• No results found

BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL. TRIBUNAL : Dr D B Collins QC (Chairperson) HEARING : Held in Wellington on 21 July 2006

N/A
N/A
Protected

Academic year: 2021

Share "BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL. TRIBUNAL : Dr D B Collins QC (Chairperson) HEARING : Held in Wellington on 21 July 2006"

Copied!
13
0
0

Loading.... (view fulltext now)

Full text

(1)

PO Box 11-649, Wellington, New Zealand

Telephone: 64 4 381 6816 Facsimile: 64 4 802 4831 Email: gayfraser@hpdt.org.nz

Website: www.hpdt.org.nz

DECISION NO: 54/Med06/33D

IN THE MATTER of the Health Practitioners Competence Assurance Act 2003

-AND-

IN THE MATTER of a charge laid by The Director of Proceedings pursuant to Section 91(1)(a) of the Act against DR A JOHRI of Invercargill, registered medical practitioner.

BEFORE THE HEALTH PRACTITIONERS DISCIPLINARY TRIBUNAL TRIBUNAL : Dr D B Collins QC (Chairperson)

Ms M Avia, Dr R Fenwicke, Dr B Krause, Dr S Purchas (Members)

EXECUTIVE OFFICER : Ms G J Fraser STENOGRAPHER : Ms R Hauraki

HEARING : Held in Wellington on 21 July 2006

APPEARANCES : Mr M Heron for the Director of Proceedings, and Ms G Phipps for Dr Johri

(2)

Introduction

1 Dr Johri is a registered medical practitioner. He practices in Invercargill.

2 On 26 April 2006 the Tribunal received from the Director of Proceedings a disciplinary charge against Dr Johri. The Notice of Charge was amended by agreement on 21 July 2006.

3 The Notice of Charge contained three particulars:

3.1 Particular one of the charge alleged that on or about 1 December 2004 when Dr Johri’s patient returned for a follow up appointment in relation to a breast lump he failed to record whether an examination had occurred;

3.2 The second particular of the charge alleged that on or about 1 December 2004 when Dr Johri’s patient returned for a follow up appointment in relation to a breast lump he failed to refer her to a specialist;

3.3 The third particular of the charge alleged that a follow up appointment for Dr Johri’s patient was made for 6 December 2004, that the patient failed to attend that appointment, and that Dr Johri failed to make arrangements either for a further appointment, other monitoring or a referral to a specialist.

The Director of Proceedings alleged that the conduct set out in all three particulars amounted to professional misconduct when viewed cumulatively.

4 The Tribunal heard the charge in Wellington on 21 July. At the hearing Dr Johri admitted the facts, and that his conduct constituted professional misconduct.

5 The Tribunal has determined Dr Johri’s conduct constitutes professional misconduct and that he should be censured and ordered to pay 30% of the costs of the Director of Proceedings and the Tribunal. These orders are made pursuant to s.101(1)(d) and (f) of the Health Practitioners Competence Assurance Act 2003 (“the Act”).

(3)

Legal Principles

Onus and Standard of Proof

6 The Director of Proceedings accepted she was required to prove the charge and that at no stage did Dr Johri carry any onus of proof.

7 New Zealand authorities currently require the Tribunal to assess the culpability of a health practitioner on the basis of the civil standard of proof, bearing in mind that serious allegations require a high level of proof. In Brake v Preliminary Proceedings Committee1 a full Court of the High Court expressed the standard of proof in the following way:

“The standard of proof is not the criminal standard. The Preliminary Proceedings Committee is required to prove the charge to the civil onus, that is, proof on the balance of probabilities. But the authorities have recognised that the degree of satisfaction for which the civil standard of proof calls, will vary according to the gravity of the facts to be proved … The charges against the appellant were grave. The elements of the charge must therefore be proved to a standard commensurate with that gravity.”

Professional Misconduct

8 Professional misconduct is defined in sections 100(1)(a) and (b) of the Act. These subsections of the Act refer to a health professional being guilty of professional misconduct in two circumstances, namely:

“(a) … because of any act or omission that, in the judgment of

the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or

(b) … because of any act or omission that, in the judgment of the Tribunal, has brought or is likely to bring discredit to the profession that the practitioner practised at the time that the conduct occurred ….”

