Health Care Complaints Commission v Chatoor

NCAT Occupational|2020-05-14|Before: Dr P

BACKGROUND

There are two proceedings before the Tribunal, which have been conducted as one proceeding. The two proceedings are appeals made pursuant to section 158 of the Health Practitioner Regulation National Law (NSW) (the National Law). The first appeal was lodged by Dr Chatoor on 28 January 2020. The second appeal was lodged by the Health Care Complaints Commission (the HCCC) on 31 January 2020. The HCCC also filed a Reply on 3 February 2020. Both appeals address the decision of the Professional Standards Committee of the Medical Council of NSW (the PSC), in a proceeding commenced by the HCCC against Dr Chatoor on 15 March 2018. The decision of the PSC was given on 7 January 2020. That decision found Particulars 1, 2 and 3 of the Complaint not established and Particulars 4 and 5 established. Both parties were dissatisfied with that outcome. No orders were made by the PSC as it was asked by both parties only to address a finding in relation to "Stage 1", i.e. to determine whether the HCCC had made its case to the required standard. We have been asked to hear the matter on the same basis.
Section 158 of the National Law provides that an appeal against a finding of a Committee (in this case the Professional Standards Committee of the Medical Council of NSW) may be made to the Tribunal. Such an appeal will be heard as a rehearing which may include fresh evidence.
As a consequence of the appeal, we will determine the complaint made by the HCCC against Dr Chatoor as if it had been first filed in the Tribunal.
At the commencement of the hearing, we were informed that this is a "stage one" hearing only. That means we are asked only to determine, whether the HCCC is able to establish its case that Dr Chatoor is guilty of unsatisfactory professional conduct under sect 139B(1)(a) of the National Law. If the Tribunal so finds, then there will be a further hearing "stage two" to determine what protective orders, if any, should be imposed.
The complaint is found at Tab 1 of the folder of evidence tendered by the HCCC and marked as exhibit R1.

Associate Professor Cameron Holloway

On 8 May 2018, Dr Chatoor's solicitor wrote to Associate Professor Cameron Holloway at St Vincent's Clinic, Paddington, NSW seeking an expert opinion on stated matters relative to the case of Patient B and the case being mounted by the HCCC against Dr Chatoor.
Associate Professor Cameron Holloway stated he had received copies of: the initial complaint of Patient B; Dr Chatoor's initial response dated 28 June 2016; HCCC expert report from Dr Jack Gutman; Dr Chatoor's further response dated 24 July 2017; the formal complaint to be prosecuted by the HCCC.
Associate Professor Holloway set out his qualifications. He is currently a general cardiologist at St Vincent's Public and Private Hospitals. He has academic appointments at the University of NSW, University of Notre Dame and Victor Chang Cardiac Research Institute. His CV is extensive and clearly establishes his expertise to provide the evidence he gave, both in writing and orally.
Under the heading of "Opinion", Associate Professor Holloway said as follows: Based on the fact that Patient B was an elderly gentleman, with the medical history described by Dr Chatoor, "it was reasonable that coronary angiography was performed in the context of a positive, or at least equivocal, stress echocardiogram findings. The combination of dyspnoea and changes on the stress echocardiogram, could have represented significant coronary disease, which could have placed Patient B at risk during surgery. Based on the Australian guidelines for perioperative management (pre-operative cardiac evaluation and management of patients undergoing elective non-cardiac surgery, Ian Scott et al. MJA 2013; 199: 667-673), this patient was at intermediate cardiac risk, suggesting he should be evaluated in consideration of non-invasive further investigation. Non-invasive testing had been arranged within the previous six months, which was abnormal, suggesting it was reasonable to continue to coronary angiography, based on these guidelines, to ensure there was no significant coronary disease. In the absence of planned surgery, it was very reasonable to continue with medical management for coronary artery disease in this patient as outlined by Dr Chatoor. Associate Professor Gutman relied upon the American Cardiology guidelines. In reviewing the Australian guidelines, Patient B is at intermediate risk and in the presence of breathlessness and an equivocal stress echocardiogram, it was certainly reasonable to proceed to angiography. [G]iven the presence of symptoms and a positive equivocal stress echocardiogram, it was reasonable for Dr Chatoor to proceed to cardiac catheterization on 5 March 2016. Associate Professor Gutman makes a comment that the inferior wall is difficult to assess accurately on a stress echocardiogram and often leads to false/positive diagnosis. I disagree with this comment. I am surprised by the critical language used by my colleague, Associate Professor Gutman. Whilst I believe Dr Chatoor based his decision on the updated Australian guidelines, Associate Professor Gutman's statements (in bold) are very critical for diverging from the American guidelines. I would hope all practitioners base their practice on local guidelines and diverge from guidelines at times, in the interests of their patients. In essence, taking into account individual details about patients helps facilitate best patient care, rather than use one plan for every patient. Basing decisions on patients rather than guidelines differentiates doctors from technicians.
Under the heading "Summary", Associate Professor Holloway said as follows: It is my opinion that a 70-year-old gentleman with a past history of coronary disease, multiple risk factors for vascular disease and symptoms of breathlessness, it was very reasonable to manage this gentleman with medical therapy based on worldwide literature and guidelines suggesting that medical therapy is reasonable for the vast majority of patients with coronary disease. Given an anaesthetic was required, it was very reasonable to perform angiography to determine whether there was significant coronary disease, which would place this patient at risk at the time of surgery. As a non-interventional cardiologist, I do not intend to comment on the procedural outcomes on this case.

Dr Gregory R Bellamy

Dr Chatoor also relied upon expert evidence provided by Dr Gregory R Bellamy. Dr Bellamy provided his report, dated 5 July 2019, following a request from Dr Chatoor's lawyer.
Apart from his evidence as an expert cardiologist, Dr Bellamy also appeared as a witness to the procedure carried out by Dr Chatoor upon Patient B on 5 March 2016, albeit his involvement with Dr Chatoor on 5 March 2016 was remote, in the sense that he spoke to Dr Chatoor by telephone during the procedure. His CV is extensive and clearly establishes his expertise to provide the evidence he gave both in writing and orally.
In his letter of 5 July 2019 Dr Bellamy said the following:

He has been practising cardiology in Newcastle since 1986 after returning from two years of training at the Cleveland clinic in the United States.
In 1991 he became a staff cardiologist at the John Hunter Hospital in Newcastle and Director of the cardiac catheterisation laboratory at the hospital until 2017. He has an academic appointment at the University of Newcastle. He has been performing interventional procedures as a cardiologist since 1984 and he has performed, in the United States and in Newcastle, over 8000 procedures in the interventional area.
Dr Bellamy had been provided with and had read documents provided by Dr Chatoor's lawyer including the initial complaint from Patient B to the HCCC. He had read Dr Chatoor's initial response and the expert report of Associate Professor Gutman and Associate Professor Holloway, together with the reply by Dr Chatoor to the report of Associate Professor Gutman. He had also seen the formal complaint to be prosecuted by the HCCC.
He had been contacted by Dr Chatoor on the day of the procedure where Dr Chatoor sought some input and assistance in management of the patient's procedure. He had discussed the situation with Dr Chatoor and made some suggestions about how to retrieve the lost stents from the right coronary artery.
Dr Bellamy opined: I have reviewed Patient B's angiogram from the procedure and the steps taken to retrieve the stents were logical. Clearly I felt that the way Dr Chatoor handled himself during this procedure was of high standard. I do not agree with Associate Professor Gutman's assessment of the procedure. Where he said that, "the departure from the standard was significantly below that standard or otherwise". "Having performed many procedures and seen many complication[s], both my own and other practitioners, I would say that the performance of the procedure was at or above the standard required of an interventional cardiologist. In a purely elective surgery, which in this case it seems to be the situation, then one could make a case for doing pre-operative coronary Angiography to treat the ischaemia demonstrated on the stress echocardiogram. Then a period of time could elapse prior to the elective surgery. This would be a reasonable way to deal with the patient. There has been subsequent more robust data coming from Canada in the last 12 months which again suggests that pre-operative coron[ar]y angiography is not required. This information was not available in 2016 and I would say that the standard of care at the time suggests that it was not inappropriate to refer the patient for coronary angiography in Patient B's situation. Thus, I disagree with Associate Professor Gutman's assessment that this was below the standard. I think that Dr Chatoor's recommendation was at the standard of the time in 2016, it certainly was not below the standard. I disagree that the exercise echo was equivocal. It seems to be that it was abnormal. I agree that the patient did not require coronary angiography and stenting prior to the scheduled knee surgery. On the other hand, the most life-threatening problem that the patient had was his coronary artery disease. For this reason, it should always take priority over elective joint replacement where there is very little evidence of improving prognosis. As long as the patient understood that knee surgery would be delayed significantly then it is not unreasonable to delineate the coronary anatomy and treat the ischaemia which was detected. I think the procedure was carried out well and the complications were dealt with appropriately and skilfully.

Dr Geoffrey Oldfield

On 18 July 2019, Dr Chatoor's solicitor wrote to Dr Geoffrey Oldfield. Dr Oldfield provided an expert's report dated 7 August 2019. His CV is extensive and clearly establishes his expertise to provide the evidence he gave both in writing and orally.
Dr Chatoor relied upon that report in this hearing. Dr Oldfield provided the following expert evidence:

Since 1982 Dr Oldfield has performed over 30,000 cardiac catheterisations, 4000 angioplasties and implanted more than 3000 stents.
On 5 March 2016, Dr Oldfield received a phone call from Dr Chatoor. He asked for help with a difficult case which he was undertaking at Lingard Private Hospital. Dr Oldfield attended at the hospital, scrubbed and provided assistance. He said: I did not take over the case since Dr Chatoor is an experienced interventionalist and was able, with my support, to complete the case with a very satisfactory final result. At no stage did I feel it necessary to take over the case. Dr Chatoor undertook Patient B's coronary procedure calmly and skilfully. His decision-making in this case was appropriate and his interventional performance was certainly at or above the level of a practitioner of an equivalent level of training and experience. My overall recollection is that Dr Chatoor behaved professionally and extremely competently throughout the time I was present. I strongly disagree with Associate Professor Gutman's assessment of his interventional performance in this case.
Associate Professor Gutman refers to the American Guidelines and chooses to ignore the paper by Ian Scott et al (MJA 2013; 199: 663 -667) which placed Patient B at intermediate risk. Invasive angiography is recommended in patients with an intermediate probability of coronary disease and is an ESC/EACTS Class II B guideline indication for coronary angiography.
Dr Oldfield is critical of Associate Professor Gutman's assessment of Patient B as having low risk features. Dr Oldfield said: "An actual examination of the clinical details questions the validity of that statement." Dr Oldfield set out in great detail the reason for his criticism.
Dr Oldfield was critical of Associate Professor Gutman's statement that Patient B was asymptomatic. He said: As an experienced clinician, I find it difficult to undertake a satisfactory functional assessment in older individuals especially those with compromised mobility awaiting orthopaedic surgery. Even according to the American Guidelines Patient B would have to be regarded as being of indeterminate functional status which they state support the role of objective testing.
In further criticism of Associate Professor Gutman, Dr Oldfield said: Associate Professor Gutman refers to a normal myocardial perfusion scan in 2014. I do not believe that it would be appropriate to base a clinical decision on myocardial perfusion imaging 18 months previously when a more recent exercise stress echocardiogram was clearly abnormal.
Dr Oldfield said: Associate Professor Gutman repeatedly refers to the American Guidelines which were published in August 2014. At the time that Patient B was being managed by Dr Chatoor, clinical practice, especially here in Newcastle, was very much in keeping with Patient B's clinical course.
Dr Oldfield said: Associate Professor Gutman states that Patient B did not have an extensive area of ischaemia. In my opinion the area of ischaemia was in excess of 10% and therefore by definition, significant. Cardiac catheterisation was appropriate on the basis of his abnormal stress echocardiogram. Revascularisation was also appropriate since his coronary anatomy demonstrated a significant distal territory at risk.
Dr Oldfield said that Associate Professor Gutman also stated that he would not push the lost stent into the RV wall branch. This was undertaken during Patient B's case and was both a reasonable choice and effective in managing this complication. He questioned Dr Chatoor's ability to wire the stent in the RV Wall branch but I can confirm that Dr Chatoor was able to do just that, which I personally verified with the use of fluoroscopy in orthogonal views.
Dr Oldfield disagreed with Associate Professor Gutman's view that the deployment of two Synergy stents in the mid RCA to gaol the stent in the RV wall is by no means below an acceptable standard and I therefore strongly disagree with Associate Professor Gutman's statement in that regard. I have seen a number of very experienced interventionalists perform this very procedure over the years.
Dr Oldfield was critical (he said it was a major dispute with Associate Professor Gutman) of the reliance by Associate Professor Gutman upon American Guidelines, to opine that the decision to move Patient B to angiography prior to non-cardiac surgery was below standard. Dr Oldfield questioned why Associate Professor Gutman: did not refer to ESC guidelines, which are more liberal. Ian Scott et al (MJA 2013; 199:166-673) published an Australian guideline document highlighting that cardiac complications occur in up to 5% of elective non-cardiac surgical patients with 30 day mortality rates of 15 to 20% accounting for a third of all post-operative death. In that document Patient B would have been an intermediate risk patient with consequent implications for perioperative workup and management.
Dr Oldfield said that it must be remembered there are "local" guidelines in our region. The local guidelines are built around many facts taught locally. He then set out a number of those local guidelines. He concluded by saying: So to summarise the threshold for pre-operative angiographic assessment for many reasons is, in this region, in practice, in the absence of Cardiac Society of Australia and New Zealand guidelines, are very different to those quoted from some overseas source by Associate Professor Gutman. Cardiac intervention prior to non-cardiac surgery seems higher in this region perhaps as a result of demographics and co-morbidities.
Under the heading "Conclusion", Dr Oldfield said: Having reviewed this case in detail and having scrubbed in to lend support, I believe that Dr Chatoor's decision to investigate Patient B and treat his RCA lesion was reasonable and consistent with clinical practice at that time. His interventional ability in dealing with the complication was at or above the level of a practitioner of an equivalent level of training and experience. Patient B, I believe remains well to date and has now undergone his knee replacement without incident. His cardiovascular outlook is likely to be better following percutaneous revascularisation. I do not share many of the criticisms which have been so strongly expressed by Associate Professor Gutman.

Dr Ziad A Ali

Dr Chatoor relied upon an expert report provided by Dr Ziad A Ali. He set out his experience, qualifications and employment history in his statement. The qualifications include the following:

Dr Ali is a board-certified physician, licensed to practice in the States of New York and California; as well as Ontario, Canada; and the United Kingdom.
He is currently an Assistant professor of Medicine, the Victoria and Esther Aboodi cardiology Researcher, the Louis V. Gerstner Scholar, the Director of Intravascular Imaging and Physiology, and the Director of Cardio-renal services for the Centre for Interventional Vascular Therapy in the Division of Cardiology at Columbia University in New York.
He is also an active practising attending interventional cardiologist, equivalent to consultant grade, at New York Presbyterian Hospital at the Columbia University Medical Centre, also in New York.
Additionally, Dr Ali is the Director of Angiographic Cool Laboratory for the Clinical Trials Centre at the Cardiovascular Research Foundation, also in New York. He has performed over 8000 intravascular surgical procedures over the past nine years including right and left heart catheterisation, diagnostic angiography, ventriculography, myocardial biopsy, percutaneous coronary intervention (including balloon angioplasty, atherectomy and stent implantation), percutaneous structural intervention (including left artery or appendage occlusion, balloon aortic valvuloplasty and trans-cutaneous aortic valve replacement). He also performs embolization, oblation and coiling procedures. He said that procedure is directly relevant to the matter at hand.
Dr Ali provided his CV which runs to 50 pages.

Dr Ali reviewed the documents provided to him which included outpatient letters, inpatient notes, catheterisation reports, laboratory investigation results and angiography and percutaneous coronary intervention recorded fluoroscopy.
Dr Ali set out the history for Patient B which was contained in the documentation he viewed. In relation to the attendance upon Dr Chatoor by Patient B on 3 March 2016, Dr Ali noted the following: Since his previous consultation the patient became symptomatic complaining of breathlessness. The patient had developed marked joint pain and was to undergo orthopaedic surgery in one week's time. Given that the patient was now symptomatic and had a previously equivocal stress test with regional abnormalities the patient was counselled on the risks and benefits of coronary angiography prior to general anaesthetic. Per the records, the patient elected for cardiac catheterisation with the plan to proceed to intervention, if necessary, providing informed consent.
Dr Ali described in detail the procedure which was carried out on Patient B by Dr Chatoor on 5 March 2016.
Dr Ali opined that the presentation of Patient B on 3 March 2016, when considered in light of his medical history, which included breathlessness and "a positive non-invasive stress test, indicated for diagnostic cardiac catheterisation".
Dr Ali set out details of the findings obtained from the angiography. He opined that In the setting of upcoming intermediate risk surgery and general anaesthetic, in shared decision-making, with informed consent, percutaneous coronary intervention is within standard of care.
Dr Ali said: In 2016, the choice to use a bare metal stent, given the patients pending surgery was within standard of care. A drug eluting stent would have confined him to a minimum of six months of dual antiplatelet therapy which would have precluded him from orthopaedic surgery. While the incidence of drug eluting stents, using second generation devices is less than 0.5%, (Brilakis et al. Catheter Cardiovasc Interv, 66 (2005), purchase pp. 333-340) the reported incidents of stent dislodgement in bare metal stents is reported to vary between 1.4 and 8% (Kim et al. Catheter Cardiovasc Interv, 52 (2001), pages 489-491).
Dr Ali opined that the procedure carried out by Dr Chatoor on Patient B on 5 March 2016 showed sound judgment. His words were: "All of these actions shows sound judgement as an interventional cardiologist."
He further opined that "the operator's choice not to perform atherectomy upfront, was within standard of care."
Dr Ali opined: Techniques attempted by the practitioner show expertise in interventional cardiology. Amongst the described techniques include, advancing a balloon through the stent, inflating the balloon, and withdrawing the stand; twirling two wires around the stent; loop snare; biliary forceps; retained fragment retriever; and basket retrieval device. The practitioner attempted advancing a balloon through the stent, inflating the balloon, and withdrawing the stent and snaring. The other techniques may be of limited success because of severe calcification. Appropriately, the operator chose to exclude the stripped stent by placing a second stent and crushing the dislodged stent against the wall. This would maximise the lumen area and minimise the amount of metal that could obstruct flow within the main right coronary artery.
Dr Ali said that Dr Chatoor had appropriately sought counsel from another cardiologist during the procedure. One colleague was contacted by phone and one colleague scrubbed and was on site to assist.
In relation to the crushing of a stent by Dr Chatoor, Dr Ali said: Previous studies have shown that exclusion of a dislodged stent by crushing it with another stent does not lead to major ad verse cardiovascular events (Brilakis et al. Catheter Cardiovascular Interv, 66 (2005), pp. 333-340). The operator chose to use Synergy stents known to be of the lowest possible profile in 2016, showing judgement in stent choice even after these events.
In relation to Complaint 1 particular 1, Dr Ali said he disagreed that "the practitioner failed to exercise appropriate care or demonstrate appropriate judgement" in the circumstances set out in Particular 1. He said: Whereas the results of the exercise echocardiogram on 15 October 2015 were equivocal, the documentation suggests a wall motion abnormality in two segments.… According to the 'Society of Coronary Angiography and Intervention, Appropriate use criteria', two segments of wall motion abnormality on the stress echocardiogram is a high-risk stress test. Whereas the patient was asymptomatic, according to the documentation, the patient had worsening shortness of breath and was previously asymptomatic at the last clinic appointment prior to angiography. Whereas the patient did not require coronary angiography and stenting prior to the scheduled knee surgery, the patient provided informed consent following a discussion with the practitioner on the risks and benefits of the procedure.
Dr Ali said that according to the Society of Coronary Angiography and Intervention Appropriate use Criteria, a patient with two territories of segmental wall motion abnormality and otherwise with the medical condition present in Patient B on 3 March 2016, is considered to be "may be appropriate". Dr Ali opined that: In the setting of upcoming intermediate risk surgery and general anaesthetic, in shared decision-making, with informed consent, percutaneous coronary intervention is within standard of care.
In relation to Complaint 1, Particular 2, Dr Ali said he disagreed with the allegation that the facts stated therein illustrated Dr Chatoor, "failed to exercise appropriate care or demonstrate appropriate judgement." Dr Ali said the reasons he disagreed with Particular 2 "was for the reasons set out in paragraph 51 of his report".
In relation to Complaint 1, Particular 3, Dr Ali said: "It is not unusual for a stent not to deliver on the first occasion." Dr Ali set out detail from studies he referred to in relation to atherectomy. He opined that Dr Chatoor's "choice not to perform atherectomy upfront was within [the] standard of care."
In relation to Complaint 1, Particular 4, Dr Ali said: "I disagree". He said: After failing to retrieve the first dislodged stent using a small balloon inflation and snaring techniques, excluding the stent from the main vessel circulation into the right ventricular margin branch, was a prudent manoeuvre …. in chronic total occlusion percutaneous coronary intervention, sacrifice of the marginal branch during percutaneous coronary intervention is extremely common, with very infrequent consequence … exclusion into the right ventricular free wall branch, and exclusion by crushing of the residual stent into the side wall was an advanced manoeuvre ….. Moreover, many interventional cardiology techniques require crushing of stents including for example bifurcation stenting.
In relation to Complaint 1, Particular 5, Dr Ali said: Dislodgement of the stent is a rare occasion. Dislodgement of the second stent is an extremely rare occasion. Nonetheless it has been described previously.
Dr Ali said Dr Chatoor did make changes in an attempt to deliver the second stent which included guide catheter manipulation. While the second stent was dislodged, it was quickly retrieved without undue consequence.
Dr Ali included in his report, a response to the report of Associate Professor Gutman. The matters he addressed included the following:

He was critical of Associate Professor Gutman suggesting there was a discrepancy in the number of stents deployed by Dr Chatoor. He methodically described the count made by him which accorded with the count from Dr Chatoor and also the cath lab inventory.
He was critical of Associate Professor Gutman for suggesting there was no indication for placement of a stent. Dr Ali opined that: In the setting of upcoming intermediate risk surgery and general anaesthetic, in shared decision-making, with informed consent, percutaneous coronary intervention is within standard of care.
Dr Ali commented upon Associate Professor Gutman's assertion that the American Cardiology guidelines do not recommend routine coronary Angiography before non-cardiac surgery. He said that statement was correct. However, Dr Ali suggests that Associate Professor Gutman failed to address the fact that the indication for angiography in Patient B was not strictly for perioperative risk assessment.
Dr Ali referred to Associate Professor Gutman suggesting that an alternative to using two wires is to use a guide extender then balloon dilation and stenting of the more proximal segment in the mid portion of the vessel may have assisted in stenting. Dr Ali said that was correct, however, this must be balanced against additional metal and unnecessary vascular injury. As Patient B was originally planning to have orthopaedic surgery, Dr Ali said additional stents would increase the risk of stent thrombosis, particularly with bare metal stents increasing the risk of restenosis. Dr Ali said: I disagree that placing stents in areas without significant atherosclerosis and luminal narrowing would be prudent. It is unclear whether the Guideliner, or guide catheter extension, was available to the practitioner, however this would have been one methodology to deliver the stents.
Dr Ali said that Associate Professor Gutman suggests Dr Chatoor attempted to perform the same procedure and predictably failed again. Dr Ali said: Again it is certainly not uncommon for an operator to fail to deliver a stent on a first pass attempt, and use local techniques such as guide catheter manipulation, wire manipulation, to aid in successful delivery.
Dr Ali addressed Associate Professor Gutman's suggestion that most stent dislodgement occurs when the stent comes off the balloon, when the stent is withdrawn back into the guide which is not coaxial with the origin of the artery in angulation and results in shearing of the stent off the balloon. Dr Ali said dislodgment may be explained by various mechanisms. Dr Ali gave three different scenarios where that may occur. He said: Factors predisposing the stent dislodgement are: poor support of the guiding catheter for the guide wire; vessel tortuosity proximal to the lesion; inadequate pre-dilation, and vessel calcification.
Dr Ali was critical of Associate Professor Gutman's statement that he was unsure how Dr Chatoor was able to deliver the balloon distal to the stent which was still on the wire. Dr Ali said: "This is actually a common technique." Dr Ali explained how that would be achieved.

Dr Ali said: I disagree with Associate Professor Gutman that this was inappropriate coronary angiography and inappropriate stenting. According to the Society for Coronary Angiography and intervention appropriate use criteria, Patient B meets criteria for post diagnostic angiography and percutaneous coronary intervention. The distal right coronary artery lesion, localised with the findings of the stress test, and thus fractional flow reserve is not indicated. Moreover, the fractional flow reserve wire is a hollow tube with very poor handling characteristics. Given the severe tortuosity and calcification it may have been difficult to deliver this wire. Moreover, the lesion had a hazy appearance to it suggesting in the setting of new onset or worsening symptoms, that the lesion could be unstable. All of Dr Chatoor's actions are within standard of care, and more so, many of the manoeuvres and actions, are advanced manoeuvres consistent with an experienced interventional cardiologist.
Included in the documents relied upon by Dr Chatoor, is the transcript of part of the Professional Standards Committee hearing on 12 November 2019. The part which is included consists of the conclave of experts, including Associate Professor Gutman, Dr Bellamy and Dr Holloway.
The transcript also contains the evidence of Associate Professor Gutman, which was relied upon by the HCCC or (the Medical Council of NSW) before the Professional Standards Committee Inquiry held on 12 November 2019. In the transcript we note the following from the evidence of Associate Professor Gutman: 1. (Transcript p.125) "I agree it was a difficult procedure and they did well to get out of it." 2. (Transcript p. 125) In relation to the exercise echocardiogram, "I interpreted it as being equivocal which means it would be negative." 3. (Transcript p. 126) "I agree that the scan previously may not have been important at the time but there could have been a way to investigate this person further with non-invasive testing if that was what was required." 4. (Transcript p. 126) "The entry wall has been thought to have cause difficulty in interpretation with echocardiogram's… So it is a difficult area to assess and you do get more false positives than in other areas." 5. (Transcript p. 126) "His symptoms of breathlessness, that's the symptom they are hanging their hats on. He had his stents put in successfully in the right coronary artery and from what I can understand he still had breathlessness." … "so the initial thought or comment that his breathlessness was cardiac may not be true because he still had it after he was [stented]."…. "so it probably was always his lung disease and not the heart." 6. (Transcript p. 126) "Then you come to the question about should he have an angiogram? Well, a lot of people would say yes and a lot of people say no. You might want to stratify risk. That's okay, you know, I don't, I personally probably wouldn't have done an angiogram because he's asymptomatic and he had an equivocal exercise test anyhow." 7. (Transcript p. 127) "Then others are talking about not only looking at his surgical procedure, I think people are great at stenting. A right coronary stenosis before any operation will not improve the prognosis in someone who is asymptomatic." 8. (Transcript p. 127) "Having done the angiogram, and I assume he got to that stage, it seemed the right coronary stenosis, no left coronary artery disease, one would assume that it's appropriate to stop at that stage and tell the patient you've got right coronary stenosis and you should be able to safely be operated on for your knee. If I did stent it, then I can't tell you that your prognosis would be improved and prevent heart attack at the time of the knee surgery. In fact, you can occlude a stent if you come off your blood thinners, might be more blood thinners at the time of operation, and occluding a stent with a clot has a mortality of around 40 or 50%, very high mortality. So by stenting and putting more multiple stents in, you might be increasing the risk of the operation itself, not decreasing the risk of the operation." 9. (Transcript p. 128) Associate Professor Gutman set out his description of the stenting procedure and his criticisms of same. He said "I don't really want to comment on the distal part, he stented that and please assume that was satisfactory." 10. "They were able to, according to the evidence, wire the stent and that would be like finding a needle in a haystack. To wire into a stent, that's why I asked the question, into the lumen, a free stent in the right coronary artery would be near impossible. I don't know how they do it." 11. "My preferred option, if you could not s[p]ear that mid right coronary stent, I would have crushed the stent on the side of the right coronary artery without going into the right ventricular side branch. Putting an undeployed stent in the side branch would increase the risk of clotting of that side branch."

The Oral evidence of Dr Chatoor before the PSC

The evidence of Dr Chatoor given in this hearing, so far as the cross-examination by the counsel for the HCCC is concerned, was, so far as possible, not a repeat of the cross-examination which was conducted before the PSC in November 2019. We will therefore consider the cross-examination of Dr Chatoor in the PSC before considering any further cross-examination before us in this Tribunal hearing.
Commencing at page 105 of the Transcript of 12 November 2019, Dr Chatoor gave his evidence in chief. He described in great detail the procedure he had undertaken with Patient B on 5 March 2016.
Much of the questioning by counsel for the HCCC was not cross-examination, but rather questions seeking clarification about certain aspects of the procedure. At some points Associate Professor Gutman was invited to ask questions as the detail was very technical and word usage important for both the questioner and Dr Chatoor.
Associate Professor Gutman asked about the pre-dilation of the mid portion of the right coronary artery. Dr Chatoor said that it would have been pre-dilated several times throughout the procedure.
Associate Professor Gutman asked: Why weren't you better able to deploy a tsunami gold in the mid portion, but subsequently you were able to deploy another type of stent? Dr Chatoor replied: We know that Synergy Standard have thinner straps, they are more deliverable, they are clearly better equipped because they are a second-generation drug [eluting] stent. They are more deliverable than first generation bare metal stents.
When questioned about pre-dilating the mid portion with a bigger balloon or a noncompliant balloon, Dr Chatoor said: The risk you run in pre-dilating aggressively is that you dissect the vessel and then you are unable to deliver a stent to cover that area.
Dr Chatoor was asked about the loss of the first stent. He said: When the stent came off it was in the mid-course of the right coronary artery, I rewired the main vessel, I took a balloon beyond the stent, inflated it to normal pressure in the hope that it could try and encourage it back into the proximal vessel. When it became apparent that was not going to work proximal to where the lost stent was I inflated it gently to try to encourage the stent into an RV wall branch and I was able to achieve that.
Associate Professor Gutman asked: So you just pushed it and it just happened to go into the RV branch? Dr Chatoor said: It did and I think at that stage it could have either gone downstream or it could have gone in the direction that it did. He agreed it was in the RV branch in the main right coronary artery.
Dr Chatoor said: I wired the main vessel, I tried to gaol it using a tsunami gold stent." "I then retrieved it. After I retrieved it, I went back in and rewired the lost stent." "I wired the proximal aspect of it. He said he went through the lumen of it. The wire was in the RV branch. He said: the only problem I had was that I couldn't get the Falcon balloon to track down that actual wire into the proximal aspect of the stent.
Dr Chatoor was asked: The length of the stent was shorter than the pre-dilated stents? Dr Chatoor responded: I agree that is not ideal, but in this case it was a bail out strategy on the basis that if a longer stent would not go, a bigger diameter stent would not go, then one of the techniques is to use a shorter smaller stent and that tracked quite well.
Dr Chatoor explained that: the lost stent was a mid-course of the right. I tried to get them to track but they couldn't and so in the end the stent, was too distal in order to use a snare to retrieve.
On Wednesday 13 November 2019, Dr Chatoor gave further evidence and was cross-examined.
Dr Chatoor was asked to explain how the stent ended up, at least partially, in the right vessel. He said: It was a four hour procedure where a number of balloons were used and a number of different techniques were used and during that procedure it became apparent that the stent had migrated into the proximal aspect of the secondary RV wall branch and it was ultimately crushed in that position.
Dr Chatoor was cross-examined by counsel for the HCCC. Dr Chatoor was asked how the stent migrated into the RV wall branch. He was asked if he had pushed the stent to that place. He replied: It is not possible to put a free-floating stand stent into a branch with the lumen. It migrated into that during the course of the procedure.
Dr Chatoor explained that once the stent had migrated into the wall branch, he had to make a decision about how to address the issue.
Dr Chatoor said that notwithstanding having requested records in relation to coronary procedures in Queensland for Patient B, in 2015 and subsequently, they had not been provided. The request was made to the Gold Coast Hospital. He agreed it was important to know where previous stents had been inserted prior to carrying out the procedure he did on 5 March 2016. He had endeavoured to obtain medical records for Patient B, however, the records were not available to him on that date.
Dr Chatoor was taken to the letter he sent Patient B's GP following seeing the patient for the first time in 2015. The HCCC's counsel read onto the record the history and observations made by Dr Chatoor in that letter. He concluded by saying that Patient B was at low risk of adverse coronary events for two years. Dr Chatoor said, having re-read the letter that he was not sure he would agree with that conclusion now. He agreed the letter was written 15 months before the surgery on 5 March 2016.
Dr Chatoor was asked to look at a copy of the letter he had written to Patient B's GP dated 5 May 2015. That letter noted symptoms and conditions suffered by Patient B together with a list of his medications. Then again on 2 June 2015, Dr Chatoor wrote to Patient B's GP. He agreed he had found Patient B stable on medical therapy when he had seen him the year before. He also agreed he said Patient B denies recurrent breathlessness or chest pain. He also agreed he had conducted an ECG on that occasion (June 2015) which was "fairly normal". On that occasion, Patient B also underwent a transthoracic echocardiography which Dr Chatoor agreed demonstrated good systolic function with mild septal and left ventricular hypertrophy, mild left atrial dilation as well as mild aortic regurgitation. Dr Chatoor agreed he had observed the aortic valve appeared to be thickened, with a pink gradient of 22 MMHD and a mean gradient of 14. Additionally, he agreed there was no evidence of regional wall motion abnormalities. He had arranged for Patient B to undertake myocardial perfusion imaging and requested Patient B return in two weeks so that the results of the scan could be finalised and a decision in relation to the safety of a general anaesthetic could be made. Dr Chatoor agreed that at that time he had assessed Patient B for a surgical procedure.
The HCCC put to Dr Chatoor that the considerations in relation to the 2 June 2015 letter in relation to Patient B's suitability for surgery would have been of a similar nature to that which occurred in March 2016. Dr Chatoor replied: "They are different operations with different levels of complexity and different risks." Dr Chatoor also said the risk associated with the scheduled knee surgery was different to the surgery Patient B was facing in June 2015. He said the different operations did change his assessment of risk for Patient B. He said: "you can't compare a low-risk operation to an intermediate risk operation to a high-risk operation."
Dr Chatoor was taken to a copy of a letter he wrote to Patient B's GP dated 17 June 2015. This letter was written following receipt by Dr Chatoor of the report in relation to the myocardial perfusion imaging which he had ordered for Patient B. At that time, Dr Chatoor also had access to results/scans from myocardial perfusion imaging in November 2014. It was put that Dr Chatoor had no significant concerns about Patient B's health in relation to cardiac matters in June 2015. Dr Chatoor said he did not have significant concerns at that time in relation to that particular procedure.
On 15 October 2015, Dr Chatoor saw Patient B and arranged for him to undertake an exercise stress echocardiogram on that day. He then wrote to Patient B's GP. He noted the tests were "somewhat equivocal". He had also said that in the absence of symptoms he would be inclined to manage this medically, in the first instance.
On 3 March 2016, Dr Chatoor wrote to Patient B's GP. In that letter, he agreed he had noted that, since he had seen Patient B last, Patient B denied chest pain but said he had been "a little breathless in recent weeks". Dr Chatoor said it was the first time he had listed the history of breathlessness for Patient B. Dr Chatoor considered that the history of breathlessness in Patient B was significant. He did not agree with counsel for the HCCC that the breathlessness was of minimal concern. He said Patient B had COPD which had been stable on basic respiratory medication.
When it was put that the emergence of breathlessness may have been attributed to a non-cardiac cause, Dr Chatoor said: "He had never reported breathlessness previously." He said: If a patient presents with a high-risk profile, an abnormal non-invasive test, and exertion breathlessness, then my immediate concern as a cardiologist is that there may well be a cardiac basis for it.
It was put that Dr Chatoor was now attempting to make something out of the breathlessness symptom with the benefit of hindsight, which was not the case when he reviewed the patient on 3 March 2016. He denied that. He said: No, the patient was still in my presence and I had to put together the clinical indicators of whether his risk was significant or insignificant. That was constituted at the time of seeing him, not constituted post.
It was put, as Associate Professor Gutman said, that the patient could have been referred to a respiratory physician. Dr Chatoor said: Again, when presented with the clinical picture, I think it would be important to rule out what could be the most concerning and most immediate cause for concern, which would be an ischaemic basis.
In relation to the impact upon Patient B's forthcoming knee replacement operation, Dr Chatoor said he was very conscious of the possible impact upon the timing of that surgery, if it was necessary to proceed with the procedure of stent implanting. He said he had lengthy discussions with both Patient B and his wife about that matter. He also had that included in the written consent Patient B provided. He agreed that the knee operation had been delayed until March 2017, following a chain of events.
Asked to identify the difference in symptoms between the 2015 observation by Dr Chatoor and that seen on 3 March 2016, Dr Chatoor said: When faced with an abnormal test, that needs to be put in context, so you attempt to elicit a history that would allow you to decide whether, in that clinical context, the investigation needs to be acted upon and based upon my assessment at that time, I felt that there had been a change in his symptoms, which, in the context of an abnormal test, I felt needed to be assessed further. In terms of a difference in symptoms between 2015 and March 2016, Dr Chatoor said: He described dyspnoea in the context of an abnormal exercise stress echocardiogram and my assessment then was that further investigation was reasonable.
Dr Chatoor said he was of the view that Patient B should have the procedure he was to undertake, before he proceeded to knee replacement surgery. He said he had discussed with Patient B the alternate of medically managing his condition and he said: We agreed with the latter approach because it was my feeling that we could confirm a greater degree of safety in the longer term by doing that. Dr Chatoor said that a diagnostic angiogram might not have resulted in delaying Patient B's knee surgery, however, if an interventional procedure was required that would delay his knee operation.
Dr Chatoor said he would not have proceeded to have a Dobutamine stress test, as Associate Professor Gutman said he would have done, he said he opted for an investigation which carried a greater sensitivity and specificity than a Dobutamine stress test.
Dr Chatoor was asked if he had considered conducting an FFR investigation as suggested by Associate Professor Gutman. Dr Chatoor said: It would not have added anything to the actual procedure, the diagnostic process itself…. it is very invasive. You do it at the time of the angiography and you actually put a guide wire down the coronary path of the stenosis, it is very invasive.
It was put that Associate Professor Gutman considered the Eagle Cardiac Risk Index, which had been used by Dr Chatoor, was not ordinarily used to assess risk. Dr Chatoor said: Where you use that test or the American College Guidelines test or the recently published and proposed index, the reality is that his risk factors would constitute at least intermediate risk. He was not low risk.
Dr Chatoor disagreed with Associate Professor Gutman's oral evidence that "stenting Patient B would not have reduced his risk perioperatively".
Dr Chatoor was taken to the letter he wrote to Patient B's GP on 5 March 2016, the day he completed the procedure for Patient B. In that letter the GP was advised that Patient B had undergone a stress echocardiogram last year which suggested the presence of flow limiting disease in the right coronary artery distribution. Dr Chatoor was asked when he had changed his view about Patient B's cardiac function and whether that was because he was told Patient B was to undertake a knee operation. He said: It was a number of things but his clinical presentation, you have abnormalities on objective testing and yes the planned general anaesthetic.
When it was suggested to Dr Chatoor that the dyspnoea Patient B presented with on 3 March 2016 was light breathlessness and that there had been no investigation of any other underlying cause, other than ischaemic causes, Dr Chatoor said: His chronic lung disease was mild and stable. I didn't believe that anything had changed and the examination did not demonstrate any clinical stigmata of respiratory decompensation. Contrary to the proposition put to him that the breathlessness did not constitute a symptom in Patient B, Dr Chatoor said: "breathlessness is dyspnoea and it is a significant symptom."
He denied the assertion by Associate Professor Gutman that Patient B was asymptomatic at 5 March 2016.
Dr Chatoor outlined an exhaustive consent process he undertakes with his patients. This commences with a verbal consent which is then embodied into a written consent. When the time comes for the patient to sign the consent form, he again speaks in depth about options and risks. That is what he said occurred with Patient B on 5 March 2016.
The HCCC put to Dr Chatoor that given ultimately that the stent that was used was not the one that was intended and it was smaller than the first choice, that in itself would have given rise to a greater future cardiac risk for Patient B. Dr Chatoor said: No it wouldn't. The definition of a successful intervention is to have less than 10% residual stenosis in the target lesion and there was no residual stenosis in the target lesion. To ensure that there is normal flow in that vessel, to ensure there are no major adverse cardiac events. So for the treatment of the lesion, in fact for the treatment of the whole case, by that definition it was a successful procedure associated with any concerns of an adverse cardiac events. So it was not a sub-optimal result in that lesion, even if it was a shorter stent than I had intended to use.
Dr Chatoor was asked to look at a letter he wrote to Dr Morton following the procedure on Patient B. In that letter he had said: "I was able to push the undeployed stent into the RV wall branch". It was put that such a description is different to the evidence he had given, that the stent had migrated into that position having dislocated from the balloon. Whilst acknowledging what he had put in the letter, Dr Chatoor said that his evidence the stent had migrated itself, undirected by him, into RV branch was correct. He denied, the innuendo, if not explicit allegation, that he had fabricated his evidence, in relation to that fact, in the hearing.
Dr Chatoor was asked to look at his Section 40 response to the HCCC dated 24 July 2017. In that statement he had said: It is an entirely logical decision to place the lost stent in a smaller side branch where compromise to the lumen of the main vessel is less of a concern. Dr Chatoor was asked whether he thought that suggested an intentional action on his part. Dr Chatoor, whilst acknowledging the interpretation said he had not directed the stent to the side branch.
Associate Professor Gutman's evidence that it would have been a preferred course of action to keep the lost stent in the main artery, as opposed to the branch, and crush it, was put to Dr Chatoor. He was asked to agree with that opinion. He did not agree and he stated his reason. He said that he had discussed the circumstance with preeminent cardiologists abroad who agree with his approach. He offered to provide the opinions, however, the HCCC did not take up his offer (there is no suggestion from us that there was any obligation to do so).
In relation to the crushed stent, it was put that because of that crushing it was necessary to place two further stents. Dr Chatoor agreed that was the case, however, he said if it becomes necessary to crush a stent that necessity means another stent or stents need to be used to crush the first stent and then keep it in position.
Dr Chatoor was taken to the written complaint of Patient B. There he had said that he saw Dr Chatoor on 3 March, travelled to Merewether on 4th March and underwent the procedure on 5th March. He had indicated he felt pressured by the time constraint in that chronology of events. Dr Chatoor said he had a list of procedures in the Lingard Private Hospital that week and had the capacity to include Patient B.
Dr Chatoor was asked about the role of Dr Oldfield in the procedure. Dr Chatoor said he was scrubbed and stood beside him as he performed the procedure and they talked through the steps Dr Chatoor was taking or would take.
Dr Chatoor was asked about a letter he wrote to Patient B's GP about a week after the procedure on 5 March 2016. In that letter he had described Patient B's breathlessness as being long standing. It was put that he had described that same breathlessness as being either not recorded at all (October 2015) or slight breathlessness (3 March 2016). He said Patient B had a history of chronic obstructive airways disease and Dr Chatoor understood that was mild and stable. When he had seen Patient B on 3 March he complained of breathlessness. Otherwise, Dr Chatoor was unable to say why he had described it as "long standing".
It was put that the complaint of "slight breathlessness" on 3 March 2016 should have led to an investigation of a pulmonary cause rather than cardiac. Dr Chatoor said: there was no clinical suggestion of acute pulmonary decompensation at that point. His examination from a respiratory perspective was normal and he had a history of known pulmonary disease.
It was put that Associate Professor Gutman had opined the stress echocardiogram report showed that it was equivocal. Dr Chatoor was asked if he agreed with that opinion. Dr Chatoor said that he had said in his report that the signs evident from the echocardiogram "were somewhat equivocal". He said: What I meant by that was that they were of significance at that point. But it is clearly an abnormal stress echocardiogram because it does demonstrate an objective reduction in wall motion at moderate workload with a poor heart rate responding in the absence of rate limiting medication. He denied he was now describing the echo as abnormal to justify the action he took.
Dr Chatoor was asked about Associate Professor Gutman's suggestion that a guideliner can be used when stenting is difficult because of tortuosity. He was asked did he use a guideliner. He said he had not on this occasion although he has used guideliners. He said he used other techniques. He said: A guideliner is not without risk. If you advance a guideliner down a tortuous coronary artery, the risk includes dissecting the right coronary artery and if you dissect a tortuous right coronary artery and you are already struggling to do a stent, it is a complete nightmare. The final issue with it is downstream ischaemia. If you have a torturous vessel and you put a guideliner down then you can get downstream ischaemia and if the patient becomes ischaemic during the procedure, it makes it all the more difficult. Dr Chatoor said that Patient B had tolerated the procedure without ischemia, without fluctuations in blood pressure, changes in heart rhythm, which is very reassuring when you are dealing with a difficult procedure.
Dr Chatoor was asked about Associate Professor Gutman's evidence that he would never have used a right hand Amplatz catheter. Dr Chatoor did use an Amplatz right hand catheter. Dr Chatoor said he disagreed with Associate Professor Gutman on that view. He explained why. He cited the possibility of dissecting the right coronary vessel as you turn the Amplatz into the right coronary vessel. He said his view was that too big an Amplatz for the right coronary artery will cause more harm than good.
In relation to Associate Professor Gutman's evidence that after the loss of the first stent, he would have aggressively dilated the right coronary artery using a bigger balloon or non-compliant balloon to expedite the passage, Dr Chatoor said he did dilate, however, not aggressively. He said he chose not to dilate aggressively through fear of affecting the vessel and not being able to deliver a stent following a dissection.
When questioned about the necessity for the procedure to have been undertaken so quickly after 3 March 2016, Dr Chatoor said: it was done that quickly because I had a list that week, also because there was an understanding of what was being proposed and if I did a diagnostic angiogram and did not find a significant issue of concern, then he would still be able to go in and have his surgery a week later.
In relation to the particulars of the complaint, Dr Chatoor was asked to concede (as alleged in particular 1(a)) that the myocardial perfusion scan in November 2014 was normal. He did not so concede. He explained what might be described as a normal myocardial perfusion scan. He said in relation to Patient B there was an aspect of the test which was not normal (the exercise tolerance area) but it did not show reversible ischaemia. It may have been seen to be artefactual because there was no evidence of wall thinning, hypokinesia, or hypomnesia, a reduction in thickness of the myocardial at that level.
In relation to Particular 1(b), Dr Chatoor said the test was somewhat equivocal and it was not a normal test. In relation to Particular 1(c), Dr Chatoor said: "it demonstrated at least an intermediate risk". Dr Chatoor agreed in relation to Particular 1 (d) that there was no functional flow reserve measurement conducted and that was because at that stage it would not add to the appropriateness or the success of the procedure. In relation to Particular 1(e), Dr Chatoor denied Patient B was asymptomatic. He had dyspnoea.
In relation to Particular 1(f), Dr Chatoor denied the assertion that Patient B did not require coronary angiography. He also denied Patient B did not require stenting prior to his scheduled knee operation.
In relation to Particular 3(a), Dr Chatoor conceded that his first attempt to deliver the first stent had been unsuccessful. In relation to Particular 3(b) and (c), Dr Chatoor conceded the first stent had been caught in the right coronary artery and that he had then attempted to deliver another stent again in the right coronary artery. In relation to Particular 3(d), it being asserted he should have attempted an alternate approach, Dr Chatoor said he did do that.
In relation to Particular 4(a) and (b), Dr Chatoor denied he pushed the stent into the right ventricular wall branch.
In relation to Particular 5, Dr Chatoor rejected the whole of the Particular including its sub-paragraphs.
In the transcript of the proceedings before the PSC, the same experts who appeared before us (with the exception of Dr Ali) gave evidence. We have read that evidence and referred to some of it in this hearing. However, we have relied more on the evidence from the expert witnesses who appeared before us and, in particular, we have had the advantage of hearing from Dr Ali and reading his report, which was not before the PSC.

