Health Care Complaints Commission v Bronstein

NCAT Occupational|2021-09-22

REASONS FOR DECISION

By Application for disciplinary findings and orders filed on 12 November 2020, the applicant seeks the following orders: "1. An order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint dated 12 November 2020 under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of a complaint is proved or admitted, the applicant seeks: 2. Protective orders under section 149A (caution, reprimand, counsel etc.) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law; and 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law."
The grounds of the application are stated as follows: "The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint dated 12 November against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a), (b) and/or (l) and professional misconduct within the meaning of section 139E of the National Law."

Complaint One

The Background to Complaint One is stated as follows: "Patient A At 10:35am on 21 June 2018, Patient A was admitted to the ED by ambulance. Patient A was diagnosed with type 2 respiratory failure and placed on a Bilevel Positive Airway Pressure breathing machine ('BiPAP'). Patient A (59 years old) had been a quadriplegic since 1981 and was morbidly obese due to this condition. Between 2016 and 2018, Patient A had had a number of emergency presentations for type 2 respiratory failure and sepsis. As a result, on 3 April 2018 Patient A signed an 'Advanced Care Directive' requesting that the only life prolonging treatment provided to him be intravenous antibiotics and NIV. Patient A also stated no intubation. At 11:53am, arrangements were made for Patient A to be admitted to the intensive care unit at Grafton Hospital and a bariatric ambulance was ordered to transfer Patient A by road. At about 3:00pm, care of Patient A was transferred to the practitioner by the treating practitioner of Patient A ('the permanent VMO') and from about 3:30pm the practitioner was the only medical practitioner in the ED. At about 4:30pm, Patient A's condition began to deteriorate, with Patient A becoming diaphoretic and his oxygen saturation decreasing. At about 5:21pm, the ambulance arrived at the ED. However, Patient A was deemed unsuitable for bariatric transfer by paramedics and a medical retrieval was ordered. From about 8:32pm, Patient A's condition began to deteriorate rapidly. Patient A died at 8:45pm. Patient B At 7:47pm on 21 June 2018, Patient B was admitted to the ED by ambulance experiencing chest pain. Patient B was 24 years old and about 29 weeks pregnant. Patient B had a history of diabetic ketoacidosis and diabetes mellitus. Upon triage at 7:52pm, Patient B was normotensive and had an irregular heartrate of 166bpm. Patient B underwent an electrocardiogram ('ECG') and was diagnosed by the practitioner with atrial fibrillation. The practitioner contacted Lismore Base Hospital ('LBH') for clinical advice, forwarding the results of Patient B's ECG. The practitioner subsequently prescribed intravenous administration Metoprolol (3 doses of 5mg). The doses of Metoprolol were administered at 8:20pm, 8:37pm, and 8:54pm. The practitioner next prescribed intravenous Amiodarone (300mg on 100ml, 5% dextrose), which was administered from 9:15pm. At 9:45pm, an ambulance arrived to transport Patient B to LBH for further treatment. Patient B had an irregular heartrate of 94bpm."
The Particulars of Complaint One are as follows: "Patient A 1. Between about 3:00pm and 8:45pm on 21 June 2018, in circumstances where the practitioner was aware that the use of a BiPAP machine was outside his scope of practise, the practitioner: a. at about 3:00pm, failed to notify the permanent VMO when receiving Patient A into his care; b. failed to notify senior Hospital staff once Patient A was in his care; c. failed to sufficiently seek specialist assistance once Patient A was in his care. 2. Between about 3:00pm and 8:45pm on 21 June 2018, the practitioner failed to be involved in the care of Patient A. 3. Between about 3:00pm and 8:45pm on 21 June 2018, the practitioner failed to conduct a physical examination or assessment of Patient A. 4. Between about 3:00pm and 8:45pm on 21 June 2018, the practitioner inappropriately delegated care of Patient A to nursing staff in circumstances where: a. Patient A was a complex patient on non-invasive ventilation ('NIV'); b. management of patients on NIV was a requirement of his role as VMO; c. from about 3:30pm, the practitioner was the only medical practitioner in the ED; d. he did not conduct a physical examination or assessment of Patient A before delegating care; e. he did provide very limited support to nursing staff. Between about 4:30pm and 8:45pm on 21 June 2018, the practitioner failed to provide adequate care and treatment to Patient A after his condition first began to deteriorate, in circumstances where: a. at about 4:30pm the practitioner inappropriately suggested to nursing staff and Patient A's family that Patient A be intubated when he should have been aware of the Advanced Care Directive; b. from about 4:30pm the practitioner failed to be involved in discussions with specialists regarding the appropriate treatment for Patient A; c. between about 5:21pm and 6:46pm the practitioner failed to provide sufficient clinical information to paramedics to facilitate adequate care of Patient A. Patient B 6. Between about 8:00pm and 9:45pm on 21 June 2018, the practitioner prescribed Metoprolol and Amiodarone to Patient B in circumstances where: a. he failed to obtain a detailed history prior to prescribing medication; b. he failed to provide sufficient information to specialists to ensure appropriate clinical advice was obtained concerning treatment of Patient B; c. he failed to conduct appropriate enquiries prior to prescribing Metoprolol; d. the quantity of Metoprolol prescribed was excessive; e. Amiodarone was not suitable for a pregnant patient; f. he was aware that Amiodarone was not recommended for a pregnant patient; g. the concurrent use of Metoprolol and Amiodarone is contraindicated in pregnancy. 7. Between about 8:00pm and 9:45pm on 21 June 2018, the practitioner failed to provide adequate care and treatment to Patient B in circumstances where: a. he failed to properly monitor Patient B after the administration of Metoprolol and Amiodarone; and b. he failed to sufficiently seek specialist assistance from a specialist in either emergency medicine or obstetrics."

Complaint Two

The background to Complaint Two is the same as that for Complaint One.
The Particulars of Complaint Two are as follows: "Patient A 1. On 21 June 2018, the practitioner contravened clause 6(1) of the 2016 Regulation in respect of his medical records in that he failed to: a. make an adequate record of his treatment of Patient A; and b. keep an adequate record of his treatment of Patient A. Patient B 2. On 21 June 2018, the practitioner contravened clause 6(1), and subclause 3(2) of Schedule 4, of the 2016 Regulation in respect of his medical records in that he failed to record sufficient information to enable another medical practitioner to adequately continue management of Patient B's care."

Complaint Three "The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration"

The Particulars of Complaint Three are as follows: "1. When two or more particulars of Complaint One or Complaint Two are taken together, a finding of professional misconduct is justified."

The respondent has filed a detailed response to the allegations made against him.

All complaints

With respect to all complaints the respondent states: "With respect to the background facts to all Complaints, I deny that I was rostered to work from 12.30pm to 10:00pm as the solo medication practitioner in the ED and say instead that I was rostered with one other medical practitioner from 12:30pm to 3:30pm and then as a solo medical practitioner from 3:30pm to 10:00pm. I admit the balance of the background facts to all Complaint."

Complaint One "Background to Patient A I do not admit to the background facts relating to any time prior to 3:00pm on 21 June 2018 as I do not have personal knowledge of those facts. I admit the balance of the background facts relating to Patient A. Background to Patient B I admit the background allegations relating to Patient B."

Complaint Two "Patient A I repeat my response to the background particulars for Complaint 1. Particulars of Complaint Two 1. I admit that I did not keep a record of my treatment of Patient A. I sought specialist involvement in the care of Patient A and those specialists would have kept detailed clinical notes. Patient B 2. I deny particular 2 and say that the records I kept for the treatment of Patient B were suitable for the purpose of handing over a patient for transfer."

Complaint Three "I do not admit that I am guilty of unsatisfactory professional conduct, or professional misconduct."

