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Charge:  

A Complaints Assessment Committee charged that Dr Richard Strawson Stubbs of Wellington, in providing treatment to a patient prior to performing a revision gastric by-pass by was of gastric transection on 8 December 1993, failed to obtain the informed consent of the patient in that he failed to adequately inform her of the possible risks and adverse effects of the surgery so that she was unable to make an informed choice whether to undertake the surgery.  The Committee alleged that such conduct was professional misconduct (or alternatively was conduct unbecoming a medical practitioner and that that conduct reflected adversely on the practitioner's fitness to practise medicine).  Dr Stubbs denied the charge which was heard by the Tribunal during the year 2000.

Background: 

In 1986 the patient had a gastric by-pass operation in order to lose weight. Post-operatively she developed a deep vein thrombosis and a pulmonary embolus. As a result of the surgery she achieved a significant weight loss.

In 1993 she experienced epigastric pain and discomfort (which she had suffered from previously). She also developed an unpleasant reflux problem. Medication which she was taking at the time did not alleviate the problem and her general practitioner referred her to Dr Stubbs. Following two consultations with Dr Stubbs she was admitted to hospital and on 8 December she underwent the procedure of gastric revision surgery by transection.

She suffered serious post-operative complications and spent the next nine months in hospital.  During that time she had several surgical interventions. After she was discharged, she was re-admitted a fortnight later for a further stay of three months. Since the operation carried out by Dr Stubbs the patient had had numerous further operations.  She was still in pain and requiring relief through morphine at the time of the hearing.

The Tribunal considered the issue for it to determine was what information was verbally conveyed by Dr Stubbs to his patient about the possible risks and adverse affects of the proposed surgery in consultations which took place in October and November 1993.  The patient asserted that there was no discussion about risks or serious complications in either of the consultations.  Dr Stubbs said that such matters were the subject of advice from him and discussion on both occasions.  No written record of such matters having been discussed was made by Dr Stubbs during, or shortly after, either consultation.

Finding:

The Tribunal considered whether revision surgery was discussed during the first consultation. A majority (three members) of the Tribunal preferred the evidence of the patient and found that there was no discussion of revision surgery at the first consultation on 22 October 1993. Those members considered that on this point Dr Stubbs' recollection was at fault, when he gave evidence, and that the patient was correct in saying that at the first consultation Dr Stubbs outlined the steps he would take by way of investigation of her symptoms and that there was not at that stage any discussion of revision surgery.  The Tribunal then went on to consider whether risks attaching to revision surgery were discussed at the first consultation. The patient's position was that since revision surgery itself was not discussed there was no discussion at the first consultation about the risks that it might involve. A majority (the same three members) of the Tribunal had a clear preference for the patient's evidence on this point. The other two members of the Tribunal were not satisfied that no discussion of risks occurred during that consultation but accepted that there was certainly no adequate discussion of the risks and complications of revision surgery at that time.

As to the second consultation, the Tribunal, while accepting the sincerity of the patient's belief that Dr Stubbs also gave her no information about risks during that consultation, was not satisfied that it had been proved that she was correct.  All members thought it more likely that during that consultation there was some discussion by Dr Stubbs about the risks which were inherent in the  proposed revision surgery.  It was held that the Committee had failed to prove that those risks were inadequately disclosed in the second consultation.

This however, was not the end of the matter.  The obligation on Dr Stubbs was to disclose to the patient, in an appropriately effective way, not only the risks inherent in the procedure but also any risks which were material to a reasonable person in the circumstances of the patient.

At the time of the consultations the patient was undertaking a course which she planned to resume in mid-February 1994.  She was involved in full-time study and near the end of her degree.  It was important to her that nothing jeopardise the completion of her course and Dr Stubbs accepted in cross-examination that the patient made it clear that she wished to be fit to resume her course in the following year.  He said he believed it was likely that in 2.5 to 3 months she could accomplish the surgery and recover sufficiently to return to her course.  He did not claim to have warned the patient that there was a risk that her resumption of the course could be jeopardised, or even prevented, if serious complications ensued.  (In fact because she was in hospital she was unable to resume the course.  Its completion was no longer feasible.  She was left with no qualifications after investing three years of hard work and financial outlay).

The Tribunal had no doubt that the proposed transection surgery was difficult, dangerous and high risk surgery with a high potential for things to go wrong.  It found the patient had made clear she had to resume her course in mid-February and that that was important to her.

It held that the risk that serious complications might result from the surgery proposed was not remote, far-fetched or immaterial.  It was a significant risk.  The consequences for the patient, if serious complications did occur and a significant extension of hospital stay and/or a need for further surgery resulted, plainly might have included her being unable to resume her course in mid-February as scheduled.  This risk was material to the patient because of her particular circumstances and would have been material to any reasonable person in the circumstances of the patient.

The Tribunal found that it was essential that Dr Stubbs warn her that:

• There was a significant risk of serious complications
• If one or more of these materialised, could not promptly be remedied and persisted, a prolonged stay in hospital and further surgery were possible and the scheduled resumption of her course in mid-February could be jeopardised or even prevented.

Had that advice been given the patient would then have been able to make an informed choice as to whether she accepted and was prepared to run the risk that she might not be able to resume the course as scheduled or whether she preferred to put up with the symptoms, until she had completed the remaining twelve weeks of the course, and reconsider the issue of surgery thereafter.

By a majority of four to one the Tribunal found that the Committee had proved to the necessary standard that Dr Stubbs failed to adequately inform the patient of the possible risks and adverse effects of the surgery in that he failed to inform her of the material risk that the resumption of her course could be jeoopardised or even prevented if serious complications materialised, could not promptly be remedied and required a prolonged stay in hospital or further surgery.

The Tribunal considered the conduct in question did not amount to professional misconduct.  In arriving at this conclusion the Tribunal had particular regard to its view that it was likely some advice was given about inherent risks and that this was not a case in which the doctor failed to provide the patient with any advice in that area.  The Tribunal was satisfied that the conduct did amount to conduct unbecoming a medical practitioner which reflects adversely on the practitioner's fitness to practise medicine.

Penalty:

Dr Stubbs was censured, fined $700 (maximum $1,000 because of the date when the conduct occurred)) and ordered to pay $24,000 towards the costs and expenses of and incidental to the inquiry. It was also ordered that a notice pursuant to s138(2) of the Act be published in the New Zealand Medical Journal.