS: 1. The rerspondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b), 1(c), 1(e) and 2; 2. After determination of the other three Inquiries, this Inquiry is to be reconvened for determination of orders pursuant to section 32.

1 The Veterinary Surgeons Investigating Committee (the Committee) has referred to the Tribunal for inquiry a complaint against Dr Ronald George Lloyd (Dr Lloyd), a registered veterinary surgeon. The Committee must pursuant to s 28(1)(c) of the Veterinary Surgeons Act 1986 (the Act) make such a referral if it is satisfied that a prima facie case of misconduct in a professional respect has been made out in relation to the complaint and considers that it is sufficiently serious to warrant its being referred to the Tribunal.

2 The inquiry has been undertaken pursuant to Division 4 of Part 4 of the Veterinary Surgeons Act 1986 (the Act). (Unless otherwise noted, references in this decision to the Act are to the Act as in force at the time of the commencement of the inquiry.)

3 By letter to the Australian Veterinary Association dated 9 May 1996, Mr Sam Girgenti snr made a complaint against Dr Lloyd in respect of his treatment and surgery of the family dog, Chisel, a de-sexed female Rhodesian Ridgeback.

4 Dr Lloyd was given the opportunity to respond to the complaint in writing, which he did. The Committee then undertook a formal interview on 24 November 1997. It decided to refer the complaint. The referral itself occurred on 8 April 1998, and the Chairperson, Veterinary Surgeons Disciplinary Tribunal issued the Notice of Inquiry. The jurisdiction of the Veterinary Surgeons Disciplinary Tribunal was transferred to the Veterinary Disciplinary Panel of the Administrative Decisions Tribunal following its creation on 6 October 1998: Sched 4.3, Administrative Decisions Legislation Amendment Act 1997; Govt Gaz 143, 2 October 1998.

5 The Notice of Inquiry contains two principal Allegations, one of which is divided into four charges. The first set of charges is described herein as Allegations 1(a), 1(b), 1(c) and 1(e) [there is no 1(d)]. They refer to Dr Lloyd’s conduct in his capacity as a registered veterinary surgeon. The most significant allegation relates to Dr Lloyd’s surgery on the hind leg of the dog. Allegation 2 consists of one charge and refers to his capacity as a superintendent of a veterinary hospital.

6 The hearing of evidence commenced on 15 March 1999 and proceeded over several days, concluding on 24 March 1999. The hearing of closing submissions was deferred until further inquiries, referred to later in these reasons, relating to Dr Lloyd were completed. For reasons explained later, the Tribunal reconvened to conclude the inquiry in August 2002.

7 The Committee’s case in 1999 had been conducted by Mr Burchett of counsel instructed by a firm of solicitors. The Secretary to the Committee at that time, Mr Michael Harcombe, a public servant, had been appointed the nominal complainant pursuant to s 29(6) of the Act. He had been excused from further involvement in the proceedings.

8 At the reconvened inquiry, the new Secretary to the Committee, Ms Maria Linkenbagh appeared and advised that she would be conducting the case henceforth. She informed the Tribunal that there had been a substantial change in the membership in the Committee as compared to its membership at the time of the investigation in 1997 and the referral in 1998. She said that only one of the members had any prior knowledge of the history of this matter.

9 She has since made a number of submissions, as to the jurisdiction and scope of the inquiry, the fairness of the charges and the evidence, most of which have been inconsistent with the way in which the case was previously conducted. They are dealt with in the body of these reasons.

General Background

10 Four Inquiries. This is one of four complaints against Dr Lloyd that were referred to the Tribunal for inquiry during 1998. All were heard together in sequence, commencing in March 1999. The parties agreed to this course prior to the commencement of the first inquiry (the present matter). The Tribunal accepted their request that all evidence in respect of the four complaints be considered before any determinations were made in respect of any of them; and any consideration was given to any further order (Transcript of Proceedings (ts) 15/3/99:3).

11 The four inquiries sat on 28 days to hear evidence (not counting time spent in hearings for directions and dealing with other motions or the further hearings on reconstitution and for the purpose of closing submissions late in 2002), spread initially over 22 months, commencing in March 1999 and ending in December 2000, as set out below:

‘Chisel’, the present matter: 15,16, 17, 18, 23 March 1999 (Inquiry 1; Matter No. 40004 of 1998).
‘Gypsy’, a horse owned by Ms Sharon Clee: 23, 24, 25, 26 March 1999; 23, 24, 25, 26, 29 November 1999; 13 December 2000 (Inquiry 2, Matter No. 40005 of 1998). Findings have been in relation to all allegations: see Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 2: 'Gypsy' – Findings) [2003] NSWADT 96.
‘Remus’, a dog owned by the Robinson family: 21, 22, 23, 24, 25 February 2000; 11, 12, 13, 14, 15 December 2000 (Inquiry 3, Matter No. 40015 of 1998). Findings have been made in relation to certain allegations: see Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285.
‘Total Eclipse’, a cat owned by Ms Kim Koroknay: 7, 8 June 2000; 13, 14, 15 November 2000 (Inquiry 4, Matter No. 40016 of 1998). Findings have been made in relation to all allegations: see Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284.

12 Prior to all the inquiries being completed, it was necessary to reconstitute the Tribunal. The completion of this inquiry was delayed pending the determination of appeals to the Appeal Panel of the Tribunal and the Court of Appeal against the reconstitution of the Tribunal. The outcome of the appeals is dealt with later in these reasons.

13 Complaints Procedure. The Veterinary Surgeons Board (the Board) maintains the register of veterinary surgeons. The Board also has power to license a person to conduct a veterinary hospital. A veterinary hospital must be managed by a superintendent who has been nominated in accordance with s 54 of the Act. The regulations may prescribe different classes of licences for different classes of veterinary hospitals (s 47). The Act confers responsibility for investigation of complaints on a separate statutory body, the Committee.

14 The Committee is (with limited exceptions) required by s 27 to investigate a complaint. When it has completed its investigation the Committee is required to make a decision as to what course of action it will adopt. Section 28 provides as follows. Option (c) in s 28(1) was chosen in this case.

28. Decision of Investigating Committee on complaint

(1) The Investigating Committee:
(a) may dismiss any complaint made to it,
(b) if it is satisfied of the truth of the complaint but considers that the complaint is not sufficiently serious to warrant its being referred to the Tribunal, may do all or any of the following:
(i) by order, caution or reprimand the veterinary surgeon,
(ii) order that the prescribed costs of, or incidental to, investigating the complaint be paid by the veterinary surgeon, (iii) by order impose conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, being conditions of a temporary nature (including limitations on the right to practise) in connection with the veterinary surgeon's continuing education, acquisition of skills and professional supervision, or
(c) if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal, shall refer the complaint accordingly.
(2) Where the Investigating Committee considers that the conduct of a registered veterinary surgeon warranted the making of the complaint but the conduct does not constitute misconduct in a professional respect or any other ground on which a complaint may be made under section 26 (1), the Investigating Committee may deal with the veterinary surgeon under subsection (1) (b) in respect of the conduct.
(3) The Investigating Committee must, before exercising its powers under subsection (1) (b) or (c), give the registered veterinary surgeon concerned an opportunity to make written representations to the Committee. If, after receiving written representations, the Committee is still considering whether or not it should exercise those powers, it must give that veterinary surgeon an opportunity to appear before it to make oral representations.

15 The inquiry has been conducted by a Veterinary Disciplinary Panel of the General Division of the Tribunal (referred to herein as the Tribunal): Administrative Decisions Tribunal Act 1997, Schedule 2, Part 4, Div 3, cl 7. Such a Panel must comprise a judicial member of the General Division; a non-judicial member who is both a veterinary surgeon and a member of the Board; and a non-judicial member who is not a veterinary surgeon and was assigned to the Division on the recommendation of the relevant Minister to represent the interests of users of veterinary services. The Tribunal’s powers when a complaint is proved are set out in s 32.

16 Reconstitution of Tribunal. The original Tribunal comprised the President; Dr Garth McGilvray, a non-judicial member who is a veterinary surgeon and a member of the Board (Dr McGilvray is currently the President); and Ms Yolande Dubow, non-judicial member representing the interests of users of veterinary services. Following the expiry of Ms Dubow’s term as a member on 31 March 2000, while the overall hearing was incomplete, it was necessary to reconstitute the Tribunal by replacing Ms Dubow with a new member representing the interests of users of veterinary services, Ms Fiona Clark.

17 The Tribunal that included Ms Dubow heard the entirety of Inquiry 1 (the present matter) and Inquiry 2 (Gypsy). Ms Dubow’s term expired when Inquiry 3 (Remus) was part heard. The new Tribunal heard the entirety of Inquiry 4 (Total Eclipse).

18 Section 79 of the Tribunal Act deals with the consequences of reconstitution. Dr Lloyd did not give the consent necessary for ss 79(1) and (2) to be utilised. Accordingly it was necessary to deal with the future course of the proceedings pursuant to ss 79(3) and (4). Section 79 provides:

79. Reconstitution of Tribunal during hearing

(1)

(2)

(3)

(4)

19 The President gave directions as to how the reconstituted Tribunal was to proceed in relation to the three affected Inquiries including the present one: see Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98. There was an appeal against the directions on various grounds.

20 The Appeal Panel dismissed the appeal on 15 August 2001: Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26. On further appeal, the Court of Appeal found that the President in sitting alone to deal with the reconstitution of the Tribunal had exceeded the jurisdiction of the Tribunal (a matter which had not been raised by the parties). The relevant decision was required to be made by the full Tribunal. Accordingly it set aside the previous decisions, and remitted the matter to the Tribunal for further decision: Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 (16 July 2002).

21 The full Tribunal reconvened, and ruled (Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233 (13 November 2002)) that the respondent's requests for the recall of certain witnesses were not granted; and that the proceedings in respect of Inquiries 1, 2 and 3 were to be reconsidered by having regard exclusively to the record of the proceedings before the Tribunal as previously constituted, including the records of evidence taken in the proceedings. Closing submissions (which had not been presented pending the appeal) were heard on 29 November 2002.

The Original Complaint

22 Mr Sam Girgenti snr lodged a complaint with the Australian Veterinary Association (AVA) by letter dated 9 May 1996. The text follows, with original spellings and syntax.

We understand that we should write to you if we have a complaint about the performance of a Veterinarian as you are able to investigate and deal with such matters.

Firstly let us say that we are not looking for some sort of revenge but we are voicing a genuine concern not only for our dog but possibly for other animals treated by this particular Vet.

On Saturday 24th February this year at about midday our dog, Chisel, a Rhodesian Ridgeback was hit by a car on a main road near our home. While our son was getting petrol she jumped out of the drivers window, after a cat, and onto the road where she was hit.

