H v Director of Proceedings
[2018] NZHC 2175
•23 August 2018
ORDER PROHIBITING PUBLICATION OF NAMES OF APPELLANT AND THE PATIENT, AND ANY IDENTIFYING PARTICULARS, PROHIBITED BY PERMANENT SUPPRESSION ORDER UNDER S 95 OF THE HEALTH PRACTITIONER COMPETENCE ASSURANCE ACT 2003, AS ORDERED BY THE HEALTH PRACTIONERS DISCIPLINARY TRIBUNAL IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-454-16
[2018] NZHC 2175
IN THE MATTER of an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003 BETWEEN
H
Appellant
AND
THE DIRECTOR OF PROCEEDINGS
Respondent
Hearing: 20 August 2018 Counsel:
A H Waalkens QC and H C Stuart for Appellant K M Eckersley and J V Herschell for Respondent
Judgment:
23 August 2018
JUDGMENT OF CHURCHMAN J
Introduction
[1] The appellant (H) is a medical practitioner with some 40 years’ experience as a general practitioner (GP). The Health Practitioners Disciplinary Tribunal (the Tribunal) found her guilty of professional misconduct, being grossly negligent conduct, which brought or was likely to bring discredit to the profession (the Tribunal Decision).1
1 Director of Proceedings v Dr H 946/Med 17/378D [Tribunal Decision] at [70].
H v THE DIRECTOR OF PROCEEDINGS [2018] NZHC 2175 [23 August 2018]
[2] While H accepted that she made an error/acted in error, she submitted that the Tribunal overstated the seriousness of her errors and erred in concluding that a threshold of professional misconduct was reached in this case so as to warrant an adverse disciplinary finding.
[3] H appealed to this Court against the Tribunal’s decision that she acted in a way that amounts to professional misconduct under ss 101(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (the Act).
[4] The stated grounds of appeal are that the Tribunal erred in fact and law in finding that her conduct warranted a finding of professional misconduct. In particular, the Tribunal erred in that it:
(1)failed to adequately consider:
(a)the appellant’s explanation for her failure to refer the patient for endoscopy/gastroscopy, including her:
(i)belief, based on the patient’s symptoms, that he was suffering from gastritis; and her
(ii)understanding that the threshold for such referrals was high;
(b)the efforts and steps taken by the appellant to diagnose the patient’s condition;
(c)the prevalence of diagnostic errors in medical practice;
(d)the threshold to be met before an adverse disciplinary finding ought be made;
(e)that the onus was on the respondent at all times;
(2)wrongly assessed the appellant’s conduct in respect of the patient’s fourth consultation as “grossly negligent”;
(3)placed excessive weight on the evidence of the expert general practitioner called on behalf of the respondent;
(4)overstated the seriousness of the breach of standards in light of the surrounding circumstances; and
(5)on other grounds to be referred to in written submissions which will be filed and served in advance of the hearing of this appeal.
[5]H therefore sought by way of remedy:
(a)an order quashing the Tribunal’s finding of professional misconduct; and
(b)that the respondent pays the costs of and incidental to this appeal to the appellant.
[6]The Director of Proceedings opposed the appeal.
Approach on appeal
[7] This appeal was brought pursuant to s 106(2)(a) of the Act. Any such appeal is by way of rehearing and the Court must not review any part of a decision or order not appealed against.2
[8] The Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar made it clear that the appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal.3 However, the weight given to the original decision is a matter of judgment for the appellate Court:
[5] The appeal court may or may not find the reasoning of the tribunal persuasive on its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case. (citations omitted)
[9]The Supreme Court in Austin, Nichols went on to say:
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such
2 Health Practitioners Competence Assurance Act 2003, s 109(2) and (4).
3 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [4].
circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion. (citations omitted)
[10] In relation to professional misconduct proceedings, counsel for H, Mr Waalkens, relied on the High Court decision in Cole v Professional Conduct Committee in which it was said:4
[30] Thus, when it comes to a general appeal of the present kind, an appellate court must come to its own view of the merits. The weight an appellate court gives to the original decision is a matter of judgment. Deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If an appellate court considers that the original decision is wrong, it must act on that opinion.
[11] However, the Court also went on to note that “that is not to say that an appellate court is to pay no attention to the decision of the lower court or tribunal” and it must bear in mind the advantages that the Tribunal appealed from enjoys such as its specialist technical expertise and the ability it has had to assess witnesses and their credibility first hand.5
[12] This was further confirmed in A v A Professional Conduct Committee in which the High Court stated that the Tribunal is “an expert body and deference is appropriate in terms of its judgments on matters such as the appropriateness of actions and treatments, and the seriousness of any breach”.6 The Court in that case noted that, while it is not an expert in such matters, this should not be overstated as there will be evidence on the point and, by virtue of making this a general appeal, the legislation confers that appellate task on the Court.7
[13] Mr Waalkens also relied on the recent Court of Appeal decision in Seidenfaden v Director of Proceedings in which the Court found that it is for the appellate Court to come to its own opinion even where the appeal involves an assessment of fact and degree.8
4 Cole v Professional Conduct Committee [2017] NZHC 1178.
5 At [31]-[32].
6 A v A Professional Conduct Committee [2018] NZHC 1623 at [5].
7 At [5].
8 Seidenfaden v Director of Proceedings [2017] NZCA 267, [2017] NZAR 985 at [11].
[14] Ms Eckersley, for the respondent, noted that in Seidenfaden it was found appropriate that the High Court reach its own findings in preference to the Tribunal’s, given there were “material defects and inconsistencies in the Tribunal’s reasoning process” and that the Tribunal had failed “to make adequate and reconcilable findings of fact”.9 Ms Eckersley submitted that, as there are no such failings in the Tribunal’s decision in this case, this is a case where hesitation and deference is appropriate, given that H’s decision-making was reviewed by a panel with specialist expertise, including three medical practitioners, and that panel had the benefit of independent expert evidence.
