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Precis

Charge:  

A Complaints Assessment Committee charged that the Doctor was guilty of professional misconduct or in the alternative conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner’s fitness to practise medicine. The particulars of the charge were:

1. The content of communication with the patient about the treatment of his prostate disease was inadequate in the following respects:

1. On the three occasions that the patient saw the Doctor pre-operatively (the radical prostatectomy having been performed by another surgeon on 1 November 2000) on 7 August 2000, 14 August 2000 and 21 August 2000 the Doctor:

1. failed to adequately explain to the patient that the Doctor was ‘staging’ his disease or to explain what ‘staging’ was;
2. failed to provide the patient with literature regarding his condition despite the Doctor recording in his notes that he had done so;
3. failed to adequately discuss with the patient other options available to treat prostate cancer;

2. The manner of the Doctor’s communication with the patient about the treatment of his prostate disease was inappropriate, and unprofessional and caused distress to the patient in the following respects:

1. when the patient first presented to the Doctor on 7 August 2000:

1. The Doctor carried out a trans-rectal ultra-sound scan of the prostate which the patient found painful and the Doctor commented to him to the effect ‘What’s the matter with you? Lots of people do this for fun’.
2. The patient asked the Doctor about headaches he was experiencing and the Doctor commented to him to the effect ‘Of course you have got headaches because it (the cancer) is all through your head as well’;
3. the Doctor commented to the patient to the effect that the cancer was going’ to kill’ him;

2. when the patient presented to the Doctor for the results of his biopsy on 21 August 2000 in relation to some of the MRI scan results being negative the Doctor made comments to the effect ‘What’s the matter, it (the cancer) is all through the rest of you anyway’;
3. on the one occasion the Doctor saw the patient post operatively on 12 February 2001 when the patient called upon the Doctor at his rooms. In reply to a comment by the patient that he had had a successful radical prostatectomy by another surgeon, the Doctor commented to the effect ‘so what’ and ‘don’t worry it (the cancer) will get you’.

Background: 

In June 2000 the patient was found to have a very high PSA which is frequently a warning of prostate cancer. The elevated PSA finding occurred after the patient had experienced high blood pressure and headaches during the preceding 8 months. The patient’s GP arranged for the patient to be seen by the Doctor.

At the first consultation on 7 August 2000, the patient alleged the Doctor spoke to him as set out under particular 2.1 of the charge. The patient was also adamant the Doctor did not provide him with any pamphlets or other handouts at this consultation.

The Doctor’s reporting letter to the patient’s GP contained the following paragraph:

“I told Mr and Mrs [patient] that this is Ca prostate probably fairly advanced until proven otherwise. He will need to have a biopsy and I have organised that. I have started him on some Flutamide one three times a day while we are waiting. He has an MRI which he should go through with. It might give us some insight as to what his skull looks like. Be that as it may he will still need an isotope bone scan which I will organise after the biopsy. I have not gone into therapy with him today as I think he had quite enough to absorb in one go. I have given him some literature to read. The next phase of the investigation will be the biopsy and then we will take it from there”.

The Doctor said he never abuses his patients but that on occasions he would try to lighten the atmosphere by making casual comments. The Doctor thought if the patient winced during the rectal ultrasound scan he might have said “Yes it is uncomfortable, but some people do this for fun”. The Doctor denied telling the patient that the cancer was all through the patient’s head. He acknowledged suggesting there may be secondaries but said that this could not be confirmed until further investigations had been completed.

The Doctor said that when he spoke with the patient and his wife on 7 August 2000 he did not give them a diagnosis. He explained he would not have been able to assess the extent of the disease until after biopsies had been taken and staging performed, and said he advised the patient of the need for a biopsy and staging.

The Doctor told the Tribunal he gave the patient standard pamphlets which explained prostate cancer and treatment options. The literature given to the patient also included directions for fasting and use of laxative suppositories prior to biopsies being taken on 14 August.

At the second consultation on 14 August 2000 a prostate biopsy was done. The patient told the Tribunal no pamphlets or handouts were given to him at this consultation.

The final consultation was on 21 August 2000. Prior to this consultation the patient had an MRI. The MRI revealed a partial aneurism at the neck of the basal artery but showed no sign of cancer. The Doctor advised five of the biopsy results were positive for cancer.

The patient told the Tribunal that when he told the Doctor about the encouraging MRI results the Doctor said “What’s it matter, it’s all through the rest of you anyway”. The patient’s evidence was that the Doctor never explained about “staging” the disease, or the options for treatment. The patient also said that no pamphlets or literature were given to him at the third consultation.

The Doctor was certain he would not have said to the patient that even if the MRI results were negative it did not matter because the cancer was all through the patient anyway. The Doctor rejected the patient’s concern the Doctor had not explained the process of staging the patient’s disease. The Doctor explained that while he could not remember what was actually said about staging, he said he normally explained the staging process by using a rural analogy.

The patient decided to travel to Auckland for a second opinion because he was dissatisfied with the advice he had received from the Doctor and the way in which the Doctor spoke to him. He made contact with Dr Robin Smart a senior and very experienced Urologist.

Doctor Smart performed a radical prostatectomy on 1 November 2000. The patient’s lymph glands were examined under frozen section during the operation and did not reveal any cancer. The patient saw Dr Smart on a number of occasions following surgery. Doctor Smart advised the patient he had made a good recovery. The patient’s PSA levels have been zero since surgery.