Our son picked her up and rushed her home on the back seat of his car. Our own Vet, Liverpool Veterinary Hospital, (Dr Davis & Dr Wanner) was shut at that time, though it does have an after hours number, my wife and son rushed Chisel to the nearest Vet, Dr Lloyd at the Gill Ave Vet Surgery.

When my wife and son got there they and Dr Lloyd carried Chisel into the surgery, then Dr Lloyd held Chisel by the scruff of the neck and attempted to make Chisel walk.

When my son, who was very upset, objected as Chisels back leg doubled over under her Dr Lloyd said it was to guage the extent of her injuries.

It turns out as we found out much later she had a broken left front leg nor do I believe did Dr Lloyd appreciate the amount of bone missing and shattered from her back leg and displaced into the surrounding tissue, she also had cuts to her ears.

My wife told Dr Lloyd to do what was necessary, cost was not a factor, to treat Chisel. After examing Chisel Dr Lloyd gave her a pain killing injection stitched her ears, put plaster on her front leg and told my wife he would operate on Chisels back leg on Monday morning at his other surgery at Hoxton Park.

He said he would put a pin in Chisels back leg and that “she would be up and about in a week”. No x-rays were taken as yet.

He also quoted my wife a fee of $500 for his work.

On Monday afternoon when my wife went to collect Chisel, she was brought back to Gill Ave from Hoxton Park in the front passengers footwell of Dr Lloyds car.

Considering the size of Chisel and her injuries this must have been quite painful. My wife paid the bill, enclosed is a photocopy, and took Chisel home.

At home Chisels condition did not improve, she was in great pain, pain management recommended by Dr Lloyd was one Panadol per day, and her back leg ballooned with the pin Dr Lloyd had put in starting to jut out through the skin.

On Wednesday the stitches on her back leg began to weep badly, she seemed in a lot of pain, and we were so distressed we called our own Vet Dr Warren Davis who came to our home and gave Chisel a thorough examination and medication.

He, Dr Davis, said her back leg appeared to have an infection and that he felt she needed a specialist orthopaedic surgeon. He gave us some more substantial medication then went back to his office and arranged for Chisel to be admitted to the R.S.P.C.A. Veterinary Hospital at Yagoona on Friday 1/3/96.

After Dr Davis left I rang Dr Lloyd and asked if I could pick up the x-rays he took for Chisels operation so I could take them with us to the R.S.P.C.A. on Friday.

Dr Lloyd told me it would not be possible to have the x-rays as the girl developing them had dipped them in the wrong solution and they were damaged and unusable.

He told [me] that if I could bring Chisel down to his surgery he would take another set. Considering Chisels condition I said no.

He also tried to talk me out of taking Chisel to the R.S.P.C.A. by offering to do further surgery himself and after I said no to that to have an orthopaedic surgeon friend of his do it again I said no.

The matter of the x-rays concerns us in that if the x-rays were unusable in the first place how did he operate on Chisel without knowing the true condition of her legs or at worst did he take any x-rays at all. They are not listed on the account.

We took Chisel to the R.S.P.C.A. on Friday and that evening she was operated on. A titanium plate put in her front leg and another screwed into her back leg where a large peice of bone was missing.

She spent another month at the R.S.P.C.A. clinic, among other things she had an infection in the bones of her back leg and it was slow to start healing, then she came home. I understand if all goes well the plates will be removed in about 6 months.

We cannot speak highly enough of the doctors and staff at the R.S.P.C.A. for the love, care and proffesional attention they have shown and to us during this most distressing period.

I have mentioned to the doctors at the R.S.P.C.A. that I intended to write this letter and that you might require Chisels medical records.

In summing up we feel we were not given the standard of advice or care for our pet that was in her best interests, by Dr Lloyd, and this whole matter has caused us a lot of pain and tears.

As I said at the start of this letter this is not a matter of revenge or money but a humanitarian plea to investigate this matter.

Yours Sincerely

S Girgenti (SAM GIRGENTI)

23 Dr Lloyd replied by letter dated 31 July 1996. The text follows with original spellings and syntax.

On Saturday 24 February, 1996, at 12.45pm a female red Rhodesian Ridgeback was presented at 2 Gill Avenue, Liverpool with torn ears and fractures to the left front and back legs. The mucous membranes were pink and capillary return was normal. The owner being Mrs Girgenti. I offered to administer first aid and pain relief and return the dog to Dr Ral Wanner at his Liverpool practice on Sunday but Mrs Girgenti said no she would prefer it if I treated the dog. I proceeded to fully examine the dog and proceeded to administer a tranquilliser analgesic along with intra-muscular long acting antibiotics. The lacerated ears were stitched, a cast was placed on the aligned fractured radius and ulna and a cotton wool and elastoplast immobilisation bandage was then placed around the fractured back leg. The animal was then placed on an IV Hartmans drip, with 2cc of Finadyne, and 3cc of Amphoprim. The dog was then put in a cage with an electrical heat pad. Different members of the animal’s family kept phoning 4-6 times up until 11.30 that evening. Each phone call was answered and they were kept informed of the animals progress.

On Sunday the animal was checked at 6am. The IV fluids were replaced with repeat drugs and recheck at 8.30am after I returned from a stable call, and then observed intermittently during the day. More phone calls from the family were received and pressure was placed upon me to do the surgery on Sunday. It was explained patiently and politely that no elective surgery was performed on Sunday and not without nursing sisters. More phone calls were received on Sunday night.

The dog was transferred to Rutledge Park Veterinary Hospital at 6am on Monday in the passenger footwell, circa 1970 Dodge Charger carried by me straight to the operating theatre. 5mg Acepromazine plus 1mg Atropine Sulphate was administered IV 5 minutes later anaesthesia was induced with .35mg of Thiopentone Sodium.

With the assistance of a new part-time nurse, Emma Sterrett, the 2 broken legs were Xrayed by me and then developed by Emma. I look at both Xrays and then instructed her to put them ‘back’. The fractured radius and ulna were sufficiently aligned to heal with the help of a mobilisation plaster or paris cast.

The hind left leg fracture was mid shaft with a chipped segment at the fracture site. Surgery was commenced after skin clipping and sterilisation using alcohol, ether, iodine, and hook-up to oxygen, halothane gas and anaesthetic system. A routine retrograde pinning was carried out. The removal of 1.5 x 2cm bone chip, which would have developed into a sequestrum if left, being the only deviation from the norm. Crystalline penicillin was poured into the open wound and then closed using 1.0 chromic catgut and non-absorbably skin sutures. The femur was again x-rayed. Xray developed and viewed, the assistant was again requested to put the xrays ‘back’. The pin was cut just below the skin and antibiotics in a Hartman’s drip were administered. After recovery the dog was driven back to 2 Gill Avenue, Liverpool, and discharged with antibiotics and prescribed analgesics that afternoon.

Copious instructions re the two broken legs were given with the emphasis on these clients returning to their normal vets Dr R Wanner and Dr Davis. The post-operative instructions for the cast were to check constantly for pain, swelling, dampness, and contact the vet if any problems arose. The clients were instructed that the cast be checked by a Vet each week and then removed or changed in 21 days. Instructions for the femur surgery were to check the sutureline daily for any breakages or discharges or protrusions of the pin through the skin and to contact the Vet if anything bothered them or the dog. General instructions were given about daily nursing, drug administration and hold of dog for defacation and urination. The clients seems happy when they took charge for their dog and paid the account.

On the 28 February, 1996, I received a visit from Dr Davis. The whole treatment regime was explained along with the unfortunate destruction of the xrays by the new assistant in putting them back into the developer after viewing them (this Lady will happily sign a Statutory Declaration to this effect if required). It was my understanding then that my involvement in this case was finished as the client’s original Vet had taken over the case. The only other contact I had was when the owner’s husband rang. I explained to him why he could not have the xrays, I also discussed taking further xrays at no extra cost if he so desired. Also he quoted an exorbitant amount of money for specialist therapy and I suggested another Vet with more moderate fees.

If there was infection as has been suggested by the owners no Vet would operate as was done 96 hours after the initial operation and theoretical contamination.

In the 48 hours the animal was in my care it was looked after with extreme care and enthusiasm. The Vet (ME) was being fully cognisant of the owners concern as shown by:

1. The many phone calls

2. The owners boast of what large amounts of money had been previously spent on the dog.

3. The 100% likelihood of the animal being returned to its original vet who is extremely ~~confident~~ competent and is held in high regard by surrounding vets, including me. 2.

I wish to comment on the inaccuracies and vindictive comments made about me and my profession page by page.

Page 1 – My Performance

I believe that it was above the norm required by my Peers in this particular case.

Presented at about Midday

Not true, this was a genuine after hours case. The animal being presented at 12.45pm.

Nearest vet

Not true, the nearest vet is but 20 yards from the Girganti’s front door.

Page 2 – ‘Held by the Scruff of the Neck’

Not true. The dog was fractious and in pain. It was held by the neck with my left hand and supported under the abdomen by my right hand.

“It turns out … cuts to her ears.”

Mr Girganti the writer of this complaint was not present at the initial time of consultation, why would I put a cast on if the left front radius and ulna was not broken? I took the piece of bone out of the fracture site and I stitched the ear up.

“She would be up and about in a week”

Absolutely ridiculous and a lie.

Page 3 – “This must have been quite painful”

The dog was under the influence of analgesics from the time of admission to 6-8 hours post hospital release. The animal was placed on a rug and lifted out of the car very gently.

“Appeared to have an infection”

This is not what Dr Davis said as shown by his letter re this matter.

Page 4 – I did list alternatives to specialist treatment, being foolishly concerned about the money already spent on the dog. The four alternatives in treatment were discussed at the initial consultation when the write of the complaint was absent. They being.

1. Euthanasia

2. Casts

3. Pins

4. Plates

I do not admit to mentioning (Titanium Plates). I can understand the complainants criticism re the xrays but they were taken and it is extremely difficulty to position intramedullary pins without taking post operative xrays.

Page 5

If there was an infection, when was it introduced?

a. At the moment of impact

b. At the time of my surgery

c. At Girganti’s home

d. During surgery at the RSPCA

e. During prolonged hospitalisation at the RSPCA

My surgery was done under sterile conditions as I am sure was the case at the RSPCA. If the whole matter “caused us a lot of pain and tears”, I wonder what the prolonged hospitalisation did to the dog. I work in a profession where the welfare of the animal is my prime concern, so I am concerned that Mr Girganti’s plea is not a humanitarian plea but a hypocritical plea.

Please find enclosed client record card and Dr Davis’ letter.

Yours sincerely,

Ronald G. Lloyd BVSC Sydney

Veterinary Surgeon.

