Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The CAC laid a charge of professional misconduct against the Doctor alleging that:

1. On or about 28 February 2001 he refused to accept the diagnosis of Leptospirosis (which is an occupational illness and therefore covered by the Accident Compensation Act) made at Hospital during the inpatient stay of the patient.
2. During the period from 28 February to 15 March 2001:

1. failed to recognise the ACC requirement for acceptance that a complaint merits cover is the “balance of probabilities” and that the Accident Compensation Act does not require absolute proof;
2. refused to provide the patient with the certification to enable him to claim compensation from ACC;
3. contributed to a climate of confrontation with the patient which resulted in unnecessary hardship and stress and may have been prejudicial to his recovery.

3. During the period 15 April to 16 September 2001, despite other medical practitioners having formed a contrary view, did not accept that the patient’s chronic malaise and fatigue were due to the after effects of Leptospirosis and therefore did not provide ACC certification during this period resulting in major stress and financial hardship for the patient.
4. In the course of his dealings with the patient breached the fundamental principles of non-maleficence, beneficence and justice as set out in the guidelines on ethics and professional misconduct for occupational physicians of the Australian Faculty of Occupational Medicine.

Background: 

The Doctor had been in sole practice since 1980 as a general practitioner, with a special interest in occupational medicine. In December 2000 he obtained a diploma in industrial health from Otago University. Since 1982 the Doctor has been the visiting medical practitioner for a meat processing works. At the time of the hearing the Doctor was in the training programme conducted by the Australasian Faculty of Occupational Medicine.

Finding:

The Tribunal found the Doctor guilty of professional misconduct.

The Tribunal was satisfied particular one was established. The Doctor admitted in cross examination that he never doubted the diagnosis from a clinical point of view and that the patient was entitled to ACC for Leptospirosis but that it depended on the confirmation of the titre shift so that he could certify that the illness was occupationally acquired.

The Tribunal accepted the expert evidence that the majority of specialist colleagues would certify when “faced with a gross exposure and appropriate clinical symptoms”.
The Tribunal considered that the patient should have been given the benefit of any doubt with respect to the hospital’s diagnosis and ACC certification as at 28 February 2001; at least pending confirmation of the hospital diagnosis by the confirmatory antibody testing. The Tribunal’s view was that the Doctor’s actions in refusing to accept the hospital diagnosis were inexplicable and resulted solely in a benefit for his employer and its insurer at the patient’s expense. The Tribunal concluded that the Doctor fell below the standards expected of an experienced doctor practising as an industrial medical officer and holding clinics in an “at risk” industry.

The Tribunal found the second particular established and all three sub-particulars were established. The Tribunal accepted that this was not a case of debating or challenging the ESR criteria which enabled diagnosis of Leptospirosis to be confirmed conclusively, but rather whether on the balance of probabilities (being the level of proof required by ACC) the Doctor should have been certifying the patient as suffering from probable Leptospirosis.

The Tribunal accepted the patient’s evidence that by 12 March 2001 he had become “anxious, frustrated and upset” when it became clear to him that he had not received ACC because of the Doctor’s refusal to certify him. There was a consultation on 12 March 2001 where the patient became angry and referred to the fact that his general practitioner had told him he had Leptospirosis and was entitled to receive ACC, as had the hospital.

The Tribunal considered in a situation such as this, bearing in mind the Doctor’s experience; he should have withdrawn from the patient’s treatment when it became clear they were locked into a confrontational relationship. The Doctor should have allocated his medical responsibilities to another doctor. The Tribunal was left with the impression that the Doctor’s actions were focused on the consequences for his employer of a diagnosis of work related Leptospirosis rather than the needs of and consequences for his patient.

The Tribunal was satisfied the third particular was established. The Tribunal found on the evidence that the patient did tell the Doctor that he was exhausted and feeling “awful” and that it was implicit that his fatigue did not arise of itself but would have been present for some period of time. It was incumbent on the Doctor to have investigated that further with the patient. Within twenty-four hours of seeing the Doctor on 17 September 2001, the patient saw his own general practitioner and was diagnosed by him as having Leptospirosis related tiredness and fatigue.