Prior proceedings

On Friday, 3 August 2018, a hearing was convened under s 150 of the National Law concerning the matters which are the subject of Complaints One and Two.
As a consequence of the hearing the Medical Council of NSW ("Medical Council") published its reasons on 27 August 2018 imposing conditions upon the applicant's registration. In summary, those conditions required the respondent to practise only as a trainee in Emergency Medicine at an accredited teaching hospital approved by the Medical Council; to practise under Category B supervision; and to practise in accordance with the current Medical Council's Guideline for self-treatment and treating relatives.
On 1 February 2019 a hearing was convened under s 150A of the National Law to consider the respondent's application received by the Medical Council for review of the decision of the Medical Council made on 3 August 2018.
The Medical Council published its reasons on 19 February 2019. The reasons record the fact that the respondent "had a long and colourful history with the Council dating back to 2005". The reasons state: "A notable feature of his history has been his unwillingness to engage with Council especially on performance issues"
The reasons record that the respondent considered that he was being persecuted by the Medical Council; and that the respondent had been unable to find courses which might have assisted him in complying with the conditions it had imposed. The Medical Council considered that the respondent had done "very little to address the deficiencies in his performance and conduct arising from the previous hearing, and this suggested he had chosen to overlook the advice from the Council. We explained to Dr Bronstein the simplest way forward was to impose a condition not to practise medicine while he streamlined his approach to returning to general practice." Accordingly a practice condition was imposed that the respondent not practise medicine.
In July 2019 a further application was made by the respondent under s 150A. On 18 September 2019 the Medical Council published its reasons which reflected the fact that the respondent had made a significant effort to demonstrate a change of circumstance to allow him to return to general practice. Accordingly the decision under review was varied to allow the respondent to return to medical practice subject only to specific conditions namely to allow him to practise only in a group practice, to limit the number of patients to 24 per day and to submit to Category B supervision and audits.

Dr Dean Robertson

Dr Dean Robertson is the GVMO, ED at MDH. On 21 June 2018 he was on duty from 7:00 AM to 3:30 PM. He stated that the respondent arrived in the emergency department at 12:30 PM. The respondent's roster commenced at 12 midday.
At 10:43 AM on that day patient A had been brought to the ED suffering from type II respiratory failure.
Patient A was known to the ED at MDH, having been previously treated on five occasions in the past 18 months by Dr Robertson. The patient was a quadriplegic, weighed 140 kg (although reports of patient A's weight vary), smoked cigarettes, and was known to have recurrent admissions for sepsis and type II renal failure and a well-established ceiling of care. Patient A had signed an Advance Care Directive on 3 April 2018 in which he stated that he did not wish to have a ventilator, kidney machine, surgery, feeding tube or blood transfusions. The form indicated that his religious and spiritual beliefs would be respected. The ceiling was for a Bilevel Positive Airway Pressure ("BiPAP") and intravenous antibiotics and a short period of CPR but not for intubation. The patient had three intensive care episodes in the previous 12 months.
On 21 June, on arrival by ambulance at the ED at MDH he had saturation of 72% on room air and was able to write some words. He would wake and answer a sentence with some words and then sleep. Dr Robertson observed that he was clearly unwell and clearly unable to be managed at MDH. Dr Robertson stated in his statement contained in a record of an interview made on 17 January 2019 for the Northern NSW Local Health District that the ED was unable to provide BiPAP for any lengthy period due to lack of facilities. He had blood gases performed which recorded CO2 of 82. There was no obvious source for the presumed infection. Dr Robertson recorded: "Type two respiratory failure, query upward pressure from a distended megacolon."
Dr Robertson placed the patient on the BiPAP equipment, provided intravenous antibiotics and discussed patient A's condition with the intensivist at Grafton Base Hospital ("GBH"), Dr Andrew White who was very familiar with the patient; so much so that Dr White could recall the settings for the BiPAP machine which was suitable for patient A. Dr Robertson spoke to Dr White and they agreed with the settings by telephone. Dr White agreed to accept the patient into the Intensive Care Unit at GBH where he had a bed available. Dr White also made arrangements to speak to the ED of his hospital. Dr Robertson thereupon requested a bariatric ambulance to transfer the patient by road to the ED at GBH.
During the previous 12 months, Dr Robertson had spent considerable time speaking to numerous ICUs concerning the transfer of patient A to Grafton, Lismore and to Tweed hospitals. Dr Robertson said that he had been involved in the retrieval service available through the Retrieval Unit of the Northern NSW Local Health District (NNLHD) ("Retrieval"). It was proposed that on each occasion the patient would be transported by road if possible in view of the fact that intubation was not an option.
Dr Robertson spoke extensively with patient A's sister and carer on the morning of 21 June 2018. Patient A seemed to "hold his own" through that morning, as he had done on previous occasions, and into the early afternoon as the ambulance was awaited. The plan was to wean the patient off the BiPAP, and stabilise him before his departure by ambulance. Patient A remained on the BiPAP, and was talking intermittently. Dr Robertson considered that patient A was a very ill man nearing the end of his life and that his condition seemed to be similar to previous admissions. Dr Robertson was aware that the ambulance he requested would be equipped with a limited form of BiPAP which could be connected to an oxygen cylinder for the approximate 45 minute journey by road to GBH.
The clinical notes record the medication and the settings for the BiPAP equipment which had been discussed between Dr Robertson and Dr White. The notes also record that at 1:24 PM Dr Robertson obtained further information from the sister and carer of patient A.
Dr Robertson's shift came to an end at 3:30 PM and at this time patient A seemed to be "pretty much stable". Dr Robertson was satisfied that the plan of waiting for an ambulance having such a device was suitable. He was aware that the necessary equipment, namely a BiPAP machine, could not be fitted into a helicopter. The intensivist (Dr White) was content with such plan.

Handover To Respondent

Dr Robertson harboured concerns regarding the work performance of Dr Bronstein. Whilst he did not consider him incompetent, he had concerns that he was not able to perform at a suitable level. However, he did not regard him as "highly competent". Dr Robertson assumed when he handed patient A to the respondent, the respondent would be capable of managing the patient in view of the fact that the patient was stable; had previously been in the hospital in a similar state and had recovered. Further, Dr Robertson was aware that the respondent had ready access to other measures such as fluids and drugs; had access by telephone to seek further expert assistance of Dr White and the Retrieval specialist, Dr Mahoney who could give advice by telephone; and because of the presence of well-trained nurses. Dr Robertson is also aware that patient A was not to have intubation. Dr Robertson believed at the end of his shift that all the issues were being dealt with appropriately. Dr Robertson said in his answers to the investigators, in answer to the question whether he held some concerns for the respondent: "Yeah, I'd been worried for a week and it was no different that day. If it was a different patient or a different circumstance on the BiPAP I don't think I would have left"
Dr Robertson said that when the call was made for the ambulance, he had assumed that patient A's condition would improve, as had been the case on previous occasions. For this reason he did not seek the assistance of the Retrieval Service. He did not suggest to the respondent that the respondent telephone him after 3.30 PM, as it was not the usual practice, nor did he instruct the nurses to do so for the same reason.
Dr Robertson was extensively cross-examined concerning his treatment of patient A and of whether Dr Robertson considered it was appropriate to leave patient A. Dr Robertson reiterated that since the patient had previously recovered, appeared to be stable, would not be having intubation, that there were facilities available where the respondent could seek advice by telephone if he needed it, that it was in order for him to leave the care of patient A to the respondent.

Dr Andrew White

Dr Andrew White is a registered medical practitioner employed as the Director of the Intensive Care Unit at GBH, a position which he has held since 2013.
Dr White recalled that he was on shift at GBH on 21 June 2018 in his capacity as Director of the Intensive Care Unit ("ICU"). He recalled receiving a call from Dr Robertson concerning patient A around midday. Dr White was familiar with patient A, having treated him at GBH on several occasions up to November 2017 for complications related to his multifactorial airway disease, respiratory infections and cellulitis. Dr White was aware that following a trachiotomy, end-of-life treatment limits existed for patient A and that patient A indicated that he did not wish to be subjected to intubation or prolonged CPR in the future.
Dr White recalled that Dr Robertson asked whether there was bed availability for patient A. As the facilities at GBH were greater than those at MDH, it was not uncommon for ED patients of MDH to be transferred either to GBH or to Lismore Base Hospital. In some instances transport would be arranged by ambulance or using the assistance of Retrieval. Dr White informed Dr Robertson that the ICU would have a bed available for patient A in GBH.
Thereafter the next communication Dr White received concerning patient A was a call from a female nurse at MDH some time before 6 PM. Dr White's assistant, Dr Felicity Chapman, ICU trainee was present. The nurse explained to Dr White that the condition of patient A had deteriorated and that they were awaiting an ambulance. The nurse expressed concern about the condition of patient A. Dr White provided advice based on the information that patient A had acute hypoxic and hypercapnoeic respiratory failure and he was fluctuating in terms of treatment success with the BiPAP during the afternoon.
At approximately 6 PM Dr White engaged in a three-way conversation ("the three-way call") with the nurse at MDH and the retrieval specialist, Dr Richard Mahoney. Dr White recalls saying during the conversation words the effect: "[patient A] has been waiting for a long time and I'm advocating for the patients retrieval. [Patient A] has been waiting for ambience transfer all afternoon. I recommend it is transported by helicopter."
Dr White did not recall any conversation with the respondent. Dr White had never met the respondent and does not believe that he was involved in any conversation with the respondent on the afternoon of 21 June, nor on any occasion.
Dr White was extensively cross-examined. He stated that he was surprised when he received a telephone call at approximately 6 PM that patient A was still at MDH. He was concerned that no action been taken to transport the patient after the call was made for the ambulance.