[15] It is my view that, while a certain degree of deference should be accorded the Tribunal’s decision, taking into account its relevant expertise and that it was able to assess for itself the credibility of witnesses that appeared before it, I must nevertheless arrive at my own assessment of the merits of the case.
Relevant law
[16] The principal purpose of the Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.10 It seeks to attain this principal purpose by providing, among other things, for “a consistent accountability regime for all health professions”.11 This is achieved by the disciplinary scheme set out in part 4 of the Act.
[17] Mr Waalkens emphasised that the Act provided for separate competence and disciplinary regimes and suggested that the facts of this case were more consistent with the competence regime. However, he also properly conceded that issues of competence could, in appropriate cases, form the basis of a disciplinary proceeding.
[18] The grounds on which the Tribunal may make a disciplinary finding against a practitioner are set out in s 100(1) of the Act and include the following:
9 At [16] and [20].
10 Health Practitioners Competence Assurance Act 2003, s 3.
11 Section 3(2)(a).
100 Grounds on which health practitioner may be disciplined
(1)The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
…
[19] A two-step test for professional misconduct has developed for determining whether a practitioner’s conduct merits a disciplinary finding, which has been applied in respect of both s 100(1)(a) and (b) of the Act12 and approved by the Court of Appeal.13 It was summarised in McKenzie v Medical Practitioners Disciplinary Tribunal as:14
In summary, the test for whether a disciplinary finding is merited is a two- stage test based on first, an objective assessment of whether the practitioner departed from acceptable professional standards and secondly, whether the departure was significant enough to attract sanction for the purposes of protecting the public.
[20] The threshold serves to prevent minor departures from accepted professional standards amounting to “professional misconduct”, recognising that minor human errors will inevitably occur as part of professional practice and not warrant a disciplinary response.15
[21] Determining the appropriate level of threshold has not been without controversy. In J v Director of Proceedings, Baragwanath J commented that
12 Martin v Director of Proceedings [2010] NZAR 333 (HC) at [15]-[16]; O v Professional Conduct Committee [2011] NZAR 565 (HC) at [41].
13 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 at [80].
14 McKenzie v Medical Practitioners Disciplinary Tribunal [2004] NZAR 47 (HC) at [71].
15 Martin v Director of Proceedings, above n 12, at [23].
professional misconduct expresses a “high threshold of breach of duty”.16 This contrasts quite markedly with Martin v Director of Proceedings, discussed in detail below, in which it was said the threshold should not be regarded as “unduly high”.17
[22] In Martin, the High Court determined that assessing whether the threshold has been met involves a “straightforward assessment of whether the departure from acceptable standards has been significant enough to warrant sanction”,18 recognising that “the assessment is one of degree”.19 Courtney J then stated:
[32] This approach does not identify particular forms of conduct that might constitute either professional misconduct or conduct unbecoming but merely poses the question whether the departure from acceptable standards was significant enough to warrant sanction. While the criteria of “significant enough to warrant sanction” connotes a notable departure from acceptable standards, it does not carry any implication as to the degree of seriousness. Given the wide range of conduct that might attract sanction, from relatively low-level misconduct to misconduct of the most reprehensible kind, the threshold should not be regarded as unduly high. It is certainly a threshold to be reached with care, having regard to both the purpose of the HPCAA and the implications for the practitioner, but the measure of seriousness beyond the mere fact that the conduct warrants sanction is a matter to be reflected in penalty. The degree of seriousness does not form part of the Tribunal’s enquiry at the second stage of the two step process.
[33] In summary, when considering a charge under s 100(1) the Tribunal must, first, consider whether the practitioner has departed from the acceptable standard of conduct of a professional in the circumstances. What that standard is will be determined by reference to the conduct of other competent and responsible practitioners and the Tribunal’s own assessment of what is appropriate conduct, bearing in mind the purpose of the Act. If the Tribunal is satisfied that the practitioner has departed from the standard expected it must then consider whether the departure is significant enough to warrant sanction. This decision does not, however, reflect the degree of the seriousness with which the conduct is to be viewed; that will be reflected in the penalty imposed.
(emphasis added)
[23] Mr Waalkens submitted that Courtney J’s finding that the threshold was not “unduly high” and that the seriousness of the omissions or conduct should not be reflected in whether or not an adverse disciplinary finding is made, has been rejected by the Courts. He argued that Moore J, in his recent decision of Johns v Director of
16 J v Director of Proceedings HC Auckland CIV-2006-404-2188, 17 October 2006 at [35].
17 Martin v Director of Proceedings, above n 12, at [32].
18 At [31], citing F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA).
19 At [30].
Proceedings, rejected the suggestion in Martin that considerations of gravity and seriousness do not form part of the threshold inquiry, saying:20
… Ms Wills’ submission that considerations of gravity and seriousness do not form part of the threshold inquiry cannot be correct. Those considerations form part of the threshold inquiry but only to the extent required to ascertain whether the breach is of sufficient importance to merit recording a finding of professional misconduct against the practitioner. If the threshold is met, then a more rigorous examination of gravity and seriousness is required in the assessment of the appropriate penalty.
