Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

A Complaints Assessment Committee charged that Dr Robert Francis Phipps failed to meet the standard of medical practice required of a consultant surgeon in that:

1. When notified by telephone by Dr Dennett that there was a problem with the patient's operation he failed to go to the operating theatre when as consultant surgeon on call on the 26th of February 1994 he: 

1. had a duty to be available on that date and
2. had a duty to ensure that the registrar Dr Dennett was properly supervised and
3. should have gone to the operating theatre as soon as he was notified of the problem whether or not he was requested to attend by Dr Dennett and whether or not the advice given by him to Dr Dennett over the telephone was correct.

2. That the advice given by Dr Phipps when telephoned by Dr Dennett during the course of the operation on the patient being to insert a drain and close the abdominal incision without removing the appendix was not consistent with contemporary clinical practice as the patient had an acute appendicitis and not an appendix abscess.

being conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner's fitness to practice medicine.

Background: 

Dr Dennett was a surgical registrar in 1994.  She was a "basic trainee" as her surgical training had commenced in 1993.  Dr Dennett met the patient at the Accident & Emergency Department where the patient presented with symptoms and a history that led to a diagnosis of appendicitis requiring excision of the appendix.  Dr Dennett contacted Dr Phipps who was the surgical consultant on call that night as it was the policy of the hospital that a surgical registrar would contact the consultant on call before taking a patient to theatre for a surgical procedure.  Dr Dennett said that Dr Phipps appeared not to be interested in the case.

The operation proceeded and complications ensued.  First it was necessary to make a larger incision than the minimum and then Dr Dennett was unable to locate the appendix.   When Dr Dennett failed to locate the appendix Dr Phipps was contacted and Dr Dennett told him of the difficulties she was experiencing.  She asked him to consider allowing her to do a midline incision or to come in to help her complete the operation.

Dr Phipps asked her if she was sure the patient had appendicitis.  Dr Dennett gave him the relevant history, clinical and laboratory findings.  After this, he told her to place a drain, close the wound and return the patient to the ward on triple antibiotic therapy and if the patient failed to settle, she would have to come back into theatre later.  Dr Dennett left Dr Phipps in no doubt about the need for him to come into the hospital and help her but she complied with Dr Phipps instructions, as he was the consultant in charge, and she closed the wound over a large Portex drain.

A second operation to remove the appendix was performed on the patient two days later.  The events caused difficulties for the patient and her family.  In total the patient was off work for 16 weeks and she was left with considerable, and apparently permanent complications from the surgical procedures.

Finding:

Dr Phipps made an application for an adjournment to the hearing prior to the hearing.  The Tribunal held that Dr Phipps was on clear notice that he had to make out compelling reasons for an adjournment and he had not done so.  Accordingly the Tribunal decided the matter would proceed.

Dr Phipps was not present at the hearing.  The Tribunal held that it was entitled to consider a wide range of material as evidence, giving it the weight that is appropriate, including explanations advanced by Dr Phipps to the ACC.

The Tribunal considered that both particulars 1 and 2 were established.  Dr Phipps offered no explanation to the Tribunal as to why he did not attend the operation and the Tribunal accepted the view that only the most pressing of circumstances could have justified not attending the operation when called upon.  The Tribunal found Dr Phipps had a duty to be available while the operation was undertaken, supervise Dr Dennett in an appropriate way, and attend the operating theatre when he was informed of the difficulty Dr Dennett was having.  Dr Phipps failed to discharge each of those duties.  The Tribunal further found the advice to insert a drain and close the abdominal incision without removing the appendix was wrong and unacceptable.  The Tribunal noted that Dr Dennett alternatively called for authority to make a "midline incision" to better access the abdomen to locate the appendix.  That is exactly what was required in the second operation and Dr Phipps had instructed Dr Dennett not to undertake that procedure.

The Tribunal was satisfied that the charge was made out at a higher level than the level the charge was brought at which was conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner’s fitness to practise medicine.  However, it did not consider that this was an appropriate case in which to amend the charge.  If a charge is to be increased natural justice requires that the parties be notified, and given an opportunity to be heard.  The Tribunal considered this case had already suffered from significant delay and the matter needed to be resolved without any further delay.

Penalty:

The Tribunal was conscious that it must impose a penalty on the basis of the charge, conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner’s fitness to practise medicine, regardless of the evidence establishing that the offending was at a level more serious than the upper limit of a charge of conduct unbecoming.

Dr Phipps is no longer on the New Zealand register and has left New Zealand, apparently permanently.  Therefore the Tribunal considered it would be pointless to either suspend Dr Phipps or impose conditions on him, which would only apply in New Zealand.  The Tribunal recorded that if Dr Phipps was on the New Zealand medical register the Tribunal would impose the condition on Dr Phipps' practice that he would not be permitted to supervise trainee staff for a period of three years.

The Tribunal ordered that Dr Phipps be censured, pay a fine of $1,000 (maximum $1,000) and pay 60% of the costs and expenses of and incidental to the inquiry and hearing.  It further ordered that a notice pursuant to section 138(2) of the Medical Practitioners Act 1995 be published in the New Zealand Medical Journal.

Appeal:

Dr Phipps has filed an application in the District Court to appeal the Decision of the Tribunal out of time.  The application was denied  (R F Phipps v The Medical Council of NZ, (District Court, Auckland, CIV-2002-004-3018, 9 March 2004, Doogue DCJ)).

The District Court ordered judgment for the Medical Council.  It ordered Dr Phipps to pay a total sum of $38,583.66 (Phipps v Medical Council of NZ) District Court, Auckland, CIV 2002-004-1313, 19 May 2004, Joyce DCJ)