The patient explained that on 12 February 2001 he happened to be walking past the Doctor’s rooms when he decided to visit the Doctor. The patient saw the Doctor and explained Dr Smart had performed a radical prostatectomy and that the results were encouraging. The patient said that after he had explained what happened the Doctor said “So what”, and that when the patient was leaving the Doctor’s rooms the Doctor said to the patient “Don’t worry, it will get you”.

The Doctor denied telling the patient that his cancer would “get him” during the patient’s visit on 12 February 2001, or at any other time.

Finding:

The Tribunal found the Doctor guilty of conduct unbecoming a medical practitioner and that conduct reflected adversely on the practitioner’s fitness to practise medicine.

When considering Particular 1.1(a) the Tribunal was very satisfied the Doctor conveyed to the patient’s GP that the Doctor was planning to stage the patient’s disease. However, the Tribunal was equally and unanimously satisfied the Doctor did not explain “staging” or the staging process to the patient. The Tribunal believed that if the Doctor had explained the staging process to the patient he would have readily understood what staging entailed and the reasons for undertaking that process.

A majority of the Tribunal believed that the Doctor’s failure to explain “staging” constituted a failure to adhere to the standards expected. However, the majority did not believe his omission justified a disciplinary finding as the patient had just three intensive consultations with the Doctor over a two week period and the Doctor reasonably anticipated having many more consultations during which he would in all likelihood have explained the staging process.

A minority of the Tribunal accepted the Doctor had a duty to inform the patient about staging, but believe the Doctor did not breach his duty because in the normal course of events the Doctor would have explained the staging process if there had been further consultations after 21 August 2000.

When considering Particular 1.1(b) the Tribunal was unanimously of the view the Doctor probably did give the patient literature about his condition at the consultation which occurred on 7 August 2000. There were two reasons for the Tribunal reaching this conclusion:

• The Doctor’s letter of 7 August 2000 to the patient’s GP categorically stated the Doctor did give literature to the patient that day. The Tribunal believed that in all likelihood this contemporaneous record accurately reflected what occurred.
• The patient had biopsies taken on 14 August. The patient needed to fast and take laxative suppositories and antibiotics prior to that procedure being performed. The explanation as to how a patient prepares for a prostate biopsy is usually set out in written directions. The fact the biopsies could be performed on 14 August strongly supported the belief the patient complied with directions, which are usually given to patients in pamphlets about the process for preparing for a prostate biopsy.

When considering Particular 1.1(c) the Tribunal was satisfied there was no evidence to suggest the Doctor explained the possibility of surgery with the patient at any of the consultations in August 2000. The Tribunal was unanimously of the view the Doctor had a duty to explain the possibility of surgery to the patient when asked about this possibility on 7 August 2000. The Doctor should have answered the patient’s question in a way which was qualified by the need for the staging process to be completed before any final decisions could be made about treatment options.

The Tribunal concluded, by a very fine margin that the Doctor’s breach of his duties to the patient in relation to Particular 1.1(c) of the charge did not justify a disciplinary finding against him. The Tribunal concluded the Doctor could be excused for not discussing surgery as a treatment option until the results of the biopsies, bone scan and MRI were available.

The Tribunal dealt with particular 2 on a cumulative basis. It was not possible for the Tribunal to make findings as to precisely what words were used by the Doctor on 7 and 21 August 2000 or 12 February 2001. Nevertheless, the Tribunal was satisfied the Doctor did make a series of comments similar in effect to those alleged by the patient. The Tribunal’s reasons for reaching this conclusion were:

• the Tribunal was impressed by the patient’s honesty and believed that in most respects he was a reliable witness;
• the patient had no motive to mis-represent what was said to him by the Doctor;
• the comments made by the Doctor clearly had a significant impact on the patient and were comments which the patient was unlikely to forget (although the patient may not have been able to recall exactly what words were spoken by the Doctor);
• the Doctor is a blunt communicator who was very likely to have spoken to the patient in a brusque and direct manner;
• the Doctor acknowledged the likelihood of his making a comment on 7 August 2000 to lighten the situation, and that his attempts at humour could easily have been interpreted as being offensive in the circumstances.

The Tribunal believed that when viewed cumulatively, the matters complained of in Particular 2 of the Notice of Charge constituted a breach of the Doctor’s duty to treat the patient with respect and dignity. The Tribunal was unanimously of the view that its cumulative findings in relation to Particular 2 did amount to conduct unbecoming a medical practitioner.

Penalty:

The Tribunal ordered the Doctor be censured and pay costs in the sum of $18,921.43.

Appeal:

The Doctor appealed the substantive and penalty Decisions to the District Court. The District Court allowed the appeal and quashed the penalty orders.  The appeal was accepted on the following grounds:

• The Tribunal applied the wrong threshold; and
• The Tribunal's approach to Particular 2 was flawed; and
• The conduct the Tribunal found the Doctor guilty of did not properly sustain a finding of conduct unbecoming that adversely reflected on the Doctor's fitness to practise medicine

(Dr C v CAC (District Court, Wellington, CIV 2004-085-1577, Thomas J, 2 September 2005)).