[24] However, the first phrase from that paragraph has been omitted and it needs to be viewed in the context of the surrounding paragraphs:
[83] As Courtney J observed, given the wider range of conduct which might attract sanction in this jurisdiction the threshold should not set unduly high. It is a threshold to be reached with care having regard to the purposes of the Act and the implications for the practitioner. Consistent with Ms Wills’ submission the measure of seriousness is to be reflected in penalty. Furthermore, as Courtney J noted, the task for the Tribunal must first be to consider whether the practitioner has departed from the acceptable standard required of a professional in the circumstances. What that standard is will be determined by reference to the conduct of other competent and responsible practitioners and the Tribunal’s own assessment of what is appropriate conduct assessed against the purposes of the Act. If the Tribunal is satisfied that the practitioner has departed from the standard expected, it must then consider whether the departure is significant enough to warrant sanction.
[84] In my view this must be the correct approach. As Simon France J observed in Vatsyayann v Professional Conduct Committee in finding professional misconduct, something more than a breach of acceptable standards is required because otherwise there would be no need for the second step. It is also plain that the breach must be of sufficient significance to merit recording a finding of professional misconduct against the practitioner. I note, however, that not infrequently the resolution of whether the Martin formulation or the Pillai test is preferred will be unlikely to affect the outcome.
[85] So, while I agree that Martin is the correct approach, Ms Wills’ submission that considerations of gravity and seriousness do not form part of the threshold inquiry cannot be correct. Those considerations form part of the threshold inquiry but only to the extent required to ascertain whether the breach is of sufficient importance to merit recording a finding of professional misconduct against the practitioner. If the threshold is met, then a more rigorous examination of gravity and seriousness is required in the assessment of the appropriate penalty.
[86] These principles need to be viewed in the context of the purposes of the Act and the inevitable adverse consequences borne by the practitioner in the event of a finding of professional misconduct, the latter of which includes
20 Johns v Director of Proceedings [2017] NZHC 2843 at [85].
but is not limited to the inevitable stigma, if not opprobrium, of the practitioner’s professional peers.
[25] Notwithstanding Mr Waalkens’ submissions, it is my view that the correct approach to threshold remains that as set out in Martin, namely whether the departure from acceptable standards has been significant enough to warrant sanction, as this more accurately reflects the legislature’s intentions in enacting the Act and, in particular, s 100.
H’s failure to refer
[26] In November and December 2012, K (the patient), consulted H about giving up smoking and making lifestyle changes to reduce his weight and cholesterol. In late 2013, the patient began experiencing dysphagia (trouble swallowing). He also reported a sore throat, chest and stomach pain, and unintentional weight loss.
[27] On 23 December 2013, the patient had an appointment with H in which he reported these symptoms to her. She formulated a working diagnosis of gastritis (inflammation of the stomach). Treatment and investigations were undertaken by H on this occasion and at three subsequent appointments. She did not, however, assess the difficulty in swallowing, which was reported by the patient at all four consultations, as being a red flag issue warranting referral to a specialist or for an endoscopy. It was not until the patient saw another GP on 19 September 2014 that he was immediately referred for a gastroscopy (a form of endoscopy) and diagnosed with oesophageal cancer in October 2014.
[28]The Director of Proceedings laid a charge of professional misconduct against
H. Particular 1 of the charge concerned her failure to refer K for an endoscopy and/or to a specialist. Particular 2 of the charge alleged that H failed to communicate adequately with K to clarify K’s symptoms.
[29] The Tribunal found that Particular 1 of the charge was established as professional misconduct, warranting disciplinary sanction. The Tribunal found Particular 2 of the charge not established and H had not failed to communicate as charged. H was censured and ordered to pay 30 per cent costs amounting to $21,636.
[30] Mr Waalkens submitted that there were a range of factors which influenced H’s failure to recognise the need for referral to the DHB, extending right up until the last appointment. These included local practice in respect of referrals, the rarity of oesophageal cancer, the prevalence of diagnostic errors, and her clinical impression of the patient.
Local practice
[31] H gave evidence of the local custom that GPs would undertake a certain degree of investigation before a referral for gastroscopy or specialist follow up would be made. A letter from the local DHB was produced confirming such a direction. Although the letter was dated 25 November 2016, nearly three years after the events in question, H claimed that it reflected her knowledge of what was understood to be the expectation of the DHB at the time, saying:
We had to provide sufficient information on our referral letters or the referrals would simply be sent back to us without explanation, or alternatively, the patients would not be prioritised appropriately. We were also repeatedly being told that Palmerston North Hospital had insufficient capacity to process the number of referrals it was receiving which we were told was roughly 200 per week for gastroscopy. This culminated in a letter being sent out to primary care providers in November 2016, which I refer to. Although this came after the events in question, it reflects what I understood to be the expectation of the DHB at the time.
[32] Mr Waalkens, in his written synopsis, submitted that, while Dr Young, the expert called for the respondent, agreed this could be an explanation for why she did not refer the patient, the Tribunal made no reference to this evidence at all. In his oral submissions, he acknowledged that the Tribunal had, in fact referred to this evidence. This concession was appropriate as this evidence is traversed at [18] and [52] of the Tribunal’s decision.
[33] Ms Eckersley submitted that the letter produced by H was consistent with the clinical guidelines which she ought to have followed. It did not exclude but rather encompassed the red flags. Based on the DHB letter, the patient would have been accepted immediately for referral. Ms Eckersley also submitted that the Tribunal noted in its decision that H was mindful at the time that gastroscopy referrals placed pressure on the hospital and so she proceeded on the basis outlined in her evidence.
She submitted that GPs are gatekeepers to accessing special services in the public sector and it is their role to advocate for their patients. It was H’s responsibility to refer her patient and advocate for his entry into the public health system.