24 In February 1997, following investigation of the complaint and the conduct of a formal interview of Dr Lloyd on 10 December 1996, the Committee resolved to refer the complaint to the Tribunal for inquiry. The formal referral occurred on 8 April 1998 and the Chairperson of the then Tribunal issued the following Notice of Inquiry:

TAKE NOTICE that the Veterinary Surgeons Disciplinary Tribunal has received a complaint referred to it by the Veterinary Surgeons Investigating Committee that you have been guilty of misconduct in a professional respect within the meaning of Section 22 of the Veterinary Surgeons Act 1986 (“the Act”) in relation to your care, treatment and management of the dog “Chisel”.

The specific allegations which have been made against you and the particulars of those allegations are as follows:

1. That being a registered veterinary surgeon you are guilty of misconduct in a professional respect in that you did breach provisions of the Veterinary Surgeons’ Code of Professional Conduct (“the Code”) established under Section 23 of the Act and prescribed for the purposes of section 22(c) of the Act, as follows:

(a) Between 24 February 1996 and 26 February 1996 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science.

Particulars

On Saturday 24 February 1996, Mrs Girgenti and her son consulted you in relation to injuries sustained by a Rhodesian Ridgeback dog, named “Chisel” in a motor vehicle accident. Despite the fact the dog had two fractured legs which you should have taken into account (or if not immediately apparent to you, was a matter which you ought to have taken into account), you attempted to have the dog stand on all four legs and walk which caused the dog’s rear leg to collapse and caused great distress to Mrs Girgenti and her son.

After providing initial treatment to the dog you then admitted it to your hospital and subsequently attempted the repair of the comminuted mid-shaft femoral fracture. This operation failed to comply with the then current standards of veterinary science in that:

(i) the fracture fragments were poorly reduced;

(ii) the fracture was inadequately stabilised with a single intramedullary pin;

(iii) you caused overriding and a consequential mal-alignment of the major fragments;

(iv) although not having adequate equipment and experience to handle this particular type of surgery, you did not make any attempts to consult any specialist;

(v) you failed to take a post operative radiograph;

(vi) there was no adequate working up of the dog in that:

* you did not weigh the dog to establish the correct quantity of anaesthetic and other drugs to be administered to it;

* you did not undertake a thorough clinical examination or, if you did you did not make a record of it;

* in particular there is no record of temperature, condition of mucus membrane, of whether you performed an abdominal palpation and/or thoracic auscultation or any consideration you gave to pain relief;

* you did not record a description of the fracture.

On the same day as the day when you operated on the dog, or else on the following day, you transported Chisel from the Rutledge Park Veterinary Hospital back to your surgery at Gill Avenue, Liverpool on the floor of the front passenger’s compartment of your motor vehicle thereby increasing the risk of further damage to the leg and of the pin which you had inserted moving, penetrating the skin and causing infection.

You discharged the dog to Mrs Girgenti on 26 February 1996 for her to transport back to the Girgenti’s home at a time when the dog should have been kept in hospital and when movement of it should have been kept to a minimum.

(b) On 25 or 26 February 1996 you failed to refer Mrs Girgenti to an appropriately qualified veterinary surgeon when a second opinion or a referral was desirable.

Particulars

Having ascertained the nature of the injury to the dog’s rear leg, in a situation where you lacked all of the necessary equipment to perform the required operation to repair it and lack the necessary experience and skills to do so, you should have consulted Mrs Girgenti and advised her of the need for the operation to be carried out by a specialist.

(c) On or about 26 February 1996, being responsible for the professional supervision of lay staff, you failed to ensure that the staff carried out their duties effectively and in compliance with relevant legislation.

Particulars

Before you operated on Chisel you took radiographs of Chisel’s two broken legs. You had these developed by a part-time nurse, Emma Sterrett who then put them back into the developer, instead of the fixer causing them to be damaged or destroyed. Accordingly they were not available to you, nor to any subsequent veterinarian nor could they be retained as required by clause 5(12) of the Code.

[Note: There is no (d)]

(e) You failed, when, or as soon as practical, after treating an animal and consulting with the client to ensure that a detailed record of the treatment or consultation was made.

Particulars

The only record which you made in relation to your treatment of Chisel and consultations with the owners of Chisel between 24 February 1996 and 26 March 1996 were the notes set out on the card which you presented to the Veterinary Surgeons Investigating Committee. Specific information which was not recorded was:

a record of the options which you claim you provided to Mr Girgenti when the dog was first presented to you;

the transfer of Chisel from your surgery to the hospital;

the anaestethics (sic) administered;

your estimate of the dog’s weight;

Chisel’s discharge;

the advice which you gave to Mrs Girgenti on discharging the dog to her;

the information set out in the first paragraph appearing at the top of page 2 of your letter to the Investigating Committee dated 31 July 1996;

the fate of the damaged or destroyed radiographs;

any post operative x-rays taken by you;

description of the fracture;

temperatures;

condition of mucus membrane;

any abdominal palpation and/or thoracic auscultation conducted;

any consideration of pain relief;

the times and dates of the events described above.

2. That, being the Superintendent of a veterinary hospital, you are guilty of misconduct in a professional respect in that in accordance with Section 54 of the Veterinary Surgeons’ Act, 1986 you were between 24 February 1996 and 26 February 1996, responsible for the care, control and management of the hospital known as Rutledge Park Veterinary Hospital and failed to ensure that a complete record was made at the time of each veterinary treatment and consultation.

Particulars

On 25 February 1996, you transferred the dog Chisel to the hospital and on or about 26 February 1996 performed an operation on the dog’s rear leg before returning her to the surgery in Liverpool where she had initially been presented to you. The particulars relating to your failure to make and retain proper records set out in paragraph 1(e) are repeated.

25 None of the Allegations were formally admitted. As to the particulars supporting the Allegations, none were admitted in respect of Allegations 1(a), (b) and (c). Some particulars relating to inadequacy of records were admitted in respect of Allegations 1(e) and 2, accompanied by the submission that those admissions were not sufficient to warrant a finding of professional misconduct.

The Present Committee’s Ultimate Position in these Proceedings

26 The Committee as presently constituted, through its Secretary, Ms Linkenbagh sought when the hearing resumed following the Court of Appeal ruling to abandon most of the case that had been previously presented by it to the Tribunal in relation to Dr Lloyd’s conduct.

Objections to Consideration of Various Allegations

27 As to Allegation 1(a) - the most serious of the charges made against Dr Lloyd in these proceedings - the Committee submitted the choice of the single pinning procedure did not involve any failure to meet contemporary standards, and accordingly any failure in that regard could not give rise to, or support, a finding of professional misconduct. It did continue to press other particulars relating to the allegation.

28 The Committee submitted that Allegations 1(b) and 1(c) had not been properly before the Tribunal due to deficiencies in the procedures followed by the Committee at the time of its investigation into the complaint. The Committee submitted that Allegation 2 contained a charge that was not open to be made.

29 Dr Lloyd agreed with the submissions put by the Committee.

30 The Committee now pressed in support of Allegation 1(a) just one of the particulars. It did not go to the surgical procedure. The Committee also continued to press the inadequacy-of-record allegations contained in Allegation 1(e). As to Allegation 2, the Committee submitted that it was in effect a duplication of Allegation 1(e). The net situation is that the Committee only sought to continue its case in relation to one particular of Allegation 1(a) and in relation to Allegation 1(e).

31 Our reasons for rejecting the Committee’s various submissions follow.

32 Use of Single Pinning Procedure. As it is apparent from the Notice of Inquiry, the most serious of the allegations is Allegation 1(a); and its most serious component is the issue of whether Dr Lloyd had treated the complex fracture of the hind leg in a manner that was in accordance with contemporary standards of veterinary science. Dr Lloyd had used a single intramedullary pin to stabilise and heal the fracture. He contended that this had been an adequate response to the injury. He did admit not using a pin that was of the appropriate dimensions because he did not have the appropriate equipment in his surgery. A number of the veterinarians who gave expert evidence at hearing criticised the choice of the single pinning procedure as inadequate.

33 Ms Linkenbagh stated that the new Committee was of the opinion that the choice of the single pinning procedure did not involve any failure to meet contemporary standards. She said that the Committee viewed the evidence on this issue as ‘ambivalent and confusing’. These novel submissions were not supported by any detailed expert opinion, nor were they supported by any detailed reference to the record of evidence to show how the conclusion offered could be reached.

34 The Tribunal has heard substantial evidence on Dr Lloyd’s choice of the pinning procedure. As the reasons which follow will seek to demonstrate, a substantial body of expert opinion was placed before the Committee that was condemnatory of Dr Lloyd’s choice. There was some opinion to the contrary. This conflict will be dealt with later in the reasons. None of the opinions could reasonably in our view be described as themselves ambivalent or confusing. There is a conflict between the experts on some matters. This is not unusual in an inquiry of this kind. This does not justify a retreat from making an assessment of the evidence. Ms Linkenbagh’s submissions are rejected.

35 Jurisdiction.

As to Allegations 1(b) [non referral for a second opinion] and 1(c) [failure adequately to supervise lay staff] the submission was that the allegations were not properly before the Tribunal as the Committee had failed prior to referring the complaint to the Tribunal under s 28(1)(c) to adhere to the requirements of s 28(3) of the Act, which, to reiterate, provides:

(3)

36 It was submitted that the Committee had not given Dr Lloyd an opportunity to appear before it to make oral representations on these matters. The issues of referral to a specialist and the adequacy of supervision of lay staff were not raised in those terms by the Girgentis. On the other hand it is clear that they were concerned over the adequacy of Dr Lloyd’s surgery, and his inability to provide any x-rays as to the state of the dog’s injuries prior to surgery. These issues are canvassed by the Committee in its interview.

37 We have perused the record of interview of the Committee (Ex 19). It is plain that the Committee looks at length at the question of the treatment options that Dr Lloyd had available to him, and the appropriateness of his decision to chose a single pin as the method of repairing the comminuted fracture to the hind leg. One treatment option clearly open to a practitioner is to decline to treat on the basis that he or she does not have the requisite skills, expertise or equipment. A number of questions were directed to Dr Lloyd in relation to the issue of treatment options. There was some reference to the alternative of using specialists. The Committee made it clear that it had doubts about the competence of Dr Lloyd. In our view, it can not reasonably be said that Dr Lloyd was not on notice that his choice of treatment options was in issue, nor that among the options known to any veterinarian is that of referral to a more expert practitioner: see Ex 19, pages 15-16, 27, 46-47. We note that Dr Lloyd himself comments on the use of specialists as an option. Similarly the adequacy of his training of staff in relation to radiograph procedures was canvassed with Dr Lloyd: see Ex 19, pages 12-15.

38 Allegations 1(b) and 1(c) are not in the same situation as arose in respect of Allegation 2 in Inquiry 3. There we accepted a submission similar to the present one, and concluded that Dr Lloyd had not been given an opportunity at the Committee stage to respond to matters addressed by the allegations: Veterinary Surgeons Investigating Committee -v- Lloyd(Inquiry 3: ‘Remus’ – Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 at [304]-[310].