9 The definition of professional misconduct in the Act is modelled on the definition of professional misconduct found in the Nurses Act 1977.

1

(4)

Malpractice

10 Those who drafted s.100(1)(a) of the Act intended to draw a distinction between malpractice and negligence. Whilst there are differences between malpractice and negligence, it is quite conceivable for acts and omissions to constitute both malpractice and negligence.

11 Malpractice is defined in the Collins English dictionary2 as meaning:

“The immoral, illegal or unethical conduct or neglect of professional duty. Any incidence of improper professional conduct.”

The same term is defined in the New Shorter Oxford English Dictionary3 as meaning:

“Improper treatment or culpable negligence of a patient by a physician or of a client by a lawyer …a criminal or illegal action: wrong doing, misconduct.”

Negligence

12 The term negligence has a specific meaning in law. Before a plaintiff could successfully sue a health practitioner for negligence, they would need to prove four matters, namely:

12.1 That the practitioner owed the plaintiff a duty of care;

12.2 That the practitioner breached the duty of care they owed the plaintiff;

12.3 That the plaintiff suffered compensatible damage;

12.4 That the damage suffered by the plaintiff was caused by the practitioner’s breach of the duty of care they owed the plaintiff.

13 It is highly unlikely the drafters of s.100(1)(a) of the Act envisaged those prosecuting health practitioners would need to prove all the criteria required by the common law to establish negligence on the part of a health practitioner. In the Tribunal’s view, the term “negligence” as used in s.100(1)(a) of the Act, focuses on a practitioner’s breach of their duty in a professional setting. The test as to what constitutes negligence in s.100(1)(a) of the Act requires, as a first step in the analysis, a determination of whether or not, in the Tribunal’s judgment, the practitioner’s acts or omissions fell

2

2nd Edition

3

(5)

below the standards reasonably expected of a health practitioner in the circumstances of the person appearing before the Tribunal. Whether or not there has been a breach of the appropriate standards is measured against the standards of a responsible body of the practitioner’s peers.4

14 The approach set out in paragraph 13 of this decision avoids the need for prosecuting authorities to prove damage. Thus for example, a practitioner who fails to make appropriate notes of a consultation may not cause damage to their patient, but may nevertheless be guilty of negligence within the meaning of s.100(1)(a) of the Act.

Discredit to the Profession

15 To bring discredit on a health practitioner’s profession is a term that was considered by Gendall J in Collie v Nursing Council of New Zealand5in which he described the term to bring discredit to the nursing profession in the following way:

“To discredit is to bring harm to the repute or reputation of the profession. The standard must be an objective standard for the question to be asked by the Council being whether reasonable members of the public, informed and with knowledge of all the factual circumstances, could reasonably conclude that the reputation and good standing of the nursing profession was lowered by the behaviour of the nurse concerned.”

Professional Misconduct under the HPCA Act

16 The Tribunal is of the view that much of the jurisprudence concerning the meaning of professional misconduct under earlier legislative regimes continues to be relevant under the Act. In particular, the Tribunal believes that the test as to what constitutes professional misconduct continues to involve a two step process:

16.1 The first step involves an objective analysis of whether or not the health practitioner’s acts or omissions in relation to their practice can be reasonably regarded by the Tribunal as constituting:

malpractice; or

negligence; or

otherwise meets the standard of having brought, or was likely to bring discredit to the practitioner’s profession.

4

See for example, Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 (HL).

5

(6)

16.2 The second step of the process requires the Tribunal to be satisfied that the health practitioner’s acts or omissions require a disciplinary sanction for the purposes of protecting the public and/or maintaining professional standards and/or punishing the health practitioner.

17 The second limb to the test referred to in paragraph 17.2 recognises the observations in

Pillai v Messiter6; B v Medical Council7; Staite v Psychologists Board8 and Tan v ARIC9 that not all acts or omissions which constitute a failure to adhere to the standards expected of a doctor necessarily constitute professional misconduct. The Tribunal must be satisfied the established acts and omissions justify a disciplinary finding in order to protect the public and/or maintain professional standards and/or on occasions, to punish the practitioner.