[34] It is clear that the evidence with regards to local practice was considered by the Tribunal. It is also clear that the DHB’s letter of 25 November 2016, requiring a “work up” of patients prior to gastroscopy requests, only applies to patients under the age of 50 years and patients without any “alarm symptoms”. H’s evidence was that the contents of the letter of 25 November 2016 accorded with her understanding of what the DHB’s policy regarding referrals for gastroscopy was some three years previously. If that is so, there is no reason arising from the DHB policy, as understood by H, that she should not have immediately referred the patient for a gastroscopy.
[35] The presence of the red flag symptom of dysphagia, and the patient’s age, took this case out of the realm of ordinary and necessitated that the patient receive immediate attention in the form of a gastroscopy (or similar examination such as a barium swallow) so as to determine what was behind the dysphagia symptom, given the possibility it might be caused by a more serious condition than gastritis.
Rarity
[36] Mr Waalkens submitted that another factor was the rarity of oesophageal cancer, arguing that this rarity impacted on H’s failure to undertake referral for a gastroscopy at the time. He noted that Dr Young, in his evidence, accepted both that the rarity of oesophageal cancer “can well explain how H may have missed this” and that hindsight bias, when reviewing a case such as this in the knowledge that the patient had oesophageal cancer, can occur. Dr Young also accepted the well- recognised principle that, even with competent professionals, “Murphy’s law” shows that, over a career, professional people do experience one case in which, for some reason, everything goes wrong. Mr Waalkens further submitted that the Tribunal failed to consider any of this evidence and these concessions from Dr Young, and also omitted to adequately consider other matters of important evidence.
[37] Ms Eckersley, however, submitted that the rarity of oesophageal cancer does not provide an excuse for not referring a patient who has significant symptoms that
warrant urgent investigation. The need for an endoscopy is diagnostic, to determine the cause of the symptoms, and the guidelines required urgent referral of those symptoms, irrespective of the cause.
[38] In response to Mr Waalkens’ submissions concerning the questioning of Dr Young regarding hindsight bias, Ms Eckersley submitted that, when questioned about the potential for outcome bias, in light of his knowledge that the patient was later diagnosed with oesophageal cancer, Dr Young confirmed that he did not believe his opinion have been influenced by outcome bias and that he tried to look at the evidence in the same way it was presented to H at each consultation.
[39] There is some force to Mr Waalkens’ submissions around the rarity of oesophageal cancer. I can imagine that a GP is trained that when they hear hooves, they should look for horses, not zebras. As dyspepsia is a relatively common condition, it is perhaps understandable that H might have chosen to focus on that symptom and arrive at a working diagnosis of gastritis. However, this symptom in conjunction with dysphagia, and the age of the patient, should have raised the possibility that she was not dealing with an everyday run-of-the-mill case, but possibly something rarer. This indicates that she should have contemplated a referral at the initial consultation, and certainly by the fourth consultation given that the patient consistently complained of dysphagia at each of the four consultations.
Prevalence of diagnostic errors
[40] Mr Waalkens submitted that another significant mitigating factor in this case was the fact that diagnostic errors are extremely common. At the Tribunal hearing, a 2014 article from the esteemed publication, the British Medical Journal, entitled “The frequency of diagnostic errors in outpatient care” was produced.21 Having undertaken a comprehensive review of three large-scale observation studies in the United States, the authors of this article concluded that one in 20 outpatient cases were misdiagnosed, of which around half were estimated to have the potential to lead to severe harm.22
21 Hardeep Singh, Ashley Meyer and Eric Thomas “The frequency of diagnostic errors in outpatient care” (2014) 23 BMJ Qual Saf 727.
22 At 729 and 730.
[41] Mr Waalkens submitted that the prevalence of diagnostic errors is allied to the point that having made a differential or initial diagnosis can well explain how a practitioner may become “blinkered”, something that Dr Young accepted was possible.23 He further noted that, in his evidence, Dr Young also accepted that competent and good doctors make diagnostic errors. However, Ms Eckersley pointed out that this was not Dr Young’s full response to those propositions, and he said that he would find it hard to accept that in this case because the patient presented to H four times with “some pretty hard clinical signs and symptoms presented”. Mr Waalkens, though, submitted that the Tribunal’s failure to analyse this evidence, other than briefly acknowledging that “errors will be made by doctors”, was inadequate.24
[42] Ms Eckersley submitted that there was nothing in the figures provided in the study to indicate what percentage of patients were unfortunate enough to have their condition “misdiagnosed” on four separate occasions, and noted that Dr Young stated that H had opportunities to correct herself a number of times. While H may have “formulated a working diagnosis of gastritis”, and the patient’s dyspepsia could have indicated gastritis, the Tribunal accepted Dr Young’s advice that this diagnosis did not explain the other red flag symptoms in his clinical presentation, including his dysphagia and his unintended weight loss.25
[43] Ms Eckersley submitted that the symptom that ought to have been the main focus of H’s assessment and investigations was the dysphagia. As Dr Young explained, this was the number one symptom to be explained by all the others, not the other way around, and this symptom, in isolation of anything else, warranted an urgent referral for endoscopy or to a specialist.
[44] Dr Young’s evidence was that it is a basic clinical competency for GPs to know that difficulty swallowing is dysphagia and that it is the single most significant symptom with respect to the oesophagus. Further, that it is a red flag symptom that requires urgent investigation because the reason for food persistently not going down easily into the stomach is always clinically significant. He advised that with dysphagia
23 Transcript of Tribunal hearing at 53.
24 Tribunal Decision at [71].
25 At [16] and [39].
there is a very high chance of organic disease present causing that problem and GPs need to get on with referral for endoscopy because of the risk of oesophageal cancer and the fast degradation or survival rates between diagnosis and management. H’s working diagnosis did not explain the presence and persistence of this symptom.