The Oral evidence in the hearing before us

The oral evidence in this hearing commenced with a conclave of experts. In preliminary discussions with counsel, prior to the commencement of that oral evidence, we were informed that it was proposed Associate Professor Gutman would speak to any outstanding criticisms he has of the procedure conducted by Dr Chatoor and then the experts relied upon by Dr Chatoor would give their evidence in relation to that criticism. We noted that Dr Ali had not given evidence before the PSC and that his report and oral evidence was not able to be considered by that body.
Counsel for the HCCC informed us that she proposed to take the evidence Associate Professor Gutman was to give, beyond that which was limited to the outstanding criticism Associate Professor Gutman continued to have about Dr Chatoor's conduct of the procedure and the necessity for same in the first place, because Dr Ali had not had the advantage of hearing that evidence during the hearing before the PSC.
Prior to the hearing of the evidence from the "expert conclave", there was a challenge to the inclusion of, or acceptance of, Dr Oldfield and Dr Bellamy as experts on the grounds of their involvement in the procedure, the subject of the complaint, and/or their close association with Dr Chatoor allegedly clouding their objectivity. Given the need to hear the evidence of Dr Ali, who was appearing via AVL from New York, USA (where it was already late at night), both counsel agreed to address the question of the objectivity of Dr Bellamy and Dr Oldfield and therefore the weight which might be given to their evidence, at a later time, possibly in submissions.
All five of the expert witnesses relied upon by the parties and referred to by us in these reasons so far, took an affirmation, for the purpose of their oral evidence.
Associate Professor Gutman was the first expert to give his evidence. In relation to that evidence, we will endeavour to include, in the forthcoming recitation of that evidence, only evidence which is not a repetition of that which we have already noted. Counsel for the HCCC had informed the Tribunal that from the HCCC perspective it was important that Dr Ali have an opportunity to hear from Associate Professor Gutman in relation to matters which he had given oral evidence about in the PSC hearing, as Dr Ali had not heard that evidence, whereas the other members of the conclave had heard it. We accepted the assurance of counsel as to that important aspect of the HCCC case and permitted that action.
Associate Professor Gutman spoke of his professional background.
Associate Professor Gutman was asked to look at Particulars 1 and 2 of the Complaint document. He was asked: Was it your view that the myocardial perfusion scan taken in November 2014 provided a result which was normal? Associate Professor Gutman responded: I did not see the perfusion scan. The results indicated that there was a defect in the inferior wall which could have been due to a myocardial infarction or artefact. It did not show any evidence of ischaemia.
Associate Professor Gutman was asked on three occasions by counsel for the HCCC whether he saw the results of the scan as "normal or abnormal". He did not answer that question. It may have been that the question was not possible to be answered in that manner, however, Associate Professor Gutman did not say that was the case.
In relation to the exercise echocardiogram conducted on 15 October 2015, Dr Chatoor had said the result was "somewhat equivocal". Associate Professor Gutman was taken to page 125 of the transcript of the hearing before the PSC where he, Associate Professor Gutman, had given evidence which included the following: "There was a lot of argument about the positivity of the exercise echocardiogram and the report that I saw showed it was equivocal." He then said on that occasion: "equivocal to me means it is not negative and it is not positive." He further went on to say: "I interpreted being equivocal, means it would be negative." He was asked to explain why he had interpreted the exercise echocardiogram as negative. He said: Because he said it was somewhat equivocal which means it is ambiguous, it is open to interpretation of dubious significance. It does not strongly indicate there was a positive test.
Associate Professor Gutman was then asked: "How did the images influence your view in relation to that?" He responded: "Well, I haven't seen the stress echocardiogram. I've not seen the images from the stress echocardiogram." He went on to say the wording of "equivocal" indicated to him that it was inconclusive.
Dr Ali was asked for his opinion in relation to that evidence from Associate Professor Gutman. Dr Ali said: "I think it is important to take the totality of sequelae into consideration.…" Dr Ali then set out that history. He concluded by saying: then, one week prior to an orthopaedic operation, the patient presents with new symptoms of shortness of breath and has a stress test that is quite rightly, as Associate Professor Gutman suggests, equivocal. I think we have to take "equivocal" in the context of someone who has a previous stent in the right coronary artery, someone who has a history of arthrosclerosis, someone who is having surgery in a week's time and as a result of "equivocal", as suggested by Associate Professor Gutman, can be taken in two directions; one, to be left to be managed medically, but in this specific situation the patient is having an operation in one week's time and as a result if there is a significant coronary ischaemia or if there is a coronary lesion that is not revealed by an ambiguous or equivocal stress test, it is indeed an indication for coronary angiography.
Dr Ali quoted information provided by the Society of Cardiovascular Angiography and Interventions as setting criteria for diagnostic angiography and applying the criteria to Patient B he said the patient "may be appropriate for diagnostic angiography." Dr Ali opined that: In the context of the patients intermediate risk surgery and general anaesthetic and in the context of new symptoms it is entirely appropriate to perform coronary angiography because the risk of coronary angiography alone is very, very, low.
Dr Ali said the consequences of under-treatment may be graver than over treatment. That view, if appropriately held, would motivate the type of procedure/investigation which might be undertaken.
Professor Holloway was also asked for his view about Associate Professor Gutman's evidence. He said, in agreeing with Dr Ali: Absolutely. We are talking about a stress echocardiogram which is not a test that we rely on as one parameter. We rely on multiple things including the patient's symptoms, the ECG changes as well as what the echocardiogram shows. The echocardiogram has demonstrated that two areas of the heart muscle were not working appropriately during stress….. There is abnormality on the echocardiogram and I don't know of many people who would call the stress echocardiogram (for this patient) as normal.
In response to Associate Professor Gutman describing the stress echocardiogram as equivocal, Professor Holloway said: I think we have to suggest that there is abnormalities on the stress test and I don't know of many people that would ignore this in the context of symptoms. So based on that and (Cardiac guidelines) would also suggest that this puts this patient at intermediate risk and angiography is required.
Whilst still giving evidence about whether the stress echocardiogram was equivocal and what that might mean, Associate Professor Gutman was permitted to ask questions of Dr Ali. As this questioning continued, we noted that Associate Professor Gutman became more defensive of his opinion in relation to the procedure, the subject of the complaint, and he appeared to take on the role of an advocate for his view and the case of the HCCC, rather than his position as an objective expert witness. This may have occurred because Associate Professor Gutman was pitted against the other experts in relation to the most important aspects of the case brought by the HCCC against Dr Chatoor. We will again return to this matter later in these reasons, as the question of the role Associate Professor Gutman took on in this case, came into question at the instigation of counsel for Dr Chatoor.
Associate Professor Gutman then said: I would feel that new dyspnoea in someone who has evidence of lung disease, the dyspnoea without chest pain is likely to be due to other factors apart from coronary artery disease including lung disease or even left ventricular dysfunction and neither of those were assessed prior to his angiogram.
In response to that statement, Dr Ali said: I agree that is a possibility, however, that is just one of many possibilities on a list of differential diagnosis and, as you know, a recognised angina equivalent is dyspnoea. Given the patient has previous coronary artery disease, has a previous stent implanted in the right coronary artery, of course high up on the differential diagnosis has to be restenosis within the stented segment and the presence of progressive coronary artery disease. As you will recall, the patient had his first stent placed in 2008. This is almost 8 years later where the patient is having repeat coronary angiography and you know that there is an ongoing risk of patients who have coronary disease to develop further coronary disease.
Associate Professor Gutman said that other testing should be carried out for the patient before moving to an angiogram. Dr Ali's response included: I think we have to take into account that the patient was planned for surgery in one weeks' time and as a result the things that may or potentially be the most deadly to the patient should be ruled out in sequence of which I would say primary artery disease would be on the top of that list.
Associate Professor Gutman said he would think the most dangerous thing to the patient would be to stent the patient on the basis that he had symptoms which were not related to coronary artery disease.
At that point, counsel for Dr Chatoor asked Associate Professor Gutman: Associate Professor Gutman are you saying that all of these experts, Dr Ali and Professor Holloway and the other experts or the other cardiologists who you acknowledge in your evidence before the PSC might have different views, in holding those views, are substantially below the standard a reasonable practitioner of this standard and experience should hold? I mean you have a view, but are you saying your view prevails over all the other experts to such an extreme extent? The answer from Associate Professor Gutman to that question causes us concern for the role Associate Professor Gutman understood he held as an expert witness before this Tribunal. His answer was:
Well, I'm the only one acting for the HCCC. The other experts have been selected for purposes of Dr Chatoor.
Counsel for Dr Chatoor then challenged that answer with the following: Are you seriously saying you are acting for the HCCC rather than expressing an independent and objective view about what is reasonable practice amongst your peers? Associate Professor Gutman responded: That is exactly what I am doing. I'm acting as a cardiologist or expert giving the opinion of other cardiologist of my standing.
Associate Professor Gutman said he disagreed with the views expressed by the other cardiologists/experts in this hearing. He said: I think there is a correct way of doing things and the best way of doing things which is acceptable in other ways…. Before the patient had an angiogram, he should have had other potential causes of breathlessness investigated. He said: I don't think other cardiologist would be reasonable in expressing that opinion of what I've just said. Well, perhaps in the assessment pre-operatively should be a total assessment it shouldn't be focused on a coronary stenosis or a blockage. Associate Professor Gutman, in a defensive manner, said: I think you should put it to the panel that. Is it appropriate to stent a patient who has breathlessness only and angina without knowing what his left ventricular function is? I'm opening that up to questioning because you are questioning my validity.
Both Dr Ali and Professor Holloway took up that challenge. It is clear Dr Ali did not agree with Associate Professor Gutman. In the discussion, Associate Professor Gutman stated that the patient had undergone an echocardiogram 12 months before he was seen again by Dr Chatoor on 3 March 2016. Having said that, he was interrupted by the counsel for the HCCC (quite appropriately) to be informed that the echocardiogram was undertaken in October 2015 only 5 months before the consultation on 3 March 2016. Having been corrected on that, he continued and said that the patient had not had a recent echocardiogram. He concluded by saying "Do I hear any dissenting voices?"
He did hear a dissenting voice immediately from Professor Holloway, who said: I know that Associate Professor Gutman is not on trial here, but the evidence I've just heard seems absolutely ludicrous to me. This is the gentleman that has had left ventricular function assessed by a stress echocardiogram and there is a suggestion that other causes of breathlessness need excluding. We could look at pulmonary hypertension. We could look at congenital heart disease. We could look at a range of different lung diseases and if we did come out with something, then we are probably going to want to exclude coronary artery disease. This man has had abnormalities on a stress echocardiogram so regardless of whatever other tests we do it is very sensible for this man to have coronary disease excluded and the conversation I have just heard is incredible ….. Coronary disease needs excluding regardless of what other pathology he had. I don't know Associate Professor Gutman's experience with stress echocardiogram's, but we assess left ventricular function all the time. I am flabbergasted.
Dr Ali responded, also saying he concurred with Professor Holloway. He said: The patient meets guidelines for coronary angiography. The patient is symptomatic and the left ventricular function, notwithstanding the patient would still need an angiogram if the left ventricular function is reduced, the patient needs an angiogram. If the left ventricular function is normal the patient needs an angiogram. Asymptomatic patients that meet criteria for coronary angiography with previous stents and an abnormality on a stress echocardiogram is an indication for angiography. Professor Holloway then added: I agree, Dr Ali, and this is standard practice across every place I have worked in Australia and also in the United Kingdom and if you are criticising the fact that this man went to angiogram I think you are criticising my care over the last 20 years in addition to all the colleagues that I knew.
Associate Professor Gutman was then asked by the counsel for the HCCC: "Do you think it was appropriate or inappropriate of Dr Chatoor to recommend to Patient B on 3 March 2016 coronary angiography and stenting if required?" In our view, Associate Professor Gutman did not answer that question. He continued to be critical of Dr Chatoor undertaking any angiography investigation/procedure without knowing what the left ventricular function was. He was also critical of Dr Ali who he said had "selected" what he thought was appropriate from the quoted guideline criteria, however, he claimed Dr Ali did not mention the entirety of what was recommended in the consensus guidelines. We have taken the view, based on the other evidence of Associate Professor Gutman, that if he had applied his mind to answering the question he was asked he would have said it was inappropriate for Dr Chatoor to recommend on 3 March 2016 coronary angiography and stenting, if required.
Dr Ali's response to Associate Professor Gutman's answer to the question posed, included: performing left ventriculography is not mandatory to perform coronary angiography and stenting. It is an additional piece of information which we may use at our discretion.…. To my understanding the hypothetical situation that the patient had low ventricular function does not change whether or not the patient should receive stenting.
Professor Holloway's response was somewhat pointed and suggested a degree of frustration with the evidence being given by Associate Professor Gutman. He said: I guess on behalf of all the Australian taxpayers I would like to thank Dr Chatoor for not over servicing this patient with a whole lot of inappropriate investigations including the echocardiogram. An experienced interventional cardiologist and myself, who is a non-interventional cardiologist, can tell whether someone has severe cardiac dysfunction.
Associate Professor Gutman was asked whether on 3 and 5 March 2016, did Patient B require a coronary angiogram? Associate Professor Gutman replied: "I would not have done a coronary angiogram as the first investigation." He said to do so is in his opinion significantly below the standard.
He was asked then why the Tribunal should accept his view instead of the opinions of Professor Holloway and Dr Ali. He gave his answer, which largely focused upon his being unable to accept the criticism about his view, that firstly, an investigation of left ventricular dysfunction was required. When it was put that he had not raised that as a criticism during the PSC hearing, he said "Well I may not have been aware at the time that he didn't have a left ventriculogram." He said he had subsequently read the transcript from the previous hearing. "I was always under the impression that he did have a left ventriculogram. That was my oversight." Dr Ali said to that: What is at question is the indication for diagnostic coronary angiography, not the indication for left ventriculography, and the indication for diagnostic coronary angiography is supported by the guidelines. Professor Holloway added: I think really we are going down esoteric pathways and we go back to the main problem, which is, was coronary angiogram indicated? Yes, it was from a clinical pathway, as agreed by international guidelines and the appropriate investigation was performed.
In relation to Particular 3 in the Complaint, Associate Professor Gutman was asked: "Is there anything in the evidence that has caused you to change any of your previous views given in your report or in the conclave before the PSC or today, in relation to Particular 3?" Associate Professor Gutman responded: "No". The same question was asked in relation to Particular 4 and Particular 5. In response, Associate Professor Gutman said there was nothing to change his opinion.
Perhaps in reaction to what Associate Professor Gutman had said about his role as "acting for the HCCC", he was asked by counsel for the HCCC: In relation to the evidence you gave about giving evidence for the Commission, do you understand that your responsibility is to provide objective evidence as an expert in this matter with no allegiance to either the Commission for Dr Chatoor or anybody else for that matter? Associate Professor Gutman said: "Yes, I understand that completely, my role is to critically appraise the performance of Dr Chatoor in this case". We note that answer may be in conflict with other statements made by Associate Professor Gutman in this hearing, however, we will return to that matter later in these reasons.
Counsel for the HCCC cross-examined Dr Ali. She asked about any prior association with Dr Chatoor. Dr Ali said he had met Dr Chatoor in Australia in 2018 when Dr Ali had been in Australia to give lectures and a plenary session. The meeting had been brief and non-professional. He did not discuss the case with him. He believed that was the only occasion he had spoken to him, however, there was a possibility they had spoken on a subsequent occasion when Dr Ali was in Australia. He said he had communicated with Dr Chatoor in the past when Dr Chatoor had asked him for help with a task that: I am in charge of as part of my role as the Director of the Angiographic Core Laboratory at the Cardiovascular Research Foundation. Dr Chatoor asked me to perform qualitative coronary angiography from the Core Lab for which I did for him on a single occasion.
Dr Ali was asked about his description of Patient B, in paragraph 14 of his report, namely, as having a premature cardiovascular family history. If his parents died at the age of 88 and 92, Dr Ali was asked to explain what caused him to form a view that there was a premature cardiovascular family history. Dr Ali said "this is a verbatim taken from the documentation provided." Dr Ali said he did not interview the patient. He said the reality of Patient B's parents dying at aged 88 and age 92 did not change his opinion. He said: this is not the only cause of 'premature cardiovascular disease' one could have a myocardial infarction at 40 and live to over 90 but still have premature cardiovascular disease.
In relation to the stent which was located in the side branch, Dr Ali was asked if he agreed with Associate Professor Gutman's evidence that it would have been preferable to crush the stent in the main artery. He said: "I disagree with that evidence." He said: Because the less metal that is placed in the main artery the better. In fact in many complex interventional procedures we purposely shear them off without consequence. So, if having to compromise the main vessel versus the right ventricular marginal branch, one would always favour the main vessel.
Dr Ali said he did not believe there was any evidence to support Associate Professor Gutman's statement that crushing the stent in the side branch, increases the risk of myocardial infarction.
Dr Ali agreed that as the stent could not be advanced into the side branch it created a greater risk of complication. He agreed that the evidence suggests conclusively that: the more stent that is placed, the higher the risk of stent thrombosis especially in a patient who needs upcoming surgery where the dual antiplatelet therapy, the medications to thin the blood and prevent a stent thrombosis, potentially need to be stopped earlier or disrupted during the patient's surgery. So the less stent the better.
Dr Ali did not agree the use of smaller stents would have created an increased risk for Patient B. He did not believe a fractional flow test should have been conducted prior to proceeding with angiography. He explained why.
Dr Ali said he was licensed to practice cardiology in the USA, the UK and Canada. He is well acquainted with all the guidelines for cardiac medicine and interventionalist procedures for those countries. He is not specifically able to say whether a procedure would be within Australian guidelines for cardiology.
Dr Ali was asked whether he agreed with Associate Professor Gutman when he said "right coronary stenosis before any operation will not improve the prognosis in someone who is a symptomatic." He said he did not agree with that and explained why.
Dr Ali was asked about Associate Professor Gutman's evidence that "putting more/multiple stents in, you may be increasing the risk of the operation itself, not decreasing the risk of the operation." In that statement, he was referring to the knee replacement which Patient B was to undertake. Dr Ali was asked to agree with that statement. He did not agree. He answered in two parts. He said: If the patient has an operation prematurely and has to have the operation while taking blood thinners, then the risk of bleeding is increased. However, if the patient is managed appropriately, withheld from the elective procedure for six months and dual antiplatelet therapy is discontinued, then I don't believe the patient has a higher risk than leaving the right coronary alone.
Dr Ali did agree with Associate Professor Gutman when he said the more stents you have percentage wise, the more likely you will have a clot in the stent at the time of surgery.
Dr Ali was asked if he was aware of the fact that Dr Chatoor, with the first stent, tried to insert it radially and then through the femoral artery. It was too tortuous for the radial approach to work which led to him then approaching it from the femoral artery. Dr Ali said: "Correct and I believe that move his prudent."
Dr Ali was asked: "What about using the same stent on both occasions?" Dr Ali said: Yes, because one of the major reasons for inability to deliver a stent is guide support, perhaps the predominant one, and once you improve your guide support and, as Dr Chatoor did, change his guarding catheter and use a much more supportive sheath to advance the guiding catheter, that entirely changes the dynamics of the stenting procedure such that now this stent could have entirely been able to be passed.
Dr Ali was asked to agree with the following statement, which Associate Professor Gutman gave in the hearing before the PSC, "Putting an undeployed stent in the side branch would increase the risk of clotting of that side branch because you have a free flowing foreign body in an artery and clotting of that side branch would cause a heart attack. It might not be fatal but it could be significant." Dr Ali said he did agree with that statement. Then he was asked "So why is it that you say it would be preferable to place the stent in the side branch as opposed to the main artery in light of the evidence that you have just given?"
Dr Ali responded to that question as follows: In my experience and reading over 50,000 angiograms and being an over reader for multiple randomised controlled trials, we are well aware that arteries which are less than a millimetre and a half in diameter, when they infarct, cause very, very small infarcts, in fact, such to the point that we don't even record them on the angiogram report. So as you would have seen in most reports the right ventricular marginal branch is not mentioned. So while I wouldn't say it's inconsequential, it is minimally consequential and the consequences of losing your side branch or your right ventricular marginal branch pale in comparison to developing a stent thrombosis or an infarct in your main coronary artery.
Dr Ali disagreed with Associate Professor Gutman's view that having seen the stenosis in the single vessel right coronary artery, it was not appropriate to proceed to stenting. He said stenting at that time provided no prognostic benefit in the long or short term around the time of his surgery. Dr Ali said: "Patient B meets the guidelines for diagnostic angiography and the appropriate use criteria for stenting".
Dr Ali disagreed with Associate Professor Gutman's evidence that there was no indication to stent the lesion. He did agree that coronary stenting improves patient symptoms, however, there is no study to show that it improves survival.
Dr Ali agreed with Associate Professor Gutman, that there is no improvement in survival in stable ischaemic heart disease by performing stenting. He said the benefit is entirely symptomatic.