39 In that case Allegation 2 put in issue Dr Lloyd’s dealings with the owner after she had lodged her complaint. Necessarily that conduct did not form part of the complaint as it had been submitted to the Committee. Further, there was no reference to Dr Lloyd’s post-complaint conduct at his interview with the Committee. It would appear that it was unknown to the Committee at that time. The first occasion that Mrs Robinson’s version of the post-complaint conduct was recorded was in a statement given to the Committee’s solicitors after the decision to refer the complaint, and during the process of formulating the Notice of Inquiry. The matters that gave rise to the Allegation were never ventilated with Dr Lloyd in the manner contemplated by s 28(3).

40 In that instance we considered that there had been a procedural error affecting the jurisdiction of the Tribunal. On the other hand there are powers given to the Tribunal to make another complaint of its own motion in relation to matters arising before it. As it happened, by the time the objection was made all the evidence has been heard and Dr Lloyd had been able to give a full response. The Tribunal will reconvene to consider whether it should make the complaint in the same terms as Allegation 2 and dispose of it.

41 In this case the matters of professional conduct to which Allegations 1(b) and 1(c) relate were ventilated by the Committee, and Dr Lloyd given an opportunity to respond.

42 The Committee also indicated that it no longer pressed Allegation 2 [misconduct in his capacity as a Superintendent]. A similar submission was made in the context of Inquiry 2, and for the reasons given in that decision at paras [70]-[76] it is rejected: see Veterinary Surgeons Investigating Committee -v- Ronald George Lloyd (Inquiry 2: ‘Gypsy’ - Findings) [2003] NSWADT 96.

43 The Committee also submitted that Allegation 2 was defective in so far as it ‘duplicated’ matters already the subject of charges under Allegations 1(a) and 1(e). Allegation 2, like 1(a) (in part) and 1(e) dealt with the adequacy of Dr Lloyd’s record-keeping. It refers to the same conduct as is particularised in support of Allegation 1(e), and of which a part is one of the particulars in support of Allegation 1(a).

44 In our reasons in Inquiry 3 we dealt at length with a similar submission: Veterinary Surgeons Investigating Committee -v- Lloyd(Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285. There, too, the same particulars of conduct as to record-keeping were relied on in support of different charges.

45 In the present case Allegation 1(a) is a general charge putting in issue the professional adequacy of Dr Lloyd’s conduct over the entire time that the dog was under his care. This general course of conduct charge is to be contrasted with the more specific nature of Allegation 1(e) which focuses only on record-keeping procedures. As it happens, in Inquiry 3 Allegation 1(a) was also a general course of conduct charge; while Allegation 1(e) was also a specific record-keeping charge. Consequently with reiterate without amendment the following observations on the same argument made in Inquiry 3:

299 Allegation 1(e) focuses on critical omissions from the record.

300 It is conceivable that a course-of-conduct allegation might not be found proven; but an allegation related only to the critical omissions in a record might be found proven. While both may amount to misconduct, the former is clearly more serious than the latter. There is no lack of clarity or ambiguity, of the kind to which the principle against duplicity is directed, in the formulation of either Allegation 1(a) or 1(e).

301 The submissions confuse the distinction between duplication of some particulars as between different charges (which charges themselves go to different subjects); and the difficulty of meeting the one charge because it is affected by duplicity.’

46 Allegation 2 in the present case focuses on the record-keeping procedures that should be followed in an A Class Veterinary Hospital. (There was no equivalent of Allegation 2 in Inquiry 3.) The same considerations apply. This conduct is put in issue having regard to the special responsibilities that attach to a veterinary surgeon who is approved to run a veterinary hospital. Clearly misconduct by a surgeon who has supervisory responsibilities may be more culpable than misconduct by a surgeon who has no supervisory responsibilities. Allegation 1(e) deals with the responsibilities applicable to veterinary surgeons in general. Allegation 2 goes to higher tier responsibilities applicable to some veterinary surgeons. An adverse finding in relation to Allegation 1(e), would ordinarily, we consider, be less culpable than an adverse finding on the same facts, in relation to Allegation 2. We acknowledge that for the purpose of consideration of penalty the more culpable finding should be seen as embracing the less culpable finding.

The Applicable Law
(1) Misconduct in a professional respect: at common law

47 Section 26(1) of the Act provides that:

The Act contains no definition of the words “misconduct in a professional respect”.

48 At common law, the concept of “misconduct in a professional respect” embraces duties owed by a member of a profession to those that he or she serves and include wider duties owed to other members of the profession and the community in general.

49 As the Veterinary Surgeons Disciplinary Tribunal (constituted by the Deputy Chairman, His Honour Judge Wall DCJ, Professor C Bellinger and Dr W Howey) in Re Lloyd, unreported, 16 December 1994 at 4-5 outlined the common law position as it applied to veterinary surgeons in this way:

The leading case in relation to the formulation of the test as to whether the conduct in question is such a departure from proper professional standards of conduct as to be professional misconduct is the decision of the Court of Appeal in Qidwai v Brown (1984) 1 NSWLR 100. In that case the Court of Appeal re-affirmed the meaning of the concept of misconduct in a professional respect (the same formulation enacted in the Medical Practitioners Act 1938). The Court formulated the criteria of misconduct in a professional respect to be conduct ‘which, being sufficiently related to be the pursuit of the profession is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence.’

It is a well established principle of the general law that a registered veterinary surgeon has a duty to animal patients, to his profession and to the community at large and in particular to the owners of animals who place their animals in his care to practise his profession with competence and diligence. A veterinary surgeon's failure to care for and treat his animal patients with competence and diligence may amount to misconduct in a professional respect. Further, negligent conduct i.e. failing to take reasonable care to prevent injury or harm from foreseeable risk of injury or harm, on the part of the veterinary surgeon in the course of his professional practice may be misconduct n a professional respect if it is inexcusable and is such as is regarded with strong reprobation by his fellows of good repute and competence in the profession.'

(2) Deemed misconduct in a professional respect: extension of common law by Statute

50 The common law meaning of misconduct in a professional respect is supplemented by s 22 of the Act, which provides, as relevant to these notices of inquiry:

22. Misconduct in a professional respect

51 Section 23 provides:

23. Veterinary surgeons’ code of professional conduct

52 The Code of Professional Conduct is set out in Schedule 1 of the Veterinary Surgeons Regulation 1995 (the Regulation). The Regulation provides, cl 10(2) that for the purpose of s 22(c) of the Act, breaches of the following provisions of the professional conduct code are misconduct in a professional respect: rule 2, rule 3(1), rule 4, rule 5(1)-(5) and (9)-(12), rule 6 and rule 8. The Regulation also provides in cl 20 for the duties of a superintendent of a veterinary hospital.

53 The provisions of the Code of general or specific relevance to this case are set out below. A rule, breach of which gives rise to deemed misconduct in a professional respect, has following it the abbreviation ‘DMPR’.

Schedule 1---Veterinary surgeons' code of professional conduct

1. Basic principles

The basic principles of professional behaviour for a veterinary surgeon are:

5. Professional practice

54 Of the above, Rule 5(12) of the Code is specifically relied upon in the Notice of Inquiry: see allegation 1(c).

Duties of Superintendent of Veterinary Hospital

55 A superintendent of a veterinary hospital is responsible for the care, control and management of the hospital.

56 Clause 20 of the Regulation prescribing the duties of a superintendent of a veterinary hospital is relied upon, in particular cl 20(2)(a) which provides:

57 There are additional requirements in cl 24 as to the proper marking of x-ray films.

Burden of Proof

58 The burden of proving the complaint against Dr Lloyd rests upon the applicant, the Committee. The Tribunal must reach a comfortable level of satisfaction (Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-3) that the behaviour alleged was misconduct in a professional respect. As the Veterinary Surgeons Disciplinary Tribunal said in Re Lloyd, at p 5:

‘The standard of proof to be discharged by the nominal complainant in proof of the complaint is based on the civil standard, i.e. proof on the balance of probabilities, but qualified having regard to the seriousness and gravity of the facts as may be proved. The standard of proof requires more than a mere balancing of the scales. It requires the Tribunal to give the evidence a close and careful scrutiny; the standard requires precise and not inexact proofs of the allegations of misconduct and requires the Tribunal to come to a conclusion that it is comfortably satisfied that the conclusion is just and correct before proof of the complaint has been established.’

59 It will be seen in the account of the witnesses’ evidence which follows that there are significant differences as to issues of fact. These include: Dr Lloyd’s statements as to having mentioned certain matters in the course of the original consultation (for example testing for spinal nerve damage, offering of option of taking the dog back to Dr Wanner, the usual veterinarian) versus Mrs Girgenti’s denials of any such statements; Mrs Girgenti’s strong denials of any phone calls to Dr Lloyd after the dog was taken into care versus Dr Lloyd’s evidence that there were many calls; Dr Lloyd’s evidence that he released the dog after surgery on condition that it be taken back to its usual veterinarian, Dr Wanner, versus Mrs Girgenti’s denials.

60 It will be seen that on many of the disputed matters of fact we have not preferred the evidence of Dr Lloyd. We considered Dr Lloyd’s explanations and recollections not to be satisfactory on many points of significance; and some of his accounts of his conduct inherently improbable. We have made the findings of fact which are adverse to Dr Lloyd having regard to the standard of satisfaction required in relation to matters of gravity, as laid down in Briginshaw. We give further reasons in the course of the chronology.

Chronology of Events
Saturday 24 February 1996

61 A car hit the Girgenti family’s dog, Chisel, a female Rhodesian Ridgeback, near their home in Liverpool at approximately 12.30pm on Saturday 24 February 1996. According to the Girgentis, Chisel weighed approximately 39 kg.

62 The dog was in great distress, and appeared to the family to be seriously injured. They were anxious to get the dog to a veterinarian. They were worried about the time of day, as it was now after noon, the time when in their experience, local veterinary practices closed. The dog was taken first by Mrs Girgenti to the usual practice they used, the Liverpool Veterinary Hospital run by Dr Warren Davis and Dr Wanner. It had closed. So Mrs Girgenti and her son, Sam jnr, rushed to Dr Lloyd’s nearby Gill Avenue Veterinary Hospital. According to Dr Lloyd, they rapped on his closed door, and he let them in. It was, he said, also after-hours for him but he was still at work. He said that there was no nurse present.

63 The Girgentis had placed the dog on the back seat of their vehicle. Mrs Girgenti said in evidence that on the way to the surgery the dog looked stunned and was not moving at all. There was blood on her ear. Dr Lloyd carried the dog into the surgery. We accept Mrs Girgenti’s evidence that before lifting the dog on to the table he gave the dog an injection.

64 There was dispute as to whether the dog was trying to bite Dr Lloyd as it was being taken in. Mrs Girgenti acknowledged that the dog could be aggressive, and did in fact try to bite Dr Davis a few days later when he checked her. She also acknowledged that it had tried to bite the veterinarians at the RSPCA on arrival there a few days later. But on this occasion, Mrs Girgenti said the dog was not trying to bite. It was in a subdued state. Dr Lloyd on the other hand said it was trying to bite him, and was difficult to handle.