[45] Ms Eckersley submitted that this was not a simple case of diagnostic error. The repetitive nature of the same failures elevated it from a case of that nature. While the Tribunal did acknowledge that “both the profession and the public understand that errors will be made by doctors”, it was its “clear view” that by the fourth consultation there was no room for equivocation.26
[46] I accept Ms Eckersley’s submissions that this was not just a case of a competent and good doctor making a simple diagnostic error. H appears to have completely disregarded what was a troubling symptom, forming a working diagnosis that did not take this symptom into account. She continued to overlook this symptom, electing to undertake tests which were unlikely to point to a cause for the dysphagia. The fact that oesophageal cancer is relatively rare does not excuse her failing to take this symptom into account when arriving at her working diagnosis of gastritis.
Clinical impression
[47] Mr Waalkens submitted that it is the clinical picture as apparent to H that is all important and the Tribunal completely failed to put itself into H’s shoes when assessing her conduct and management. He focussed on the following factors in explaining H’s failure to refer the patient: his weight, his taking of medication, vomiting, overall improvement, and the battery of testing she conducted and ordered.
[48] Ms Eckersley countered that argument by saying that her clinical impression of the patient’s condition was evident to the Tribunal and to their expert, Dr Young, by reference to her clinical notes, her earlier statements to the Health and Disability Commissioner explaining her clinical impressions, her briefs of evidence and her oral testimony.
26 At [72].
[49] In response to the possibility that Dr Young may have been disadvantaged by not being present during the consultations, an environment which might explain how H formed her clinical impressions, Dr Young expressed the opinion that being present would not have conveyed any further advantage in terms of the management of this case. He said that, in his view, H’s clinical notes recorded a very clear clinical picture of the patient’s red flag symptoms.
(A)The patient’s weight
[50] The Tribunal identified the patient’s weight as being an area of factual dispute or inconsistency between H and the patient, stating that it “was not able to determine whether at various consultations the patient’s weight was taken, or not”.27
[51] H, though, remained certain that she had, in fact, taken the patient’s weight as she had recorded a BMI in his records, albeit the weight itself was not recorded in the patient notes. She also gave evidence that she understood from her discussion with the patient (at the last consultation) that he was putting on weight. Although the Tribunal considered it was unlikely the patient told her this, Mr Waalkens submitted that she clearly considered this was so, even noting in the notes “has put on some weight”.28 Mr Waalkens submitted that while the Tribunal might say this was an incorrect observation, the Tribunal fundamentally overlooks two points:
(a)clearly this was the impression given to H at the time; and
(b)she found this reassuring.
[52] As H explained in her evidence, earlier reports of weight loss by the patient (at previous consultations) were not of concern given her understanding that he had made lifestyle changes to intentionally reduce his weight and cholesterol. She interpreted the weight loss as a positive, healthy consequence of the lifestyle changes the patient had made.
27 Tribunal Decision at [31] and [34(a)].
28 At [34(d)].
[53] The patient, however, presented evidence that he was concerned about his weight loss at every consultation. While H has stated that she weighed the patient at the second consultation, Ms Eckersley noted that this was inconsistent with an earlier statement she made to the Health and Disability Commissioner in which she said, “He presented in February 2014… I did not weigh him again.” Ms Eckersley submitted that, while the Tribunal was not able to resolve this factual inconsistency, it rightly concluded that it was not critical to determining the charge when viewed against the other red flag symptoms present at that consultation.29
[54] H accepted in her evidence that at the third consultation the patient had lost 6 kg since the first consultation and that this was worrying and a significant symptomology. She gave evidence, though, that at the fourth consultation, nine days later, the patient told her he had put on weight, something the patient disputes. She accepted she did not weigh the patient at this consultation and ought not to have been reassured by any statement of this type without having done so.
[55] The Tribunal concluded it was “unlikely” on the evidence that the patient told H he had put on weight, pointing to the fact that both before and after this consultation he consistently lost weight, and that this consultation came only nine days after the previous consultation at which a 6 kg weight loss had been recorded.
[56] While Mr Waalkens argued that, irrespective of the Tribunal’s findings, these were H’s clinical impressions and she felt reassured by them, Ms Eckersley noted that she has confirmed that she ought not to have been reassured at the first or fourth consultations without further investigations. She has also accepted Dr Young’s evidence that losing weight without trying is abnormal pathology as it can indicate a disease process, like cancer, is present in the body. He said that a GP ought to act on this symptom as it is a red flag that requires investigation.
[57] It is my view that, although the patient had been to see her previously about making lifestyle changes, including trying to lose weight, and that she had taken his weight loss in 2013/14 as a positive sign, the consultation regarding the patient trying to lose weight was a year previous. In 2013/14, what the patient reported was that he
29 At [34(a)].
had lost this weight without trying. It would seem to me highly unlikely that a person who is moderately overweight, as he was, would lose 6 kgs without some degree of effort in the absence of any underlying factor.
[58] H’s notes for the consultation of 29 April 2014 include an entry “wt from 93 to 78 today”. It was a matter of contention whether at the next (and final) consultation with H, nine days later, the patient had told H that he had gained some weight since the 29 April visit. Her notes of 8 May 2014 contain the entry “has put on some weight”. H said that this is what the patient told her. She acknowledged this was not verified by her by weighing the patient and also acknowledged she should have done this. The patient denied telling her this.