18 The Tribunal has assessed Dr Johri’s conduct in this case by addressing the tests noted in paragraph 16 in relation to the allegations in the notice of charge. Because the particulars of the charge allege acts and omissions in the way in which Dr Johri discharged his professional responsibilities to his patient, the Tribunal has examined his conduct as allegations of negligence rather than malpractice or conduct that was likely to bring discredit to the medical profession.

The Evidence

19 The Tribunal received a summary of facts which the parties helpfully prepared and submitted to the Tribunal.

20 Dr Johri and the Director of Proceedings submitted that on 22 November Dr Johri’s patient, Ms Wilson, visited her midwife for a routine check-up. The midwife’s notes documented Ms Wilson had a lump on her left breast and that she had advised Ms Wilson to see her general practitioner. At that stage Ms Wilson was 40 years of age and 21 weeks pregnant.

21 On 24 November Ms Wilson and her partner attended a consultation with Dr Johri regarding a lump in her left breast. This consultation was arranged after Ms Wilson had seen her midwife on 22 November.

6

(1989) 16 NSW LR 197;

7

Unreported HC Auckland, HC 11/96, 8 July 1996, Elias J.

8

(1998) 18 FRNZ 18

9

(7)

22 Doctor Johri’s records note that there had been a three day history of a painful lump in Ms Wilson’s left breast. On examination there was a 3cm lump and Dr Johri considered it was most likely a blocked duct with infection or a tumour. It was Dr Johri’s intention to refer Ms Wilson to a breast surgeon if the lump did not respond to a 10 day course of antibiotics and panadol. A further appointment was made for one week’s time (1 December 2004).

23 No issue was taken with the quality of the advice and service provided by Dr Johri to his patient at the consultation on 24 November.

24 On 1 December 2004 Ms Wilson attended a second consultation and was again accompanied by her partner. She advised Dr Johri that there had been some reduction in the size of the lump and that it was not as sore as previously. There was no discharge. Ms Wilson is reported to have said that Dr Johri did not examine the breast lump or make a follow up appointment. Doctor Johri disputed this. He said that he did examine the lump and make a follow up appointment but his records are incomplete. No referral was made to a specialist. Doctor Johri’s record of his consultation on 1 December reads:

“… the lump has gone down in size not as sore also no discharge, wait and see in March when baby is due” (emphasis added)

25 In February 2005 Ms Wilson and her partner moved to Dunedin where she saw a new midwife and explained she had a lump in her breast. Ms Wilson was immediately referred to a breast screening service at Dunedin Hospital. She was seen by a house surgeon on 15 March 2005 and upon examination a fixed solid lump measuring 6cm by 4cm was found.

26 Following a mammography and fine needle cytology a diagnosis of left breast carcinoma was confirmed.

27 Ms Wilson was induced and gave birth by way of caesarean section to a baby girl on 25 March 2005. On 14 April 2005 she underwent a left mastectomy and axillary dissection. A CT scan on 18 April confirmed likely metastatic disease. Unfortunately Ms Wilson died on 15 November 2005.

28 The parties accepted that breast cancer in pregnancy is particularly aggressive and needs urgent management. It was accepted by Dr Johri that he should have recorded whether an examination occurred on 1 December 2004 and that he should have insisted on some review in the next week. Doctor Johri should have alerted Ms Wilson’s

(8)

midwife and made sure that her progress was monitored. If there had been an appointment made for 6 December 2004 which Ms Wilson did not attend then Dr Johri should have left no stone unturned and made sure that Ms Wilson was again seen and examined.

29 Doctor Johri acknowledged the facts outlined in the preceding paragraphs and that his conduct in the circumstances amounted to professional misconduct.

Tribunal’s Findings

30 The Tribunal has carefully considered the evidence and agrees that Dr Johri failed to adhere to the standards ordinarily expected of a general practitioner in his circumstances in this case.

31 Doctor Johri should have been alert to the possibility that his patient was suffering an aggressive form of breast cancer and that it was essential that her condition be carefully monitored. It was also incumbent on Dr Johri to arrange for a referral to a specialist once he appreciated that the lump had not completely disappeared in response to antibiotic treatment.