65 Handling of Dog. This matter is relevant to the first concern expressed by Sam Girgenti snr in the letter of complaint. Mr Girgenti snr complained over the way that Dr Lloyd handled the dog when placing it on the examination table. In his letter to the Committee dated 31 July 1996 Dr Lloyd said that ‘the dog was fractious and in pain’.

66 Mrs Girgenti and Sam jnr gave evidence. Sam jnr said Dr Lloyd stood the dog up with the result that its weight was borne by all four legs; and attempted to make it walk. Dr Lloyd said in his original reply to the Committee ‘It was held by the neck with my left hand and supported under abdomen with my right hand.’

67 According to Sam Girgenti jnr, the dog’s back leg doubled up under her. He was distressed as he believed the dog’s front and back left-side legs were broken. Mrs Girgenti said in her statement for the Tribunal that Dr Lloyd ‘lifted Chisel up with one hand grabbing the loose skin on her neck and the other underneath her belly.’ She said ‘I remember being shocked at how roughly he did this. As he lifted Chisel one part of her left back leg was not correct, the bottom part went the wrong way, swerved out to the side.’ She reports her son as being distraught and saying ‘Stop doing that. Stop doing that. Can’t you see she’s in pain.’ She said in evidence (ts 24) that she saw a bone start to protrude. She said it did not actually penetrate the skin but she could see the point of the bone through the skin.

68 Dr Lloyd was extensively cross-examined on the procedure that he followed. We are satisfied that Dr Lloyd did, as complained, handle the dog roughly especially when placing it on the examination table.

69 Mrs Girgenti said that the dog was not snapping at Dr Lloyd, as claimed by Dr Lloyd. She said that the dog was unconscious while lying on the table, and did not present any danger. We are satisfied from Mrs Girgenti’s account that the dog was stunned, and not reacting readily to external stimuli. We consider that Mrs Girgenti’s account is more probable given the trauma the dog had just suffered.

70 Initial Assessment. Dr Lloyd assessed the two legs as requiring surgery. In his original reply Dr Lloyd said that he fully examined the dog after putting the dog on the table. He administered a tranquilliser analgesic drug (Acetyl Promazine, 2.5mls of a 2 mg solution) along with intra-muscular long acting antibiotics. He said in cross-examination (ts 246) that the dog did not try to bite him in this period and after 2 minutes the tranquilliser began to take effect. He said in answer to the Tribunal (ts 348) that the method he used to examine the dog on the table was palpation and stethoscope.

71 Dr Lloyd said in his original reply that the ‘ears’ were lacerated and were stitched. (Mrs Girgenti said that only one was lacerated and we accept her evidence. Dr Lloyd revised his recollection in the Committee interview, agreeing that there was only one cut ear.) Dr Lloyd told the Committee that he prepared the lacerated ear using Iovone solution. He said he palpated both legs, and formed his view as to what was necessary on that basis, and by reference to his general observations. He said in evidence at hearing that he formed his view as to the extent and nature of the dog’s injuries by palpation and did not consider it necessary to use radiographs.

72 There was some debate as to the nature of the fracture to the femur (the hind leg). We are satisfied especially in light of a hand drawing by Dr Lloyd on the back of his record card that it was not a simple transverse fracture, but an unstable comminuted fracture. We find that it was an oblique mid shaft fracture.

73 In evidence in chief Dr Lloyd indicated as at 1996 that he had ‘infrequently’ seen two legs broken (he had been practising since 1973).

74 Front Leg. He placed a cast on the aligned fractured radius and ulna mid-shaft. He acknowledged at interview that he did not make any x-ray of the front leg before casting it. He said that he did a full cast not just a Robert Jones type support cast. He said to the Committee that he had placed a full cast because ‘the leg was flopping and causing a lot of pain.’ (Ex C19:26).

75 At hearing in evidence in chief (ts 208) Dr Lloyd said that he used a rongeur to prevent bilateral rotation to create more edges so that he could interlock the proximal and distal femur. This action was not referred to previously, especially in statements to the Committee. In re-examination he said this tool was one routinely used in these procedures; and that is why he had not mentioned it. The Tribunal does not accept this explanation. A rongeur is not normally required for a procedure of the kind described.

76 Hind Leg. He said that a cotton wool and elastoplast immobilisation bandage was then placed on the hind leg. Mrs Girgenti said that no bandage was placed on the hind leg while she was present. She only saw the cast applied to the fore leg.

77 The Committee queried Dr Lloyd as to the extent to which the bandage covered the dog’s body. Dr Lloyd said it was placed around the whole leg. He said that he spiked it right around the pelvis. He said that this procedure ‘stayed the dog’ and it ‘allowed me to move the dog without it being in too much pain.’ (Ex C19:30)

78 Medication. He said the dog was then placed on intravenous Hartmann’s drip, with 2cc of Finadyne and 3cc of Anphoprim, an antibiotic belonging, he said, to the sulphonamide type.

79 Description of Injury, and Scope of Discussion. In his original reply, Dr Lloyd said that he discussed euthanasia, casts, pins and plates with Mrs Girgenti at the original consultation. Mrs Girgenti has denied this. The Committee expressed incredulity at Dr Lloyd’s suggestion at interview that he was discussing euthanasia while proceeding to suture the dog’s lacerated ear (Ex C19:25).

80 Mrs Girgenti said that Dr Lloyd told her that the dog would need a pin for the hind leg. She said that Dr Lloyd had suggested that she could take the dog back to her own vet. She had asked him to ‘do what you can do.’ She said that she did not care what it costs, but asked him for an idea of cost. He quoted $500. She said ‘OK.’ He said that as the dog was in shock, he would not operate today but take her to his hospital and do it on Monday. At the Committee interview (Ex C19:23) Dr Lloyd said that on this day he was more concerned about doing ‘first aid therapy’ and sending the dog back to Dr Wanner.

81 Dr Lloyd said to the Tribunal in cross-examination that he described the injury to Mrs Girgenti as a ‘simple’ fracture of the femur (ts 253) [i.e. a break giving rise to two pieces], and that the dog would be able to support itself (ts 254).

82 Dr Lloyd’s original reply, we are satisfied, was designed to give an impression of a much more wide-ranging discussion of options with Mrs Girgenti than in fact occurred. We accept Mrs Girgenti’s account of the conversation. Specifically we are satisfied that only one option was discussed by Dr Lloyd with Mrs Girgenti in respect of the hind leg - pinning.

83 Hospitalisation. Dr Lloyd said the dog was then taken into care and put into a cage with an electrical heat pad.

84 He was queried as to why he had taken the animal into care at his C Class (as it was then) Gill Avenue Veterinary Hospital rather than moving it immediately to his A Class Rutledge Park Veterinary Hospital at Hoxton Park (usually referred to in the various Inquiries as as ‘Hoxton Park’, a convention which we will follow).

85 He said in answer to the Tribunal (ts 349) that at that time as Gill Avenue was a C class clinic an animal could be kept there in an emergency. He said (ts 354) that Hoxton Park was a fully equipped, 24 hour a day staffed hospital. He said that as he was living then at the Gill Avenue premises, he kept the dog there as wanted to avoid moving the animal around.

86 He was cross-examined (ts 356) on his understanding of his responsibilities, in particular on the issue of whether at that time he was in fact obliged to provide emergency care only at a hospital of the status possessed by Hoxton Park; and that he was not permitted to house animals at Gill Avenue (see cl 23 of the Regulation).

87 Financial Issues. Mrs Girgenti denied that she had chosen Dr Lloyd because he was the ‘cheapest vet in Liverpool’. We note that while Dr Lloyd said in his original reply to the Committee that the ‘owners boast of what large amounts of money had been previously spent on the dog’, in neither the interview with the Committee nor the statement does Dr Lloyd mention any indication that Mrs Girgenti had expressed concern about the cost. In cross-examination, nonetheless, it was suggested to Mrs Girgenti that cost was the reason she went to his surgery.

88 We accept Mrs Girgenti’s explanation that she and her family simply rushed to the nearest available vet known to them who was still open. We accept her evidence that money was not an issue in her choice of Dr Lloyd.

Sunday 25 February 1996

89 Dr Lloyd in his original reply said that the dog was checked at 6am. The IV fluids, he said, were replaced with repeat drugs, and rechecked at 8.30am. He said in answer to the Tribunal (ts 348) that he administered two and a half litres of Hartmann’s. He said that the dog urinated and defecated while hospitalised.

90 Mrs Girgenti said her next contact with Dr Lloyd after she left Chisel with him on the Saturday was when she rang mid-Monday to find out how the dog was.

91 Dr Lloyd also stated in his original reply and at hearing that Mrs Girgenti allegedly making numerous phone calls over the weekend also seeks to bolster an impression of a difficult client. He did not produce any corroborating evidence in relation to the calls said to have been made by Mrs Girgenti (for example telephone records). There was a direct conflict of evidence, with Mrs Girgenti denying that she made any call to Dr Lloyd until the afternoon after the surgery. We prefer the evidence of Mrs Girgenti.

92 We prefer Mrs Girgenti’s recollection to the recollection of Dr Lloyd on the question of what contact she made with him over the weekend.

26 February 1996

93 Dr Lloyd said that he left Gill Avenue at 6am and that it took him about half an hour to get to Hoxton Park.

94 Mode of Carriage to Hoxton Park. Dr Lloyd said in his original reply that he had carried the dog to Hoxton Park in the passenger footwell of his 1970 Dodge Charger, and then carried her to the operating theatre. Dr Lloyd was cross-examined closely on this event. He said that he had given the dog a pre-operative tranquilliser before transporting her. This was in reply to suggestions that the mode of transport was unsuited to a large dog with severe injuries. He rejected the desirability in the circumstances of using cages.

95 Dr Lloyd defended his use of the front passenger well of the Dodge Charger. He rejected the view that transportable cages were better. We do not accept the various reasons that Dr Lloyd gave for decrying the value of cages in a case such as this (ts 212-214). In cross-examination it emerged that Dr Lloyd did possess and regularly used small cages (for cats) but did not have a suitable cage for a big dog.

96 Radiographs. Mr Girgenti snr in his original letter of complaint queried whether any x-rays had been taken. Mr Girgenti also queried how Dr Lloyd managed to conduct the surgery without the use of x-rays. He noted that there was no charge in the account for x-rays. The particulars charge that Dr Lloyd failed to make a post-operative radiograph.