[59] Mr Waalkens pressed upon me the fact that, when the patient saw another doctor over four months later on 19 September 2014, the other doctor’s notes contained an entry “Hx: concerned re weight 92 kg to 80 kg.” He said that this was consistent with the patient having actually gained weight and supported H’s claim that this was what he told her on 8 May 2014. I do not accept that submission. All that the observation of 19 September 2014 confirms is that between 29 April 2014 and 19 September 2014, a period of four months and three weeks, the patient’s weight changed by 2 kgs. It seems highly improbable that all, or even a significant part, of that gain occurred in the nine days between 29 April and 8 May 2014.
[60] The patient’s weight loss, in conjunction with the dysphagia, should have indicated to H that something other than gastritis was possible, warranting an endoscopy or referral to a specialist, rather than just continuing to see if the medication would resolve the symptoms. In the absence of H having actually weighed the patient on 8 May 2014, there was no reliable basis for her having concluded that the patient’s weight loss was no longer an issue.
(B)Whether the patient was taking his medication regularly
[61] There were also evidential inconsistencies regarding whether the patient was taking medication regularly, with the Tribunal concluding it was more likely than not
that the patient was taking the medication “reasonably regularly”.30 Mr Waalkens, challenged the availability of the finding saying that this overlooks that the important point is not whether the patient was regularly taking the medication but rather what was the clinical picture or impression H received.
[62] At the last appointment on 8 May 2014, H recorded “gastric pain less since he has been on omeprazole uses PRN”, this being shorthand for “as required”. She also recorded “advised to take omeprazole and metamide together”. Mr Waalkens submitted that this was in harmony with her evidence that she understood the patient was not in fact taking the medications regularly and it was unlikely she would have made this record at the time of the appointment had the patient been taking the medication as she had instructed at the outset. Having interpreted that the patient was not properly or regularly using his medication, Mr Waalkens submitted that it was entirely understandable that she would have maintained the view that his symptoms might still resolve.
[63] Mr Waalkens was also critical of the Tribunal drawing any inference from the fact that H’s notes of 23 December 2013 show that, on that day, she prescribed 90 omeprazole tablets for the patient, and on 30 April 2014 (some four months later), she issued a further prescription for another 90 omeprazole tablets. The Tribunal had inferred that this meant that the patient must have been taking the omeprazole reasonably regularly if he had used up 90 tablets in four months. Mr Waalkens said that there was no evidence as to why H issued the further prescription on 30 April, therefore it could not be inferred that it was because the patient had run out.
[64] I accept that submission. However, it does not particularly assist H’s case. Whether or not the patient was taking the omeprazole regularly was relevant to her claim that the reason she did not refer the patient for a gastroscopy after any of the four consultations was because of her understanding that the DHB policy required a “work up” (i.e. course of omeprazole) before it would accept a referral. However, as set out above, the DHB policy, as understood by H, clearly did not require such a
30 At [31] and [34(b)].
“work up” where the patient was over the age of 50 or had any of the other red flags or alarm factors that this patient had.
(C)Vomiting
[65] The Tribunal also recognised there were inconsistencies as to whether the patient had advised H that he was vomiting up food, concluding this had not been proved.31 H submitted this would also have been part of the clinical picture available to H.
(D)Overall improvement
[66] H also gave evidence that she had the impression at the time that the patient’s condition was improving, saying this gave her encouragement that she was “on the right track”. Mr Waalkens noted that Dr Young did not disagree this may have been the clinical picture or impression she interpreted, although (with the benefit of hindsight) he had a different impression from reading the clinical records.
(E)Battery of testing
[67] H had also noted at the third appointment that the results of the testing undertaken might precipitate a referral for gastroscopy. At that appointment, where the weight loss issue properly materialised, she weighed the patient, made further enquiries about his symptoms, physically examined him and ordered a battery of testing, including a carcinoembryonic antigen (CEA) test which could indicate the presence of cancer. Mr Waalkens submitted this showed she had clearly turned her mind to the possibility that the patient was suffering from a form of cancer. He submitted that H was falsely reassured by the results of all these tests as the only one that returned a slightly abnormal reading was the CEA test. The CEA level was slightly elevated; 6.3 when the normal range is 0-4. As H explained in evidence, she felt that the elevation was not of concern as she understood that the result had to be
31 At [31(c)] and [34(c)].
greater than 10 to indicate cancer. A definition of the CEA test produced in evidence confirmed: “Benign disease does not usually cause a CEA increase over 10 ng/ml.”32
[68] The Tribunal, however, regarded the CEA marker test as “an elevated result”, listing it as one of the reasons why they concluded H to have been “grossly negligent” at the fourth consultation.33
[69] Mr Waalkens submitted that this was another example of where the Tribunal had been clearly influenced with the benefit of hindsight. H was, he argued, trying to do her best for her patient, undertaking a myriad of tests and examinations to understand the cause of his symptoms. Her efforts to assist this patient, he argued, sets her case apart from other cases referred to the Tribunal where practitioners had failed to even try to take proper steps to address their patient’s symptoms. Although these cases were drawn to the Tribunal’s attention, Mr Waalkens submitted that it had no regard to these other cases when determining whether the threshold had been met in her case.
[70] Ms Eckersley submitted that the Tribunal did consider the steps H took and determined that some were not appropriate. For example, a blood test for CEA is not usually used as a screening test for cancer as it is not specific enough and is usually used to follow a cancer’s progress once it has been diagnosed. In any case, the CEA test result was elevated which could indicate the possibility of cancer and having ordered the test, Dr Young advised she should have followed it up with further investigation.