In answer to a question which asked whether it was still appropriate to proceed with stenting in Patient B, if he was asymptomatic at the time, Dr Ali said it may be appropriate because: there is no randomised control trial or to the best of my understanding even observational data to understand what would happen to an individual with a positive stress test with a lesion. There is a risk of perioperative myocardial infarction. How high the risk is cannot be quantified, or has not been quantified.
Dr Ali was asked to agree or disagree with the statement by Associate Professor Gutman in his evidence before the PSC. That statement is: So having a positive exercise echocardiogram in the right coronary territory has an excellent long-term prognosis and it is very difficult to say that stenting would have a better prognosis than that even in the instance of randomised trials and this has been the case ever since I've practised cardiology. Dr Ali's response was: I know of no such evidence to support that statement. I don't know any data to say that an infarct in the right coronary artery is a better prognosis than the circumflex coronary artery per se. He provided further explanation.
Dr Ali was asked to agree or disagree with the statement of Associate Professor Gutman that: "If the blockage was not functioning significantly and you stent it, then the prognosis for the patient would be worse than if you left it alone and that is how it would have helped you." Dr Ali said that while he agreed with the statement, he did not agree that it pertained to circumstance of Patient B. He provided a full explanation for that conclusion.
Dr Ali did not agree that the exercise echocardiogram on 15 October 2015 did not show any high-risk features. He provided an explanation for that failure to agree.
Dr Ali agreed with the statement of Associate Professor Gutman in his evidence before the PSC when he said: "I don't think anything else different was done when the second stent was put in. I would be arguing it probably should have been attempted by an alternative approach to perform the procedure." Dr Ali did say however that he did not think the statement reflected what had actually happened. He said there are many and documented or non-device related manoeuvres which could certainly have helped pass the stent. In addition, as I documented in my report, the angiography report suggests that a balloon of larger calibre was used to pre-dilate in between and that would entirely facilitate stent delivery in between the first stent delivery and the second.
In relation to Associate Professor Gutman's evidence that a more aggressive pre-dilation of the right artery should have been undertaken, Dr Ali said the dilation which occurred between the placement of the first stent and the second stent was aggressive. He said he would not have used a more aggressive pre-dilation than the balloon which was used by Dr Chatoor.
Dr Ali did not agree that there was insufficient reason for Dr Chatoor to push the first stent into the right ventricular wall branch. He explained why. He said that pushing the first stent into the right ventricular wall branch was only partially successful.
Dr Ali was asked to agree that Dr Chatoor should have attempted an alternate approach to pushing the first stent into the right branch, such as crushing it. He answered: "It is my professional opinion that advancing into the right ventricular marginal branch has less risk than crushing the entire undeployed stent."
He was asked: "Do you think Dr Chatoor made adequate efforts or inadequate efforts to obtain the lost stent?" He replied: "My assessment is that the attempts were exhaustive."
He was asked: "Do you think Dr Chatoor should have aborted the procedure once he lost the stent as opposed to continuing?" He replied: "Absolutely not."
Associate Professor Gutman was again invited to comment on any of the evidence of Dr Ali. He did that, however, much of what was raised had already been the subject of evidence from Associate Professor Gutman. During that response, we raised again our concern that Associate Professor Gutman was taking on the role of an advocate rather than his role as an objective, non-partisan expert. The counsel for the HCCC denied he was doing that and submitted he was addressing one of the particulars in the Complaint. We moved on and Associate Professor Gutman continued to give evidence.
Associate Professor Gutman said that the guidelines referred to by Dr Ali would not have indicated Patient B should have undergone stenting. Dr Ali disagreed.
Associate Professor Gutman raised again his objection to the attention which was paid to "exercise breathlessness as an ischemic equivalent". Dr Ali did not agree.
Associate Professor Gutman continued questioning Dr Ali, including moving to speculation as to what might have occurred with Patient B had he undergone different tests before the procedure on 5 March 2016. That did not provoke agreement from Dr Ali for his hypothesis.
To finalise the exchanges between Associate Professor Gutman and Dr Ali, counsel for the HCCC moved to ask Associate Professor Gutman further questions. The first covered evidence already provided by both Associate Professor Gutman and Dr Chatoor. It did not, in our view, advance the evidence in the matter. In the second question, he was asked what he considered Dr Chatoor should have done if there was not an AL 0.75 available. Associate Professor Gutman said, inter alia: I think Dr Chatoor was not clear when he gave his evidence when he pre-dilated, whether he pre-dilated the artery appropriately prior to insertion of the second lost stent. In fact he gave evidence that he did not choose to more aggressively pre-dilate because….
There was an objection taken to the direction in which the evidence of Associate Professor Gutman was being taken. The objection was based upon what was to be established by the HCCC in the hearing, namely that the standard at which the procedure was performed by Dr Chatoor was substantially below the standard expected. The case was not about whether an alternate manner of carrying out the procedure was preferred. There were no further questions asked of Associate Professor Gutman.
To finalise this evidence, Dr Ali was asked by counsel for Dr Chatoor 2 questions. The first question asked Dr Ali to speak about his role as the Director of the Angiographic Core Laboratory. He said: I am subcontracted to the largest cardiovascular contract research organisation for interventional cardiology in the world. We run mega trials so essentially all of the largest randomised control trial evidence, which is presented, or a significant proportion of it, will go through the Cardiovascular Research Foundation. I am responsible to review all of the angiograms for those trials to make sure that they are appropriately reported. In the context of that I have read maybe 100,000 coronary angiogram.
Dr Ali was asked: "Having regard to your engagement with Associate Professor Gutman and what else you have heard today, are you critical of Dr Chatoor's approach to this unusual problem with which he was confronted, namely, the loss first of one stint and then of the other?" Dr Ali replied: "I am not."
Dr Bellamy was asked to give any comments he had in relation to the evidence given by Associate Professor Gutman and Dr Ali.
Dr Bellamy said he agreed with Dr Ali that there was an indication for a coronary angiogram: It seems that the waters have been muddied by the closeness of this angiogram to a potential orthopaedic operation. I think we need to separate those two things. I think there is no doubt that a patient does not need to have an angiogram prior to an elective orthopaedic operation. Having said that, in 2016 the evidence that we now have was not necessarily widespread and obvious. So it was quite common practice for people to be sent for a coronary angiogram prior to surgery and this is often based on the patient having had some sort of non-invasive test like a stress test or a stress echocardiogram and they were sent for an angiogram. I know this because I was the director of the cath lab at John Hunter so that I was seeing all these requests come in for this type of indication. So to say in 2016 this was not standard practice or outside the guidelines was actually incorrect because at that stage there were lots of people referring patients for angiograms with just an indication.
In relation to the discussion regarding the indication for an angiogram, Dr Bellamy said that he agreed with Dr Ali's view. He said: The procedure was not being done to make the operation to his knee safer. It was done because the patient had symptoms and because he had an abnormal test.
Dr Bellamy said: I think Dr Chatoor went through the steps quite logically when he was trying to sort out the problem and I think this patient was also saved from having urgent bypass surgery. I think a lot of interventionalists in Australia who are all practising good fellows would have sent the patient for a urgent bypass surgery which is a good outcome… I think Dr Chatoor is to be congratulated for his role in this procedure because I think a lot of other people would have cracked under the pressure and not done as well and not got such a good result.
Dr Oldfield gave evidence. He said: I agree that the angiogram was required as outlined by Dr Ali and Dr Bellamy. Complications did occur for the patient but I think he had a good outcome because he ends up with no cardiovascular morbidity associated with the procedure. When you are trying to get out of a complication and deal with problems that keep on occurring while you are trying to get out of the complication you cannot determine how far you have got…. You start off with a plan, but you may not end up with that plan and all you want to do is to get out and have a safe, live, healthy patient at the end of it and that is what happened on this occasion. It was a very difficult case. I only came into it halfway through, and I think from what I saw it was handled very well.
In answer to a question from the HCCC, Dr Bellamy said he thought Patient B was symptomatic when seen by Dr Chatoor, however he stated he had not seen the patient and he was relying on the evidence that all the other experts had seen. He explained why he thought the patient was symptomatic.
Dr Bellamy was asked about Associate Professor Gutman's evidence that other testing should have been undertaken to test for the causes of Patient B's breathlessness. He did not agree further testing was required if there were no signs which might indicate it was appropriate. He explained what examination he would undertake with the patient.
In relation to any other investigation undertaken by Dr Chatoor, we noted that Patient B, in his complaint said that, on 3 March 2016, "Dr Chatoor then informed me that he wanted me to do another angiogram and possible stent and I was sent for a blood test."
Dr Oldfield was asked what made him conclude the patient was asymptomatic. He said: He had increasing breathlessness and it would be standard practice for any physician, when they are doing a cardiovascular examination, to do a cardio restrictive examination and if there was any significant airway disease it would show up and if there was not then you would have to assume that with the man's cardiac history that he had progressive coronary artery disease. I think that is a more than reasonable assessment.
In relation to the evidence of Associate Professor Gutman that he would have undertaken further tests to exclude other causes for the breathlessness than cardiac causes, Dr Oldfield was asked if he agreed with that evidence. Dr Oldfield said: "I would not have gone on to pulmonary function testing I may have done spirometry, but that would be about all."
Dr Bellamy was asked about a "Morbidity and Mortality" meeting which was conducted in relation to this case following the procedure. He was asked what the conclusion of the meeting was. He said the meeting felt that it was a very difficult situation and that the patient had come to no harm as a result of the procedure. He was discharged in a timely fashion and there was no adverse cardiac event. He said they had discussed the way in which the procedure was carried out and they all felt that there was no need to advance the complications to a higher level which sometimes we do if we feel there was more negligent behaviour going on.
Dr Bellamy was asked about his professional relationship with Dr Chatoor. He said they were colleagues. They don't share anything financially, such as offices or rooms or secretaries. He said that Dr Chatoor will ring him once a fortnight or every three weeks and ask him to look at a picture of an angiogram or such like. They do not socialise, principally because they live in different geographic locations. He had not had a detailed discussion with Dr Chatoor about the procedure with Patient B. He denied that his professional association with Dr Chatoor had influenced his evidence in this matter.
Dr Bellamy had not seen the medical notes for Patient B, however he said he had a good general knowledge of the passage of the patient through the process and through the hospital, because it was discussed at length at the morbidity and mortality meeting.
Having been asked, Dr Bellamy said he did not agree with the evidence of Associate Professor Gutman about Particulars 3, 4 and 5 and in particular the criticism of the action taken by Dr Chatoor to recover the stents.
Dr Oldfield was asked of his association with Dr Chatoor. He confirmed they worked out of the same cath lab. He confirmed he approves Dr Chatoor's surgical logs for the purpose of protective orders. He is also a mentor for Dr Chatoor.
Dr Oldfield confirmed that he had discussed the case of Patient B with Dr Chatoor when he became aware there had been a complaint. He was asked if he had identified any issues in relation to the procedure on Patient B with Dr Chatoor.
Dr Oldfield said: "I identified the difficulty of the case." Dr Oldfield was asked if it was he or Dr Chatoor who made clinical decisions after Dr Oldfield scrubbed and was present with Dr Chatoor in the cath lab. He said: "We both discussed options and then Roger made his mind up what he was going to do." He explained that he had taken multiple orthogonal views at the time Dr Chatoor was able to put the wire through the stent. He said: Dr Ali and Associate Professor Gutman said it probably came out through one of the side holes and advanced, but it didn't look that way when we took all the views of it. It looked like it was through the stent.
In relation to their professional relationship, Dr Oldfield said he thought he and Dr Chatoor were reasonably close. He said they occasionally go out together after a day's procedure. They exchange advice about difficult cases they each might have. They have no financial dependence nor do they share facilities.
It was put that he would be unable to bring an objective mind to the assessment of the case. Dr Oldfield denied that would be the case. He said he thought he had been objective about the case and that "There was no negligence involved."
Senior Member Dr Russell asked Dr Bellamy if he had seen the angiogram for Patient B. He said he had. He said, in answer to a further question, that having looked at the angiogram he opined it would not have been a straightforward procedure.
Senior Member Rewell asked both Dr Bellamy and Dr Oldfield about the report on the CT scan, which was conducted after the procedure was completed by Dr Chatoor. The report showed: There is occlusion of the right lower lobe posterior Bazel segment bronchus with non-aeration expansion of the associated long segment in keeping with a drowned segment. There is further atelectasis involving the left lower lobe. There is a background of mild emphysema with right upper lobe sub plural blebs. Dr Bellamy was asked if he thought it was likely he would have detected that had he examined the patient. He said: That is hard. I think it is likely to be picked up if I examined the patient as I normally would do prior to angiography. I may have picked up crepitations, I may have picked up the dullness of one of the bases. I am not saying that I would have definitely picked it up however, that's the sort of extent I would've gone to in examining the patient but I might have missed that.
Dr Oldfield was asked the same question. He said in relation to the collapse in the bases: "You might pick it up if it is large enough. I would have made a note of what had been seen."
Dr Chatoor was required to give further evidence. He gave that evidence on 14 May 2020.
In relation to his expertise in stenting, Dr Chatoor said that he performed his first stent placement procedure in 1996 and he has performed over 1,000 procedures since that time.
Dr Chatoor was again cross-examined by the HCCC. He said that 3 March 2016 was the first occasion upon which Patient B had reported breathlessness to him. He confirmed that breathlessness, in the context of a clinical picture, formed part of his decision to proceed with angiography and possible stenting.
Taken to his response, dated 27 June 2016, it was put the response makes no mention of breathlessness. Dr Chatoor said he would need to read the document again. He later agreed the letter made no mention of breathlessness forming part of the reason he recommended angiography and possible stenting. He denied breathlessness was not part of the reason for his recommendation to Patient B.
Dr Chatoor was taken to part of his letter of June 2016 where he advised the HCCC that part of the reason for recommending angiography was due to the upcoming orthopaedic operation. He agreed he had heard Associate Professor Gutman and Dr Bellamy say in evidence that angiography and stenting shortly prior to such an operation would not have improved the patient's prognosis. He said he did not agree with that opinion. He explained why that was. It included that the pre-operative guidelines document says that diagnosis of ischemia in a patient should be based on that patient's clinical presentation. If they fulfil criteria on the basis of any other clinical practice guideline (that is relevant) … and his management falls squarely into that, with not just one but at least to clinical practice guidelines.
Dr Chatoor was taken to his section 40 response document provided on 24 July 2017. It was put that Dr Chatoor did not refer to breathlessness in the patient in that response. It was put that he had referred to the Eagles cardiac risk index because it was a more favourable index for the procedure performed upon Patient B than other indexes. Dr Chatoor denied that. He said he referred to it to demonstrate that on many risk indexes Patient B's risk was properly assessed by Dr Chatoor. He acknowledged he had advised the HCCC that he considered Patient B's perioperative risk was high.
Dr Chatoor agreed that both the abnormal stress cardiogram and the upcoming surgery for Patient B were important aspects of his clinical assessment for Patient B. He agreed he could not see that he had mentioned breathlessness. He denied that he is now relying upon breathlessness because the experts have relied upon it in their supportive evidence.
He was asked to agree that the way he had written his s 40 response suggested he had made a conscious decision to place the Ross stent in the smaller side branch and not in the main artery. His reply was that "It was what took place during the case and I felt it was a reasonable outcome." He said: "It is not possible to place a Ross stent in any discreet position because the stent itself is not on a wire where you can direct it in one direction or another". He said he must apologise if the wording of the s 40 document suggests otherwise, however, in his evidence before the PSC he explained what had occurred.
He was taken to his evidence before the PSC where in explaining the process, he had said he was using the balloon to try and advance and push the Ross stent into the side branch. In his answer to this Tribunal, Dr Chatoor became a little frustrated with the questioner and he answered emphasising that "If you do intervention stenting you can understand how you can direct undeployed stents within a coronary artery that aren't on a wire". The suggestion being that the question was being asked from a point of ignorance about the procedure. He again pointed out that it was impossible to guide a floating stent in a coronary artery. He said "I was simply trying to encourage the stent to go in a direction either proximally or distally and in that process the stent migrated into the RV branch."
In answer to a question asked by the Tribunal members, Dr Chatoor said in all of his procedures undertaken with placing stents, he had never before lost a stent. He said the literature suggests the occurrence rate is 0.23%. He pointed out that the stents which are now used are different to those used in 2016. He explained that he had used bare metal stents. Now we have two generations of drug eluting stents which are for more deliverable and less likely to come off balloons.
Counsel for the HCCC continued to press upon Dr Chatoor that he had not mentioned when he first gave evidence in the PSC hearing, that the stent was "migrating". He was taken to different parts of his evidence before the PSC.
Dr Chatoor denied he had changed his evidence about migrating the first stent into the RV branch having heard the evidence of the experts say that it was fortuitous that the stent ended up there.
Dr Chatoor was taken to his medical notes for Patient B. It was put that he does not mention breathlessness for Patient B on 3 March 2016. He agreed but said that he had written a letter that same day and it stated breathlessness.
Again, it was put that Dr Chatoor had not referred to any investigations or clinical observations he made on 3 March 2016, nor was there reference to an abnormal echocardiogram, or the advice he gave Patient B to undergo an angiogram and if necessary, stenting. Dr Chatoor answered all those questions by saying he had set that information out in the letter he wrote to Patient B's GP on the same day.
At that time in the hearing, we confirmed that there was no other evidence before us which opined that all of the information Dr Chatoor had set out in his letter to the GP on 3 March 2016, should also have been contained in the handwritten notes Dr Chatoor made that same day. We also noted that there was no part of the Complaint which claimed inadequate note taking or medical record keeping on the part of Dr Chatoor.
It was put that when Dr Chatoor first saw Patient B on 3 March 2016, he did not investigate any other cause other than cardiac for his breathlessness. He agreed that was so. He said he listened to his chest and noted it was clear.
It was put that he should have been able to hear evidence of drowning of the segment of the bronchus. Dr Chatoor said he did listen to the patient's chest. His air entry was symmetrical, there were no added sounds. He said it is noted in the GP's notes that Patient B's COPD was mild. He also added that the aspects of the CT which counsel had referred to were picked up incidentally. The CT scan was done for the purposes of assessing vasculature.
Dr Chatoor agreed he was aware of Patient B having a history of mild COPD and recurrent pneumonia when he saw him on 3 March 2016. He said it was part of the history from the GP. He denied that history should have required him to investigate pulmonary cause for his breathlessness. He explained why. He said his mild COPD symptoms were entirely stable from the respiratory standpoint.
In relation to the statement in his letter to the GP of 12 March 2016, where he said Patient B's breathlessness was longstanding, Dr Chatoor said he had looked at that letter and all he could say was that the breathlessness was reported to him for the first time on 3 March 2016. It was noted in the letter of 3 March that the breathlessness was present in recent weeks. Dr Chatoor opined that the reference to breathlessness in the 12 March 2016 letter was a mistake.
Associate Professor Gutman's evidence that Dr Chatoor should have undertaken an assessment of the left ventricular function, was put to Dr Chatoor. He said he disagreed and provided a reason. He said the patient had a stress echocardiogram four or five months previously. There was no suggestion of an intercurrent cardiac event, "His ECG, which I did on the day of seeing him and reported in my letter three March, demonstrated no change from his previous ECG". Further reasoning was given, however, the recording didn't allow for transcription.
When pointed out that Dr Chatoor had not been concerned about the operation Patient B had in 2015 on his nose, Dr Chatoor said they were entirely different types of operations. One was low risk while the other was intermediate to high risk.
Dr Chatoor was asked to explain to the Tribunal why he came to the view that the patient was an intermediate risk. Dr Chatoor said: Because he is, according to the definition of what intermediate risk represents. He is 77 years of age, he has long-standing hypertension, he is a patient with cardiac disease, a previous history of myocardial infarction and abnormal non-invasive test that demonstrates a significant abnormality and that constitutes an intermediate risk of having significant pulmonary or coronary disease.
Senior Member Dr Russell asked what activities made Patient B breathless. Dr Chatoor said: There is a ramp that leads up to my office and I asked him whether walking up the ramp produced his breathlessness and he said it did. So my understanding was that the amount of exercise he needed to do to become breathless, was relatively low and that was supported by his low exercise tolerance on the stress echocardiogram four months before. He had not volunteered breathlessness when he saw me four months before.
Dr Russell asked Dr Chatoor about a Sestamibi scan Patient B had in 2014. It had been ordered by his GP. Dr Chatoor did not know the reason for the test. Dr Russell asked Dr Chatoor to look at the results of that test as reported by the GP. He noted the history provided by the GP included a history of dyspnoea, being breathlessness. Dr Russell said: "which means that back in 2014 the patient was breathless enough for the GP to order a test". Dr Chatoor said: In my interactions with the patient through my rooms, I could not elicit a history of dyspnoea. It was only in the last consultation when I first documented dyspnoea.
Dr Russell asked Dr Chatoor if he felt that Patient B had stable coronary artery disease when seen on 3 March 2016. Dr Chatoor said he had an anginal equivalent for myocardial ischaemia, however, he was not unstable.

