Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

A Complaints Assessment Committee charged that a Doctor was guilty of professional misconduct. It charged in his management and treatment of a patient:

1. He failed to clinically assess the patient to an adequate standard;
2. He failed to review the medical notes of the patient;
3. He failed to keep adequate records of his assessment of the patient;
4. He failed to ensure adequate monitoring of the Vancomycin levels and renal function of the patient;
5. He failed, prior to his being absent from the hospital from 18 March 1995, to hand over the care of the patient in a proper manner by not adequately alerting the Ward Registrar and his Consultant/Colleague to the patient's condition.

Background: 

The patient had a hip replacement operation on 6 January 1995. The procedure was performed without any significant complications. However, the wound did not heal as expected, and the patient was treated for an ongoing infection. On 19 February 1995 the patient spiked a high temperature and significant drainage from the wound was noted.

As a result of the ongoing problems with the patient's wound the orthopaedic consultant who was treating the patient referred the patient to the respondent Doctor for a second opinion.

The respondent Doctor first saw the patient on 21 February 1995 to assess her continued management. He commenced the patient on a course of Gentamicin, Amoxil and Flagyl in an attempt to clear up the persistent infection in her hip wound. A subclavian central line to administer the antibiotics was inserted on 25 February 1995 under local anaesthetic. On 27 February 1995 the patient was reviewed by the Infectious Diseases team. The Infectious Diseases consultant who assessed her recommended that she was to be commenced on the antibiotics Vancomycin and Cefuroxime.

The need to measure the levels of Vancomycin in the patient's blood stream on a regular basis was recorded in her notes by the respondent Doctor and the Infectious Diseases team members who reviewed her again on 28 February 1995. By the end of February, the patient continued to have an elevated temperature. The Vancomycin level checked on 2 March 1995 was recorded as 17. The recommended level is less than 15. However, the Infectious Diseases team recommended that the Vancomycin dosages should be continued. Augmentin was also prescribed from 4 March 1995.

On 8 March 1995 the patient was transferred to the hospital where the respondent Doctor usually worked. The Infectious Diseases Team had expressed concern about transferring the patient. However, after discussion with the Registrar they agreed she could be transferred. The medical notes recorded the respondent Doctor instructed that the patient was not to be transferred to a rehabilitation ward as was initially considered but to a ward where she could remain under the care of the respondent Doctor.

There was no record in the notes of the hospital that the patient was transferred to, which confirmed whether or not the respondent Doctor saw the patient after 8 March 1995. Similarly, there was no record of her Vancomycin levels being measured or monitored as instructed, although she continued to receive the Vancomycin dosages recommended by the Infectious Diseases team.

The respondent Doctor went overseas on 18 March 1995 and the patient remained in hospital. On 21 March 1995, the patient's family raised concerns about her care and well-being with the nursing staff. An elevated JVP and chest signs consistent with congestive heart failure were detected by a House Surgeon on 23 March 1995 and significant and acute renal failure was evident. As a consequence, the Vancomycin medication was stopped immediately.

The patient's condition deteriorated and she died on 30 March 1995.

Finding:

The Tribunal found the respondent Doctor guilty of conduct unbecoming a medical practitioner and his conduct reflected adversely on his fitness to practise medicine.

The Tribunal found that Particular 1 was established. The Tribunal found that the assessment of the patient's condition at the relevant time, as evidenced in her medical records, was relatively cursory, and confined to her orthopaedic condition. The Tribunal found the respondent Doctor failed to ensure that she was adequately assessed and failed to ensure appropriate instructions were given for her care at the time of her transfer to the hospital on 8 March 1995. The Tribunal also considered the absence of any evidence of ongoing assessment and monitoring while she was at the hospital. It found such assessments as were carried out were not holistic, nor were they to an adequate standard in that the respondent Doctor failed to recognise (during the period 8-18 March 1995) that there was little or no monitoring of the patient's general medical condition.

The respondent Doctor told the Tribunal that he visited the patient on a number of occasions but that he did not review her notes. He carried out his assessments of her condition by using the charts available at the end of her bed, and by talking to the nurses who accompanied him on his visits. On that basis, the Tribunal found, any assessments he made were manifestly inadequate in that the fluid balance charts retained in the patient record contained information that is either non-existent or so sparse as to be useless for all practical and clinical purposes. The Tribunal considered if the respondent Doctor did look at these charts and rely on them, then he should have been alerted to the need to make further enquiry regarding the patient's care and condition.