[71] Ms Eckersley noted that H also ordered a chest x-ray when there was no clinical rationale for choosing a chest x-ray over an endoscopy as an investigation priority. While it may have been appropriate if ordered in conjunction with an endoscopy, as it would show if any cancer had spread to the patient’s lungs, it was insufficient as a stand-alone investigation as it did not rule out the specific pathologies for cancer which needed to be investigated.
32 “Tumor marker, CEA” <MedicineNet.com>.
33 Tribunal Decision at [70(e)].
[72] Dr Young’s evidence was that the battery of different tests showed confused thinking and that H was ignorant of the clear and appropriate pathway indicated by the red flag symptoms. While accepting that it may have been possible that H was blinkered by her diagnosis of gastritis, Dr Young highlighted that it was not clear to him what explanation she was looking for with respect to the tests she subsequently ordered as they did not “seem to fit the exclusion or the proof of that diagnosis”.
[73] Mr Waalkens submitted that this indicated H did not have a closed mind and that, in undertaking a battery of testing, she was considering the possibility of cancer and a referral for a gastroscopy at the third and fourth consultations. Ms Eckersley, however, submitted that it was an aggravating feature that, despite considering the possibility of cancer and a referral, she still did not take that clear and urgent course of action. In Dr Young’s opinion, it was inexplicable that the referral for a gastroscopy was not carried through when she had all the evidence to suggest it was required and clinical guidelines required it.
[74] Ms Eckersley noted that H’s decision to prescribe the patient omeprazole was contrary to clinical guidelines. Dr Young’s evidence made it clear that the medication, while likely to improve dyspepsia, would not have had the same effect on the dysphagia. He was not, however, surprised that the patient felt better at the second consultation as, even with a diagnosis of cancer, a patient may get inflammation of the gullet and the reduction of acid would help with that symptom. Further, the patient did not experience an overall improvement in his symptoms. His dysphagia became progressively worse and, by the fourth consultation, he was still experiencing dyspepsia, he had lost 6 kgs, and had developed a new symptom of feeling tired all the time. Even had he been feeling better, this should not have provided H with reassurance as he was still having trouble swallowing and was still losing weight, so any improvement in the dyspepsia did not rule out the urgent need for endoscopy or referral.
[75] While H does appear to have ordered a battery of tests, the fact remains that none of those tests appear to have been directed at addressing the patient’s dysphagia. Given its significance as a symptom, even if H was blinkered by her initial diagnosis of gastritis, it would have been a simple matter to have considered a test with this
particular symptom in mind. It appears she did undertake tests that were not indicated, such as the CEA test. Having undertaken these tests and not arrived at a definitive diagnosis, it would seem to me that the time would have arrived to make the referral.
Ministry of Health guidelines
[76] Mr Waalkens also submitted that the Tribunal placed undue weight on the MOH (BPAC) guidelines on suspected cancer, given that these are guidelines and not mandatory.34 While H gave evidence that she was not familiar with these guidelines and the PCC’s expert agreed there were hundreds of such guidelines issued, providing a clear explanation of how she might be unaware of one in particular, the Tribunal made no reference to this explanation.
[77] Ms Eckersley submitted that guidelines are a reflection of the standards expected of the profession and, as identified in B v MCNZ and Collie v Nursing Council of New Zealand, the best guide is standards applied by competent, ethical and responsible practitioners.35 Dr Young advised that GPs should know about the guidelines for dyspepsia because it is one of the commonest issues they deal with in general practice, which is why the guidelines have been pushed quite hard in primary care in every DHB and PHO level, so that it is well managed.
[78] While it may be true that the Ministry of Health publishes a large number of guidelines and a practitioner cannot be expected to be familiar with them all, if Dr Young is correct, and the guidelines merely reflect the standards expected of the profession, it seems reasonable that the Tribunal might have placed weight on them in their decision. I do not think the Tribunal can be faulted for having done so.
[79] Mr Waalkens referred to the findings of the Tribunal at [70]. He submitted that the finding that there had been “sufficient time for the omeprazole to be assessed” was flawed because H reasonably had formed the view that the patient had not been taking the omeprazole regularly and therefore she had not conducted enough of a “work up” to meet the DHB policy for referral for an endoscopy. As explained above, irrespective
34 At [43] and [67]-[68].
35 B v Medical Council of New Zealand HC Auckland, HC11/96, 8 July 1996 at [15]; Collie v Nursing Council of New Zealand [2001] NZAR 74 (HC) at [21].
of whether the omeprazole had been taken regularly, the patient met the DHB’s policy for referral. There was no basis for H delaying the referral on the grounds that the patient did not meet the DHB guidelines.
[80] Mr Waalkens also challenged the reference by the Tribunal in [70(c)] to “The patient had reporting [sic] losing weight consistently without trying since December 2013”. However, even if this factor is disregarded, [70] refers to four other facts which, by the fourth consultation, the Tribunal says meant that gross negligence had been established as a result of a failure to refer the patient for endoscopy or a specialist. These are:
(a)the patient was aged 57 when the risk of gastric cancer increases;
(b)the patient did not have any prior history of difficulty swallowing and chest pain and by May 2014, his symptoms had persisted for some five months;
(c)at the third consultation in April 2014, the patient reported feeling tired all the time; and
(d)on 30 April, the tumour marker test had returned an elevated result.
[81] I am prepared to accept that the tumour marker test result was equivocal and not something that should, of itself, have automatically resulted in H referring to a specialist or for an endoscopy. However, the other three factors are in a different category.
[82] H did not dispute that she knew the patient’s age and that, in April 2014, he had told her he felt tired all the time. Neither was there any dispute that these are factors that might indicate oesophageal cancer.