Objection to Evidence

The HCCC sought to rely upon pages 11 and 12 of a document provided by AHPRA and titled "Evidentiary Certificate". Dr Chatoor, through his counsel, objected to the document.
This is a hearing de novo (rehearing) of the case brought by the HCCC against Dr Chatoor which was heard by the PSC on 12 and 13 November 2019. The portion of the "Evidentiary Certificate" which is objected to is a statement of conditions imposed by the Medical Council on 23 August 2019 and 25 October 2019. Both of those sets of conditions were in place before the hearing of this matter before the PSC.
The HCCC seek to have the conditions before the Tribunal in order to support their submission as to the weight which the Tribunal might give to the evidence of Dr Oldfield. It is an agreed fact, supported by the oral evidence of Dr Oldfield, that he is a Medical Council approved supervisor of Dr Chatoor pursuant to the conditions which have been imposed upon the registration of Dr Chatoor since 23 August 2019.
The tender of the document is opposed by Dr Chatoor. He submits that it is unnecessary to have the detail of the conditions currently imposed upon the registration of Dr Chatoor, in order to assess the weight which ought be given to Dr Oldfield's evidence. It is submitted the tender of the document has a different aim, namely, to somehow prejudice the Tribunal's view of Dr Chatoor by introducing the outcome of an earlier disciplinary action.
We reject any suggestion that we are not capable of assessing for ourselves the evidence which has been placed before us and the weight we should put upon that evidence. Tribunals and Courts constituted by duly appointed judges and personnel have to determine matters of weight to give to evidence, even in the face of having before them material which discloses other tribunals/courts decisions, on the very matter they are required to determine. They are able to do that expertly, fairly and without being tainted by the exposure to evidence which may be rejected for any number of reasons.
It is agreed by the HCCC that at the time of the procedure on 5 March 2016, Dr Chatoor had no conditions on his registration.
In his oral evidence, Dr Oldfield was asked, without objection, whether he was a supervisor of Dr Chatoor and if he approved Dr Chatoor's logs. Dr Oldfield agreed he fulfilled each of those roles. The members of the Tribunal understand that supervision of a medical practitioner of Dr Chatoor's seniority and experience (as set out in his CV), only arises because conditions attached to his registration or conditions imposed upon his accreditation to a medical facility (such as a hospital) have set that requirement. It is not relevant for the Tribunal members to know why that may be as we are determining "Stage 1" only in this hearing.
We will be able to consider any submission made by either party in relation to the weight which might be given to the evidence of Dr Oldfield.
We concluded that we would allow the HCCC to read that part of the "Evidentiary Certificate" provided by AHPRA and objected to by Dr Chatoor. We will address any submission made at the conclusion of the hearing, which presses the relevance of that material. At the time of addressing the objection we did not see how that evidence may assist us in determining "Stage 1" of the case brought by the HCCC, other than to consider the HCCC submission as to the weight to be given to the evidence of Dr Oldfield.

The Submissions

Each party addressed the Tribunal at the conclusion of the hearing on 14 May 2020. Those oral submissions were reasonably brief and so we propose to consider the written submissions of the parties in the first place and then look to the oral submissions to take note of any submission not caught in the written submissions.
The HCCC provided its written submission on 23 July 2020. Dr Chatoor provided his written submission on 28 August 2020.
The HCCC commenced its submission by confirming that the hearing is conducted as a rehearing pursuant to the provisions of s 158 of the National Law. The HCCC submitted that the Tribunal is not bound by the decision of the PSC nor is it necessary to place any weight on the reasons or the decision.
The HCCC submitted:
The issues to be determined in Stage 1 of the rehearing are: 1. First, whether the Tribunal is reasonably satisfied on balance that the factual particulars of the Complaint are proven; and 2. Second, "whether the conduct overall amounts to unsatisfactory professional conduct".
The HCCC set out the meaning of Unsatisfactory Professional Conduct and its broad submission in relation to the application to this case. The following was provided: Unsatisfactory professional conduct The complaint is that, pursuant to section 139B(1)(a) of the National Law, the practitioner is guilty of unsatisfactory professional conduct because he has engaged in conduct which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The complaint has five particulars, which each address the practitioner's care of Patient B. The Commission submits that Particulars 1, 2, 3 and 5 each justify a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. An accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct. The Commission submits that the Tribunal should find the subject matter of the Complaint, being Particulars 1 to 5, proven pursuant to section 149 of the National Law and that the practitioner is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(a) of the National Law.
The HCCC provided submissions which addressed "The relevant principles", "Standard of Proof" and "Findings". Under the heading "Standard of Proof" the HCCC set out: The Commission bears the burden of proof. The Tribunal is not bound by the rules of evidence. Whilst neither the Briginshaw civil standard nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision-making, the principles remain relevant, and the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding. In any event, the Commission submits that the standard of proof is clearly satisfied by the evidence. Section 38(2) Civil and Administrative Tribunal Act 2013 and clause 2 of Schedule 5D of the National Law Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14].
The HCCC set out the background to the care of Patient B provided by Dr Chatoor. That included the experience of Dr Chatoor as a registered practitioner in Australia. The HCCC said: It is common ground in these proceedings that the practitioner was an experienced cardiologist, and that he had performed numerous procedures of a similar nature to that undertaken with Patient B over many years, including in Australia and overseas. It was against that background of experience that the HCCC says the standard, to be considered in this hearing, is set.
The HCCC set out Patient B's medical history, as reported by his GP, the consultations he had with Dr Chatoor and the reports provided to Patient B's GP by Dr Chatoor following those consultations. The HCCC largely relied upon the evidence provided by Dr Chatoor in relation to those matters; however, it also drew on the evidence of Associate Professor Gutman, its only expert witness, and his view of some of the historical medical evidence for Patient B. To the extent that view was the subject of contest we have not repeated it at this time.
The consultation which took place on 3 March 2016 with Patient B, is a pivotal event in the determination of whether Patient B should have been sent for angiography two days thereafter.
The HCCC set out the evidence of each of the experts which addressed the issues which needed to be determined by us. It was a lengthy and helpful document. We have considered that document in the light of our own assessment and recording of that evidence.
We agree with Dr Ali, who said that the procedure undertaken by Dr Chatoor for Patient B were within standard to repair his cardiac risk, quite apart from any consideration Dr Chatoor might have had about Patient B undergoing a general anaesthetic.

The Standard of Proof

We accept the submission made by the HCCC as to the principles which inform the standard and burden of proof applicable to this determination. That submission is as follows: The Commission bears the burden of proof. The Tribunal is not bound by the rules of evidence. Whilst neither the Briginshaw civil standard nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision-making, the principles remain relevant, and the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding (Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14].)
The submission provided by the HCCC also set out, under the heading "The relevant principles", matters for our consideration and application. We set that out below. It referenced each point made in the submission. We will adopt and apply the matters set out to the extent that this hearing permits. That last statement is directed to the point that this hearing is confined to a determination of whether the HCCC has made out the Complaint to our satisfaction.
The HCCC's submission serves to point out the seriousness of the endeavour before us in this determination. We accept there are potentially serious consequences for the community at large and for Dr Chatoor in the findings and the decision we are asked to make. The relevant principles Part 8 of the National Law deals with complaints concerning health practitioners. The relevant principles include: (a) The protection of public safety and health is paramount; [1] (b) The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; [2] (c) Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; [3] (d) Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession; [4] (e) The Tribunal's jurisdiction is primarily protective, not punitive; [5]
We note for this determination of the stage 1 proceedings, we are asked by each party to restrict our determination in the manner set out above. Should we determine in favour of the HCCC in relation to any of the Particulars which support the Complaint made, then we will need to convene a further hearing to consider the protective orders which might be required pursuant to s 149 and the balance of Part 8 of the National Law.

The evidence of each of the experts called by the parties

In this matter, the expert witnesses called by the parties fall into two very distinct camps. On the one side is Associate Professor Gutman, engaged by the HCCC, and on the other side for Dr Chatoor is Dr Ali, Professor Holloway, Dr Bellamy and Dr Oldfield. Associate Professor Gutman has expressed a strong view that Patient B should not have undergone angiography on 5 March 2016 and, further, that when he did undergo stenting on 5 March 2016 the conduct of Dr Chatoor in undertaking that procedure was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
In order to assist us in the allocation of weight to be applied to the evidence of the experts, we have been required to consider both the content and manner of delivery of that evidence in order to see if there are any aspects of same which might inform our determination.

Associate Professor Gutman's Evidence and the weight to be given to it

We commence this consideration of the evidence of Associate Professor Gutman by acknowledging his qualification and eminence as a senior cardiologist with a very impressive CV. As with all the experts who assisted the Tribunal with their evidence in this case, there was no attack on Associate Professor Gutman's expertise. We wish it to be clearly understood that our criticism of Associate Professor Gutman, which follows, is no attack upon his credentials as a highly qualified and experienced cardiologist, well experienced in the type of procedure undertaken by Dr Chatoor on 5 March 2016. Our criticism and concern about the evidence given by Associate Professor Gutman, is confined wholly to the manner in which he presented his evidence and the role he demonstrated as an expert witness.
The HCCC submitted that the evidence given by Associate Professor Gutman should be accepted because: 1. He has been a cardiologist for over thirty five years and an interventional cardiologist for over thirty two years practising at St. Vincent's Hospital, Melbourne; St. Vincent's Private Hospital, Melbourne; Epworth Hospital, Richmond; and Cabrini Hospital, Malvern. 2. Apart from his role as an interventional cardiologist, he performs stress echocardiograms and was trained in the USA in 1980-1982 in cardiac nuclear medicine and echocardiography. 3. His report is balanced and fair. He is not critical of the initial decision to manage Patient B medically. He is critical of some, but not all, of the steps during the procedure. 4. Any misconception of his role as an expert in the proceedings did not adversely affect the evidence that he gave, nor did he resile from the evidence that he had previously given in the proceedings to any significant extent.
In relation to the specific submission above, we have had regard to it in our determination where we have considered the evidence which was given by Associate Professor Gutman.
Finally, it has to be remembered that what we are asked to do is determine whether the conduct, which demonstrates the knowledge, skill or judgement possessed, or care exercised, by Dr Chatoor in the conduct of his profession with Patient B was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
That requirement entails us deciding whether Associate Professor Gutman was better able to determine the appropriate standard which would apply to Dr Chatoor as a cardiologist, as opposed to Dr Ali, Associate Professor Holloway, Dr Oldfield and Dr Bellamy.
The question of how a Tribunal determines "the standard" to be applied to a particular medical practitioner, the subject of a complaint brought pursuant to s 139B(1)(a), has been the subject of decisions of the Tribunal and the NSW Court of Appeal. We will refer to this matter further in our reasons.
The manner in which Associate Professor Gutman gave his evidence caused us serious concern. His understanding of the role he was engaged to undertake was, in our view, flawed. We will refer to specific exchanges in due course to demonstrate that. His presentation was at times both combative and defensive. It was as if he felt under siege from the number of experts called by Dr Chatoor, all of whom challenged his medical opinion, and thereby, his expertise. It is easy for us to understand how he might have felt his expertise, competence, knowledge and experience was being seriously questioned. However, as objective observers, we did not see it that way. We saw the challenge more as one which suggested there were other, equally acceptable and widely practiced approaches to the medical problem Patient B faced with his cardiac health. We heard that interventionist cardiac specialists, practicing in different parts of Australia and around the world, were making advances in their theoretical and practical understanding of cardiac medicine, which appreciated that strict adherence to one acceptable guideline or criteria was not necessarily attending to the best outcomes for a particular patient. Further, it demonstrated to us that within cardiac medical practitioners, as with any other branch of medical practice, there is and will be differences of approach to cardiac medicine depending upon conservative or aggressive approaches and as long as that is confined to acceptable boundaries, there ought to be room for those different approaches.
Associate Professor Gutman was not prepared to accept that there may be differing views to his own, amongst highly competent, experienced, senior and knowledgeable procedural cardiologists, about the case which has been the subject of this hearing.
Having said that, we note that Dr Ali, Professor Holloway, Dr Oldfield and to a lesser extent Dr Bellamy, were trenchant in their disagreement with the conclusions made by Associate Professor Gutman as to the conduct of Dr Chatoor. We also bear in mind that Dr Chatoor must himself be considered an expert in his field, given his experience and qualification, however, we are conscious of the possibility he would wish to give his evidence in a manner which might provide the best outcome for him in this proceeding. In so stating, we are not suggesting that he was untruthful in the giving of his evidence.
During the time Associate Professor Gutman gave oral evidence before us, we noted during one of the occasions, he was observed to become particularly defensive. On that occasion, as we have set out earlier, the following words were said: Associate Professor Gutman, are you saying that all of these experts, Dr Ali and Professor Holloway and the other experts or the other cardiologists who you acknowledge in your evidence before the PSC might have different views, in holding those views, are substantially below a reasonable practitioner of this standard and experience? I mean you have a view, but are you saying your view prevails over all the other experts to such an extreme extent? The answer from Associate Professor Gutman to that question causes us concern for the role he understood he held as an expert witness before this Tribunal. His answer was: Well, I'm the only one acting for the HCCC. The other experts have been selected for purposes of Dr Chatoor.
Counsel for Dr Chatoor then challenged that answer with the following: "Are you seriously saying you are acting for the HCCC rather than expressing an independent and objective view about what is reasonable practice amongst your peers?" Associate Professor Gutman responded: "That is exactly what I am doing. I'm acting as a cardiologist or expert giving the opinion of other cardiologist of my standing."
Associate Professor Gutman was then reminded by counsel for the HCCC of the role of an expert witness before the Tribunal. Associate Professor Gutman then professed that was the role he was undertaking.
There was another occasion when we raised with the counsel for the HCCC that Associate Professor Gutman was giving evidence in a manner which was more in keeping with an advocate than an expert complying with the requirements of an expert witness before the Tribunal. That occurred in the closing stages of the exchanges between Associate Professor Gutman and Dr Ali.
Perhaps in defence of Associate Professor Gutman, we note that in the hearing before us, he was asked to undertake some of the examination of Dr Chatoor. Such a step may have confused the role he was actually required to undertake.
We are concerned that Associate Professor Gutman had not conceptualised how the standard, which is at the nub of s 139(B)(1)(a), was defined. He was specifically asked about how he formulated or set "the standard" in his mind. As pointed out in the submission provided from Dr Chatoor, his answer was difficult for us to clearly understand. In his evidence before the PSC, he was asked specifically: … I'm trying to understand how you set the standard in answering the various questions. How you determine the standard, what sort of criteria you have and whether you have regard at all to the practice of your colleagues. He said, inter alia: Well I think it depends on how you define your colleagues. The colleagues that I think who perform procedures appropriately, I would listen to, but that's choice, I can choose someone who doesn't treat patients appropriately. That's a question that cannot be answered easily and appropriately, it depends on who you choose. When guidelines are structured, there is different levels of evidence and what other cardiologist do or what is generally accepted has the least strength in terms of evidence. Randomised trials, observational trials and then, you know, what do other cardiologists do is accepted has, you know, class C recommendation which is the lowest recommendation. So just listening to other cardiologists and what they do is not really relevant and not appropriate.
Having reviewed that evidence, we are left with little understanding of how Associate Professor Gutman set for himself the standard about which he was required to give expert evidence.
Overall, we have a concern about the objectivity of Associate Professor Gutman and believe that his evidence was given in a partisan manner, almost as if he believed his brief was to formulate an argument which would demonstrate that Dr Chatoor performed as a cardiologist significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Evidence of Professor Holloway