32 The Tribunal is satisfied that Dr Johri’s acts and omissions were a serious departure from the standards ordinarily expected of a general practitioner in his circumstances. Doctor Johri’s omissions meet the test of negligence set out in s.100(1)(a) of the Act. Furthermore, the Tribunal is satisfied that in the circumstances of this case a disciplinary finding is needed in order to protect the public and/or maintain professional standards.

Penalty

33 When considering the facts relevant to penalty the Tribunal has focused upon Dr Johri’s culpability when he failed to properly treat and manage Ms Wilson in December 2004. It will never be known if the tragic outcome of Ms Wilson’s death would have been avoided had Dr Johri responded more appropriately to his patient’s circumstances in December 2004.

34 There are three categories of facts which the Tribunal has concentrated upon when assessing the penalty which it has imposed upon Dr Johri. Those categories are:

34.1 Doctor Johri’s record as a doctor and member of the community;

(9)

34.3 Doctor Johri’s level of culpability.

Dr Johri’s record as a doctor and member of the community

35 Doctor Johri is now 58 years old. He has practiced medicine in New Zealand since 1972 when he became a house surgeon at Southland Hospital.

36 Doctor Johri’s medical record has in all other respects been exemplary. He has never previously been the subject of a complaint or any form of disciplinary hearing.

37 The Tribunal is in no doubt Dr Johri is a committed and dedicated doctor. He has also made an outstanding contribution to the community of Invercargill. The following list of Dr Johri’s professional appointments provide an insight into his commitment to medicine. He discharges the following roles in addition to being a very busy general practitioner. Doctor Johri is currently:

37.1 A designated doctor for Work and Income New Zealand;

37.2 Civil Medical Examiner for the Defence Forces;

37.3 Medical Examiner War Pensions Board;

37.4 Departmental doctor Child Youth and Family Service;

37.5 Departmental doctor Department of Corrections;

37.6 A member of the locum medical staff in the emergency department at Southland Hospital (as required);

37.7 A trainer of general practice interns;

37.8 School doctor Southland Girls High School;

37.9 A medical provider for the New Zealand Academy of Sports;

37.10 A trainer for the Royal New Zealand College of General Practitioners in family travel and sports medicine.

38 Doctor Johri’s contribution to his community can be gauged by reference to the following Honorary appointments and positions:

38.1 1974 Doctor Formula One Racing Teretonga;

(10)

38.3 1978-1982 Doctor for Southland Boxing Association;

38.4 1988-1990 Medical Officer Southland Swimming Centre;

38.5 1988-1992 Medical Officer Foveaux Amateur Swimming Club;

38.6 1988 Team Doctor Invercargill Swimming Academy team to Wharenui Winter Olympics Christchurch;

38.7 1993-1997 Team Doctor Southland Girls High School ski teams;

38.8 1995-1997 Doctor Touch Rugby Union;

38.9 1995-1997 Team Doctor Queenstown Alpine Ski team;

38.10 1995 Duty Doctor Queenstown Alpine Ski team Ski-athon ;

38.11 1997 to present Medical Officer Athletics Southland;

38.12 1998 to present Medical Officer Cycling Southland;

38.13 1973 Foundation Member and Medical Adviser Invercargill Lifeline;

38.14 1974 Divisional Surgeon for St John;

38.15 1983 to present New Zealand Medical Association representative to Invercargill Defence Force;

38.16 1985-1986 Member of the Board of Governors St Johns Girls School;

38.17 1987-1989 President Otatara School PPTA;

38.18 1988-1992 Committee Member Foveaux Amateur Swimming Club;

38.19 1991-1999 Treasurer Southland Girls High School PPTA;

38.20 1991-1999 Convenor Southland Girls High School Fund Raising Committee;

38.21 1992 Medical Officer Girl Guide Jamboree;

38.22 1994-2000 Co-ordinator and participating doctor Invercargill Sports Injury Clinic;

(11)

38.24 1998 Trustee and Treasurer Southland Girls High School Foundation;

39 Doctor Johri has displayed a considerable commitment to continuing medical education. He regularly attends courses overseas and within New Zealand to improve his medical knowledge, particularly in his areas of special interest namely family sports and travel medicine.

