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Charge:  

The Director of Proceedings charged that in the course of undertaking an 18-20 week antenatal scan on 13 November 1997, Dr Fernando acted in such a way that amounted to conduct unbecoming a medical practitioner and that conduct reflected adversely on his fitness to practise medicine.

The particulars of the charge alleged that Dr Fernando failed to detect or record oligohydramnios and/or that he failed to conduct an adequate examination of the foetus in that he:

1. incorrectly measured the size of the foetal head; and/or
2. reported the kidneys and bladder as normal, in the absence of recorded images to this effect and when such anatomy likely did not exist; and/or
3. failed to conduct an adequate examination of the brain.

Dr Fernando admitted the particulars of the charge, and that the conduct alleged therein either separately or cumulatively amounted to conduct unbecoming a medical practitioner.

Background: 

In November 1997 Dr Fernando was vocationally registered as a diagnostic radiologist. He saw the patient on one occasion, for a routine screening scan at 20 weeks gestation. It was the patient's fourth pregnancy and she had not felt any foetal movements during the pregnancy.

Dr Fernando's report of the scan stated as follows:

"LMP = 26/6/97, EDD = 22/4/98. Maturity by dates = 20 weeks, 0 days. There is a single live foetus. Assessment of foetal morphology was suboptimal partly due to maternal build but intracranial structures, abdomen, abdominal wall, kidneys and bladder are all normal. The cardiothoracic ratio however appears to be increased and I would value further evaluation by Andrea Gibb. The liquor volume is normal. The placental position is anterior and clear of the internal os. Normal foetal movements were observed.

BPD - 3.98cm (17 weeks, 4 days mean) dolichocephalic)
HC - 16.1 cm (19 weeks, 0 days mean)
FAC - 12.3cm (17 weeks, 5 days mean)
FL 0.287cm (18 weeks, 3 days mean)

These measurements are at the lower limit of the normal range of the stated maturity."

Ms Andrea Gibb, who is referred to in the report, was a qualified and experienced ultra-sonographer employed by Fulford Radiology Limited at the relevant time. Ms Gibb was not subsequently asked to provide any "further evaluation" as per Dr Fernando's report.

A further ultrasound scan was conducted by another specialist radiologist, Dr Harding, at 31 weeks and four days gestation. Dr Harding's report concluded that "overall the size of the foetus was that of a gestational age of 28 weeks six days, plus/minus two weeks. Hence small for dates". Dr Harding's report did not include any reference to the presence or absence of liquor.

At birth, the baby was discovered to have multiple abnormalities and lived for only four hours post-delivery. No post-mortem examination was carried out and the abnormalities listed below were unable to be confirmed by that process.

At birth it was noted:

1. there seemed to be no liquor surrounding the baby (oligohydramnios);
2. the baby had a small chest which caused breathing difficulties and congenital heart disease was suspected. The baby was thought to also have an absent corpus callosum (broad band of tissue that divides the two sides of the brain) and renal agenesis.

Dr Fernando did not contest that:

1. From the recorded scan images oligohydramnios is evident. The images show a squashed shape of the head, chest and abdomen which is typical of oligohydramnios.
2. That there are no recorded images to support his report that "the intra cranial structures, abdomen, abdominal wall, kidneys and bladder are all normal".
3. That he measured the head incorrectly, but did note that the head was dolichocephalic (meaning squashed or elongated).

Dr Fernando no longer undertakes ultrasound scans personally as ultra-sonographers are now available in New Plymouth to carry out all routine scans.

Finding:

While the Tribunal was satisfied that the factual basis of the charge was established, it was not satisfied that Dr Fernando was guilty of conduct unbecoming which reflected adversely on his fitness to practise medicine.

The Tribunal acknowledged that its decision was extremely unusual in the circumstances. It is well-established however, that it is the Tribunal's responsibility to determine both that the factual basis of the charge is established and that the facts established constitute a professional disciplinary offence. In this case, the Tribunal was satisfied that the established facts did not constitute a professional disciplinary offence.

The Tribunal was satisfied that in carrying out the patient's ultrasound examination and reporting to her obstetrician, Dr Fernando did make errors, and that his conduct in providing a report that was deficient was conduct which departs from acceptable professional standards. However, the Tribunal did not consider that the "departure" was significant enough to attract sanction for the purposes of protecting the public.

The Tribunal was also satisfied that Dr Fernando's report was not a "normal" report. It was suggested to both expert witnesses that Dr Fernando's report could be described as "guarded", and both witnesses agreed with that description. The Tribunal considered that the report was sufficient to have put the patient's obstetrician on notice that further evaluation was required and that further evaluation should have been undertaken by Ms Gibb.

Dr Fernando's report recorded that the assessment of foetal morphology was suboptimal; the cardiothoracic ratio appeared to be increased and he "would value further evaluation by Andrea Gibb"; the foetal head was dolichocephalic; and the foetal measurements were at the lower limit of the normal range of the stated maturity. The Tribunal was satisfied that all of these features of Dr Fernando's report were sufficient to have alerted the patient's obstetrician to the need for a second ultrasound examination.

Notwithstanding that Dr Fernando incorrectly reported that the intracranial structures, abdomen, abdominal wall, kidneys and bladder were all normal, and, more significantly, that the liquor volume was normal, any further evaluation undertaken by Ms Gibb would not have been limited only to those features of the foetal morphology that Dr Fernando raised concerns about.

The Tribunal was satisfied that had the patient been sent to Ms Gibb for further evaluation as Dr Fernando requested in terms of the arrangements that were in place in New Plymouth at the time, Ms Gibb would have re-done the entire scan. While this does not absolve Dr Fernando in terms of his conduct, it is a factor that was relevant to the Tribunal's consideration of the degree to which Dr Fernando's conduct departed from acceptable professional standards. As a matter of fact, the Tribunal was satisfied that Dr Fernando's report was sufficient to indicate the need for further evaluation.

The Tribunal also took into account:

• the apparently isolated nature of Dr Fernando's error,
• the several references provided to the Tribunal that attest to the generally reliable nature of his reporting and the high regard in which he is held by other practitioners who have worked closely with him for many years,
• the fact that the error giving rise to the charge occurred five years ago and that he no longer undertakes antenatal ultrasound scans.

Taking all of these factors into account, the Tribunal was satisfied that Dr Fernando's conduct did not put in issue his fitness to practise (either currently or in 1997) or disclose any risk to the health and safety of members of the public. In relation to his fitness to practise generally, the Tribunal also took into account his willingness to admit to error and to accept responsibility for his conduct.

The Tribunal was therefore not satisfied either that the threshold for conduct unbecoming, (considering each of the particulars separately or cumulatively) or the so called "rider" to the charge, was established.