Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The Director of Proceedings charged a Doctor with professional misconduct. The particulars were as follows:

1. He failed to appreciate the significance of the symptoms of a 23-week pregnant patient, those being:

1. 11 hours of collicky infra-umbilical pain;
2. Pain that had been increasing in intensity and frequency, with the pain occurring every five minutes;
3. Three loose bowel motions;
4. No nausea or vomiting;

and/or

2. He failed to consider a threatened miscarriage as a differential diagnosis;
   or
   
   
3. He considered a threatened miscarriage as a differential diagnosis but failed to take appropriate steps to confirm or exclude the differential diagnosis of a threatened miscarriage;
   and/or

5. He failed to undertake or arrange for bi-manual pelvic and/or speculum examination of the cervix;
   and/or
   
   
6. He failed to arrange transfer of his pregnant patient to a hospital for further assessment.

      During the course of the hearing the Director of Proceedings withdrew Particular 4.

Background: 

The patient saw the Doctor for the first time at an Accident and Medical Centre ("the Centre") which was across the road from her house. At the time of the consultation the patient was approximately 24 weeks pregnant. It was her first pregnancy. The patient attended the centre at about 7.52 am as she had severe stomach pain which had commenced at about 9.00 pm the previous evening. The Doctor recorded in his notes the patient had bad stomach pains every 5 minutes and that moving her bowels relieved the pain for a short time. The Doctor diagnosed the patient as suffering from gastroenteritis.

The Doctor gave the patient a prescription and told her to drink as much fluid as possible and not to eat. He also ordered a blood and urine test as she was pregnant and that if she got worse she was to contact him.

After having the blood and urine test the patient returned home took the prescribed medicine and went to rest on her bed. Her pain became worse and she continued to feel a strong urge to go to the toilet. The patient was at this stage pushing to relieve her pain and while pushing she delivered her baby. The baby was breathing and the patient gave the baby mouth to mouth resuscitation. She telephoned the Centre and a doctor and two nurses immediately came over to assist at 9.30 am. The patient and her baby were taken to hospital by ambulance. The baby died on the way to hospital.

Finding:

A majority of the Tribunal (the Chair dissenting) found the Doctor guilty of conduct unbecoming a medical practitioner and the conduct reflected adversely on the Doctor's fitness to practise medicine. The Chair of the Tribunal was also satisfied that the charge was proven and was in complete agreement with all of the substantive findings made by the majority. However the Chair was satisfied that the conduct complained of constituted professional misconduct by the Doctor and would have upheld the charge at that level.

The Tribunal was satisfied Particular 1 was proven. The Tribunal considered the most compelling evidence to support that finding was the written record of the consultation made by the Doctor at the time. The Tribunal found that had the Doctor appreciated the significance of the symptoms reported to him, then he would have recorded that in the notes and taken a different course of action.

The Tribunal considered Particulars 2 and 3 together. The Doctor gave evidence that "it crossed his mind" the patient was in labour, but he excluded the diagnosis. The Tribunal found the Doctor should be given the benefit of doubt in this case and found Particular 2 was not proven. The Tribunal found that to the extent the Doctor did consider premature labour in his differential diagnosis, and such consideration was fleeting, he failed to take appropriate steps to confirm or exclude the differential diagnosis of a threatened miscarriage. Therefore, the Tribunal found Particular 3 was established.

The Tribunal found Particular 5 was not established as the Tribunal was satisfied the Doctor's decision not to carry out such examinations did not constitute an error or any departure from acceptable professional standards.

The Tribunal was satisfied Particular 6 was established and in many respects the Tribunal found this to be the most serious failing on the part of the Doctor. The Tribunal was satisfied even if only as a matter of common sense the Doctor should have referred the patient to the hospital.

The Tribunal also considered a submission by counsel for the Doctor. She submitted that by virtue of clause 14 of the First Schedule to the Act the Tribunal can only amend a charge during the course of the hearing. If the Tribunal chooses not to exercise that discretion, then the Tribunal must find the charge proved at the level nominated in the charge, or dismiss it, or, amend the charge at any time 'up until the issue of its decision' and notify the practitioner concerned of any intended amendment and allow the opportunity of response. The Tribunal did not consider this submission to be correct. The Tribunal was satisfied that the approach it had taken for the past three years was correct. It considered that having found that a disciplinary offence is proven it is for the Tribunal, subject to natural justice, to determine the level at which the charge is established.

Penalty:

The Tribunal ordered that the Doctor be censured, pay costs of $11,205.69 which represented one third of the costs and expenses of and incidental to the investigation and the hearing of the charge. The Doctor was also ordered not to treat any pregnant women. The Tribunal noted it only had power to impose such a condition on the Doctor's practice for a maximum of 3 years. It recorded, however, the Doctor gave an undertaking to the Tribunal and the Medical Council that he will not treat pregnant women and that such an undertaking is not caveated by any such time limit.

The Tribunal ordered that if the Doctor did wish to resume treating pregnant patients in any capacity then he must undertake a refresher course or otherwise obtain appropriate accreditation from the Medical Council.

Appeal:

The Director of Proceedings filed a notice to appeal the decision to the District Court.  Counsel for the Doctor filed a notice of cross appeal.  Both appeals were withdrawn.