Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

A charge was brought by a Complaints Assessment Committee that charged Dr Warren Chan was guilty of disgraceful conduct in a professional respect.

The charge alleged that during April and May 1996 in the course of his management and treatment of a female patient Dr Chan provided medical practice and management below an acceptable standard which was indicative of general poor medical practice in regard to other patients.  The particulars were as follows:

Pre-operative Conduct

1. Failing to obtain the patient's informed consent to the liposuction operation conducted by him on 30 May 1996.
2. Failing to undertake a satisfactory and effective consultation with and assessment of the patient before the operation.

Operation

3. Failing to:

1. undertake an adequate course of study in carido-respiratory systems and to achieve an appropriate degree of CPR certification before operating on the patient;
2. implement an adequate and effective system for using IV sedation or management of an emergency during the operation;
3. ensure the presence of properly functional emergency equipment during the operation.

Anaesthesia

4. Failing to:

1. provide an acceptable level of anaesthesia and pain relief in preparation for the operation;
2. respond appropriately to the patient's complaints of pain during and after the operation;
3. arrange for a properly qualified anaesthetist to administer anaesthesia to the patient and/or remain present throughout the operation in accordance with paragraphs 2.2.1, 2.2, 2.4 and 2.6 of the policy documents provided by the Australian & New Zealand College of Anaesthetists;
4. understand adequately or at all the appropriate guidelines relating to sedation for surgical procedures in accordance with paragraph 2.3 of the policy documents.

Operative and Post-operative Care

5. Failing to provide:

1. continuous patient observation by adequately trained personnel both during the operation and in recovery in accordance with paragraph 2.5 of the policy documents;
2. adequate post-operative care in an appropriate physical environment and with adequate and continuous monitoring.

Management

6. Failing to implement any or adequate systems of quality control, audit and peer review.
   
7. Failing to maintain adequate records of operations undertaken including records of case management and pulse oximeter in the context of IV sedation.

Background: 

The charge against Dr Chan arose in the context of cosmetic surgery undertaken by a female patient of Dr Chan's in May 1996.

Finding:

The Tribunal found Dr Chan guilty of professional misconduct.  It considered particulars 1, 2 and 7 were established and dismissed particulars 3, 4, 5 and 6.

In relation to particular 7, the Tribunal found Dr Chan guilty at the level of conduct unbecoming and that conduct reflected adversely on his fitness to practise medicine.  However, having considered the Charge laid in its totality, the Tribunal was satisfied that overall Dr Chan was guilty of professional misconduct.

The principal basis upon which the CAC relied in bringing the charge at the highest level in the hirerachy of charges was that Dr Chan had faced disciplinary charges on two previous occasions (in 1995 and 1996), which resulted in findings of professional misconduct against him.  Appeals against both of those findings were subsequently dismissed by the Medical Council, and in one case, also by the High Court.

The Tribunal found that the current charge had to stand or fall on its own merits and it could not be elevated to a more serious charge than it warranted on its own facts and circumstances by incorporating other offending which had already  been dealt with by other tribunals.  However, the Tribunal did consider that, in determining the appropriate penalty to be imposed in the present case, it could take into account the previous findings of professional misconduct made against Dr Chan and the fact that the previous charges arose out of similar identified deficiencies in Dr Chan's practice.

Penalty:

Dr Chan was censured, fined $975.00 (maximum $1,000) and ordered to pay 60% of the costs and expenses of and incidental to the inquiry and hearing.

It was further ordered that Dr Chan commence practising under supervision and that supervision should be in accordance with the model for General Oversight provided for in the Medical Council's publication "General Oversight - guidance for doctors receiving and providing general oversight".

The Tribunal required Dr Chan to undertake a review by the Ethics Committee of the Medical Association and the Medical Council.  The Tribunal ordered in the alternative, if this ethical review could not, for any reason, be implemented, then the task was to be undertaken by way of a Competency Review by the Medical Council or its appointee/s, if the Council considered such a Review would  be a more practical or appropriate mechanism for achieving the ethical review which the Tribunal considered was required.

It was also ordered that a notice pursuant to section 138(2) of the Medical Practitioners Act be published in the New Zealand Medical Journal.

Appeal:

This decision was appealed by Dr Chan to the District Court.

The District Court ordered that the appeal be allowed to the extent of remitting the question of penalty back to the Tribunal for reconsideration.  The District Court noted that it has proved impracticable to implement the Tribunal's order as to supervision.

Supplementary Decision:

The Tribunal accepted the submissions of both counsel that its Orders dated 17 March 2000, requiring Dr Chan to practise under supervision in the nature of oversight had been overtaken by the new requirements imposed in relation to general and vocational registration.  On that basis, the Tribunal advised that the matter was thereby concluded.