Professor Holloway provided his evidence in both written and oral form. We have set his evidence out in these reasons. He presented his oral evidence in a very straight forward and apparently honest manner. Although he was called by Dr Chatoor to give evidence in support of his case, we understood that he had willingly done so as he agreed with the approach Dr Chatoor had taken with the care of Patient B. Professor Holloway distinguished his expertise to one of being a non-interventional cardiologist. He therefore did not give evidence about the manner in which Dr Chatoor performed the stent placement with Patient B.
The HCCC in its submission set out the reasons Associate Professor Holloway's evidence should not be accepted. The reasons proffered were: 1. Associate Professor Holloway has assumed that Patient B had symptoms of breathlessness (but the medical records say only "a little breathless in recent weeks") and Dr Gutman explained during the PSC hearing that the alleged cardiac symptom of breathlessness continued after his stents were successfully in the right coronary artery and so it probably was always his lung disease and not the heart; 2. Associate Professor Holloway has assumed that there were positive echocardiogram findings in two areas; 3. Associate Professor Holloway's opinion at the PSC hearing that it was reasonable to proceed to angiography hinges on his assumptions that there was "new dyspnoea and positive changes on stress echocardiogram" but he had not seen the stress echocardiogram images; 4. Associate Professor Holloway's opinion at the NCAT hearing that angiography was required hinged on his assumption that the patient had symptoms and there were abnormalities on the stress test; 5. Associate Professor Holloway maintained at the PSC hearing that Patient B had symptoms with a cardiac cause, notwithstanding that Patient B had COPD and was on Seretide and Ventolin and there are "probably a hundred causes of dyspnoea".
We have considered these criticisms of Associate Professor Holloway's evidence. In relation to same, we find that Associate Professor Holloway did accept Patient B had symptoms of breathlessness. We are satisfied on the evidence of Dr Chatoor that he was breathless on 3 March 2016 having walked up the ramp outside Dr Chatoor's consultation rooms.
We have accepted the evidence of Dr Chatoor, that 3 March 2016 was the first consultation where Patient B informed Dr Chatoor he had breathlessness. We also accept that Dr Chatoor knew from prior consultations with Patient B, since 2014 or thereabouts, that he had a history of pulmonary disease which Dr Chatoor described as stable with mild symptoms. We accept that does not mean he would have been complaining of or showing symptoms of breathlessness on occasions when he saw Dr Chatoor prior to 3 March 2016.
In relation to the assertion that Associate Professor Holloway "assumed that there were positive echocardiogram findings in two areas", we note that assertion is not footnoted as others are. We have reviewed his report of 28 May 2018 and find that is not included in his report. Whilst acknowledging there is a large volume of oral evidence to consider, we cannot find that assertion in the oral evidence. We did find at page 476 of the transcript of evidence before the PSC, that Associate Professor Holloway said: So the stress echo did have some changes and the changes were what I would consider cognitive enough to proceed to angiography and the changes were in two territories, suggesting potentially a couple of areas of ischemia. We are unable to find any challenge to Associate Professor Holloway about that assertion. We are therefore unable to know why he said that. Further, such assertion was not otherwise an issue between the experts which was the subject of any debate as to the significance of such a finding or otherwise.
At page 487 of exhibit A2 (the transcript of the PSC hearing), Associate Professor Holloway was asked by the HCCC "What made you come to the view that the stress echocardiogram was abnormal?" Associate Professor Holloway responded: "So the stress echocardiogram is abnormalin that the patient only (sic) 4.6 mets which is a very low workload with symptoms and there were some credible changes on two areas of the myocardial." Immediately thereafter Associate Professor Gutman was asked by the HCCC: "Do you have anything to add to that Dr Gutman?" Associate Professor Gutman did not have anything to say about the reference in the evidence of Associate Professor Holloway that there "were some credible changes on two areas of the myocardium." What did happen was that Associate Professor Gutman conceded that it may have been within standard to proceed to angiogram. Associate Professor Holloway asked whether he had changed his strong criticism about Dr Chatoor proceeding to angiogram. Associate Professor Gutman said: Okay, let me clarify. What I meant to say now, is, given that some people think that angiography is appropriate to perform, which I wouldn't have done, then going on to stenting is a separate issue. That's the big step that someone's taken. An angiogram has much less risk than performing stenting.
We are unable to know if Associate Professor Holloway was mistaken about the "two territories", we are unable to know what his view would have been if he was mistaken and whether, if his assertion was incorrect, it would have changed his opinion. We would not discount the weight to be given to his evidence because of that criticism. Likewise, we are unable to know what Associate Professor Gutman might have opined if he accepted "there were some credible changes on two areas of the myocardial".
We noted in the conclave of experts, Professor Holloway appeared at one stage to become exasperated with the evidence he was hearing from Associate Professor Gutman. That exasperation was expressed through the expression: "I know that Associate Professor Gutman is not on trial here but the evidence I've just heard seems absolutely ludicrous to me".
We also recorded he had said: I guess on behalf of all the Australian taxpayers I would like to thank Dr Chatoor for not over-servicing this patient with a whole lot of inappropriate investigations including the echocardiogram. An experienced interventional cardiologist and myself, who is a non-interventional cardiologist, can tell whether someone has severe cardiac dysfunction.
Professor Holloway provided his CV. He clearly has exceptional credentials which include years of practice both in Australia and overseas. There is no challenge to his qualification as an expert witness.
We have considered the balance of the criticisms listed by the HCCC of the evidence of Associate Professor Holloway and do not accept they are of concern to us, given the findings we have made as to the validity of his evidence and it's support or otherwise in the evidence of the other experts.
We propose to give significant weight to Professor Holloway's evidence.

Evidence of Dr Ali

Dr Ali gave evidence both written and oral. His CV was extensive. He is clearly a highly qualified interventional cardiologist. We have set out details of his evidence in these reasons.
He gave his oral evidence in a measured, unemotive and straightforward manner.
There was nothing about the way in which he gave his evidence which suggested to us that he was partisan.
He was questioned about his prior contacts with Dr Chatoor. He set that contact out. There is nothing to suggest to us that his relationship with Dr Chatoor has caused him to frame his evidence in a manner which he did not fully subscribe to.
His experience as a cardiologist was outlined in his CV and in his oral evidence. That included having reviewed over 50,000 angiograms.
The HCCC submits that the evidence of Dr Ali should not be accepted because: 1. Dr Ali says the exercise echo was "positive" (but the practitioner considered at the time that it was equivocal); 2. Dr Ali assumes that the exercise echo suggests a wall motion abnormality in 2 segments, but it was only in 1 segment; 3. Dr Ali asserted, without basis, that the word "intermediate" is used interchangeably with "equivocal"; 4. Dr Ali escalated his criticism during the NCAT hearing to assert that the stress echocardiogram (which the practitioner had only described as equivocal and later as intermediate) was in fact a "high risk" stress test; [6] 5. Dr Ali assumes that Patient B had worsening shortness of breath (but the medical records say only "a little breathless in recent weeks" and Patient B denied breathlessness in previous consultations); and 6. Dr Ali has assumed that the practitioner took a range of steps during the procedure and also assumed his motivations for taking them.
We have considered this submission from the HCCC. We find that the submission largely addresses suggested departures from the evidence of Associate Professor Gutman. Dr Ali was not challenged on his alleged error in relation to "the exercise echo (for Patient B) suggests a wall abnormality in 2 segments". (We note this is the same evidence in which Associate Professor Holloway was said to be mistaken). We therefore do not know why he described it as such and whether he was correct in his description or in error. Further, if he was in error, we do not know if it would lead him to change his opinion in relation to any relevant matter we need to determine. Associate Professor Gutman was not asked what difference he suggests such an alleged error would make to the opinion expressed by Dr Ali. The HCCC does not submit what flows from Dr Ali's alleged misdescription of "equivocal" to "intermediate". The Tribunal does not know whether the terms are acceptably interchangeable within cardiology practitioner circles.
We do not consider that the submission from the HCCC, as to the acceptability of the evidence of Dr Ali, should impact upon our determination of the weight to attach to his evidence, and to the extent of determining whether his evidence is unacceptable.
We find that the evidence of Dr Ali is acceptable and we propose to rely on that evidence significantly.

Evidence of Dr Oldfield

Dr Oldfield gave evidence both in written form and orally. His objectivity was questioned because, inter alia, he had been accepted by the Medical Council of NSW as a mentor for Dr Chatoor following the imposition of conditions on Dr Chatoor's registration as a medical practitioner.
The HCCC submits that the evidence of Dr Oldfield should not be accepted because he does not have objective independence because: 1. He works at the Cath Lab at Lingard Private Hospital; 2. The practitioner telephoned him during Patient B's procedure on 5 March 2016; 3. Dr Oldfield "scrubbed in to lend support" during Patient B's procedure on 5 March 2016; [7] 4. The practitioner describes the joint conduct of the surgery "Dr Oldfield was with me and we thought that we had rewired the vessel wires, we wired the vessel fairly well such that we could potentially use the same technique to try and retrieve that stent" [8] 5. Dr Oldfield was directly involved in the procedure, including verifying the rewiring himself with fluoroscopy; 6. Dr Oldfield had a discussion with the practitioner on 5 March 2016 about post-operative care; [9] 7. Dr Oldfield took over the care of Patient B from 6 March 2016; [10] 8. The practitioner's solicitor did not ask Dr Oldfield to provide an independent expert opinion, but merely his account of the factual matters about which he had personal knowledge; [11] 9. It is difficult for Dr Oldfield to offer an accurate recollection over 3 years after the procedure (and he notes that he cannot recall advice which the practitioner says he gave during the procedure); 10. It is difficult for Dr Oldfield to offer an opinion about Particular 3 because the second stent had already been lost by the time he arrived; 11. It is difficult for Dr Oldfield to objectively evaluate the practitioner's conduct regarding Particular 4 because Dr Oldfield was directly involved in the decision making at the time ("We therefore decided to just jail the stent in the RV wall branch"); 12. It is difficult for Dr Oldfield to objectively evaluate the practitioner's conduct regarding Particulars 4 and 5 because that would call into question Dr Oldfield's decision not to take over the case; 13. It is difficult for Dr Oldfield to offer an independent recollection because he works closely with the practitioner and has presumably had discussions about the procedure with him; and 14. Dr Oldfield appears to have taken his own positive regard towards the practitioner into account, saying his "overall recollection is that Dr Chatoor behaved professionally and extremely competently throughout the time I was present".
Further, the HCCC submitted Dr Oldfield's evidence should not be accepted because: 1. Dr Oldfield says the exercise echo was "clearly abnormal" (but the practitioner considered at the time that it was equivocal); 2. Dr Oldfield's opinion at the PSC hearing that he would have recommended angiography hinges on his assumption that the stress echo was abnormal and involved [sic] the sites; [12] 3. Dr Oldfield's opinion at the NCAT hearing that he would have recommended angiography hinges on his assumption that there was an abnormal stress echocardiogram and increasing dyspnoea; [13] 4. Dr Oldfield has assumed that all steps during the procedure were appropriate because Patient B apparently remained free of long-term sequelae (but long term sequelae are not necessarily required for conduct to be significantly below the relevant standard); 5. Dr Oldfield was the practitioner appointed under the practitioner's subsequent conditions placed on his registration and prior to giving evidence.
Many of the same arguments for why the evidence of Dr Oldfield should not be accepted, or perhaps why the weight to be applied should be discounted, are similar, if not identical, to the arguments submitted in relation to the evidence of Dr Bellamy. The argument in relation to Dr Oldfield goes further than the objection raised in relation to the evidence of Dr Bellamy.
In the hearing before us, the HCCC objected to Dr Oldfield giving his evidence at the same time as the balance of the medical experts. The HCCC's submission in support of their objection said that in the hearing before the PSC, the PSC: found that Dr Oldfield was an advocate for Dr Chatoor…the Commission objected to Dr Oldfield giving evidence in the expert conclave in light of the fact that he was a witness to this particular case in circumstances where he scrubbed in and assisted Dr Chatoor and also given his professional association with Dr Chatoor. The HCCC sought that Dr Oldfield give his evidence separately before us on the basis that "he isn't an impartial expert who comes to the matter, but rather has a significant professional association with Dr Chatoor." He was also a mentor for Dr Chatoor pursuant to conditions attached to Dr Chatoor's registration at the time of the hearing before the PSC.
Counsel for Dr Chatoor informed the Tribunal that he would be relying upon the evidence of Dr Oldfield as both a witness to the procedure undertaken by Dr Chatoor on 5 March 2016 and as an expert.
At the time of the application by the HCCC to exclude Dr Oldfield from the experts conclave, Mr Kalfas, counsel for Dr Chatoor said: I am certainly relying upon him as an expert. His independence objectively, in other words his capacity to bring an independent and objective professional assessment of the situation, was never challenged before the Committee and frankly if this had been an appeal, other than by way of hearing de novo, that would be the first appeal point since my friend has raised the finding of the Committee. The fact is that the evidence by way of a transcript involves a conclave in which Dr Oldfield participated and he was relevantly able to assist not only with his very considerable experience, but also having been present in the situation. My submission, as it was before the Committee and as the Committee proceeded, was that the conclave should involve all of the expert doctors and if someone, either the Commission this time, contrary to what it chose to do before the Committee, or any of the Tribunal panel members wish to explore the objectivity with which Dr Oldfield addresses is the matter, that can be done in the conclave, but the practical utility as demonstrated in the transcript from the Committee below is for Dr Oldfield to participate in the conclave and I would urge for that to happen.
Dr Oldfield was permitted to give his evidence as part of the expert conclave on the basis that we are not bound by the decision of the PSC, and we needed to be able to form our own view about the manner in which he gave his evidence and the content of same.
In the hearing before us we permitted both Dr Bellamy and Dr Oldfield to participate in the conclave of experts. We said we would permit the counsel for the HCCC to cross-examination both Dr Bellamy and Dr Oldfield as to their objectivity once the conclave had concluded. We provided that opportunity.
Before us, counsel for the HCCC sought a "brief opportunity to ask some questions of Dr Bellamy and Dr Oldfield". Counsel for Dr Chatoor also said he would "want them to comment on some of the matters that have transpired generally." The HCCC said they would not take issue with that. That evidence was taken after the parties agreed the balance of the conclave members could be released from the hearing.
Dr Oldfield was also provided with the opportunity to comment on the evidence of Associate Professor Gutman and Dr Ali. There was nothing we heard in his oral evidence which suggested he was being partisan or had a closed mind to the evidence of Associate Professor Gutman. His evidence was supportive of the evidence of Dr Ali. He was thankful that Dr Ali "vindicated" his stand at the previous hearing (PSC) about the relatively low concern which cardiologists hold "about a marginal branch of the right coronary artery."
Dr Oldfield was cross-examined by the HCCC. The subject was his medical opinion in relation to evidence given in relation to Patient B.
The HCCC then cross-examined Dr Oldfield. He was asked about his association with Dr Chatoor. He was asked about his supervision/approval of Dr Chatoor's surgical logs, pursuant to protective orders currently operating in relation to the registration of Dr Chatoor. He agreed he had that role and that he was also a Mentor for Dr Chatoor. He was asked if he had discussed the case with Dr Chatoor and he said he had, at about the time of the Morbidity and Mortality meeting, and also when the complaint was made by Patient B.
Dr Oldfield was asked about his professional relationship with Dr Chatoor and he said: "I think we have a reasonably close relationship." He said: We occasionally go out together after a days procedures. We chat, we go through cases, difficult cases. I get advice off him regarding difficult cases, he gets advice off me. We have a reasonable working relationship as I do with other people. The HCCC put to Dr Oldfield: "Would it be fair to say that you are unable to bring an objective mind to the assessment of this case?" Dr Oldfield replied: "No, I think that would be wrong, I think I am pretty objective about the case. I have no problems - there was no negligence involved at all."
Dr Oldfield was asked questions by members of the Tribunal, which drew upon his qualification/expertise as a cardiologist.
Dr Oldfield was an important witness in this case because he was an actual witness to the procedure conducted by Dr Chatoor on Patient B, and his expertise as a senior experienced interventional cardiologist was relied upon in support of Dr Chatoor's case.
Dr Oldfield also has had a working relationship with Dr Chatoor over some years. They do not have any financial relationship.
As we have discussed earlier, an expert witness can take on the appearance of an advocate for one party or another, if they give their oral evidence in a particular manner or if they frame a report or other written or oral evidence in a way which departs from the credible. Departure from the role of an expert witness can also be seen, in some cases, during the cross-examination of such a witness.
In this case, we have considered the written and oral evidence of Dr Oldfield given in this Tribunal and also before the PSC. We have set out the evidence which we have considered most helpful from those sources. We have concluded there is nothing, detected by us, to lead us to conclude that his evidence should not be accepted or that his evidence should be given less weight than other expert witnesses who appeared before us.

Evidence of Dr Bellamy

The HCCC submitted that Dr Bellamy should not be accepted as an objective independent witness because: 1. the practitioner telephoned him during the procedure on 5 March 2016 in his capacity as Director of the Cathlab at Lingard Private Hospital; 2. he examined the case at length in the morbidity and mortality meeting; 3. he personally reviewed the case with the practitioner; [14] 4. the practitioner's solicitor did not ask Dr Bellamy to provide an independent expert opinion, but merely his account of the factual matters about which he had personal knowledge; [15] and 5. Dr Bellamy appears to have taken his own positive regard towards the practitioner into account, saying "obviously Dr Chatoor took his time with the patient's interest at heart". [16]
We have considered these submissions as to Dr Bellamy's objectivity and we have been alive to the possibility that Dr Bellamy may be a partisan witness given his association with Dr Chatoor and also the fact he was at least consulted by telephone on 5 March 2016 by Dr Chatoor, as he was undertaking the procedure on Patient B.
We accept Dr Bellamy's evidence as a witness to the procedure and to the workplace which is common to both Dr Chatoor and himself. We also accept that he is a highly qualified and experienced cardiologist and what he had to say about the procedures similar to that undertaken by Dr Chatoor was helpful. We accept he was not engaged as an expert witness by Dr Chatoor. His evidence about locally adopted guidelines was also helpful. His evidence about the discussion of the case in the Morbidity and Mortality meeting, following the procedure on 5 March 2016, was helpful. There were other aspects of his evidence which were in the nature of a personal reference for Dr Chatoor as a cardiology colleague.
To the extent Dr Bellamy gave evidence which touched on the topics which were the remit of those engaged as expert witnesses, we have drawn assistance from his evidence as it has supported the evidence of Dr Ali and Associate Professor Holloway.
There is another matter which we have noted about the evidence of Dr Bellamy. He was included in the "Conclave of Experts" both before the PSC and before us. He was treated as an expert before the PSC with both counsel for Dr Chatoor and a member of the PSC asking him for his opinion on matters which drew on his qualification as an experienced, interventional cardiologist. None of the questioning of Dr Bellamy before the PSC was challenged by the HCCC. The HCCC permitted, without objection, Associate Professor Gutman to comment on evidence from Dr Bellamy. Clearly his only warrant to do so, in an unsolicited manner, was if he understood he was having a debate about matters touching on their mutual expertise relevant to the subject case.
During the PSC hearing, counsel for the HCCC cross-examined Dr Bellamy as if he was before the PSC as an expert witness. We fail to see the efficacy and procedural fairness in cross-examining a witness on the basis that he was an expert in his field, well able to understand and speak to the questions asked and propositions put, and then argue that whatever he said as an expert should be disregarded or given no weight. We also note that the members of the PSC treated Dr Bellamy as an expert and sought his expert advice in the questions they asked him.
To the extent that it is necessary to say, we did not detect any aspect of the manner in which Dr Bellamy gave his evidence before us or the content of his evidence which alerted us to the possibility he was tailoring his evidence in order to protect Dr Chatoor from the Complaint, nor did we consider he was being insincere, dishonest or involved in hyperbole, in the giving of his evidence.
The HCCC submits Dr Bellamy's evidence should not be accepted because: 1. The medical records are not included in the list of briefing material [17] but it appears Dr Bellamy reviewed the angiogram; [18] 2. Dr Bellamy has assumed that the myocardial perfusion scan may not have been normal if repeated in 2016 but that is speculation; 3. Dr Bellamy says the exercise echo was "abnormal" (but the practitioner considered at the time that it was equivocal); 4. Dr Bellamy has assumed that "if one takes a history one could find some symptoms that may have been relevant" (but the practitioner's records and initial responses suggest Patient B was asymptomatic); 5. Dr Bellamy asserted that pre-operative revascularisation may improve the patient's prognosis but Dr Gutman explained during the PSC hearing that there is no evidence in the literature to suggest that stenting a right coronary stenosis would improve the patient's prognosis in terms of mortality or infarction; [19] 6. Dr Bellamy has assumed that all steps during the procedure were appropriate because there was no adverse outcome (but an adverse outcome is not necessarily required for conduct to be significantly below the relevant standard); 7. Dr Bellamy has assumed that pushing the stent into a side branch "fortuitously happened" [20] (notwithstanding that the practitioner's initial accounts describe the pushing as a deliberate decision);
While Dr Bellamy made two appropriate concessions (there is no strong evidence that doing pre-operative revascularisation improves the safety of the surgery and that the patient did not require coronary angiography and stenting prior the scheduled knee surgery) he goes on to offer an opinion that Patient B's coronary artery disease was a "most life threatening problem" and assumes that stenting would have a long term benefit. When the hearing resumed before us after the lunch adjournment on the first day of the hearing, counsel for the HCCC asked "In fairness shouldn't Dr Bellamy and Dr Oldfield be given opportunity to respond to the evidence" (of the other three expert witnesses). She was referring to the oral evidence of Associate Professor Gutman, Associate Professor Holloway and Dr Ali. Dr Bellamy was asked if he had any comment he wished to make in relation to the evidence of Associate Professor Gutman and Dr Ali. He took up that opportunity and gave his evidence. The content of the evidence was drawn from his expertise as a cardiologist. In relation to contrasting the two experts Dr Ali and Associate Professor Gutman, he used the expression "I tend to agree" when preferring the evidence of Dr Ali to that of Associate Professor Gutman. Such words convey "probability" rather than "absolute conviction" in his opinion. Such is generally not seen with a witness who is partisan or said to be acting as an advocate.
Dr Bellamy was then cross-examined by the HCCC and the questions were directed to his cardiac medical evidence. That included putting evidence from Associate Professor Gutman and seeking the response to same from Dr Bellamy.
Dr Bellamy was cross-examined about his attendance at the Morbidity and Mortality Meeting, which discussed the procedure Dr Chatoor had conducted upon Patient B. He was asked "Were there any issues identified in terms of the treatment of Patient B during the course of that procedure during the meeting?" Dr Bellamy answered: "No".
Cutting to the issue, counsel for the HCCC asked Dr Bellamy: "Has your professional association with Dr Chatoor had any influence in relation to the evidence that you have given before the Tribunal or the Committee?" Dr Bellamy responded: Well, you know, I don't think it has because I have been doing this sort of procedure and this work for a long time and I am the Director of the Cath Lab at John Hunter Hospital for many, many, years and so I have seen lots of complications and what we tend to do is we tend to rally around our colleagues who often feel really bad about not so good an outcome and we try to learn by our mistakes and so I don't think this is any different to what I have done for many years. I certainly would not use this situation to condemn a person if I felt they were - they had done a good job.
Dr Bellamy was asked questions which addressed his medical opinion about the case by members of the Tribunal.
Dr Bellamy gave both written and oral evidence before the PSC and before the Tribunal. He is a highly qualified and experienced cardiologist. He has worked with Dr Chatoor for some years. They have no financial relationship. They practice medicine in the same geographical location. He was able to give evidence about the "local guidelines" for cardiological interventional procedures. He was also able to give his professional opinion as to the performance of Dr Chatoor as a cardiologist, where that performance was the subject of the complaint before us. He was also a person Dr Chatoor called on during the procedure he conducted on Patient B on 5 March 2016. He gave his oral evidence in a straightforward and apparently uncompromised manner. There was no suggestion, we could detect, that he was somehow being guarded in the giving of his evidence in order to protect Dr Chatoor. We saw no reason to qualify the weight which we could give to his evidence.
We have considered the further reasons advanced by the HCCC to convince us that the evidence of Dr Bellamy should not be accepted.
The fact that Dr Bellamy disagrees with the evidence given by Associate Professor Gutman is not a reason to reject his evidence. Nor is the fact that he works at the same Cath Lab as Dr Chatoor a fact which should cause his evidence to be rejected or discounted in the absence of other evidence which would demonstrate partisanship.