97 Dr Lloyd said that he did take radiograph images and that it was past 7am ‘easy’ (ts 265) when he took them. According to Dr Lloyd (statement to the Tribunal) radiographs were taken of the front and back leg prior to the operation. He said that the first plate contained two views of the front leg (a lateral view and an AP view), and the second plate one view of the back leg (a lateral view). After the operation a third plate was taken being a further lateral view of the back leg. His nurse, Emma Sterrett, gave evidence to the same effect, though expressing some doubt as to whether two views of the front leg were taken in the case of the first plate.

98 The radiographs are not available. Emma Sterrett’s evidence is that she ruined all three images. She said that this was the first time that she had done radiographs on her own. She said ‘[t]he only time I ever made a mistake developing x-rays was with the dog Chisel.’ She said, ‘This was the first time I ever developed x-rays on my own.’ She said she attributed the mistake due to having to work so early in the morning. It was about 6.30am, she said. This is much earlier than the time at which Dr Lloyd said the procedure took place.

99 We interpolate that the process for developing an image involves three steps after the x-ray is done. The plate is first placed in the developing fluid, then it is washed in a separate tank and then it is placed in the tank containing the fixing solution. To obtain a precise image it is necessary to leave the plate in the fixing solution for around ten minutes. It is common, we accept, for veterinarians about to commence surgery to remove the image from the fixing solution prior to it fully setting in order to obtain an immediate depiction of the site, and its features of significance for the practitioner.

100 On this occasion the evidence is that Dr Lloyd followed that procedure. Before the operation commenced he looked quickly at the two images then taken, and then handed them back to Ms Sterrett. She says that instead of returning them to the fixer, she returned them by mistake to the developing solution. This led to the images being ruined.

101 After the operation she says the same thing happened again in respect of the third print. Ms Sterrett was cross-examined closely on this evidence by Mr Burchett for the Committee, and a number of questions were directed to her by Dr McGilvray and Ms Dubow of the Tribunal.

102 The reason for the scepticism reflected in the intensity of the examination of Ms Sterrett on this matter is this. In order for Dr Lloyd to have viewed a third image (which is his and Ms Sterrett’s evidence) it would have been necessary for Ms Sterrett to have started by placing the plate in the developing tank. She should therefore have discovered when she placed the plate in the developing tank that there were two images in it. She should then have realised, even with the limited training that she had received to that time, that the first two prints were there by mistake, and taken some action. At least, this discovery should have reduced the likelihood that she would make the same mistake yet again, i.e. returning the third print to the tank. Her evidence nonetheless is that she returned the third print to the developing solution.

103 Dr McGilvray questioned Ms Sterrett as to the capacity of the tank to hold three hangers and prints. She said that this had not been a problem.

104 Ms Sterrett was also closely questioned on why she had not included a charge for the x-rays on the invoice given to the Girgentis when they called to pick up the dog that afternoon at Gill Avenue. She agreed that it was usual to include charges for such an item. Initially her answer was that she had not done so because she was embarrassed that the x-rays were ruined. Then later in further re-examination by Ms Green she said that she had not done so because this was a case for which Dr Lloyd had given a lump sum quote, and she prepared the invoice on that basis. She said she first told Dr Lloyd that the x-rays had been ruined after the Girgentis had left, and he was angry with her.

105 Observations. Dr Lloyd’s evidence is that he held the two pre-operative radiographs for a few seconds against the natural light coming in through the window. Dr Lloyd said that though he only saw the radiographs for a short time, the fractured radius and ulna of the front leg were sufficiently aligned in his opinion to allow for them to heal with a mobilisation plaster or plaster cast. As to the hind leg, he said in his original reply, that the fracture was ‘mid shaft with a chipped segment at the fracture site.’ He said that he did not see any bone fragments of concern on the radiographs other than the main fragment (ts 273).

106 Item (v) of the second paragraph of the particulars in support of Allegation 1(a) asserts that Dr Lloyd ‘failed to take a post operative radiograph’. We have considerable doubts as to whether any post-operative radiograph was taken. We regard it as improbable that a nurse, even one of Ms Sterrett’s limited experience, could have failed to observe that there were already two prints in the developing tank, and not to have realised that they were the pre-operative prints. One possible explanation is that she thought that the return step after the quick inspection was to the developing tank not to the fixing tank.

107 Though we have the doubts mentioned, we can not on the evidence be comfortably satisfied that we can find positively that no post-operative radiograph was taken. Accordingly this particular is not proven.

108 One View. In relation to the third image taken after the operation, Dr Lloyd said he saw that the pin appeared appropriately positioned in the distal cortex, and that he said to Emma ‘the pin is OK, put it back with the others’ (statement to Tribunal dated 28 July 1998).

109 In this regard, the Tribunal queried why, if Dr Lloyd did in fact do an x-ray, why did he only took one view of the hind leg (ts 349). He said it was because the dog was starting to lighten off the anaesthetic and that a lateral view was ‘all the information I needed to know.’ The weight of dog, he said, was also a factor.

110 Anaesthetic. He anaesthetised the dog with Pentothal, 5 per cent, 7 mls. He said that he determined the amount by observing the diminution of reflexes (ts 260). Dr Lloyd disputed the view of Dr Prowse, of the Committee (Ex C19:20) that the correct dose for a 40 kg dog was 17-18 ml.

111 We agree with Dr Lloyd to this extent. We do not consider that weight is the only consideration. It is necessary to take into account the condition of the animal, the effect of any pre-anaesthetic medications and the rate of administration. A dose of 7 ml may in certain circumstances have been sufficient. Dr Lloyd states that the dog started to wake up during the pre-operative radiograph phase. It would be open at this point to administer a top-up dose.

112 Surgical Procedure. In the case of the hind leg, the procedure performed by Dr Lloyd involved the insertion of an intramedullary pin, i.e. a pin which is located inside the bone tissue in the vicinity of the breaks, and is positioned in an essentially vertical direction. He said in his original letter that surgery commenced after skin-clipping up to the hip and down to the stifle. He was unable to say under cross-examination whether the clipping had extended to the area from which the pin ultimately protruded. We are satisfied that he did not clip this area.

113 He said that he undertook sterilisation using alcohol, ether, iodine and hook-up to oxygen, halothane gas and anaesthetic system. He said in his original letter ‘a routine retrograde pinning was carried out.’ He said ‘the removal of 1.5 x 2cm bone chip, which would have developed into a sequestrum if left, being the only deviation from the norm.’ He said ‘Crystalline penicillin was poured into the open wound and then closed using 1.0 chronic catgut and non-absorbable skin sutures.’

114 He said the femur was again radiographed; the radiograph was developed and viewed; the assistant was again requested to put the radiograph ‘back’. He said that the pin was cut just below the skin, and antibiotics in a Hartmann’s drip were administered.

115 In her statement for the Tribunal, Ms Sterrett gave an account of what she saw Dr Lloyd do. This included a description by her of having seen Dr Lloyd ‘put his hands right around two big bone pieces and pull them out of the wound.’ She said ‘I saw him pull out a fragment of bone.’

116 Dr Lloyd agreed at hearing that he did not explain to the Committee that he exteriorised the bone, but asserted under cross-examination (ts 287) that ‘I can’t imagine … that you could fix a fracture of the femur any other way.’ At the Committee interview there was considerable discussion of the steps that Dr Lloyd took to locate fragments. We consider that a veterinarian seeking to give a full account of the steps that he took to locate the fragments would have mentioned exteriorising the bone at that time. We are left in doubt as to what exactly Dr Lloyd did by way of exteriorising the bone to locate fragments.

117 Choice of Procedure. It was suggested to Dr Lloyd under cross- examination that he had chosen pinning over plating because it was cheaper. He contested various cost elements put to him in respect of equipment and time, as to the difference in cost as between plating and pinning. Dr Lloyd’s answers were, in our view, unsatisfactory. It was clear, we consider, that plating would have been a considerably more expensive procedure than pinning. We accept the inference of the questions that, having quoted $500, it would have been unlikely that Dr Lloyd would have given any real consideration to plating as a way to deal with the injury.

118 Clothing. Dr Lloyd said under cross-examination that he was wearing his ordinary clothes. He could not recall whether he wore a sterile gown and said he was not wearing gloves, nor a hat. Ms McMillen said that generally speaking Dr Lloyd would wear his ordinary clothes for operations and not wear a surgical gown.

260 Dr Lloyd was non-responsive to the questions from the Committee as to the extent of his experience with plating. He switched the discussion to the question of the low socio-economic position of many of his clients and their difficulty in affording expensive techniques (Ex C19:48).

261 We are not satisfied that Dr Lloyd had sufficient experience or skills to have undertaken the IMP procedure in the circumstances of this case. We are satisfied that he did not have any substantial recent experience of pinning. Moreover he compounded the difficulties that he faced by not using the right sized pin, due to not having the appropriate sized chuck when his surgery should have had that level of equipment. We are also comfortably satisfied that Dr Lloyd had little or no experience in plating. In these circumstances it is unlikely that he ever gave plating any close consideration as a procedure to be performed by him in relation to the injuries to Chisel’s hind leg.

262 Lack of Planning. Dr Lloyd’s failure to closely examine radiographs of the fracture and to give consideration to the range of fixation methods and discuss these alternatives with the client before the operation all indicate inadequate surgical planning.

263 Other Aspects of Operation. As to what occurred during the operation Dr Lawrie was critical of the absence of respiratory monitoring (either by equipment or by way of a trained nurse). He noted that no procedure for checking vital signs had been followed. He was also critical of the absence of pre-operative pain relief either with an opiate or a strong anti-inflammatory drug.

264 Antiobiotics. Dr Lawrie queried the use of two antibiotics. He would have seen as more appropriate to use a single broad spectrum antibiotic such as Clavulox or Reflexin. He queried the change of antibiotics when the dog went home, and said that a change in the antibiotic prescribed should have been recorded on the card. Nor was there any record of the pain relief to be used at home.

265 Present Committee’s View. At the resumed hearing, after all evidence had been received, Ms Linkenbagh informed the Tribunal that the present Committee was of the view that contemporary standards would have permitted Dr Lloyd’s choice of procedure in the circumstances of this case. The submission is rejected. The expert evidence considered at hearing overwhelmingly accords with our findings.

266 Immediate Discharge. The last paragraph in the particulars in support of Allegation 1(a) raise the issue of whether Dr Lloyd discharged the dog prematurely after such a major operation.

267 Dr Lawrie said that the dog should have stayed in hospital for at least 2 or 3 days. It should have been confined and not moved.

268 He said that his recommendation would be to have the dog ‘cage confined’ in hospital for a period of 2 weeks after surgery to minimise the risk of implant failure. If it is discharged into the care of the owners he said that locking it in a small room such as a toilet or a laundry should be mandatory. As to obtaining pain relief in a home situation, he said he would recommend a combined non-steroidal anti-inflammatory, Codral Forte, with Codeine (in 1996) for a period of 5-7 days.