Nurse Gayle Doe

Nurse Doe ("Doe") was rostered on duty as a registered nurse in the ED at MDH on the 21 June 2018 between the hours of 10 AM and 6:30 PM. The nurse in charge was Melissa Chard who was on duty from 7 AM to 3:30 PM, and from 1 PM to 10:30 PM the nurse in charge was nurse Michelle Harrison.
Doe remembers that patient A arrived at the hospital at 10:45 AM, was triaged immediately and placed in the resuscitation Bay. Dr Robertson was on duty at that time. Nurse Gillian O'Brien assisted Doe but she was thereafter on her own from 10:45 AM to 1:30 PM but essentially Doe had the sole care of patient A from 10:45 AM to 6:50 PM. Doe explained that she was full-time with patient A because he needed much care and was very ill. She stated that the ED was not specifically busy: had five patients from 4 PM on to 9 PM. At 3:30 PM Dr Robertson handed over his duties to the respondent. Between 4 PM and 4:30 PM Doe noticed that patient A was deteriorating quickly. She had taken blood tests at 11:14 AM and 1:08 PM. The second test showed deterioration. However at 2:23 PM a third test showed a slight improvement. A fourth test at 4:33 PM showed a deteriorating condition. Another test was taken at 4:58 PM, the result of which was similar to the fourth test.
When Doe noticed the deterioration in the condition of patient A, she approached the respondent and told him that the repeat set of blood tests showed deterioration. The respondent replied with words to the effect: "I can't help. This is out of my depth. I don't know how to use the BiPAP equipment. He's all yours Gayle. You know more about him than I do."
Having received such response, Doe contacted her after hours manager and informed him that the respondent was not willing to help her with patient A. However, as the manager had a "horrendous workload" in another ward, no assistance could be offered to Doe.
Having taken the test results at 4:33 PM Doe took the printed results to the respondent who was sitting at the head of a U-shaped desk in the ED approximately 5 metres away from the resuscitation Bay. She held up the test results to him. He did not appear to look at them and said: "I'm not able to help here. I'm right out of my depth."
The respondent otherwise made no comment; remained seated at his desk and made no attempt to examine patient A. The respondent asked no questions of patient A and made no recommendation to Doe. Accordingly Doe contacted her senior, nurse Amy Lowe who was responsible for emergency departments for GBH and for MDH, and reported the conversation between herself (Doe) and the respondent.
Nurse Lowe then approached the respondent and said to him: "Are you going to help out with this patient?"
The respondent replied: "no"
Doe made a clinical note at 18.50 hours as follows: "Dr Bronstein (locum) unwilling to provide assistance. Admits to no knowledge of BiPAP equipment states "out of his depth". RN in charge of hospital, David Tees notified. He is unable to provide assistance at this stage due to his workloads. Amy Lowe NM ED present and able to stay for assistance."
At 4:58 PM Doe took further blood tests which were similar to those taken at 4:33 PM. She then telephoned Dr White at 5:20 PM. Dr White was familiar with the patient and Dr Robertson had previously spoken with Dr White who was prepared to accept patient A at GBH.
In the conversation between Doe and Dr White, Doe reported that the respondent would not help; that she had been left on her own and provided Dr White with the blood test results. Dr White then gave instructions to nurse Doe to change the BiPAP equipment settings to 20/10; oxygen saturation 86% to 88%, increase oxygen by 50%, to administer hydrocortisone 200 mg; magnesium 10 mg, ventolin and gave other instructions to Doe for patient A.
Doe said that the respondent made no enquiries concerning patient A's urine output, gas results nor did he examine the patient. At nurse Doe's suggestion the respondent ordered 1000mls of intravenous normal saline be administered to patient A but did not examine patient A before such prescribing the saline.
At 5:46 PM a phone call was received from Dr Mahoney, whose evidence is referred to hereunder. The phone call was answered by the respondent. He immediately handed the telephone to Doe and said: "This is for you. You know the patient. I don't know anything about him". The respondent did not then examine patient A.
Dr Mahoney then spoke to Doe and advised her that he was organising a helicopter. Dr White participated in the telephone call (which became the three-way call) and confirmed that he still had a bed available at the intensive care unit at GBH. A remote telehealth camera was not working in the resuscitation area of the ED at MDH and accordingly Dr Mahoney was unable to see patient A. The respondent had no involvement in such telephone call; remained seated at his desk and appeared disinterested in the arrangements that were made after the phone call concluded.
A further telephone call was received from Dr Mahoney who advised that a helicopter was not available but a road ambulance would come to collect patient A. At 5:20 PM, two ambulance officers arrived at the ED of MDH. They saw patient A and the patient records, and decided that it was not safe for them to transport the patient to GBH. They informed Doe that the patient was too unwell to transport. Doe did not recall any conversation taking place between the respondent and the ambulance officers.
Doe considered that the only option then was for the Retrieval Service to take patient A to GBH.
Doe was extensively cross-examined. It was put to her that the respondent asked her to look after the management of the BiPAP, rather than take over the management of the patient. It was suggested that the respondent said to Doe: "I am going to leave the management of BiPAP in your care."
Doe denied that such instruction was ever provided to her by the respondent and maintained that the respondent gave the instruction as she had given in her evidence. She never recalled the respondent walking over to the patient and asking what the problem was with the patient.