The evidence of Dr Chatoor

Dr Chatoor provided both written and oral evidence. He gave oral evidence before both the PSC and this Tribunal. Given that he had given evidence in the PSC and then in the Tribunal before us, there was ample scope to check consistency. The HCCC sought to suggest that Dr Chatoor had adopted the evidence of the experts who supported him before the PSC, in relation to the emergence of dyspnoea in Patient B when he was seen by Dr Chatoor on 3 March 2016. The HCCC took Dr Chatoor to some of the evidence he gave before the PSC in this hearing, in order to put various propositions to him (propositions adverse to his case).
We noted that Dr Chatoor appeared confident in the manner he gave his evidence. He presented as confident in the decisions he had made in relation to Patient B. He was confident he had followed appropriate guidelines in providing advice to Patient B and then in undertaking the procedure conducted on 5 March 2016. He had extensively covered the requirement for informed consent with Patient B and his wife before the procedure on 5 March 2016.
The HCCC provided written submissions which addressed the evidence of Dr Chatoor and the weight, if any, we might give to it.
The HCCC submitted there was inconsistencies in the evidence of Dr Chatoor. In its submission, it identified those inconsistencies as follows:
The practitioner's contemporaneous letter said that Patient B was "a little breathless" [21] but the practitioner's PSC evidence inflated his observation, saying it was a "significant symptom" [22] ;
The timing of the angiography/stenting so soon after being told about the upcoming knee operation (having previously managed the condition medically for some time) and the patient's evidence that the practitioner told him to book a trip on a bus to Lingard Private Hospital "the next morning" [23] suggest that the upcoming knee operation is what motivated him to proceed to angiography/stenting at short notice but the practitioner's PSC evidence asserted that he was considering "longer term abnormalities" [24] ;
The practitioner's contemporaneous letter described the echocardiogram as "somewhat equivocal" [25] but the practitioner's PSC evidence inflated the finding as "at least an intermediate risk" [26] ;
The practitioner's contemporaneous letter shortly after the procedure said that the breathlessness was "longstanding" (suggesting that it was not a new symptom which warranted angiography/stenting) but the practitioner later retreated from that suggestion in his NCAT evidence, asserting that his word was an error [27] ;
The practitioner's NCAT evidence, given over four years after the consultation, purported to recall a conversation with Patient B about walking up a ramp [28] (a conversation which was not mentioned in any of his previous accounts);
The practitioner asserted that he had managed to wire the lost stent [29] but Dr Gutman's evidence is that wiring a closed undeployed lost stent floating freely in the artery "would be like finding a needle in a haystack" suggesting that such evidence was highly improbable; [30]
The practitioner's initial accounts suggest that he deliberately pushed the first stent into the right ventricular wall branch (the practitioner told Patient B after the procedure that the stent was "pushed into a side wall as it could not be retrieved" [31] , the practitioner told Patient B's GP soon after "I was able to push the undeployed stent into the RV wall branch", [32] the practitioner told the Commission that it was an "entirely logical decision to place a lost stent in a smaller side branch" [33] and the practitioner initially gave evidence to the PSC agreeing with the proposition that he pushed it into the RV wall branch [34] but the practitioner later changed his evidence saying that the stent simply "migrated" into the wall branch. [35]
We have considered those criticisms of the evidence of Dr Chatoor, and the impact that might have on his credibility. In the evidence, Dr Chatoor was taken to those inconsistencies by the HCCC and we are reasonably satisfied with his explanations for the alleged inconsistencies.
In the finality the complaint which has been framed by the HCCC required us to be satisfied that it was not appropriate and/or not within the requisite standard reasonably expected of Dr Chatoor (see s.139B(1)(a)), to have 1. advised Patient B, on 3 March 2016, to undergo an angiogram, possible angiography and possible stent placement; AND/OR 2. to have performed procedures on Patient B on 5 March 2016 which included Patient B undertaking an angiogram, angiography and stent placement; AND/OR 3. that the skill shown by Dr Chatoor in conducting those procedures, or any of them, on Patient B was below that standard.
The determination of those matters is reached, in this case, by our conclusions in relation to the evidence of the experts whose evidence will inform the standard which should be applied to Dr Chatoor and whether, in relation to the conduct of Dr Chatoor on 3 and 5 March 2016, his care of Patient B was significantly below that standard.
We will address the matter of how the "standard" is to be determined later in these reasons.
A question which was the subject of evidence, was why Dr Chatoor had given Patient B such short notice of the procedure he was proposing to undertake. Although it was not put by the HCCC, there was the underlying suggestion that Dr Chatoor included Patient B in his list for 5 March 2016, because he had a space available on that date. For our part, we do not find that was the case. We are satisfied Dr Chatoor held genuine concern for the cardiac health of Patient B and how he might be able to withstand the knee replacement surgery, which he had planned to undertake.
Dr Chatoor readily agreed that his medical note taking was less fastidious than it should be. There were a number of questions asked by counsel for the HCCC which ended with words to the effect: "Where is your medical note about that". Perhaps fortuitously for Dr Chatoor, there was no "Particular" relied upon by the HCCC, as part of the Complaint, which alleged Dr Chatoor created and/or maintained poor recording of patient's medical notes/records. That problem with the making of clinical notes for Patient B, meant that many of the thought processes which Dr Chatoor had in relation to how he was proposing to treat Patient B, were not documented otherwise than in reporting letters to Patient B's GP.
On the whole we are satisfied Dr Chatoor gave his evidence honestly and did not seek to hide evidence from the Tribunal. We consider we can give his evidence significant weight.

Conclusion on findings on Credit

Regretfully, because of the matters set out above, we find ourselves unable to have confidence in the evidence given by Associate Professor Gutman. We are left with doubt as to his objectivity and also his understanding of what his role was as an expert witness. Although he did profess to know what his role was as an expert witness and that he was required to give his evidence in an unpartisan manner and with objectivity applying his knowledge and experience, we cannot be completely confident that he did in fact do that.
The witnesses with whom we were most impressed were Dr Ali and Professor Holloway. We also have accepted the evidence of Dr Bellamy and Dr Oldfield who, although having had a working relationship with Dr Chatoor and in the case of Dr Oldfield being a mentor to Dr Chatoor for the purposes of conditions imposed by the Medical Council, we feel gave their evidence in a manner which did not alert us to partisanship with Dr Chatoor. They were also important witnesses to the procedure of the stent placement and the evidence Dr Oldfield gave was very helpful to us from that perspective.
The result of the findings just set out, mean that we will adopt the evidence of Dr Ali, Professor Holloway, Dr Bellamy and Dr Oldfield, in preference to the evidence of Associate Professor Gutman unless for some specific findings we set out otherwise.
In reaching the decision as to whether the Particulars and thereby the Complaint is made out, we have found it helpful to collect under each Particular a summary of the evidence of Dr Chatoor and each of the experts. Although this has led to repetition of the evidence, we have earlier recited, we have done so in order to concentrate that evidence under each Particular for our own assistance.

The Complaint

Before considering the evidence, which addresses each Particular of the Complaint and the Complaint itself, it is necessary for us to consider how we ascertain, for the purpose of s 139B(1)(a) "the standard", so that we can determine whether the conduct of Dr Chatoor fell "significantly below" that standard. The section states that the standard is that "reasonably expected of a practitioner of an equivalent level of training or experience."
During the hearing of the evidence, no witness identified what "standard" should be attributed as that applicable to Dr Chatoor. The evidence of the HCCC expert, Associate Professor Gutman, appeared to us to identify the standard, for the large part, as "the way I would have approached the case for Patient B had I been consulted as the cardiologist." The same is true of the evidence of Associate Professor Holloway, Dr Ali, Dr Bellamy and Dr Oldfield. It was as if each treated Dr Chatoor as having exactly the same standing in terms of their "training or experience".
There is little in the way of decisions of the Tribunal or the NSW Court of Appeal which we could find to assist us with this question. The extent of the jurisprudence which we could find is as follows.
In Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] - [85], Basten JA, with whom McColl JA and Sackville AJA agreed, said as follows: 82. On other occasions, it is true that the Tribunal referred to "accepted standards in psychiatry" (p 35L) and "accepted psychiatric practice" (p 41D and in the conclusions, Reasons pp 58J and 63T). Nevertheless, criticism of the Tribunal in this respect is without substance. Reference in the statute to a standard "reasonably expected" of a practitioner of a particular level of training or experience, is clearly an objective standard to be judged according to the standards of the profession generally. Such standards may appropriately be identified by reference to "accepted psychiatric practice". 83. Two further points should be made in this regard. First, this was not a case in which the practitioner sought to justify her conduct by reference to some different standard adopted by a respectable minority of the profession. Accordingly, while the experts called by the Commission were cross-examined as to what should properly have been done in particular circumstances, there was no doubt about the reference point, namely psychiatric practice generally accepted by reputable and experienced psychiatrists. Although the Commission appeared to anticipate that the practitioner would seek to justify her treatment on the basis that anti-psychotic drugs generally did more harm than good and that hospitalisation would only lead to over-administration of drugs with adverse consequences for the patient, that course was not followed: the practitioner did not give evidence to that effect; she did not call expert evidence to support such a view, nor did she seek to cross-examine the Commission's experts as to the validity of such a view. Matters of principle which may have underlain accepted psychiatric practice were therefore not under challenge. 84. Secondly, it may be noted that Dr Jurd referred on occasion to his level of disapproval of particular conduct - including "strong criticism" at pp 34M, 47T and 54E. Dr Reddan also used such language, referred to in the reasons of the Tribunal at p 67N. At a time when there was no lesser standard, analogous to unsatisfactory professional conduct, and the test was "infamous conduct", it was necessary to establish "such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence": see Qidwai v Brown [1984] 1 NSWLR 100 at 105C (Priestley JA). Under the Medical Practitioners Act 1938 (NSW), as in force when Qidwai was decided, the test was "misconduct in a professional respect" which, it was held in Qidwai, required "asking whether it was in such breach of standards accepted by the medical profession in this State as would reasonably incur strong reprobation of fellow practitioners of good repute and competence": p 106G. When the somewhat archaic statutory language was replaced with the more contemporary concept of "professional misconduct", the language of moral obloquy was also abandoned and peers expressed their views in terms of strong criticism, rather than "strong reprobation". Whether such language in the reports was intended to imply sufficiently serious conduct to warrant a finding of professional misconduct is unclear: it was, in any event, sufficiently adverse to support a conclusion of departure from reasonably expected standards, so as to warrant a finding of unsatisfactory professional conduct. 85. In similar vein, Dr Jurd referred in his evidence to the views of "the vast majority of my colleagues": Tcpt, p 508(10). That language was also reminiscent of a time when experts in disciplinary proceedings were invited to express views held not only by themselves, but by their peers in good standing. Such an approach is not foreclosed by the present statutory formula, which adopts an objective test of a standard applied by the relevant category of professionals. The practitioner's suggestion that Dr Jurd (and therefore the Tribunal in assenting to his views) applied a test which was "clearly not the correct test" must be rejected.
A finding under s 139B(1)(a) requires the conduct to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. As determined by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 35 per McHugh, Gummow, Kirby and Hayne JJ, the words of a statutory provision must be given "the meaning which the legislature is taken to have intended them to have" (at [384]).
The following passage from the decision of Kirby P in Don Nai Hsi Huang v Walton (Court of Appeal (NSW), 30 April 1993), when considering the preceding provision to s 139(1)(a) in the now repealed Medical Practice Act 1992 (NSW), may shed some light on the decision we need to make in this matter. The conduct of a medical practitioner does not, within s27(1)(a) of the Act, demonstrate a lack of adequate knowledge, experience, skill, judgment or care in the practice of medicine, simply because a course of therapy is embarked upon which does not conform to a given professional norm. So long as the practitioner is acting lawfully and conscientiously and is pursuing, in the treatment of his or her patient, a "respectable, though minority, view" in such treatment, no misconduct exists as will attract discipline under the law [citations omitted]. In Childs v Walton, as the Tribunal itself noted, Samuels JA said at 10: A departure from a generally accepted procedure does not necessarily constitute professional misconduct. There may be different schools of medicine and disputes between them. Adherence to the practice of a minority group does not alone entail professional misconduct 'Every innovation has to be performed for a first time. That something has not been done is not proof that it ought not to be done' (per Hutley in Qidwai at 1010).
Finally, as held by Sugerman J in Ex parte Meehan; Re Medical Practitioners Act [1965] NSWLR 30 at [36]: Deviations from accepted procedures in the actual practice of the art may sometimes become, and with reason, the subject of professional reprobation, although unattended by any taint of moral obliquity. But in this branch also of the subject, decision must be dependent upon the circumstances of the particular case and upon questions of degree.
As the expert witnesses (Associate Professor Gutman, Dr Ali and Associate Professor Holloway) or either Dr Bellamy or Dr Oldfield, have not expressed an opinion which would define precisely "the standard" they each had in mind as "the standard" to be applied to the conduct of Dr Chatoor in the practice of his profession as a medical practitioner specialising in cardiology, we are left to conclude that "the standard" to be applied, as the yard stick for the purpose of determining if Dr Chatoor's conduct was substantially below same, is a standard which they would set for themselves. This seems to us to be somewhat harsh to Dr Chatoor, who, on paper (comparing each experts CV), does not seem to be at the same level as Associate Professor Gutman, Dr Ali, Associate Professor Holloway and both Dr Oldfield and Dr Bellamy. All of those medical practitioners have aspects of their "knowledge, skill or judgment possessed" which, in our view, places them at a higher "level of training or experience" than Dr Chatoor. Associate Professor Holloway referred to the practice of his colleagues, thus, perhaps inadvertently describing a standard achieved by that group which may have been adopted by a large section of practicing cardiologists. Associate Professor Gutman also made reference to colleagues form of practice.
We also are of the view that the words "judgement possessed" are clearly to have at least a meaning connected with, in this case, the practice of cardiology. It is in our view perhaps axiomatic, that judgement is developed and founded upon knowledge of the subject, the maintaining of that knowledge by the timely study of published research, together with, the experience gained through the practice of cardiology. Again, we would measure the judgement possessed by Dr Chatoor as being less than that possessed by Associate Professor Gutman, Associate Professor Holloway and Dr Ali. We would also see the judgement possessed, in the pursuit of the practice of cardiology, by Dr Oldfield and Dr Bellamy, as being superior to that of Dr Chatoor.
Dr Chatoor clearly is an experienced cardiologist, however the others, with respect to him, surpass him in various ways. Some appear to have a greater knowledge of the theory of cardiology based upon their continued involvement with research, university education, greater experience (including the number of procedures undertaken) and with differing cardiology procedures and associated activities. Without being able to precisely define same, we have formed the view that, objectively, Dr Chatoor should be seen as having less experience in the practice of cardiology, less skill in the practice of cardiology, and perhaps less judgement than the other cardiologists whose evidence we have had to consider in this matter. Clearly, this is only capable of being measured in terms of degree (perhaps on a scale of 1 to 100). We would not be able to precisely set that degree of difference, however our feeling is that there is a discernible difference.
How then should a Tribunal, in the circumstances we find ourselves, determine what "standard" should be applied to a practitioner the subject of a Complaint, when there is conflicting evidence given by highly credentialed and experienced experts as to whether particular conduct is significantly below the standard reasonably expected of the particular practitioner, or not? This is even more of a difficulty when each of the experts purport to represent the standard of the majority of mainstream cardiologists whom they would each accept as being at the same standard of practice as themselves. That is, the same level of knowledge, skill and experience as interventional cardiologists.
We would hope that the standard will not have to be established by the calling of a significant number of cardiologists in order to judge if there is a consensus on a particular practice, and then have to decide whether there are two streams of practice, one to be labelled the majority and one the minority, where the minority practice could not be labelled as wrong, dangerous or ineffective.
In the case before us, we see differing views as to what Dr Chatoor could have, should have, or should not have advised and/or undertaken, in relation to the treatment of Patient B. Drawing on the assistance of the decisions set out above, we see Associate Professor Gutman stating that particular aspects of the treatment of Patient B attracted his strong criticism. Such a statement of opinion, clearly indicates his view that the action was significantly below the standard, he considers, applicable to Dr Chatoor. Again, that view, based upon Associate Professor Gutman's oral evidence, was formed using his own personal method of practice as the yard stick. He did however, in his oral evidence, make both direct and indirect reference to the practice of colleagues as support for his opinions.
We have recorded earlier the answer Associate Professor Gutman to a direct question about the way in which he set "the standard" against which to provide his opinion as to the actions/conduct of Dr Chatoor. As pointed out in the submission provided by Dr Chatoor, his answer was difficult for us to clearly understand. In his evidence before the PSC, he was asked specifically: … I'm trying to understand how you set the standard in answering the various questions. How you determine the standard, what sort of criteria you have and whether you have regard at all to the practice of your colleagues. He said, inter alia: Well I think it depends on how you define your colleagues. The colleagues that I think who perform procedures appropriately, I would listen to, but that's choice, I can choose someone who doesn't treat patients appropriately. That's a question that cannot be answered easily and appropriately, it depends on who you choose. When guidelines are structured, there is different levels of evidence and what other cardiologist do or what is generally accepted has the least strength in terms of evidence. Randomised trials, observational trials and then, you know, what do other cardiologists do is accepted has, you know, class C recommendation which is the lowest recommendation. So just listening to other cardiologists and what they do is not really relevant and not appropriate.
As best we can discern, Associate Professor Gutman in setting "the standard" (his yard stick), is saying he would have regard to the opinions of colleagues who he personally had regard to as good practitioners. It also seems he would have regard to evidence obtained from randomised trials or observational trials. Yet, we are confused by what he was referring to when he said: "So just listening to other cardiologists and what they do is not really relevant and not appropriate."
In defence of Associate Professor Gutman he was not provided with a definition of "the standard" and how he should set that in his mind as he provided the opinions sought by the HCCC.
As against the view of Associate Professor Gutman, we have seen the opinions of Associate Professor Holloway and Dr Ali, as engaged experts, which see the standard of practice, evidenced in the conduct of Dr Chatoor, as well within the standard. Their yardstick being their own form of practice and what they know of the practice of cardiologists they would consider colleagues of their equal. Associate Professor Holloway specifically referred to the practice of his colleagues in his oral evidence as corroborative of his own opinion.
Within a "standard" there is probably room for some deviation. Such is demonstrated by the evidence of Associate Professor Gutman who had been very critical of Dr Chatoor for having advised Patient B "to proceed to coronary angiography prior to general anaesthetic on the basis of Patient B's abnormal stress echocardiogram". In his report of 15 May 2017, he described that advice as "departure from the standard (which) was significantly below that standard or otherwise and the departure from the standard invites my strong criticism." Although he misstated the test as set out in s 139B(1)(a) we consider that was probably accidental. He said in that report that "diagnostic coronary angiography is reasonable in patients with high-risk features on non-invasive testing". He said none of the features which would suggest "high risk features" were evident in Patient B on 3 March 2016 (the highlighting is ours). Yet, as we have set out in our notes of the oral evidence in the hearing before us, Associate Professor Gutman modified that view after hearing the evidence of Associate Professor Holloway. He added that he would not have recommended an angiogram himself, however, he did agree that it was perhaps within standard.
In relation to the procedure of stenting there is a clear delineation between the experts as to whether it was within the standard, or significantly below same, to undertake any stenting for Patient B. Then there was again a fairly clear delineation between the experts about whether the procedure conducted by Dr Chatoor was within or substantially below the standard. In relation to all aspects of the stenting procedure, there appears to be no room to find that there is space within the acceptable standard, for both differing opinions to co-exist.
It is trite to say that each case must be judged upon its unique facts and circumstances. However, in the particular facts and circumstances of this case, we prefer the standard which has been illustrated via the evidence of Dr Ali and Associate Professor Holloway, which was then supported by both Dr Bellamy and Dr Oldfield. We find that in this case, the weight of expert opinion, as provided by Dr Ali and Associate Professor Holloway and supported by Dr Bellamy and Dr Oldfield, sets a standard which fits within the requirement of s 139B(1)(a) and against which the conduct of Dr Chatoor, in his care and treatment of Patient B, is to be assessed.