269 Dr Lloyd acknowledged that it was not normal practice after an operation of the seriousness of the one in issue to discharge the animal into the care of the client immediately (Ex C19:38-39). As noted earlier, Dr Lloyd said it was because he ‘believed that the animal was going straight back to Dr Wanner’ that he ‘allowed the animal to be discharged,’ (40), an explanation we have rejected.

270 The Committee expressed its concern that a large dog with only two functional legs should be discharged into the care of the owners so quickly. He said that now his practice was to get a release form if a dog is taken away ahead of the time that is considered appropriate by him.

271 Mode of Carriage of Dog. Dr Zuber was critical of Dr Lloyd’s lack of adequate transport and caging in circumstances where he regularly moved between two sites and moved animals from one to the other for the purpose of treatment. He said that a transportable cage was more appropriate. He did not regard it acceptable for a traumatised dog to be moved in the front passenger well of the vehicle. He was also critical of the failure to keep the dog in care and under supervision for at least 48 hours after the operation. He considered that the immediate discharge fell well short of adequate standards of professional care.

272 Overall Summary. As to general failures on the part of Dr Lloyd to fall below the standards of veterinary science, Dr Lawrie listed the following: (a) his failure to discuss the following options with owners - plating both legs, referral to a specialist, (b) his failure to x-ray the dog’s foreleg before and after putting the cast on it, (c) his use of the plaster cast on the front leg in a dog of this size given that another limb was also fractured; (d) his use of an intramedullary pin in the rear leg (instead of plating it) given that another limb was also fractured; (e) his failure to take both pre and post operative radiographs of the rear leg; (f) his prescribing only Panadol and then only one a day for pain relief after discharge from hospital; (g) his inadequate records; and (h) its premature discharge from hospital.

273 Dr Zuber said he regarded the following aspects of Dr Lloyd’s management as unsatisfactory: brief clinical notes, his choice of techniques of fracture fixation, his transport of the dog, his instructions to the owners, his failure to produce satisfactory radiographs and his premature discharge of the dog from veterinary care. He said the overall combination of these events ‘leads me to the conclusion that Dr Lloyd, in treating Mrs Girgenti’s dog, Chisel, failed to carry out professional procedures in accordance with standards of veterinary science current in 1996.’

274 Dr Driver’s Opinions. Dr Driver, an experienced general practitioner of Macquarie Animal Hospital, Campbelltown, provided a statement for the Tribunal (Ex C27 dated 6 February 1999) in support of Dr Lloyd’s practices. He conditioned his report on the observation that he had accepted Dr Lloyd’s account of events where there were differences between Dr Lloyd and other witnesses. We have rejected Dr Lloyd’s account of many matters.

275 We disagree with most of the opinions of Dr Driver. We reject his view that it would have been dangerous and inappropriate for Dr Lloyd to pursue a clinical examination at the time of reception in circumstances where Dr Lloyd was presented with a ‘distressed’, ‘aggressive’ dog. The dog was traumatised following an accident. There are standard techniques for managing animals on presentation in these circumstances. There is no credible evidence that the dog was aggressive other than in reaction to being placed in a standing position some time after arrival.

276 Dr Driver does not deal in his report in any detail with the treatment given by Dr Lloyd on the day the dog was taken to him. He simply speaks of him having ‘initiated acceptable treatment.’ He had no criticisms of any aspects of Dr Lloyd’s procedures on the first day, on the second day when it was in care, and the operation done on the Monday morning.

277 As to the early discharge he treated this as an instance of an owner ‘taking a dog home early.’ This was not the case.

278 He is critical later in his report of the level of expertise of Dr Lawrie, Dr Davis and Dr Rumsey. He says for example that Dr Davis should on the Wednesday have referred the dog back to Dr Lloyd. As to Dr Lawrie and Dr Rumsey he notes that they are not specialist orthopaedic surgeons, and refers to the recency of Dr Rumsey’s graduation as at the time he did the operation. We regard these criticisms as having no substance.

279 Under vigorous questioning he did concede that

· in a case of the kind that confronted Dr Lloyd, he would have adopted the plating technique.

280 He rejected the proposition that objective standards could be applied to the conduct of a veterinarian. He said there was no therapeutic reason for ensuring that animals at risk were specially transported.

281 On the other hand, he acknowledged without contention, that different treatment options, relevant costs, possible referral to specialists should be canvassed with owners at an early stage when dealing with a serious injury.

282 We found the entirety of Dr Driver’s report unsatisfactory, lacking the degree of rigour and systematic examination of the practices in issue to be expected in a report from an experienced veterinary surgeon.

283 Dr W Barrett, a general practitioner, Ryde Veterinary Clinic, gave an opinion to Dr Lloyd’s solicitor as to the adequacy of the modes of transport used by Dr Lloyd (Ex C26). The solicitor’s letter did not give a complete view of the matters upon which advice was sought. The reply consisted of a short, hand written note. No curriculum vitae for Dr Barrett was provided. He considered Dr Lloyd’s mode of transport was acceptable. We found his written opinion unpersuasive and of no assistance. He was called to give evidence. The gaps in the information supplied by Dr Lloyd’s solicitor were put to him in cross-examination (ts 359). He agreed that veterinarians commonly transport animals in cages. He conceded that an appropriately sized cage was to be preferred to transportation in the footwell of a Dodge Charger.

284 Adequacy of Records. Dr Lloyd conceded in his interview by the Committee (Ex C19) that there was a ‘deficit’ on the card and that there was ‘insufficient detail’ on the card. He referred to two veterinarians he had consulted (one being Dr Driver) to improve his practices. He did not specify what changes had occurred, but later referred to now having a computer.

285 He did not concede that the ‘deficit’ amounted to a breach of professional standards, and sought to argue as we interpret his remarks to the Committee (and before us at hearing) that there were variable practices among veterinarians, and the standard reflected in his record card was not out of line with some of the practices followed.

286 Generally, Dr Lloyd contended that the standard of the card was reflective of the situation of a busy, one-person practice, where the prime concern was to look after the dog. He said he would be ‘copious in the notes in future records’ (Ex C19:12). Dr Lloyd contended that sufficient information existed on the card to permit another vet to take over conduct of the case.

287 Dr Lawrie (Ex C11) was critical of the clinical record. He said that there were the following omissions as compared to what would be regarded as acceptable: no assessment of chest, whether the bladder was intact, temperature, no regard of dog’s defecation and urination history, eating history. He said it was hard to tell whether pre-operative or post-operative radiographs had been done. He said there was just a copy that said pin femur remove fragment. He said there was no information as to information given to owners.

288 As to the quote, he said normally a fixed quote with one option would not be given, but a more flexible range of options canvassed subject to information revealed by radiographs. Dr Lloyd’s record-keeping was criticised as not acceptable by Dr Zuber. He did not regard them as adequate to be taken over by a second veterinarian. He referred to similar omissions to those mentioned by Dr Lawrie.

289 Dr Lloyd was cross-examined as to these matters (ts 293f), including as to the omission of a temperature, failure to record weight, failure to record palpation of abdomen on record on third day, failure to record thoracic oscillation and pain relief administered including dosages. He was also cross-examined as to the inadequacy of detail as to many of the events that were recorded. Dr Lloyd’s answers were unsatisfactory, and non-responsive in that he sought to divert attention to the record-keeping practices of the RSPCA (not in issue) and suggest that his were superior.

ALLEGATIONS

290 We make the following general observations as to appropriate practice in a case of this kind in 1996. A competent, registered veterinarian in New South Wales in 1996 would have been expected by his or her peers to make a decision on the method of fixation of a femoral fracture of a dog in the condition of Chisel (a large dog with two broken legs on the same side) based on careful examination and measurement of diagnostic radiographs. He or she would have been expected to take at least two views for the purpose of establishing the longitudinal and rotational alignment and stability. The veterinarian would then have been expected to discuss with the client the costs and risks entailed, with the options identified to help the client make an informed choice about the repair of the fracture bone. Then the veterinarian would have been expected to carry out the chosen method with the correct equipment; or refer the patient to a veterinarian who could. The veterinarian would have been expected to take two post-operative views.

291 Allegation 1(a): This is the principal allegation and alleges that Dr Lloyd failed to carry out professional procedures in accordance with then current standards. It refers in particular to his reception procedures, his operation on the hind leg, the return of the animal after the operation in the footwell of his Dodge Charger and the appropriateness of discharging the animal to the care of the owners when he did. We have canvassed at length the expert and other evidence on these matters.

292 Findings as to Particulars: Paragraph 1 of the Particulars refers to Dr Lloyd’s decision to stand up the dog on arrival to examine it. We are satisfied that all aspects of the Paragraph are established.

293 Paragraph 2 of the Particulars alleges that Dr Lloyd failed to adhere to the then current standards of veterinary science in several respects. We are satisfied that the following specific matters were established: (i) [poorly reduced fragments]; (ii) [inadequate stabilisation]; (iii) [overriding and consequential mal-alignment]; (iv) [because of inadequate equipment and experience failing to consult]; and (vi) [inadequate working up, with four sub-points, failure to weigh to establish correct quantities, failure to undertake a thorough examination, failures in that regard to certain vital signs, failure to record a description of the fracture].

294 Particular (v) [failure to take a post operative radiograph] was not established. There was one taken, when then and presently current standards would have required two. We should indicate in that regard that it does not follow that we accept that a post operative radiograph was in fact taken. That is not the question raised by the Particular. Our view is simply that the Committee did not prove its case on this point.

295 Paragraph 3 of the Particulars deals with the mode of transportation from Hoxton Park to Gill Avenue. We are satisfied that in the circumstances of this case this was an inappropriate mode of transport, and the particulars are established, most importantly that the mode of transport increased ‘the risk of further damage to the leg and of the pin which you had inserted moving, penetrating the skin and causing infection.’

296 Paragraph 4 of the Particulars deals with the alleged premature discharge of the dog to home care. We are satisfied that these particulars are established.

297 Finding as to Allegation 1(a). We are satisfied that Dr Lloyd failed to carry out professional procedures in accordance with the then current standards of veterinary science, as was required by cl 5(2) of the Code, reflecting the common law position. Breach of cl 5(2) constitutes misconduct in a professional respect (Regulation cl 10(2)).

298 Allegation 1(b): This allegation alleges Dr Lloyd was guilty of misconduct in a professional respect in not referring the owner to an appropriately qualified surgeon for a second opinion.

299 Findings as to Particulars: The Particulars refer to the nature of the injury to the dog’s hind leg, the absence of necessary equipment, and Dr Lloyd’s lack of necessary experience and skills. These circumstances were clearly established.

300 The Particulars then assert that in those circumstances Dr Lloyd should have consulted his client and advised her of the need for the operation to be carried out by a specialist. We are satisfied that a competent veterinarian would have taken that step. Even if Dr Lloyd had had the necessary skills and experience, the absence of the necessary equipment would in the circumstances of this case should itself have caused him to suggest referral.