Patient A

Dr Richard Mahoney was the duty Regional Retrieval Consultant, Emergency Division, at Lismore Base Hospital (LBH) in 2018. He first became aware of patient A at 5:41 PM on 21 June 2018 after an ambulance officer contacted him through the Aeromedical Control Centre. Dr Mahoney was informed that a patient had been managed at MDH all day. Dr Mahoney became aware that the patient was a quadriplegic, with multiple past presentations and with respiratory issues relating to an old spinal injury. He learnt that the bariatric transfer vehicle arrived at 5 PM but the crew felt he needed medical retrieval.
Dr Mahoney was patched into the three-way call and he confirmed that medical retrieval was necessary because the patient was dependent upon non-invasive ventilation. Dr Mahoney was informed that the ambulance sent to collect patient A from MDH was unable to take him; that BiPAP equipment was required; and that the patient weighed approximately 125 kg. Dr Mahoney then conferenced the intensivist at GBH, Dr White who confirmed that he knew the patient very well and that he could accept the patient. Dr Mahoney decided to direct a helicopter retrieval team then at the Gold Coast to fly to MDH where they could collect the patient. Dr Mahoney became aware that the nursing staff had telephoned for advice, which his service could make available, and that the patient's blood pressure was dropping and saturation levels were dropping.
Dr Mahoney then contacted Dr White and commenced to organise the retrieval. Dr Mahoney then made contact with the ED at MDH where he spoke to the respondent but the respondent passed the phone to Doe. Dr Mahoney was surprised that the respondent did not make the telephone call to Retrieval rather than leaving such task to a nurse. In his statement he said: "Now , regarding the doctor in question, I actually didn't even think there was a doctor there because the nursing staff are basically continuing to refer me for any clinical advice, and actually at one stage the doctor did ring up - sorry, I was patched through to the desk and the doctor actually answer the phone, and I was actually very surprised that there was a doctor there, if I had been kind of continually asking for advice regarding this patient. I was really surprised, to tell you the truth, because the thing, seemed incongruence had the nursing staff continually ringing me as the Regional Retrieval Consultant for continual medical advice when there was actually a doctor…"
The respondent had alleged in an interview that he had immediately contacted the Retrieval team when it was found that the ambulance could not take the patient. Dr Mahoney stated that he received no call from the respondent and no call from the respondent had been logged.
Dr Mahoney explained that whilst the retrieval team was on its way, the care of the patient remained with the MDH. If there was no clinical capability at the hospital, advice was available by telephone from his retrieval service. Otherwise there were the basic life-support methods available to keep the patient alive including blood pressure testing, BiPAP, fluids, and drugs to increase blood pressure. Dr Mahoney said that if a practitioner was not familiar with the BiPAP equipment, resort could be had to the basic life-support measures as outlined. He considered it atypical for a medical practitioner to hand over care of a patient to the nursing staff and that the practitioner should have superior medical skills. Dr Mahoney considered that the respondent should have provided a more supportive role. In particular the practitioner should have examined the patient and prescribed fluids. However it was necessary to assess the patient before fluids were provided.
Dr Mahoney was extensively cross-examined. He confirmed that the only conversation he had with the respondent concerning patient A was when he telephoned the Emergency Department of MDH when he became aware of the developing situation, and that the respondent answered the telephone. He recalled the respondent saying only: "We have been waiting for a transfer all day".
Dr Mahoney confirmed that in the three-way conversation that took place between himself, Dr White and nurse Doe, the respondent did not participate. It was put to Dr Mahoney that at 11:58 AM on 21 June 2018 there was the possibility of a decline in the condition of patient A and that it was predictable. Dr Mahoney responded that he could not answer such an assumption. Dr Mahoney acknowledged it included a risk but stated that he could not determine whether the decision not to call retrieval early was a correct decision.
Dr Mahoney recalled that on 21 June 2018 at approximately 5:30 PM, the retrieval helicopter was on duty at the Gold Coast. It was towards the end of a crew shift. Accordingly the aircraft had to return for Gold Coast to its base at Lismore where a change of shift of and a new crew would take place. The paramedic assigned to that shift, Ryan Salter did not commence his duties until 7 PM. Dr Mahoney spoke to the critical crew on the helicopter after it had returned to Lismore. As a result, the crew decided to fly to Maclean and to land on an oval beside MDH; the crew would then be transported by ambulance to MDH where they would attend to patient A and then return the short distance with the patient to the helicopter for transportation of the patient to GBH. Whilst there was a recognised problem in that a bariatric stretcher could not be used other than on a concrete or similar surface, and an oval was unsuitable, Dr Mahoney believed it would be possible to use an ordinary stretcher to transport the patient from the hospital onto the aircraft. Dr Mahoney recalled that the helicopter landed on the oval and he conversed with Dr Harnell, the medic with the retrieval crew.
The records of the Aeromedical and Retrieval Service record the movements of the helicopter in relation to the transportation of patient A and other helicopter departing from Grafton and arriving at MDH at 8:27 PM for the purpose of collecting the patient.

Patient B

Dr Mahoney was questioned concerning the treatment by the respondent of patient B. Dr Mahoney said that he received eight telephone calls advising of the transfer to LBH of a pregnant lady with atrial fibrillation. The medication provided for the patient was Amiodarone. Dr Mahoney stated that such drug was inappropriate for a pregnant woman. He also considered that the dose which had been provided of Metoprolol, namely three doses of 5mg to be excessive.
Dr Mahoney was cross-examined in relation to the treatment of patient B, and of his opinion that the quantity of Metopolol was excessive and that Amiodarone was inappropriate. Dr Mahoney did not resile from his opinions expressed previously in his evidence.
The respondent had provided a statement to the investigators in which he claimed that he had a telephone conversation with Dr Mahoney concerning the use of beta blockers. Dr Mahoney stated that he had no recollection of any conversation concerning beta blockers. He stated that it was his practice to record conversations: there is no note, no recollection of any conversation concerning beta-blockers. The pre-arrival note recorded the information available, and there is no record of beta blockers.

Nurse Amy Lowe

Nurse Amy Lowe was a registered nurse and on 21 June 2018 was the Manager level III for emergency departments at both GBH and MDH. On this day her shift commenced at 7 AM and would have ended at 3:30 PM but was extended to 7:30 PM. She had been at GBH in the morning but between 11 AM and noon she left for MDH and located herself in an executive office close to the ED.
Between 12 PM and 1 PM she spent most of the time assessing staff levels and she knew that an ambulance was awaited to transfer patient A. She was aware that at about 4:30 PM the condition of patient A deteriorated and Doe asked her for a review of the patient by the respondent. Nurse Doe recalled that the respondent said that he was out of his depth and could not review the patient.
Nurse Lowe then spoke to the respondent and said to him words the effect: "Could you review the patient?" Nurse Lowe recalls that the respondent replied: "No. I don't understand the BiPAP machine - it's out of my field of practice."
A nursing Progress Note made by nurse Michelle Harrison has an entry which includes the following: "Dr Bronstein had no input for the care of this pt as he stated earlier to NUM low that he was not able to care for this pt." Whilst this nurse did not testify, the record constitutes a business record and can be considered by the Tribunal.
Nurse Lowe said that the respondent did not go to the patient and asked no questions about the patient. She said that when there was a transfer from one medical practitioner, in this case, Dr Robertson to another practitioner, namely the respondent, it was assumed that the incoming medical practitioner would take over the care of the patient. Nurse Lowe also stated that the transfer to a retrieval team occurs if the patient is handed over by the hospital to the team. It was expected that until the patient left the ED, the doctor on duty would be involved with this patient up to the time of departure of the patient.
Nurse Lowe did not consider that the ED was especially busy on 21 June 2018.
In cross-examination, an extract from a statement of nurse O'Brien was put to nurse Lowe. That record stated that "it had been a dreadful night". Nurse Lowe said it would have been a busy night for nurse O'Brien as her focus was on patient A. However two nurses were on duty and it was not a "frantic shift." Since 4 PM there had been two admissions of Category 1 patients; three admissions of Category 3 patients; and one admission of a Category 4 patient. The Australasian Triage Code of NSW Health required that a Category 1 patient be attended to immediately, a Category 2 be attended to within 10 minutes; a Category 3 within 30 minutes; a Category 4 in 60 minutes; and Category 5 within two hours.

Nurse Gillian O'Brien

Nurse O'Brien was on duty on 21 June 2018 and from 1:30 PM she attended solely to patient A. She was assisted by nurse Doe and by nurse Lowe. Nurse O'Brien stated that her role was to be the bedside nurse, to manage the BiPAP and to ensure airflow to the patient and patient care. She said that at 3:30 PM nurse Doe was assisting her but was not solely caring for patient A but if she (nurse O'Brien) had any concerns, she would refer to nurse Doe. They were effectively the sharing nurse team, but nurse Doe was the point of reference for nurse O'Brien.
Nurse O'Brien stated that all the beds were full; that between 4 PM and 9 PM there were five new patients and there was a high volume of really unwell people. With one very ill patient, requiring the full-time attention of one of the two members of staff, she considered it busy.
Nurse O'Brien did not witness a conversation between nurse Doe and the respondent but she could recall an instruction to provide Ventolin to the patient but she did not know who provided that direction. At about 6:20 PM she became aware that Dr Mahoney was involved and she recalled that there were about three telephone calls from him. Nurse O'Brien stated that nurse Doe had organised that point of contact as they needed ICU input for the retrieval.
Nurse O'Brien said that she had some conversation with the respondent in the tearoom about 7 PM during which the respondent said: "I hope they get him soon". Nurse O'Brien said that nurse Michelle Harrison was present, and that they were all unhappy that patient A was still there. She recalled the respondent saying words the effect: "I am out of depth with that patient [name of patient]. I know nothing about BiPAP. I have never used to BiPAP machine."
Nurse O'Brien did not recall any instructions given by the respondent concerning the operation of the BiPAP. She said she gained the impression that the respondent did not wish to be involved in the care of the patient, and said that she felt that the respondent did not want to take responsibility for the patient. When asked why she came to that opinion, she stated that the BiPAP machine may have been one reason why the respondent did not want to get involved, and that there "may be others".
Nurse O'Brien had no recollection of administering saline to the patient but did recall making a Ventolin order but she was not certain who made such direction. She recalled the respondent was standing at the end of the bed of the patient at one stage.
Nurse O'Brien was asked why she had recorded that it was a "horrendous" evening. She explained that there was nothing further that we could do for patient A; that he had no level of consciousness; that his sats were dropping. She felt unhappy that the patient was still in the hospital. She said usually there is strong leadership and that there is usually a team with guidance. The guidance seems to be provided by Doctors White and Mahoney.