[83] Mr Waalkens took me to the passages in the evidence where H claimed not to have understood that difficulty swallowing (dysphagia) was a “red flag” and indeed not to have understood that dysphagia was the same thing as difficulty swallowing.36
[84] Dr Young’s evidence was that GPs are well aware that dysphagia is a “red flag” in a patient reporting dyspepsia and that the BPAC guidelines confirm that the presence of dysphagia requires urgent specialist or endoscopy referral.
[85] He said that a fifth-year medical student would fail a clinical competency exam for not knowing what dysphagia was, or not knowing that an urgent referral was required in the circumstances of a patient who presents with dyspepsia, in conjunction with dysphagia or unexplained weight loss or dysphagia in isolation. I accept that evidence.
Was H’s conduct sufficiently serious to meet the disciplinary threshold?
[86] H accepts that her conduct was a departure from accepted professional standards. The issue that was before the Tribunal was whether the second limb of the two-step test, often referred to as the “disciplinary threshold”, had been met.
[87] Mr Waalkens submitted that it was wrong to characterise H’s conduct as “grossly negligent” and that, if her conduct was truly in that category, it was odd and inconsistent that no penalty beyond censure was imposed. The Tribunal imposed a censure on H and also ordered her to pay costs of $21,636. These are significant penalties. I do not accept the submission that there is anything “odd” or inconsistent about the Tribunal making a finding of professional misconduct and then imposing an outcome of this nature. The nature of the penalty is likely to have reflected the various mitigating factors urged upon the Tribunal, including H’s prior good record and the steps that she had subsequently taken to ensure an error of this nature did not occur again.
[88] Mr Waalkens argued that this was not a case where an adverse disciplinary finding was required to meet the purposes of the Act, citing Gendall J in Cole v PCC:
36 NOE, GBD V3, pp 504-505.
“It is clear that a finding of professional misconduct is a significant matter indeed. It should be reserved for only the most serious misconduct.”37
[89] While accepting that H breached professional standards, Mr Waalkens argued that the disciplinary threshold was not met. In terms of discipline, H gave evidence of significant changes that she had made to her practice, including education and training to avoid, ever, a repeat of this matter, an annual audit, conferences and research on this type of cancer, and case discussion with colleagues including peer review meeting. Mr Waalkens submitted that the public interest/purpose of discipline had thus been met.
[90] Ms Eckersley submitted that, when viewed objectively and judged in accordance with the ordinary skill of a practitioner carrying out the subject task, and without taking account of the particular idiosyncrasies or weaknesses of the subject practitioner, H’s failure to refer her patient over four consultations and despite the persistence of red flag symptoms, was undeniably serious and merited the sanction of the Tribunal.38
[91] Mr Waalkens submitted that the Tribunal made it clear that of the four consultations it was only the fourth consultation which in its own right warranted an adverse disciplinary finding and that it was unreasonable in its determination that at the fourth consultation it was “grossly negligent” for the practitioner not to have referred the patient for endoscopy or to a specialist.39 Finding that the actions of H in the first three consultations cumulatively did not amount to professional misconduct40, the Tribunal said:41
While this course of action was misguided, it did not display any deliberate disregard for the care of the patient. It was negligent but not sufficiently significant enough to warrant disciplinary action until the fourth consultation.
[92] Mr Waalkens submitted that this was an acknowledgement that, in respect of the first three consultations, she was making every effort and doing her best for the
37 Cole v Professional Conduct Committee, above n 4, at [45].
38 Director of Proceedings v MPDT [2002] DCR 964 (August 2002 at [50] and [92].
39 Tribunal Decision at [70].
40 At [65].
41 At [69].
patient and, whilst her management was negligent, it was not of such seriousness to warrant discipline. He submitted that this is what the Tribunal ought to have said with respect to all four consultations.
[93] It is argued that the Tribunal’s findings in respect to the fourth consultation show judgment made with the benefit of hindsight and failed to adequately consider:
a.the impression of the patient’s case from [H]’s perspective;
b.[H]’s explanations for her management;
c.efforts made by [H] to establish the cause of the patient’s symptoms; and
d.the prevalence of diagnostic errors such as what happened in this case.
Decision
[94] I accept that a finding of gross negligence constituting professional misconduct is a serious matter and should be reserved for the most serious misconduct. I also accept that the level of conduct required is more than a departure from accepted professional standards or a failure to follow guidelines.
[95] I accept the evidence of Dr Young that the failure to identify the dysphagia as a red flag notwithstanding its continued presence on all four occasions over several months was, of itself, a serious matter that was more than just a departure from accepted professional standards.
[96] The failure is compounded by the fact that the patient’s age was another red flag and his reporting at the third consultation, of feeling tired all the time, was a symptom consistent with oesophageal cancer being the cause of the dysphagia.
[97] The factual conclusions I have reached differ slightly from those of the Tribunal in that I regard the issue of whether the patient was taking omeprazole regularly as being irrelevant because, on H’s admitted understanding of the DHB policy for gastroscopy, he qualified for an immediate referral and there was no need to wait for him to have completed a course of omeprazole.
[98] Even without having any regard to the issue of unintentional weight loss, I have come to the conclusion that H’s omissions amount to negligence of such a degree as to constitute serious misconduct.
[99] The Tribunal did not make an error in reaching that conclusion, albeit that the route by which I have arrived at that conclusion differs slightly from theirs.
[100] Accordingly, the appeal is dismissed. I invite counsel to agree costs but if no agreement is able to be reached, the respondent has 10 days from the date of this decision to file and serve submissions with the appellant having 10 days to reply.
Churchman J
Solicitors:
DLA Piper, Wellington for Appellant
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