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Charge:  

The Director of Proceedings charged that Dr Simmonds was guilty of professional misconduct in that he failed to take adequate steps to ensure that the correct surgical site had been identified on the patient and he then commenced surgery on the wrong site.

Background: 

The patient was referred by her general practitioner to Dr Simmonds regarding a painful right knee. It was agreed that Dr Simmonds would perform a right toe extensor tenotomy and an arthroscopy on the patient’s right knee. The surgery was scheduled for midday 3 November 1999.

On the day of the surgery theatre was running two hours behind time. At 2 pm a nurse went through the pre-operative paperwork and went over the consent form with the patient. The patient confirmed that it was her right knee which was to be operated on. This was what was stated on the consent form. The limb to be operated on was not marked. There was some dispute as to whether or not the patient reminded Dr Simmonds that the limb was not marked. The Tribunal was not satisfied on the evidence that the patient did remind Dr Simmonds that the limb was not marked.

Dr Simmonds uses a monitor set on a structure called the tower in these kinds of procedures. Dr Simmonds liked to have the tower on the opposite side of the table to where he was operating as it enabled him to get the best view of the joint at the same time as working with his hands to manipulate the instruments that are inside the joint. While Dr Simmonds was scrubbing, and while the patient was under anaesthetic, the tower was placed on the patient’s right side (the incorrect side) thereby indicating that the side intended for surgery was the left side.

Nurse D who was not scheduled to be involved in the patient’s surgery went into the theatre to collect some equipment. While she was looking for her equipment, Dr Simmonds asked her if she could apply the tourniquet while she was there. Nurse D noticed that it was the patient’s left leg which was exposed. She said she touched the exposed leg and said “this leg?” and she said Dr Simmonds nodded and said “yes”. Music was playing at the time and Dr Simmonds was running water as he was scrubbing. Dr Simmonds also has a slight hearing impediment. Dr Simmonds had no recollection of her asking him the question or of his response. The nurse applied the tourniquet to the left leg and left the theatre.

The knee was then painted with alcoholic chlorhexiadine and draped. The Tribunal accepted that Dr Simmonds painted the leg and that a nurse (or nurses) and Dr Simmonds carried out the draping. Surgery was then commenced on the left knee (the wrong knee).

The circulating nurse had to complete paper work and went to the theatre register to write the operation on it. As she was doing so she saw that all the theatre staff were sitting on the left hand side of the patient and realised that the incorrect leg was being operated on. She immediately alerted Dr Simmonds.

As the patient was already subject to an anaesthetic and as there were already two small incisions in her left knee and the arthroscope in place, Dr Simmonds deemed it reasonable to complete a limited arthroscopic examination of the knee so that the patient had the benefit of a report on possible degeneration of the cartilage. No arthroscopic surgery as such took place on the left knee. Dr Simmonds considered it appropriate to finish the procedure as investigative only on the left knee (the total time involved including the prepping and draping would have been 4 to 5 minutes) and then carry out the arranged procedure on the right knee and toe, which he did. In making this decision, Dr Simmonds consulted with the anaesthetist, who confirmed that the patient was tolerating the anaesthetic well and that he had no objection to Dr Simmonds’ proposed course of action.

Finding:

The Tribunal found Dr Simmonds was not guilty of professional misconduct.

The Tribunal was satisfied what occurred was a chain of events which culminated in an adverse outcome. Those events included the following:

1. An unavoidable late theatre start and the fact that the operation list was running two hours behind schedule due to a delay in scheduled operating times. Although no witness specifically suggested that this was a contributing factor, the Tribunal was left with the impression that this was one of the contributing factors.
2. The surgeon’s diversion from his normal practice of marking the limb.
3. The fact that the tower was placed on the right side (that is, the incorrect side) of the patient which would indicate that surgery was intended for the left side.
4. The fact that it was the patient’s left leg which was exposed when Nurse D entered the theatre.
5. The request to Nurse D to apply the tourniquet when she was not part of the theatre team for the particular surgery (although this was a common practice at the hospital).
6. The general background noises of a busy theatre including the music together with Dr Simmonds’ slight hearing impediment and the fact that he was some distance from Nurse D with his back to her scrubbing at the time with running water all of which would have affected his ability to hear or hear accurately Nurse D’s question.
7. The failure of the back up mechanisms, that is, the failure of the other members of the theatre team all of whom are competent and committed professional persons to notice that the left leg was being operated on despite knowing that surgery was intended for the right leg.

The Tribunal had regard to all of the relevant circumstances and considered while, as the consultant surgeon, Dr Simmonds must bear the primary responsibility for the error, it would be wrong and unfair to have considered his actions in a vacuum. He was a member of a team.

The Tribunal accepted that Dr Simmonds’ failure to ensure that the correct surgical site had been identified was a most regrettable matter, but bearing in mind the relevant legal tests, the Tribunal was unanimous that in the particular circumstances such failure did not amount to an offence inviting disciplinary sanction.