The Tribunal was of the view that when a doctor was faced with certification from another doctor with which he or she disagrees, the doctor who disputed the diagnosis should contact the second doctor with the patient’s permission. The doctors could then discuss their diagnostic differences, agree on a joint management and investigation plan. Where no such agreement could be obtained, inform the patient of their suspected diagnosis and plans and detail the conditions that would allow the patient to return to work safely. The Doctor made no attempt to contact the patient’s general practitioner at this time. Instead, the Doctor required the patient to be formally assessed by another doctor, Dr E, before he would accept that the patient had a work related illness and before his ACC claim could go forward.

The Tribunal further found that the Doctor failed to complete backdated ACC certificates enabling the patient to claim compensation for all the time that he had had off work and for his reduced hours despite there having been a diagnosis of chronic fatigue as an after effect of Leptospirosis not only from the patient’s general practitioner, but also from Dr E. This refusal resulted in major stress and financial hardship for the patient.
The Tribunal found that whatever was motivating the Doctor, he was not focusing on the patient’s needs, and nor was he making it clear to the patient who he was the agent for at any particular time. The Doctor was blurring his various roles and did not appear to be addressing his mind to which role he was undertaking and for whom at any given time.

The Tribunal was satisfied that particular four was established. The Tribunal’s view was that the principles which the Doctor was charged with breaching as set out in the guidelines are essentially the same as the general ethical principles applying to all doctors, that is, to do no harm, to try and help the patient and to be fair.

The Tribunal found that the patient was the Doctor’s patient and that the Doctor was “treating” him. There was ample evidence of this and when questioned in cross examination, the Doctor accepted it. When the Doctor was in the treating role his primary responsibility was to his patient.

All experts were of the same view that if a patient was in a consultation with a doctor primarily attending in the doctor/patient relationship and matters arose which might affect the doctor’s thinking or obligations in terms of the employer or a third party which could have an adverse effect on the patient, then the doctor must make it clear to the patient in what role the doctor is acting and that the doctor may not be acting in the patient’s best interests. The Tribunal found that the Doctor poorly communicated to the patient his duality of roles.

The Tribunal found that the Doctor fell below the standards of non-maleficence by failing to accept the hospital diagnosis on 28 February 2001 and by not making a presumptive diagnosis in the period from then to 16 March 2001. The Tribunal further found, he fell below the standards of the principle of justice by failing to accept the hospital diagnosis and certifying appropriately at least until there was some solid reason for doubt in relation to the validity of the diagnosis which did exist.

The Tribunal found that the Doctor fell below acceptable standards and breached the principle of non-maleficence by declining to accept that the patient’s chronic malaise and fatigue were an after-effect of the Leptospirosis and declining to issue him with the appropriate ACC certification so that the patient could claim compensation and entitlements and gain cover for the period from 17 April to 16 September 2001 and from the latter date until 22 October 2001.

The standard that the Tribunal applied to the Doctor was that of an experienced rural/semi-rural general practitioner who had a diploma in industrial health, who had worked as an industrial medical officer at the works for almost 20 years at the time of the relevant events, and who had a special interest in occupational medicine.

Penalty:

The Tribunal ordered that the Doctor:

• be censured.
• be fined $7,500.00.
• have the following conditions placed on his practice:

That the Doctor is to undertake the following courses at the direction of the Medical Council, namely:

1. an appropriate course in the training of disputes resolution; and
2. an appropriate course in the training of ethics in the occupational health medicine frame.

That the Doctor will meet the cost of these courses and upon completion to the satisfaction of the Medical Council these conditions will be lifted.

• the Doctor is to pay 35 percent of the costs, which is the sum of $50,109.49.

Appeal:

The Doctor appealed the substantive and penalty Decisions of the Tribunal to the District Court. New evidence was given by witnesses at the appeal hearing. The Court found that it was reasonable for the Doctor to require the confirmation from the laboratory confirming the diagnosis before he certified the patient was entitled to ACC. The Court concluded that the appeal succeeds in relation to all the particulars of the charge except particular three.

The Court reduced the finding from professional misconduct to conduct unbecoming.

There was no appeal from the decision to the Tribunal to censure Dr Short. The fine was reduced to $1,000. The judge recorded that in his view the conditions should not have been imposed. (Doctor T v CAC (District Court Wellington, CIV-2005-085-355, & Broadmore DCJ, 6 October 2008))