301 Present Committee’s Views: Ms Linkenbagh, in final written submissions for the present Committee at the resumed hearing, contended that on the balance of the evidence, particularly as to the references to the cost of treatment for the dog, it is unlikely that Mrs Girgenti would have accepted the referral. This submission adopts a view expressed by Dr Lloyd to the Committee and during the hearing.

302 The submission is not relevant to the allegation that was made. The allegation focuses on the failure of Dr Lloyd to raise the issue of referral with his client, and, in the circumstances, make a referral.

303 It remains for the owner to decide whether to act on the advice and any referral. It remains for the owner to decide whether to incur the costs of the practitioner to whom the owner has been referred.

304 It is not acceptable, especially in cases of the seriousness of this one, for veterinarians to form their own private opinions as to what a client will decide to do, and then base their judgment on that assumption. Dr Lloyd sought to suggest that clients in the Liverpool area had a particular socio-economic profile, and that he practised on that assumption.

305 This kind of approach in dealing with clients and the needs of their animals is unacceptable; and repugnant to the duty of a practitioner to deal with each case in an individual way and in a way which affords owners the right to make choices about what they can afford.

306 Finding as to Allegation 1(b): Clause 5(4) of the Code provides that ‘[a] veterinary surgeon should refer a client to an appropriately qualified veterinary surgeon whenever a second opinion or a referral is desirable.’ This was clearly such a case. Breach of cl 5(4) constitutes misconduct in a professional misconduct (Regulation, cl 10(2)). The allegation is established.

307 Allegation 1(c): This allegation alleges that Dr Lloyd failed on the Monday when the operation took place to ensure that his staff carried out their duties effectively and in compliance with relevant legislation.

308 Finding as to Particulars: The Particulars refer to the taking of the pre-operative radiograph of each of the broken legs. They refer to the use of a part-time nurse and the errors that she made, leading to them being damaged or destroyed. The Particulars then assert that they were not available to Dr Lloyd nor to any subsequent veterinarian nor could they be retained as required by cl 5(12) of the Code.

309 On the evidence, we are not satisfied that Dr Lloyd had any system of training and induction in place for new staff in relation to radiographs. He simply left staff to learn on the job from an experienced nurse.

310 Ms Sterrett, according to her evidence, did not report her errors until it was too late to do anything about them. Dr Lloyd did not notice the errors. This was due to him not consulting the radiographs other than at the time of the initial inspection of them, at which point they were not fully fixed. Ms Sterrett had only been with the practice for a short time, she was quite young, and this was the first occasion she had been called on to work on her own. In these circumstances, Dr Lloyd was obligated to ensure that she was sufficiently experienced and competent to perform the radiograph procedures competently. We are satisfied that she had not received sufficient training at the time to be confident that she would develop radiographs properly.

311 He failed in his duty to ensure that the radiographs were retained and linked in some appropriate way to the record. The radiographs were not as a consequence of these events available to subsequent veterinarians.

312 The Particulars are established.

313 Finding as to Allegation 1(c): This allegation is clearly established. There was a clear breach of cl 5(9) on this occasion, and such a breach constitutes misconduct in a professional respect (Regulation, cl 10(2)).

314 Allegation 1(e): This allegation alleges that Dr Lloyd failed to keep a detailed record of the treatment or consultation.

315 Findings in relation to Particulars: The Particulars refer to Dr Lloyd’s record card, and then enumerate a series of omissions. The omissions refer to items of a standard nature which might ordinarily be expected to be found on a card relating to two broken legs including a complex fracture. The omissions also refer to matters seen as being significant which Dr Lloyd says that he canvassed with the owners in the course of his original consultation and at the point of discharge to their care.

316 There were 15 alleged omissions. Dr Lloyd admitted that 9 had occurred, but claimed that 6 matters were covered, contrary to the particulars. These were: (i) a record of the options which he claims to have provided ‘Mr Girgenti’ at the original consultation; (ii) anaesthetics administered; (iii) any post operative x-rays; (iv) a description of the fracture; (v) consideration of pain relief; and (vi) the times and dates of the events described above.

317 Our conclusions as to these 6 items follow.

318 As to (i), Dr Lloyd disputed that he did not record the options which he claimed to have provided to Mr Girgenti when the dog was first presented to him. He disagreed on the basis that Mr Girgenti was not present during the initial consultation. We accept that it was Mrs Girgenti not Mr Girgenti that was present at the time. It is clear that the card does not contain a reference to different treatment options. The essence of the particular is clearly established.

319 As to (ii), the Tribunal accepts that the record contains references to anaesthetics being administered however, on 24 and 26 February 1996. There is an issue as to whether the references were sufficiently clear and precise. This issue is not raised by the terms of the particular. This particular is not made out in its terms.

320 As to (iii), post-operative x-rays, the record contains the reference ‘x-rays front & back left leg’ on 26 February 1996. It is followed by the words ‘pin femur removed fragment’. The reference to x-rays prior to the reference to the procedure followed suggests, we consider, that this refers to pre-operative x-rays. Dr Lloyd’s position is that the reference is to all x-rays taken before and after the operation. In our view a veterinarian reading this record would conclude that x-rays were taken pre-operatively. It was Dr Lloyd’s duty to make unambiguous entries. This particular is established.

321 As to (iv), ‘description of the fracture’, the record states ‘fractured left hand radius & ulna’. This does not satisfy the need for a ‘description’ of sufficient clarity to be informative to another veterinarian reading the record. It does not record the type of fracture or its position along the bones, or give sufficient details to gauge the appropriateness of the measures taken to deal with the presentation. This particular is established.

322 As to (v), ‘any consideration of pain relief’, the record does contain reference to pain relief on 24 February (analgesic) and 26 February (Finadyne). The record however does not indicate the dose amount or frequency. While the record as it relates to this matter is less than satisfactory, the particulars simply assert that there was no ‘consideration of pain relief’ reflected in the record. It can be seen that there was some. This particular is in its terms not established.

323 As to (vi), as to the times and dates of the events described, it follows that this particular is established to the extent of the omissions.

324 Findings as to Particulars: Consequently of the 15 omissions alleged against Dr Lloyd we find all but two are established.

325 Finding as to Allegation 1(e): We are satisfied that the record was extremely inadequate. Dr Lloyd’s practices did not accord with then current standards. Clause 5 (12) deals with the obligations lying on a veterinary surgeon in this regard. It was breached, and constitutes misconduct in a professional respect (Regulation, cl 10(2)).

326 Allegation 2: This allegation also refers to the absence of adequate records. This allegation refers to Dr Lloyd’s status as the superintendent of a veterinary hospital and repeats the particulars given in support of Allegation 1(e).

327 Findings as to Particulars: The particulars relied upon are the same as those given in support of Allegation 1(e). We have covered the material relevant to this allegation in our examination of allegation 1(e). We are satisfied that the particulars are made out to the extent indicated earlier.

328 Treatment Sheets: While no particular goes to this matter, and we are not required to make a finding, we are also concerned at Dr Lloyd’s claim that there were fuller treatment sheets in use at that time, but they had been destroyed when he sold and vacated Hoxton Park some time in 1997. A responsible veterinarian, knowing in particular that he had been the subject of complaint, should have kept any additional records that might have assisted the Committee in its work.

329 Findings as to Allegation 2: The importance of this Allegation, as we have noted previously, is that it focuses on the special responsibilities Dr Lloyd had as the superintendent of a veterinary hospital.

330 Not only did he breach the standards applicable to all veterinarians, but also the special standards applicable to veterinarians approved to supervise animal hospitals to ensure that detailed and comprehensive records are maintained. In the usual hospital environment there will be a number of veterinarians. It is crucial to the maintenance of good standards in hospitals that records are kept well. All superintendents must be seen to adhere to this standard, even if the hospital is one that only the supervisor works in.

331 This allegation is established.

DETERMINATION

1. The respondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b), 1(c), 1(e) and 2.

2. After determination of the other three Inquiries, this Inquiry is to be reconvened for determination of orders pursuant to section 32.

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Citations

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 1: ‘Chisel' - Findings) [2003] NSWADT 95

Most Recent Citation

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 3: ‘Remus' - Findings: Allegation 2) [2003] NSWADT 136

Cases Citing This Decision

6

Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: ‘Remus' Allegation 2) (GD) [2003] NSWADTAP 49 [2003] NSWADTAP 49

Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 1: 'Chisel' Findings) (GD) [2003] NSWADTAP 47

Lloyd v Veterinary Surgeons Investigating Committee (Inquiry 3: 'Remus' Allegations 1(a) to (e)) (GD) [2003] NSWADTAP [2003] NSWADTAP 45

Cases Cited

10

Statutory Material Cited

4

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 2: ‘Gypsy' - Findings) [2003] NSWADT 96

Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285

Veterinary Surgeons Investigating Committee v Lloyd (Inquiry 4: ‘Total Eclipse' - Findings) [2002] NSWADT 284

CITATION:	Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 1: 'Chisel' - Findings) [2003] NSWADT 95
DIVISION:	General Division
PARTIES:	APPLICANT Veterinary Sugeons Investigating Committee RESPONDENT Ronald George Lloyd
FILE NUMBER:	40004 of 1998
HEARING DATES:	15, 16,17, 18, 19, 23, 24/03/1999, 3, 22/10/2002, 29/11/2002
SUBMISSIONS CLOSED:	11/29/2002
DATE OF DECISION:	05/09/2003
BEFORE:	O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member
APPLICATION:	Veterinary surgeon - misconduct in a professional respect - Veterinary Surgeons Act - veterinary surgeon - misconduct in a professional respect
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Administrative Decisions Tribunal Act 1997 Veterinary Surgeons Act 1986 Veterinary Surgeons Regulation 1995
CASES CITED:	Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 2: 'Gypsy' - Findings) [2003] NSWADT 96 Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 3: 'Remus' - Findings: Allegations 1 (a) to (e)) [2002] NSWADT 285 Veterinary Surgeons Investigating Committee -v- Lloyd (Inquiry 4: 'Total Eclipse' - Findings) [2002] NSWADT 284 Veterinary Surgeons Investigating Committee v Lloyd [2000] NSWADT 98 Lloyd v Veterinary Surgeons Investigating Committee [2001] NSWADTAP 26 Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Veterinary Surgeons Investigating Committee v Lloyd [2002] NSWADT 233 Re Lloyd, unreported, 16 December 1994 Briginshaw v Briginshaw (1938) 60 CLR 336
REPRESENTATION:	APPLICANT S Burchett, barrister (to July 2002); M Linkenbagh, secretary to Committee (since August 2002) RESPONDENT B Green, solicitor
ORDERS:	1. The rerspondent is guilty of misconduct in a professional respect in relation to Allegations 1(a), 1(b), 1(c), 1(e) and 2; 2. After determination of the other three Inquiries, this Inquiry is to be reconvened for determination of orders pursuant to section 32.