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Precis

Charge:  

The Director of Proceedings charged the Doctor with professional misconduct. The particulars of the charge alleged:

1. Between 27 March 1999 and 10 April 1999 in relation to the patient the Doctor failed to adequately investigate the cause or causes of the discharge of large volumes of fluid from the patient’s perineum; and/or
2. Between 27 March 1999 and 10 April 1999 in relation to the patient the Doctor failed to adequately investigate the cause or causes of swinging pyrexia.

Background: 

The patient first underwent surgery for rectal cancer on 23 December 1996. Two years later the patient displayed symptoms of recurrent rectal cancer. He was referred to hospital on 3 March 1999 where the Doctor diagnosed recurrent rectal cancer. The patient was admitted into hospital on 24 March with the intention the Doctor would perform an abdominoperineal resection on 26 March.

The operation took longer than anticipated. Anaesthesia started at 9.15 am and the complex and difficult operation did not conclude until 4pm. There were adhesions from the patient’s earlier surgery and an abscess was found in the left side of the pelvis. There were adhesions to the sides of the pelvis and there was a possible direct extension of the tumour which complicated dissection. There was also significant bleeding. During the surgery damage occurred to the posterial wall of the bladder. This was repaired. Following the operation the patient was transferred to the hospital’s high dependency unit.

The Doctor regularly reviewed the patient’s condition during the days following surgery. He saw the patient at least twice a day, and on one day he saw him four times.

The patient’s temperature fluctuated significantly between 27 March 1999 and 10 April 1999. The Doctor did not consider that the patient’s temperature fluctuations could be described as “swinging pyrexia”. He did indicate that the patient’s temperature readings might be described as “swinging temperature”.

The patient’s fluid loss was an important factor in the case. Of particular significance was the patient’s loss of fluid from his perineal wound from 31 March to 4 April. From 29 March onwards nurses documented their concerns about the discharge of large volumes of fluid from the perineal wound. They described the volume of discharge in no uncertain terms. They used the adjectives “large” and “copious” to describe the volume of fluid they observed coming from the patient’s perineal wound.

The Doctor told the Tribunal that on a number of occasions he wondered if the fluid that was draining from the perineum was due to ascites or if it contained urine. However, the Doctor said that the fluid he saw was not clear fluid and that it contained blood and serum. He said he smelt the fluid on several occasions but it did not smell of urine. The Doctor said he asked his registrar to inquire with the laboratory to see if the perineal fluid could be tested for urine. The laboratory reported via the registrar that it would be difficult to determine whether or not the fluid from the perineum was urine.

A laboratory analysed blood samples taken from the patient on eight of the days he was in hospital. There were significant changes to the patient’s white blood cell count. The nurses’ notes contained a number of observations, the most pertinent of which related to the fluid loss from the patient’s perineal wound.

On 4 April the Doctor arranged for swabs to be taken from the patient’s anal cavity. A drain tip in the anal area was also sent to the laboratory for analysis. All the lab reports showed heavy growth of Enterobacter cloacae a potentially lethal bacteria that in all likelihood originated from the patient’s bowel.

A chest x-ray report for 7 April indicated “left lower lobe pneumonic consolidation and moderately small left pleural fluid collection… the left lung remains clear except for linear atelectatic streaks right lateral costophrenic angle”.

The patient was transferred by helicopter to Wellington Hospital Intensive Care Unit on 10 April 1999.

Finding:

The Tribunal found the Doctor guilty of professional misconduct.

The Doctor was faced with a wide range of clinical data and observations, however the Tribunal was in no doubt that by at least 4 April the Doctor should have been very concerned about the discharge of large volumes of fluid from the patient’s perineum and the swinging pyrexia. The Tribunal was also very satisfied the Doctor failed to adequately investigate the cause or causes of these conditions. Whilst the Doctor was undoubtedly concerned about the patient and very attentive, the Tribunal considered he nevertheless adopted a limited view of the patient’s circumstances. He did not recognise that a ureteric injury may have occurred, nor did he properly investigate fluid leaking from the perineum or that fluid accumulating in the abdomen was contributing to sepsis.

When considering Particular 1, the Tribunal was satisfied the medical evidence clearly demonstrated that by 31 March the patient was discharging large volumes of fluid from the perineal wound.