Expert evidence

Each party relies upon expert evidence in relation to the conduct of the respondent with respect to both patient A and patient B. The applicant has tendered an expert report of Dr Jeannie Ellis dated 12 May 2020. The respondent has tendered a report of Dr Michael Golding dated 21 March 2021. To facilitate the hearing, the Tribunal required the parties to prepare a schedule setting out the issues for determination, followed by the expert opinion of both Dr Ellis and Dr Golding.
Following the preparation of the Schedule, the Tribunal directed the experts to confer together in conclave to attempt to reach a consensus. The consensus is incorporated in the Schedule.
Thereafter, the experts provided their oral evidence. It is apparent that Dr Golding maintained his opinions which he expressed in his original report and in the conclave. Dr Ellis did not maintain her original opinion with respect to certain issues and agreed with Dr Golding on those issues. However, when Dr Ellis gave evidence, in some instances she reverted to her original opinions as to whether the conduct of the respondent was acceptable; or below; or significantly below; the requisite standard. On the principal matters, concerning the treatment of patient A, the experts expressed their final opinions as follows:

Delegation to nursing staff: Ellis - significantly below; Golding - acceptable;
Patient care: Ellis - significantly below; Golding - acceptable;
Failure to conduct physical examination: Ellis - significantly below; Golding - below
Failure to involve specialist: Ellis - below; Golding - acceptable
Standard of overall care: Ellis - significantly below; Golding - below
Failing to assist nurses: Ellis - significantly below; Golding - below

The Tribunal has set out its own findings under each issue in the Schedule after the expert opinions.