The Tribunal found that Particular 2 was established. The respondent Doctor conceded he did not review the patient's notes or look at her chart after 8 March 1995.

The Tribunal found that Particular 3 was established. The Tribunal took into account the respondent Doctor's evidence that records of his visits to the patient, and of any instructions he gave regarding her care would have been made in the Ward Round book. However, apart from the Ward Round book (which was not available) there was no record of any assessment being made by the respondent Doctor during the relevant period.

The Tribunal considered its task was to determine not only whether or not any records at all were made by the respondent Doctor, or on his instructions, but also their adequacy. It found on the basis of the failure to monitor the patient's Vancomycin levels, and to adequately record basic clinical information, his records were plainly inadequate in that they failed to ensure that she received the care and treatment she required.

The Tribunal determined the task of making and retaining adequate records, in part to ensure continuity of care, is an essential part of the proper management of the patient's care. The Tribunal was satisfied that the respondent Doctor did fail to keep an adequate record of his assessments of the patient, and his failure to do so undoubtedly contributed to the absence of any continuity of care, both across the team, and in relation to her transfer to the hospital.

The respondent Doctor admitted Particular 4 and it was therefore established.

The Tribunal considered it relevant in terms of Particular 5 that there was no evidence as to any protocols or practices in place at the hospital to ensure that patients were cared for by the ward registrars or consultant colleagues in the absence of the consultant or other practitioners responsible for their care. All of the evidence indicates that the respondent Doctor's conduct in this regard was consistent with the practice of other consultants caring for patients at the hospital.

Taking all of these factors into account, the Tribunal was satisfied that, prior to his being absent from the hospital on 18 March 1995, the respondent Doctor failed to hand over the patient's care either formally or informally. However, the Tribunal was not satisfied that any shortcomings in this regard on the respondent Doctor's part warranted the sanction of an adverse disciplinary finding and therefore Particular 5 was not established.

The Tribunal was not satisfied that the charge was proven at the level of professional misconduct. Its assessment in this regard was, ultimately, a matter of degree, and it found on a cumulative basis, the respondent Doctor was guilty of conduct unbecoming a medical practitioner, and his conduct reflected adversely on his fitness to practise medicine.

Penalty:

The Tribunal ordered the respondent Doctor be censured, fined $450 (maximum $1,000) and pay 40% of the costs and expenses of and incidental to the prosecution and hearing of the charge.  It further ordered a notice be published in the New Zealand Medical Journal.

Appeal:

An appeal against the substantive decision and the penalty decision was filed in the District Court on behalf of the respondent Doctor. 

The District Court granted an application filed on behalf of the respondent Doctor to call further evidence at the Appeal (F v MPDT (District Court, Auckland Doogue DCJ, NP No. 881/02, 15 August 2002)).  The decision to allow further evidence to be heard at appeal was upheld by the High Court CAC v F (High Court, Auckland, Hansen J, AP79-SW02, 2 September 2002).

At the appeal against the substantive decision and the penalty decision the District Court upheld the Tribunal's finding of conduct unbecoming a medical practitioner and that conduct reflects adversely on the medical practitioners fitness to practise medicine, but set aside the Tribunal's penalty decision.

The Court found that there was only one issue under particular 1 which was established and that was the respondent Doctor should have asked whether Vancomycin levels were being tested.  It further found particulars 2 and 3 were not established.  The Tribunal had found particulars 1, 2 and 3 established.  The Court agreed with the Tribunal that particular 4 was established and further agreed that particular 5 was not established.

The Court considered its finding that particular 4 was established was sufficiently significant to warrant a disciplinary finding of conduct unbecoming.  However, it found that it was at the very lowest level and was not a case in which any penalty should be imposed.  The costs order was reduced from 40% to 30% of all the costs and expenses of and incidental to the prosecution and hearing of the charge.

Both parties appealed the District Court Decision to the High Court.  The High Court upheld the District Court Decision in all respects (F v MPDT (High Court, Auckland, AP 113/02, Frater J, 20 November 2003)).

Leave was granted to appeal Decision of the High Court Decision on two issues.  (F v MPDT & CAC ( High Court, Auckland, AP 113/02, Frater J, 17 May 2004)).

The Court of Appeal allowed the appeal.  It quashed the decision of the High Court.  The finding of conduct unbecoming and the order of costs against the Doctor were quashed.  (F v MPDT (Court of Appeal, CA 213/04, 4 May 2005, Anderson P, William Young and O'Regan JJ)).