The Doctor acknowledged being told on at least two occasions that the fluid smelt like urine, and he also told the Tribunal that the fluid was not always clear. The Tribunal observed there was no record in the notes of the Doctor considering transferring the patient to Wellington for a CT scan to determine the cause or causes of the discharge of the large volumes of fluid draining from the perineal wound. The Doctor said that referring a patient for a CT scan in the patient’s circumstances needed to be balanced against the practicalities of transferring the patient by road to Wellington and whether a CT scan would provide a diagnosis. The Doctor acknowledged he did not consider transferring the patient to Wellington on 4 April.

The Doctor’s failure to take any steps to arrange for the patient’s transfer to Wellington on 4 April was a significant breach of the duty he owed his patient and was not the conduct which the Tribunal would expect of a surgeon of the Doctor’s position.

In relation to the first particular of the charge, all five members of the Tribunal found the first limb of the test of professional misconduct is established. The Tribunal was not unanimous in its assessment of the second limb of the test of professional misconduct. Three members of the Tribunal believed the Doctor’s omissions were so serious that a disciplinary finding was warranted in relation to the first particular of the charge in order to maintain professional standards and to emphasise that the public’s safety should not be compromised.

When considering Particular 2, the Tribunal was satisfied the patient experienced swinging pyrexia from 27 March to 10 April. On occasions there were very profound fluctuations in the patient’s temperature.

It was apparent that the Doctor did consider the patient’s temperature variations might be due to a pelvic infection. He sent swabs and the tip of a catheter to the hospital laboratory for analysis. Two days later the laboratory confirmed the presence of Enterobacter cloacae. The Doctor’s explanation for not further investigating the cause or causes of the patient’s swinging pyrexia was his belief that in general, the patient’s condition improved after 5 April.

The Tribunal was satisfied the Doctor did what he could reasonably do with the resources then available at the hospital. However, he should have realised that the patient required services that were not available at the hospital and that it was reasonable to have taken steps to arrange for his transfer to Wellington no later than 4 April.

The Tribunal concluded the Doctor’s failure to arrange for the patient’s transfer to Wellington Hospital on 4 April was a significant breach of the duty he owed his patient.

In relation to the second particular of the charge, the Tribunal was satisfied the first limb of the test of professional misconduct was established. As with the first particular, the Tribunal was not unanimous in its conclusion in relation to the second limb of the test of professional misconduct. Three members of the Tribunal were satisfied that the Doctor’s omissions were so serious in relation to the second particular of the charge that a disciplinary finding was justified in order to maintain professional standards and uphold public safety.

Two members of the Tribunal were of the opinion that the breaches described in the first and second particular of the charge did not separately justify a finding of professional misconduct. However, they considered that when the established breaches were viewed cumulatively, a finding of professional misconduct was required in order to maintain professional standards and to protect public safety.

The Tribunal was unanimous that the charge of professional misconduct was established.

Penalty:

In this case the Tribunal believed there were extenuating circumstances which justified the Tribunal imposing only an order for costs. The factors which have influenced the Tribunal in reaching this conclusion were:

• The Doctor has not previously appeared before any disciplinary body in this country. He deserves credit for his long and unblemished career.
• Aside from the two matters focused upon during the hearing the Doctor appeared to have managed the patient in a caring and professional manner. Aspects of the Doctor’s management of his patient were described as exemplary by the expert witnesses.
• There was a very unsatisfactory delay in investigating the complaint and laying of the charge. The Health and Disability Commissioner received the complaint on 20 August 1999. The Tribunal believed that delay can be fairly regarded as a punishment in this instance.
• The Doctor was practising under oversight when he was treating the patient. The Tribunal believed that in the circumstances of this case proactive steps could have been taken by others at the hospital which may have resulted in a more timely transfer of the patient to Wellington Hospital.

The Tribunal ordered the Doctor to pay $16,349.41 being 50% of the costs and expenses of the hearing by the Tribunal; and pay $10,643.28 being 40% of the costs and expenses of and incidental to the investigation and prosecution of the charge by the Director of Proceedings. It further ordered a summary of the hearing be published in the New Zealand Medical Journal.

Appeal:

The Doctor appealed the substantive Decision to the District Court.  The Court upheld the Tribunal's findings in respect of both particulars of the charge.  However, the Court allowed the appeal to the extent that the Tribunal finding of professional misconduct was replaced with a finding of conduct unbecoming.  The appeal on the issue of penalty and costs was dismissed.