Summary of Findings as to Conduct Complained of and Observations

Schedule of Expert Witnesses Opinions and Tribunal Findings Issue Particular Dr Ellis - Commission, Dr Golding - Respondent Summary Dr Ellis - Commission Summary of opinion N/A The respondent had experience in a rural hospital setting. He took the position at Maclean Hospital ('Maclean') with the knowledge that the role required him to be the sole practitioner present in the Emergency Department ('ED') and to adequately treat seriously ill patients with the assistance of nursing staff and remote specialists The respondent's conduct must be examined in this context and notwithstanding limitations in his practice, his conduct fell below or significantly below in the areas identified. Dr Golding - Respondent The respondent was offered the position with full knowledge of the limits of his competencies. He was transparent about his limitations and has been blamed for a series of system failures at Maclean and the Northern NSW LHD and should not have been placed in this position. Dr Bronstein has provided a level of clinical competence that is consistent with his "level of training and experience". The respondent performed within the standard applicable to him and his conduct did not therefore fall below or significantly below the standard where alleged by Dr Ellis. Opinions following conference DR ELLIS: After much deliberation I agree that Dr Bronstein inherited a complicated patient that had been inadequately managed and handed over to Dr Bronstein. Dr Bronstein recognised that he did not possess the clinical skills to manage the patient. Had NSW health paid due diligence to his CV and the concerns that had been raised previously about his performance and acted on this knowledge he rightly should not have been working alone as a solo practitioner in a foreign Emergency Department. Tribunal Findings The respondent had worked for 10 years in a small rural practice and provided emergency care as the sole doctor, and, he had more recently worked as a sole doctor locum in rural emergency departments (ED). He thus had sufficient experience in similar roles to have recognised the clinical skills required, and the significant probability of having to manage critically ill patients, as the sole doctor at Maclean Hospital ED. The respondent had ample opportunity to update his skills and ensure he had adequate knowledge and skills to provide safe clinical care prior to accepting work at Maclean. If he did not consider himself to be competent to safely manage all ED patients working within his scope of practice and the limits of his competence, he should not have accepted the role. We agree that the LHD should have considered the serious concerns identified by two emergency physicians (FACEMs) at Grafton and Dr Robertson at Maclean, however this does not detract from the respondent's responsibility to practise medicine safely and effectively. The respondent's conduct fell significantly below the standard expected. General Dr Ellis - Commission The respondent's skill and knowledge N/A Refer to Answer ii ('Aii'), p18; Aviii, p21 of Ellis Report The respondent had worked in a rural hospital setting for 10 years prior to 21 June 2018. A rural GP is not expected to have the same knowledge as an ED specialist or intensivist but is expected to with basic emergency skills and knowledge of adult and paediatric emergencies, any of which can present with varying degrees of severity to rural ED The respondent should not have accepted such a position if he was unable manage the basic steps of resuscitation in an adult patient with type II respiratory distress. Dr Golding - Respondent The respondent had been honest about his capabilities and professional limits but was placed into a position for which he had no training or experience (Golding Report, pp 2-3). The respondent was placed alone at Maclean ED contrary to the advice of the Maclean Hospital NUM, VMO Dr Dean Robertson and the NUM of Emergency Departments (Golding Report, pp 5-7). The duties for which he was employed did not require advanced airway management or familiarity with BiPAP or a requirement to provide critical care level medical services. (Golding Report, p 29) The respondent's CV shows that he had no significant critical care, emergency training or experience (Golding Report, p 30). The respondent should not have been left in charge of Patient A by the permanent GP VMO given his knowledge of the deficiencies in the respondent's practice (Golding Report, p 14) Opinions following conference DR ELLIS: After much deliberation I agree that Dr Bronstein inherited a complicated patient that had been inadequately managed and handed over to Dr Bronstein. Dr Bronstein recognised that he did not possess the clinical skills to manage the patient. Had NSW health paid due diligence to his CV and the concerns that had been raised previously about his performance and acted on this knowledge he rightly should not have been working alone as a solo practitioner in a foreign Emergency Department. Had NSW Health acted properly and informed him of the reasons for not engaging him for such a position then perhaps he would have reflected on this information and never have placed himself in such a fraught situation. I would however argue that his previous experience in a rural setting working as a GP in Hillston and as a VMO in the hospital on-call should have been sufficient experience to make him aware that he may have encountered complicated presentations such as this case. It is true that it is a vastly different scenario working in an ED that is known to the doctor and where the team working with the doctor are aware of his/her limitations. I therefore agree with Dr Golding that Dr Bronstein worked at his level of knowledge and skill. Tribunal Findings The respondent had worked for 10 years providing emergency care to a small NSW rural community, undertaken locum work in rural EDs in NSW, worked as an emergency room supervisor in Canada, and undertaken work as an anaesthetist, ICU and emergency medical officer over some years in South Africa. It would be expected that any doctor with equivalent experience understood the requirements of the role at Maclean ED. The requirement for critical care skills for the role at Maclean was identified in the description of duties which included "Provision of primary medical services to the Emergency Department; Provision of the medical response to the hospital cardiac arrest emergency call; Provision of emergency care to hospital inpatients as part of Medical Emergency Team (MET call) " Both the cardiac arrest and MET roles are as medical team leader with advanced life support skills and the ability to undertake therapeutic intervention in critically unstable patients, stabilise and maintain the patient pending definitive disposition, and are skills additional to basic or advanced life support skills possessed by nursing staff. "Primary medical services" means initial assessment, treatment and stabilisation of all patients who present, some of whom will require immediate critical care interventions to be performed by the doctor. The respondent's knowledge and skill fell significantly below the standard expected. Dr Ellis - Commission Refer to Aii, p18; Aiii, pp18-19; general comment, p22 of Ellis Report The respondent's general obligations N/A A doctor who has accepted a locum ED position as a sole practitioner present has an obligation to take charge of all patients in the ED. The job description in the letter of offer for the position indicates that the respondent would be responsible for primary medical services in the ED, including for cardiac arrests and medical emergency team ('MET') calls. If there was a concern about using equipment or that a patient was outside his scope of practice then the respondent should have escalated it to senior staff at Maclean Hospital. Regardless of a lack of capability, the respondent was expected to take responsibility for care of a patient such as Patient A as part of a team approach with nursing staff and remote specialists. Dr Golding - Respondent The respondent had been honest about his capabilities and professional limits (Golding Report, pp 2-3). The hospital had been made aware of his limitations in caring for seriously ill patients prior to his appointment, due to correspondence from NUM Lowe and Dr Robertson (Golding Report, p 6). Nursing staff were extremely competent with BiPAP and remote specialist assistance was available (Golding Report, p 8). No orientation booklet or orientation was given to locum staff (Golding Report, p 9). The respondent made it clear that he did not understand BiPAP and handed over management to an experienced nurse under the guidance of intensivist Dr White at Grafton Base Hospital who has accepted admission of the patient (Golding Report, p 12). This was a reasonable course of action consistent with the MBA's Code of Conduct (Golding Report, pp 12- 13). The respondent was involved in Patient A's care to the best of his ability, including charting intravenous fluids and Ventolin and interacting with Patient A's family (Golding Report, p 18). The respondent has good insight into his limitations and appropriately declined to provide advice or be involved in clinical decision making outside his capability, where other staff who were adequately experienced were available (Golding Report, p 24). Opinions following conference DR ELLIS: For similar reasons cited above I agree that Dr Bronstein did become involved in the care of [patient A] albeit in a manner that would not be considered usual for a senior doctor working solo in an emergency department and again after much deliberation I agree that he was out of his depth, but he conducted himself in a manner that was consistent with his level of skill. The lack of adequate handover from the outgoing VMO left Dr Bronstein in a situation that he was not able to manage, through no fault of his own. The patient had been inadequately managed, and an inappropriate mode of transport had been organised. At handover Dr Bronstein was all but told that he would not have to do anything for this patient as he was sorted. I agree with Dr Golding that his conduct did not fall significantly below the standard expected of a practitioner of equivalent training and knowledge. Tribunal Findings The respondent did not fulfill the responsibilities of the role as sole doctor in charge, which included both provision of medical care to all patients and leading the clinical team. Irrespective of a doctor's familiarity with a piece of equipment, there is an obligation to provide clinical care to any patient within the department. This includes obtaining sufficient information during clinical handover, reading clinical documentation and proactively obtaining information necessary to form a management plan, performing ongoing assessment and review, examining the patient, reviewing investigation results, monitoring response to therapy, communicating with experts who have been consulted and are giving remote advice, communicating a plan of management and providing necessary support to ED staff in understanding their roles for the individual patient, liaising with retrieval services. The respondent's conduct fell significantly below the standard expected. The particulars Patient A Dr Ellis - Commission Refer to Ai, p18; Aviii, p21 of Ellis Report The handover from Dr Robertson was brief, not detailed and indicated that transfer of Patient A was to be expedited. Failure to notify that BiPAP outside of scope of practise 1a to 1b However, respondent should have alerted Dr Robertson and NUM Lowe that of his lack of knowledge and skill in managing a patient on non-invasive ventilation ('NIV'). Respondent's conduct fell below the standard Refer to Aviii, p21 If the respondent had notified Dr Robertson, he could have discussed the case further with Grafton Base Hospital ('GBH') before leaving the respondent alone in the ED. Respondent's conduct, in the context of failing to obtain sufficient specialist assistance, fell significantly below the standard Dr Golding - Respondent Refer to pp 10 and 2 of Golding Report In the short handover Dr Robertson said to Dr Bronstein 'he is stable, don't worry, there is an ambulance on the way'. There is no evidence of discussion of BiPAP at that point. (p10) Respondent was clear to the nursing staff on many occasions that he did not have capability with BiPAP. It was reasonable and good medical practice to do so. (p 12) Dr Robertson was well aware of the lack of Dr Bronstein's competencies and should have stayed in the ED until the patient could be handed over to a team capable of providing the required level of care. (pp3, 14) Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference N/A Tribunal Findings The respondent had an obligation to obtain sufficient information at the clinical handover to ensure he was able to safely provide ongoing patient care. As to the fact that the patient was on BiPAP was immediately apparent to the respondent, he had the option of stating his lack of competence during clinical handover and requesting assistance from Dr Robertson. His other options for obtaining assistance included consulting the remote specialists, contacting the retrieval service to request assistance, calling in another doctor, calling the hospital administrator to ask them to call in skilled assistance. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Refer to Aii, p 18; Aiii, pp18-19 of Ellis Report Failure to sufficiently obtain specialist assistance when he was aware BiPAP outside of scope of practice 1c Lack of skill in BiPAP does not excuse the respondent from being involved in a team approach to managing Patient A. There were a variety of avenues of specialist assistance available, including calls to a FACEM at Grafton Base Hospital ('GBH') or Lismore Base Hospital ('LBH') or to Retrieval, each of which could have coordinated Patient A's care under their direction. The respondent should have accepted responsibility of the patient and contacted a FACEM at Grafton or Lismore for assistance. If he had been transparent to them about his limitations, most specialists would accept this situation and coordinate care. Respondent's conduct fell significantly below the standard Dr Golding - Respondent Refer to p22-23 of Golding Report Dr Bronstein was aware that discussions were occurring between specialists at Grafton and Retrieval with competent staff at Maclean who were familiar with the equipment and treatment. This is consistent with practicing within clinical competency. (p23) Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: whilst Dr Bronstein was aware that a specialist was involved in the management of NIV for the patient and this was the safest option for the patient and the staff caring for him, I would have expected that a GP of any level of training would have been more involved in the care of this patient as a team member. For this reason, I consider that his conduct was below the standard expected of a practitioner of equivalent level of training but not significantly below. Tribunal Finding See above response The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Failure to be involved in Patient A's care 2 Refer to Aii, p 18 of Ellis Report Any reasonable doctor would have accepted responsibility for Patient A's care with the assistance of remote specialists. The respondent had accepted a role as the sole practitioner present in the ED, the letter of offer for the position indicates that he would be responsible for primary medical services in the ED, including for cardiac arrests and medical emergency team ('MET') calls, and he worked for 10 years in a rural hospital setting before this time. Respondent's conduct fell significantly below the standard Dr Golding - Respondent Refer to pp 22-23 of Golding Report The respondent appropriately allowed experienced staff to treat Patient A on BiPAP under the guidance of specialists. He was involved in Patient A's care within the scope of his clinical practice, including charting fluids and ventolin and interacted with [patient A's] family and carers. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: I agree that Dr Bronstein was out of his depth. Dr Bronstein did involve himself in the patients care to a degree that he felt comfortable with. Tribunal Findings As the sole doctor in charge of the ED, the respondent had an obligation to manage the care of all patients within the ED. He had accepted this responsibility when he accepted the role at Maclean. Patient A was critically ill and the respondent's ongoing and close involvement was essential to facilitate patient A's safe clinical management until more expert medical assistance arrived in the ED. The respondent's conduct fell significantly below the standard expected. Failure to conduct a physical examination of Patient A 3 Dr Ellis - Commission Does not comment specifically on failure to conduct physical examination Dr Golding - Respondent Does not comment specifically on failure to conduct physical examination Opinions following conference N/A Tribunal Findings As part of the provision of safe clinical management, it is an expectation that the respondent familiarise himself with the cardiovascular, respiratory and neurological status of patient A. A physical examination is part of this assessment. This is particularly important when administering a large intravenous fluid bolus of one litre of normal saline, to assess the need for fluid and the response to the bolus. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Delegated care of Patient A to nurses 4a - d Refer to Aii, p 18; Aiii, pp18-19 of Ellis Report As he had accepted a role as the sole practitioner present in the ED, the respondent should have accepted responsibility for the patient with the assistance of senior nurses and remote specialists. He should not have handed the care of a complicated patient on NIV to nursing staff for management regardless of their seniority or experience. Respondent's conduct fell significantly below the standard Dr Golding - Respondent Refer to pp 22-23 of Golding Report Dr Bronstein has not involved himself with the BiPAP as he was not familiar with the equipment and there were staff available who were familiar. Dr Bronstein was aware that discussions were occurring between specialists at Grafton and Retrieval with competent staff at Maclean who were familiar with the equipment and treatment. This is consistent with practicing within clinical competency. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: I agree that Dr Bronstein was out of his depth. Dr Bronstein did involve himself in the patients care to a degree that he felt comfortable with. Tribunal Findings The respondent was responsible for provision of medical care to all patients in Maclean ED and leading the clinical team. Although able to utilise the specialised skills of team members, and delegate particular tasks to them, a doctor cannot delegate the care of the whole patient to anyone without the required qualifications, skills, knowledge and experience to provide the care required. The respondent remained responsible for care of patient A irrespective of the skills and experience of the nursing team in using BiPAP equipment. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Failed to sufficiently assist nurses after delegation 4e Refer to Aiii, pp18-19 of Ellis Report The respondent should have provided assistance to nursing staff as part of a team approach to treating Patient A. Even if his skills on NIV were insufficient, he should have greater knowledge of management of respiratory failure which could assist nursing staff, as well as prescribing rights. Respondent's conduct fell significantly below the standard Dr Golding - Respondent As above, Patient A was being managed by [nurses] experienced in BiPAP and supported by the intensivist at Grafton Base Hospital and then the retrieval expert, Dr Mahoney. He was involved in Patient A's care within the scope of his clinical practice, including charting fluids and ventolin and interacted with [patient A's] family and carers. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: I agree with Dr Golding. Tribunal Findings The respondent remained responsible for care of patient A irrespective of the skills and experience of the nursing team in using BiPAP equipment. Management of a critically ill patient such as patient A is significantly more comprehensive than understanding the use of BiPAP equipment. Until skilled medical assistance was available at the Maclean ED, the respondent had responsibility for the overall management of patient A and an obligation to assist and support the nurses in his ongoing clinical management. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Suggested to Patient A's family that he be intubated despite an Advanced Care Directive ('ACD') to the contrary 5a Refer to Aix, pp 21 of Ellis Report The respondent's actions were incomprehensible. His suggestion was severely misguided given the ACD in place. Furthermore, intubation would have been difficult, and he likely did not have sufficient skill so showed a lack of awareness of his own capabilities. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to p 24 of Golding Report In the absence of other information, it was quite reasonable for Dr Bronstein to suggest the possibility of intubation if the patient was deteriorating on BiPAP. As soon as he had been informed that a ceiling of care had been agreed upon he no longer pursued intubation as a therapeutic option. Disagree with Dr Ellis. Opinions following conference DR ELLIS: once Dr Bronstein did familiarise himself with the ACD he rescinded his comment regarding need for intubation and I therefore agree with Dr Golding. Tribunal Findings The respondent's suggestion of intubation as an option in patient A's care was completely inappropriate. The presence of an Advance Care Directive and "not for intubation" was documented from the time of arrival of patient A on the Triage Form (Tab 34 page 1 of 67). Had the respondent familiarised himself with patient A's care to even the most minimal extent, he should have realised that this was not an option under any circumstance. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Failed to be involved in discussions with specialists after Patient A deteriorated 5b Refer to Avi, p20; Aviii, p 21 of Ellis Report The respondent should have been involved with specialists as soon as practicable to seek assistance and expedite transfer. Thereafter, he should have taken responsibility for Patient A under the direction of remote specialists. This included being involved in the three-way conversation between Dr White (GBH) and Dr Mahoney (Retrieval). Does not comment specifically on failure to be involved in call. However, the respondent's overall failure to sufficiently obtain specialist assistance fell significantly below the standard. Dr Golding - Respondent Refer to pp 18, 22 of Golding Report Patient A was being managed by nurses experienced in BiPAP and supported by the intensivist at Grafton Base Hospital and then the retrieval expert, Dr Mahoney. He was involved in Patient A's care within the scope of his clinical practice, including charting fluids and ventolin and interacted with [patient A's] family and carers. Disagree with Dr Ellis. Opinions following conference DR ELLIS: Based on the fact that a specialist was already involved in the management of NIV I have changed my opinion. I do believe that Dr Bronstein should have included himself in the team actively managing [patient A] and his failure to do so is unorthodox but likely a reflection of his lack of skill, and experience in managing such a complicated patient. I have changed my opinion and agree with Dr Golding. Tribunal Findings The respondent took almost no initiative to assist the patient or provide medical care to him. The respondent's role as sole doctor in charge in Maclean ED required him to communicate with specialists who had been consulted and were giving remote advice, discuss and agree on the plan of management with them and then provide necessary support to ED nursing staff to undertake that plan, and to liaise with retrieval services so as to maintain safe care of Patient A until skilled medical staff arrived in the ED. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Failed to provide sufficient clinical information to paramedics 5c Refer to Aiv, p 19 of Ellis Report The respondent did not have any care of Patient A prior to this time so it was impossible for him to provide sufficient information to allow for adequate care of Patient A. Respondent's conduct fell below the standard. Dr Golding - Respondent Refer to p 22 of Golding Report The respondent had no involvement in the BiPAP and did not have clinical information to hand over. Disagree with Dr Ellis. Opinions following conference N/A Tribunal Findings There is no evidence the respondent provided any clinical information to the paramedics. The respondent's conduct fell significantly below the standard expected. Dr Ellis - Commission Failure to make entry in electronic medical records C2, 1 Refer to Ax, p 22 of Ellis Report Failure to make notes is inexcusable and the respondent should have at least recorded his reasons for not being involved in Patient A's care. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent No comment made Opinions following conference DR ELLIS: Dr Bronstein should have recorded notes and should be aware that it is not adequate to omit documentation however given he declared that he was not going to be involved in the patients care, perhaps he believed it was not necessary for him to document anything. After deliberation with Dr Golding, I agree that adequate documentation is lacking in many notes of many doctors in ED's and therefore Dr Bronstein's conduct is below the standard but not significantly below. Tribunal Findings The respondent should have made contemporaneous notes in the medical record to the extent he was involved in the care of patient A, to facilitate continuity of care and provide an accurate record of any interventions. The respondent's conduct fell significantly below the standard expected. Patient B Dr Ellis - Commission Failure to obtain adequate history before prescribing Metoprolol or Amiodarone 6a Refer to Bi, p 23 of Ellis Report The respondent failed to obtain a detailed history including the nature of the chest pain, the onset of Atrial Fibrillation ('AF'), fetal movement or per vaginal loss, co-morbidities, any recent drug use, or intercurrent illness. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to pp 25-26 of Golding Report The HCCC's expert is using a test of competence of what should be expected of a practitioner as the 'equivalent level of training or experience'. In Dr Bronstein's case, he has been employed without a Fellowship in General Practice or any other specialty and with a CV that does not include recent experience in critical care, EMST or APLS. Dr Bronstein sought permission to transfer an at-risk patient to a larger centre and discussed the use of metoprolol with the referral centre. The reason for the call was to seek approval for transfer. The only reason for taking a history or to perform an examination is to determine the level of risk and [patient B] had already declared herself as being high risk. Further interventions, examination or investigation at Maclean would have resulted in unnecessary delay in transporting her to a centre able to provide definitive care. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: Dr Bronstein identified that this patient was high risk and expedited transfer to an appropriate facility relatively promptly. I remain unchanged in my opinion that he failed to obtain an adequate history but consider that his conduct was below the standard expected and not significantly below. Tribunal Findings The respondent took a basic history, however not a comprehensive history. As the patient (as far as is evident from the clinical record) was not suffering haemodynamic compromise due to the atrial fibrillation, a very detailed history and identification of reversible causes followed by consultation with specialists was required prior to prescribing drugs which had potential adverse consequences in this high risk pregnant patient. The respondent's conduct fell below the standard expected. Dr Ellis - Commission Failure to provide sufficient information to remote specialists 6b Refer to Bi, p23; Bvii, p 25 of Ellis Report Patient B was a very unusual presentation yet the respondent's handover did not meet the requirements of an ISABR handover ('Introduction, Situation, Background Assessment, Recommendation'). The respondent did not disclose Patient B's vital signs, her history of insulin-dependant diabetes mellitus, information which should have been obtained in an adequate history, or that he intended to administer her Amiodarone. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to pp 25-26 of Golding Report Dr Bronstein has recognized the potential complexities and multiple serious causes for the constellation of presenting symptoms and has taken effective steps to control the rapid heart rate and organize transfer to a centre with capability of providing definitive care. As above, further information unnecessary, and the respondent did also discuss the use of Metoprolol with the remote specialist. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference N/A Tribunal Findings Key information about the respondent's intention to treat the patient with intravenous medication was not discussed with the accepting specialist. The patient's presentation was very unusual and high risk given her pregnancy and underlying medical conditions. There was no apparent indication for urgent administration of intravenous medication prior to specific discussion with a specialist such as a cardiologist, emergency physician or obstetrician to seek advice. The respondent's conduct fell significantly below the standard expected Dr Ellis - Commission Failure to make appropriate enquiries before prescribing Metoprolol 6c Refer to Bii, p 23 of Ellis Report Patient B's records indicate she was haemodynamically stable and she did not require urgent intervention. Given her unusual presentation, the respondent should have withheld any medication prior to a conversation with a remote specialist regarding any further investigation or management. He could also have independently conducted blood and urine tests to explore other possibilities for Patient B's presentation, including ischaemia, recent drug or alcohol use, an underlying cardiac condition, abnormal electrolytes or pulmonary embolism. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to p 26 of Golding Report The respondent recognized the complexities and possible multiple causes of presenting symptoms and took appropriate effective steps to control Patient B's heart rate. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: For similar reasons in my latter comment I believe that Dr Bronstein's conduct was below the standard expected of a doctor of similar training or experience. Tribunal Findings The patient's presentation was very unusual and high risk given her pregnancy and underlying medical conditions. There was no apparent indication for urgent administration of intravenous medication prior to specific discussion with a specialist such as a cardiologist, emergency physician or obstetrician to seek their advice. The respondent's conduct fell significantly below the standard expected Dr Ellis - Commission Prescribed excessive amount of Metoprolol 6d Refer to Bii, p 23 of Ellis Report 3 doses of Metoprolol 5mg is excessive because it could drop Patient B's blood pressure significantly and cause a hypotensive event for her fetus due to a reduction in uterine blood flow, and could also affect the fetal heart rate ('HR'). Further, slowing Patient A's heart could drop cardiac output and cause a collapse of haemodynamic stability. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent As above refer p 26 of Golding Report Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: Dr Bronstein is managing a very complicated patient and demonstrates that he is out of his depth but likely did what he felt was best for the patient. His conduct was at a level expected of his level of skill and training. Tribunal Findings Metoprolol has potential adverse effects including hypotension, heart block, bradycardia, bronchospasm, and heart failure and may cause pharmacological effects such as bradycardia in the foetus. If indicated during pregnancy, metoprolol should be given at the lowest effective dose. An assessment of potential reversible underlying causes requiring correction (such as dehydration, electrolyte abnormality or drug use) and thromboembolic risk, should be undertaken prior to intravenous drug treatment for AF as well as consultation with a specialist. The administration of three intravenous boluses of metoprolol 5mg over a short period was unnecessary and excessive. The respondent's conduct fell significantly below the standard expected Dr Ellis - Commission Amiodarone not suitable for pregnant patient 6e Refer to Biii, pp 23-24 of Ellis Report Amiodarone is not indicated and not suitable for pregnant women. This information is readily available via on-line medicine databases (eTG or AMH). Amiodarone can cause thyroid disfunction and affect the fetal HR. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to pp 26-27 of Golding Report Amiodarone can be used in pregnancy but is not a first line agent and was not necessary in this case as Metoprolol was effective. I have often given amiodarone and metoprolol in the same patient in non-pregnant patients and the use of amiodarone in pregnancy has been discussed above: it is not a first line agent. However, it is a drug that is used in pregnancy. Agree with Dr Ellis. Opinions following conference N/A Tribunal Findings Agree with experts. The respondent's conduct fell significantly below the standard expected it is not known whether the respondent was aware that Amiodarone was not recommended for a pregnant patient as the respondent did not give evidence. Dr Ellis - Commission Concurrent use of Metoprolol and Amiodarone contraindicated 6g Refer to Biv, p 24 of Ellis Report Amiodarone was not clinically indicated and together with the amount of Metorpolol could have precipitated a circulatory collapse. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to p 27-28 of Golding Report The respondent appropriately considered differentials and the medications can be given together and to pregnant patients. Dr Bronstein has been placed in a position where he is expected to manage patients of greater complexity than he has the training or experience to deal with. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: Dr Bronstein was managing a complex patient and was out of his depth. His conduct was below the level expected of a practitioner of similar training and experience. Tribunal Findings The risk of adverse outcome to patient B and her unborn child was elevated by intravenous administration of both metoprolol and amiodarone. Intravenous amiodarone can cause acute hypotensive reactions and bradyarrhythmias (slow heart rate) and this effect will be enhanced by co-administration with beta blockers, posing a significant risk to the patient and her unborn child. There was no apparent indication for urgent administration of intravenous medication prior to specific discussion with a specialist and thus patient B was unnecessarily exposed to the risks posed by concurrent use of both drugs. The respondent's conduct fell significantly below the standard expected Dr Ellis - Commission Refer to Bv, p 24 of Ellis Report Failure to monitor Patient B after administration 7a The respondent did not document appropriate monitoring, such as monitoring of cardiac activity, vital signs, blood sugar levels or fetal HR, an examination of underlying causes, and a discussion with a specialist or ambulance / retrieval. Furthermore, Patient B should not have been permitted to mobilise to the toilet. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to pp 27-28 of Golding Report Notes do show a number of monitoring and observations by both nurses and the respondent. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: Dr Bronstein's documentation is poor but not significantly below a standard expected at his level of training and experience. Tribunal Findings: The medical record demonstrates some observations by clinical staff, however there is no record of continuous monitoring. Patient B should not have been permitted to walk to the toilet given the potential for hypotension and collapse and her ongoing chest discomfort. The respondent's conduct fell below the standard expected Dr Ellis - Commission Failure to sufficiently seek specialist assistance from emergency medicine or obstetrics specialist 7b Refer to Bvi, Bvii p 25 of Ellis Report If the respondent was sufficiently concerned about Patient B to prescribe Amiodarone despite knowing it was not recommended for Patient B, on the basis that the risk was justified, he should have discussed her case with a specialist in EM or obstetrics before prescribing any medication. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to p 28 of Golding Report The respondent appropriately consulted with a specialist to arrange early transfer of a high-risk patient. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference DR ELLIS: Dr Bronstein's conduct was below the level expected of a practitioner of similar training and experience. Tribunal Findings As stated earlier, the respondent should have consulted with relevant specialists prior to considering any administration of intravenous drugs to patient B. There was no clinical urgency sufficient to omit this essential step in her care. The respondent's conduct fell significantly below the standard expected Dr Ellis - Commission Adequacy of medical records Complaint 2, 2 Refer to Bviii of Ellis Report Failure to document history or more than a cursory examination. Hard to determine from notes if Patient B was healthy or not based on the notes. Respondent's conduct fell significantly below the standard. Dr Golding - Respondent Refer to p 29 of Golding Report Notes appropriately indicate that Patient B was high risk and an appropriate transfer had been arranged. Disagree with Dr Ellis. Consistent with respondent's clinical competence Opinions following conference N/A Tribunal Findings: The respondent did not take a comprehensive history or adequately documented rationale for treatment he prescribed or response to the treatment. A very detailed history and identification of reversible causes followed by consultation with specialists was required prior to prescribing drugs which had potential adverse consequences in this high-risk pregnant patient. Detailed records of any consultations with specialists should have been recorded. The respondent's conduct fell below the standard expected