40 The Tribunal received a number of references and testimonials from specialists who have worked closely with Dr Johri. Those specialists who know Dr Johri have written about his dedication and his commitment to his patients. The specialists whose testimonials have been presented to the Tribunal refer to Dr Johri upholding the highest standards of the medical profession.

41 In addition to receiving support from senior members of the medical profession, Dr Johri has also provided the Tribunal with a number of letters of reference from patients and their families all of whom attest to the outstanding service he has provided them.

Dr Johri’s attitude to his mistake

42 Doctor Johri has sworn an affidavit in which he makes it very clear that he accepts his error and is genuinely remorseful that his mistake may have contributed to the death of Ms Wilson.

43 Doctor Johri has put in place a number of changes in his practice to ensure at risk patients are carefully monitored and followed up. The Tribunal is confident that Dr Johri will not repeat the errors that have been the focus of the charge before the Tribunal.

44 An indication of how this tragedy has impacted upon Dr Johri can be assessed from the following paragraphs in his affidavit:

“Words cannot express how I feel and my sorrow about what happened. The effect on me has been profound. I have withdrawn more or less into a shell. I feel that I cannot take on any more trainee doctors under the Royal New Zealand College of General Practitioners general practice training programme, as being the subject of a charge, in my view, makes me unworthy.

I have also stopped taking 5th year trainee interns from Dunedin and from overseas, again because I do not think I am a person worthy of such a task.”

(12)

45 The Tribunal is pleased to note that Dr Johri has taken a number of steps to reduce his activities and roles so as to ensure that he can spend more of his limited time within his practice.

Dr Johri’s culpability

46 Doctor Johri fully accepts that he made a serious error in not properly monitoring and managing Ms Wilson in December 2004. It is notable Dr Johri was one of a number of health professionals managing Ms Wilson at this time and it is possible she may not have been monitored as carefully as she should have been by all associated with her care.

47 Notwithstanding the seriousness of Dr Johri’s errors his omissions must be seen in the context of offending that the Tribunal normally assesses. There can be no doubt that Dr Johri’s mistakes were at the lower end of the spectrum of professional misconduct. The Director of Proceedings properly acknowledged that Dr Johri’s omissions did not warrant the imposition of any of the more serious penalties available under the Act.

Conclusion

48 The Tribunal has concluded that in this case Dr Johri is appropriately punished by a formal censure and an order for costs. In the case of Dr Johri, a formal censure is a genuine punishment. He is a doctor who takes his professional position and responsibilities very seriously. He has been deeply affected by this charge and his appearance before the Tribunal. In these circumstances, the Tribunal believes that the interests of society and the profession are best served by way of a censure.

49 Doctor Johri will be required to pay a contribution towards the costs of the Director of Proceedings and the Tribunal. His contribution reflects the fact he pleaded guilty and has co-operated with the Director of Proceedings and the Tribunal. He will be required to pay 30% of the costs of the Director of Proceedings and the Tribunal (those costs will be apportioned equally between the Director of Proceedings and the Tribunal).

50 The Executive Officer will be required to publish a summary of the Tribunal’s decision in the New Zealand Medical Journal. This order is made pursuant to s.157(2) of the Act.

(13)

Dated at Wellington this 25th day of July 2006

……… D B Collins QC

Chairperson

References

Related documents

Block scheme of proposed SAR images coregistration algorithm in the presence of rotation and translation effects.. Portion of master and slave images (modulus expressed

 require the filing of a financial statement  order an assessment of financial means  issue a warrant to seize property  conduct a financial assessment hearing 

The purpose of this study is to investigate the benefits of specialized camp services among parents of children with a disability. This study will examine Camp Paivika, a summer

golden rule, in decision making by public functionaries, administrative organ, as Government agencies. Denial of principle of “fairness” would render decision

In a hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise

With such huge difference in costs making the right choices has never been more important – but this is a decision making process that really is still quite a new concept for

UK Trade and Investment considers UK has an opportunity to secure the biggest cloud and data centre markets in the world, as well as access to the broader European market with

7 However, whilst this separation would itself be very positive for the future competitiveness of the South African horse racing industry, the second part of