Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The Director of Proceedings charged that the Doctor was guilty of professional misconduct. The particulars were as follows:

1. At the patient’s second consultation in the afternoon of 8 August 2001 the Doctor failed to:
    

1. Undertake an adequate clinical assessment and/or clinical examination of the patient; and
2. Ensure adequate investigations were undertaken to determine the cause of the patient’s clinical presentation; and/or

2. When consulted by the patient by telephone on 9 August 2001 the Doctor failed to arrange and/or undertake an adequate re-assessment of the patient’s clinical condition; and/or
3. On 9 August 2001, in the absence of an adequate clinical examination and/or re-assessment of the patient’s clinical condition the Doctor prescribed a change of her medication by telephone; and/or
4. Between 8 and 9 August 2001 the Doctor failed to adequately document the clinical consultations with the patient.

Background: 

The patient was a high user of health services. She had a number of medical problems which caused her to attend upon doctors on a very regular basis. The Doctor first saw the patient on 25 May 2001 in relation to arthritic pain in her neck. On the morning of 8 August 2001 the patient went to the Doctor’s practice which was no more than a 7 minute walk.

The patient saw the Doctor who presented with a pain in her rib area when breathing deeply. According to members of the patient’s family she was feeling very unwell. The Doctor conducted an examination and concluded that the patient’s lungs were clear on auscultation and that she was not suffering respiratory distress. The Doctor believed the patient in all likelihood had pleurisy. Panadeine was prescribed together with Diazepam to help the patient sleep.

The patient returned home. Later, during the afternoon of 8 August she returned to the surgery. She was given a ride to the surgery by a friend who described her as moaning with pain, gasping for breath and holding her chest. She was again seen by the Doctor after being triaged by nursing staff.

In her evidence the Doctor said that the patient had not been able to keep down the Panadeine which had been prescribed that morning. The Doctor believed that aside from having vomited as a consequence of taking Panadeine the patient was not in distress. The Doctor arranged for a nurse to administer Maxolon 10mg intramuscularly and requested that the patient remain under observation in the nursing area of the surgery for 20 minutes. After having been observed for 20 minutes the Doctor said the patient could go home.

On the morning of 9 August the patient telephoned the Doctor as she continued to be unwell. There was a dispute about whether or not the patient refused to return to the surgery. The Doctor changed the patient’s prescription by increasing the dose of Diazepam and also by prescribing Tramadol. There was no dispute the Doctor relied on her telephone assessment of the patient when changing her patient’s medication.

Later on 9 August the patient’s partner collected the medication which the Doctor had prescribed. The patient went to bed. She collapsed in the hallway when returning to her bedroom from the toilet. She got back into bed but during the early hours of 10 August she died. A post mortem conducted on 13 August 2001 concluded that the patient had died as a result of succumbing to pneumonia, in the upper lobe of her right lung.

Finding:

The Tribunal found the Doctor guilty of professional misconduct.

The Tribunal was satisfied that particular 1 was not established. Although the Tribunal had some concerns about aspects of the way the Doctor managed the patient when she returned to the surgery on the afternoon of 8 August, it did not believe there was a failure to adhere to the standards reasonably expected of a general practitioner in New Zealand. The Tribunal was satisfied the Doctor carried out a reasonable examination of the patient on the morning of 8 August. The Tribunal was also satisfied that the Doctor considered the possibility the patient may have been suffering pneumonia but was justified in opting for her diagnosis of pleurisy. Although the Tribunal considered the Doctor’s suspicions should have been heightened when her patient returned that afternoon complaining of vomiting, it was satisfied the Doctor could be forgiven for not diagnosing pneumonia at that time as it can be a difficult condition to detect. The Tribunal found the diagnosis that the patient had vomited because of the effects of Panadeine was a reasonable assessment on the afternoon of 8 August.

The Tribunal was satisfied particular 2 was established, and the allegations satisfied the first limb of the test of professional misconduct. The Tribunal believed the Doctor erred when she failed to appreciate the patient was unable to attend the surgery because of her incapacity. The Tribunal considered the Doctor appreciated when she spoke to the patient on 9 August that the patient’s condition had not improved, and that she had continued to vomit which should have caused the Doctor to reconsider her earlier diagnosis. The Tribunal believed it was very imprudent of the Doctor to make an assessment of her patient’s condition on the basis of the telephone consultation, especially as this was the third contact between the Doctor and her patient within 24 hours. By no account had the patient improved and it was incumbent upon the Doctor to personally examine her patient, or arrange for her patient to be examined. The Doctor clearly failed to arrange and/or undertake an adequate re-assessment of her patient’s clinical condition.

The Tribunal was advised that a courtesy vehicle was available. The Doctor should have arranged for the patient to have been taken to the surgery using the courtesy vehicle. The Tribunal believed it important to stress to the Doctor and to general practitioners that telephone diagnosis is potentially dangerous and should only be used when face to face consultation is impossible.

The Tribunal found particular 3 was clearly established, and that the allegations satisfied the first limb of the test of professional misconduct. The Tribunal considered the Doctor should not have altered her patient’s medication on the basis of her brief assessment of the patient by telephone, and that it was incumbent upon the Doctor to examine the patient or arrange for her to be examined before altering her medication. The Doctor elected to provide symptomatic relief instead of re-assessing her previous day’s diagnosis.

While considering particular 4, the Tribunal believed the Doctor’s records of her three consultations with the patient were brief and in many respects inadequate. However, her short comings in this regard did not meet the threshold of the first limb of the test of professional misconduct. The Tribunal was satisfied the notes could have been significantly improved if more detailed descriptions of the Doctor’s observations of her patient had been recorded, but nevertheless it found the notes barely passed the test of what could reasonably be expected of a general practitioner in New Zealand.

The Tribunal found the second and third particulars of the charge, when viewed separately, clearly satisfied the first limb of the test of professional misconduct and believed that when viewed cumulatively they justified a disciplinary finding against the Doctor primarily to maintain professional standards and also to protect the public.

The Tribunal also considered whether it was possible to find the Doctor guilty of conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner’s fitness to practise medicine. The Tribunal interpreted section 109(1)(b) and (c). It believed that as the allegations focus on the way the Doctor discharged her professional responsibilities to her patient, it was appropriate she be charged with professional misconduct. However, the Tribunal emphasised it believed that the Doctor’s errors justified a finding of professional misconduct in this case, in any event, even if it were possible in this case to make a finding of conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner’s fitness to practise medicine.

Penalty:

The Tribunal unhesitatingly accepted the Doctor was a highly qualified, conscientious and caring doctor. It was also confident that the Doctor’s departure from accepted professional standards on 9 August 2001 were isolated events in her professional career.

The Tribunal censured the Doctor and ordered her to pay costs of $12,919.02 (30%) to the Director of Proceedings and $18,470.71 (50%) to the Tribunal.

It further ordered the Secretary of the Tribunal to publish a summary of the case in the New Zealand Medical Journal.

Appeal:

Counsel for the Doctor appealed the substantive and penalty Decisions to the District Court.  The District Court allowed the appeal.  The finding of the Tribunal was reversed and the Doctor was found not guilty.  The District Court considered there was insufficient evidence for the Tribunal to determine that the alleged misconduct was proved.  As the Doctor was found not guilty, the penalty Decision was also reversed.  (Dr I v Director of Proceedings (District Court, Napier, DIV 2004-041-206, 15 September 2004, Rea DCJ)).