Standard of Proof

The seriousness of the complaints requires the Tribunal to apply a high degree of satisfaction before it can be satisfied that the complaints are established. The test usually applied is that of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and also the observations of the NSW Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41.
The Tribunal is required to give due weight to expert evidence placed before it by the parties. However, it has been stated that the "ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is the Tribunal itself": see Kalil v Bray (1977) 1 NSWLR 256, 262. Although this decision related to the Veterinary Surgeons Act 1923 (NSW), by analogy the Tribunal considers it appropriate to apply the same consideration.

Legal principles

The Tribunal must consider whether the respondent in these proceedings is guilty of unsatisfactory professional conduct, and of unsatisfactory professional conduct of such a degree as to constitute professional misconduct. As to unsatisfactory professional conduct, in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA said at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal."
Unsatisfactory professional conduct is defined in s 139B of the National Law to include, relevant for these proceedings, conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)); or contravention by a practitioner of a provision of the National Law or regulations made under such law or under the NSW regulation, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention (s 139B(1)(b)); or any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession (s 139B(1)(l)).
Professional misconduct is defined in s 139E of the National Law as including: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The conduct as particularised in each of the Complaints in relation to the treatment of Patient A and of Patient B has been found by the Tribunal to be conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and as such constitutes unsatisfactory professional conduct within the meaning of s 139B of the National Law. Further, the conduct referred to in Complaint One in relation to Patient A is such as to constitute professional misconduct under s 139E of the National Law.

Orders 1. The Tribunal finds that the respondent's conduct in relation to patient A and to patient B constitutes unsatisfactory professional conduct as particularised; and his conduct in relation to patient A constitutes professional misconduct; 2. Disciplinary sanctions are to be considered at Stage II of these proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2021

Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)

Veterinary Surgeons Act 1923(NSW)

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