The Detail of the Complaint

The complaint is that Dr Chatoor: "Is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law". We have already set out what needs to be established to satisfy the section.

Particular 1 1. On 3 March 2016, after being told by Patient B that he was scheduled to have knee joint replacement surgery on 11 March 2016, the practitioner failed to exercise appropriate care or demonstrate appropriate judgement in that he recommended that Patient B undergo coronary angiography and stenting if required prior to the scheduled knee surgery in circumstances where: (a)The results of the myocardial perfusion scan in November 2014 were normal; (b)The results of the exercise echocardiogram on 15 October 2015 were equivocal; (c)The results of the exercise echocardiogram on 15 October 2015 did not show any high risk features; (d)The practitioner did not perform a fractional flow reserve measurement; (e) Patient B was asymptomatic; (f) Patient B did not require coronary angiography and stenting prior to the scheduled knee surgery.

Particular 1 focuses upon the consultation which took place between Dr Chatoor and Patient B on 3 March 2016. It was in that conference that Patient B told Dr Chatoor, for the first time, that he was scheduled for knee replacement surgery within a week of the consultation. Dr Chatoor recommended, and Patient B accepted, that it would be in his interests to undergo an angiogram prior to his scheduled knee replacement surgery. If the angiogram showed that Patient B had stenosis, then it would be appropriate to proceed to angioplasty and stent deployment.
The thrust of Particular 1 is that the recommendation for Patient B to undergo an angiogram was either inappropriate or premature. We will now draw from the evidence we have set out herein, the opinions of the expert witnesses and then state our conclusion in relation to Particular 1. The sub-paragraphs of Particular 1 reflect the opinion of Associate Professor Gutman. He said in his written and oral evidence the following which we noted particularly:
In relation to the exercise echocardiogram Associate Professor Gutman said: I interpreted being equivocal which means it would be negative." "His symptoms of breathlessness, that's the symptom they are hanging their hat on. He had his stents put in successfully in the right coronary artery and from what I can understand he still had breathlessness. So the initial thought or comment that his breathlessness was cardiac may not be true because he still had it after he was stented …. so it probably was always his lung disease and not the heart.
Associate Professor Gutman also said that the breathlessness in Patient B should have been investigated for other causes such as lung disease. He said that should have happened before any cardiac investigation. He said: I would feel that new dyspnoea in someone who has evidence of lung disease, the dyspnoea without chest pain is likely to be due to other factors apart from coronary artery disease including lung disease or even left ventricular dysfunction and neither of those were assessed prior to his angiogram.
Associate Professor Gutman said: … then you come to the question about should he have an angiogram? Well, a lot of people would say yes and a lot of people say no. You might want to stratify risk. That's okay, you know, I don't, I personally probably wouldn't have done an angiogram because he's asymptomatic and he had an equivocal exercise test anyhow.
Associate Professor Gutman did give some ground when he said: If one assumes that Dr Holloway is correct and the stress echocardiogram is positive and the shortness of breath was ischaemic equivalent, and angiogram may have been appropriate. I never said it wasn't completely appropriate, I think that was up for discussion.
In oral evidence before us we noted Associate Professor Gutman was asked to look at Particulars 1 and 2 of the Complaint document. He was asked: "Was it your view that the myocardial perfusion scan taken in November 2014 provided a result which was normal?" Associate Professor Gutman responded: "I did not see the perfusion scan. The results indicated that there was a defect in the inferior wall which could have been due to a myocardial infarction or artefact. It did not show any evidence of ischaemia." Associate Professor Gutman was asked on three occasions by counsel for the HCCC whether he saw the results of the scan as "normal or abnormal". He did not answer that question.
The crucial consultation took place between Dr Chatoor and Patient B on 3 March 2016. On that date, Associate Professor Gutman opined that Patient B was asymptomatic. Further, Associate Professor Gutman said relevant guidelines do not recommend routine coronary angiography before non-cardiac surgery. He did say that diagnostic angiography is reasonable for patients with high-risk features on non-invasive testing. He said Patient B did not have high risk features. He said available evidence suggests most patients with stable coronary artery disease do not benefit from prophylactic revascularisation prior to non-cardiac surgery.
Dr Chatoor asserted that there was significant risk for Patient B of perioperative cardiac event associated with his scheduled elective orthopaedic surgery. He asserted: Patient B was properly assessed in relation to his forthcoming elective orthopaedic surgery as having significant risk factors for perioperative cardiac event, including being over the age of 75, having a previous history of myocardial infarction, chronic obstructive pulmonary disease, the symptom of dyspnoea, a recent abnormal stress echocardiogram of uncertain significance and the absence of long-term beta blocker therapy. Dr Chatoor further said in answer to Dr Gutman's criticism: Guidelines do not individualise risk and a closer examination of the facts would demonstrate that Patient B was not a low-risk patient.
Associate Professor Holloway said: "Based and the fact that Patient B was an elderly gentleman", with the medical history described by Dr Chatoor, "it was reasonable that coronary angiography was performed in the context of a positive, or at least equivocal, stress echocardiogram findings. The combination of dyspnoea and changes on the stress echocardiogram, could have represented significant coronary disease, which could have placed Patient B at risk during surgery." He further said "Based on the Australian guidelines for perioperative management (pre-operative cardiac evaluation and management of patients undergoing elective non-cardiac surgery Ian Scott et al. MJA 2013; 199: 667-673), this patient was at intermediate cardiac risk, suggesting they should be evaluated in consideration of non-invasive further investigation. Non-invasive testing had been arranged within the previous six months, which was abnormal, suggesting it was reasonable to continue to coronary angiography, based on these guidelines, to ensure there was no significant coronary disease. In the absence of planned surgery, it was very reasonable to continue with medical management for coronary artery disease in this patient as outlined by Dr Chatoor."
Associate Professor Holloway was also critical of Associate Professor Gutman using guidelines from outside of Australia. He said: "Associate Professor Gutman applied the American Cardiology guidelines. In reviewing the Australian guidelines, Patient B is at intermediate risk and the presence of breathlessness and an equivocal stress echocardiogram, in two areas, it was certainly reasonable to proceed to angiography". He further said "I am surprised by the critical language used by my colleague, Associate Professor Gutman. Whilst I believe Dr Chatoor based his decision on the updated Australian guidelines, Associate Professor Gutman's statements (in bold) are very critical for diverging from the American guidelines. I would hope all practitioners base their practice on local guidelines and diverge from guidelines at times, in the interests of their patients."
Dr Bellamy said: In a purely elective surgery which in this case seems to be the situation, then one could make a case for doing pre-operative coronary Angiography to treat the ischaemia demonstrated on the stress echocardiogram. Then a period of time could elapse prior to the elective surgery. This would be a reasonable way to deal with the patient. There has been subsequent more robust data coming from Canada in the last 12 months which again suggests that pre-operative coronary angiography is not required. This information was not available in 2016 and I would say that the standard of care at the time suggests that it was not inappropriate to refer the patient for coronary angiography in Patient B's situation. Thus, I disagree with Associate Professor Gutman's assessment that this was below the standard. I think that Dr Chatoor's recommendation was at the standard of the time in 2016, it certainly was not below the standard. I disagree that the exercise echo was equivocal. It seems to be that it was abnormal. I agree that the patient did not require coronary angiography and stenting prior to the scheduled knee surgery. On the other hand, the most life-threatening problem that the patient had was his coronary artery disease. For this reason, it should always take priority over elective joint replacement where there is very little evidence of improving prognosis.
In Dr Oldfield's evidence he said: Associate Professor Gutman refers to the American Guidelines and chooses to ignore the paper by Ian Scott et al (MJA 2013; 199: 663 -667) which placed Patient B at intermediate risk. Invasive angiography is recommended in patients with an intermediate probability of coronary disease and is an ESC/EACTS Class II B guideline indication for coronary angiography.
Dr Oldfield is critical of Associate Professor Gutman's assessment of Patient B as having low risk features. Dr Oldfield said: "An actual examination of the clinical details, questions the validity of that statement." Dr Oldfield set out in great detail the reason for his criticism.
Dr Oldfield was critical of Associate Professor Gutman's statement that Patient B was asymptomatic. He said: As an experienced clinician, I find it difficult to undertake a satisfactory functional assessment in older individuals especially those with compromised mobility awaiting orthopaedic surgery. Even according to the American Guidelines Patient B would have to be regarded as being of indeterminate functional status which they state support the role of objective testing.
In further criticism of Associate Professor Gutman, Dr Oldfield said: Associate Professor Gutman refers to a normal myocardial perfusion scan in 2014. I do not believe that it would be appropriate to base a clinical decision on myocardial perfusion imaging 18 months previously when a more recent exercise stress echocardiogram was clearly abnormal.
Dr Oldfield said: Associate Professor Gutman repeatedly refers to the American Guidelines which were published in August 2014. At the time that Patient B was being managed by Dr Chatoor, clinical practice, especially here in Newcastle, was very much in keeping with Patient B's clinical course.
Dr Oldfield said: Associate Professor Gutman states that Patient B did not have an extensive area of ischaemia. In my opinion the area of ischaemia was in excess of 10% and therefore by definition, significant. Cardiac catheterisation was appropriate on the basis of his abnormal stress echocardiogram. Revascularisation was also appropriate since his coronary anatomy demonstrated a significant distal territory at risk.
Dr Oldfield said: Having reviewed this case in detail and having scrubbed to lend support, I believe that Dr Chatoor's decision to investigate Patient B and treat his RCA lesion was reasonable and consistent with clinical practice at that time.
Dr Ali said in his report and evidence that the presentation of Patient B on 3 March 2016, when considered in light of his medical history, which included breathlessness and "a positive non-invasive stress test" indicated for diagnostic cardiac catheterisation.
Dr Ali set out detail of the findings obtained from the angiography. He opined that "in the setting of upcoming intermediate risk surgery and general anaesthetic, in shared decision-making, with informed consent, percutaneous coronary intervention is within standard of care."
In relation to Complaint 1 particular 1, Dr Ali said he disagreed with the Complaint, in Particular 1, that "the practitioner failed to exercise appropriate care or demonstrate appropriate judgement" in the circumstances set out in Particular 1. He said: Whereas the results of the exercise echocardiogram on 15 October 2015 were equivocal, the documentation suggests a wall motion abnormality in two segments.… According to the Society of Coronary Angiography and Intervention, Appropriate use criteria, two segments of wall motion abnormality on the stress echocardiogram is a high-risk stress test. Whereas the patient was asymptomatic, according to the documentation, the patient had worsening shortness of breath and was previously asymptomatic at the last clinic appointment prior to angiography. Whereas the patient did not require coronary angiography and stenting prior to the scheduled knee surgery, the patient provided informed consent, following a discussion with the practitioner, on the risks and benefits of the procedure.
Dr Ali said that, according to the Society of Coronary Angiography and Intervention Appropriate use Criteria, a patient with two territories of segmental wall motion abnormality and otherwise with the medical condition present in Patient B on 3 March 2016, "may be appropriate" for angiogram, angiography and stenting. Dr Ali opined that: "In the setting of upcoming intermediate risk surgery and general anaesthetic, in shared decision-making, with informed consent, percutaneous coronary intervention is within standard of care."
In oral evidence before us, Dr Ali said, in relation to Associate Professor Gutman's evidence: "I think it is important to take the totality of sequelae into consideration.…" Dr Ali then set out that history. He concluded by saying: [T]hen, one week prior to an orthopaedic operation, the patient presents with new symptoms of shortness of breath and has a stress test that is quite rightly, as Associate Professor Gutman suggests, equivocal. I think we have to take "equivocal" in the context of someone who has a previous stent in the right coronary artery, someone who has a history of arthrosclerosis, someone who is having surgery in a week's time and a result of "equivocal", as suggested by Associate Professor Gutman, can be taken in two directions; one, to be left to be managed medically, but in this specific situation the patient is having an operation in one week's time and as a result if there is a significant coronary ischaemia or if there is a coronary lesion that is not revealed by an ambiguous or equivocal stress test, it is indeed an indication for coronary angiography.
Dr Ali opined that "in the context of the patients intermediate risk surgery and general anaesthetic and in the context of new symptoms, it is entirely appropriate to perform coronary angiography because the risk of coronary angiography alone is very, very, low."
To the extent that there is criticism of Dr Chatoor for not obtaining the records for Patient B from the Queensland Hospital in which he had undergone a previous angiography in about 2008, we do accept that he took reasonable steps to obtain those records, however, the records were not supplied.
Although it was put that Dr Chatoor was attempting to use the patient's breathlessness as a retrospective justification for the action he then took with Patient B, Dr Chatoor rejected that and we accept that rejection. We also accept his evidence that the type of operation Patient B was to undertake with a knee replacement was very different to the operation he had undertaken in 2015 and which Dr Chatoor had said he was fit to undertake. We also support Dr Chatoor's opinion not to have Patient B undertake a Dobutamine stress test or the FFR investigation, which Associate Professor Gutman said he would have considered appropriate. We rely upon the evidence of Associate Professor Holloway and Dr Ali in reaching that conclusion.
In relation to a test to ascertain if the breathlessness in Patient B may have come from pulmonary causes rather than a cardiac cause, we accept Dr Chatoor's explanation where he said: "His chronic lung disease was mild and stable. I didn't believe that anything had changed and the examination did not demonstrate any clinical stigmata of respiratory decompensation." Contrary to the proposition put to him that the breathlessness did not constitute a symptom in Patient B, Dr Chatoor said: "Breathlessness is dyspnoea and it is a significant symptom."
In relation to the suggestion that Dr Chatoor should have carried out investigations of other causes for the breathlessness in Patient B, we particularly take note of Associate Professor Holloway's evidence where he said: I know that Associate Professor Gutman is not on trial here but the evidence I've just heard seems absolutely ludicrous to me. This is the gentleman that has had left ventricular function assessed by a stress echocardiogram and there is a suggestion that other causes of breathlessness need excluding. We could look at pulmonary hypertension. We could look at congenital heart disease. We could look at a range of different lung diseases and if we did come out with something, then we are probably going to want to exclude coronary artery disease. This man has had abnormalities on a stress echocardiogram so regardless of whatever other tests we do it is very sensible for this man to have coronary disease excluded and the conversation I have just heard is incredible….. Coronary disease needs excluding regardless of what other pathology he had.
Dr Ali said he concurred with Professor Holloway on that matter. He said: The patient meets guidelines for coronary angiography. The patient is symptomatic and the left ventricular function notwithstanding, the patient would still need an angiogram if the left ventricular function is reduced, the patient needs an angiogram. If the left ventricular function is normal the patient needs an angiogram. Symptomatic patients that meet criteria for coronary angiography, with previous stents and an abnormality on a stress echocardiogram, is an indication for angiography. Professor Holloway then added: I agree, Dr Ali, and this is standard practice across every place I have worked in Australia and also in the United Kingdom and if you are criticising the fact that this man went to angiogram I think you are criticising my care over the last 20 years in addition to all the colleagues that I knew.
Associate Professor Holloway also went further to suggest that subjecting Patient B to the range of tests suggested by Associate Professor Gutman would amount to over-servicing.
In relation to why the procedure was undertaken at comparative speed we accept Dr Chatoor's explanation when he said: It was done that quickly because I had a list that week, also because there was an understanding of what was being proposed and if I did a diagnostic angiogram and did not find a significant issue of concern, then he would still be able to go in and have his knee surgery a week later.
In relation to Particular 1, we accept the evidence of Dr Chatoor, as follows, on the basis that such evidence is also supported by the evidence of Dr Ali, Associate Professor Holloway, Dr Bellamy and Dr Oldfield. That evidence is, as we have set out earlier: "He was asked to concede (as alleged in particular 1(a)) that the myocardial perfusion scan in November 2014 was normal. He did not so concede. He explained what might be described as a normal myocardial perfusion scan. He said in relation to Patient B there was an aspect of the test which was not normal (the exercise tolerance area) but it did not show reversible ischaemia. It may have been seen to be artefactual because there was no evidence of wall thinning, hypokinesia, a reduction in thickness of the myocardial at that level. In relation to Particular 1(b) Dr Chatoor said the test was somewhat equivocal and it was not a normal test. In relation to Particular 1(c) Dr Chatoor said: "It demonstrated at least an intermediate risk". Dr Chatoor agreed in relation to Particular 1 (d) that there was no functional flow reserve measurement conducted and that was because at that stage it would not add to the appropriateness or the success of the procedure. In relation to Particular 1(e) Dr Chatoor denied Patient B was asymptomatic. He had dyspnoea. In relation to Particular 1(f) Dr Chatoor denied the assertion that Patient B did not require coronary angiography. He also denied Patient B did not require stenting prior to his scheduled knee operation."
In his submission, counsel for Dr Chatoor pointed to the strong criticism assigned by Associate Professor Gutman to the advice given by Dr Chatoor for Patient B to undertake an angiogram when seen on 3 March 2016. Counsel then pointed to the oral evidence of Associate Professor Gutman, where he said about advice to Patient B to undertake an angiogram: "Well a lot of people would say yes and a lot of people say no." He also said "I personally probably wouldn't have done an angiogram because he is asymptomatic and he had an equivocal exercise test anyhow." The submission is that those words are not consistent with a strong criticism. The words are in keeping with being unable to say it was outside the standard defined in s.139B(1)(a). Later in his oral evidence Associate Professor Gutman said "If one assumes Associate Professor Holloway is correct and the stress echocardiogram is positive and the shortness of breath was ischemic equivalent, an angiogram may have been appropriate. I never said it wasn't completely appropriate" Dr Chatoor had submitted the evidence of Associate Professor Holloway should be preferred to that of Associate Professor Gutman. It is submitted that evidence from Associate Professor Gutman undermines his strong criticism he had set out in his report.

Conclusion on Particular 1

Having assessed all the evidence which addresses Complaint 1, Particular 1, we are satisfied that the evidence does not support the adverse criticism of Dr Chatoor as contained in the Particular and as such would not support the Complaint made pursuant to s.139B(1)(a), were it the only Particular relied upon. We are satisfied the evidence in support of Particular 1 does not establish to the requisite standard and thereby to our satisfaction, that Dr Chatoor failed to exercise appropriate care or demonstrate appropriate judgment in recommending to Patient B that he undergo coronary angiography and stenting if required prior to his scheduled knee surgery.

Particular 2 - The procedure undertaken on 5 March 2016

This particular alleges: 2. On 5 March 2016, the practitioner failed to exercise appropriate care or demonstrate appropriate judgement in that he proceeded to coronary angiography and stenting of Patient B in circumstances where: (a) The results of the myocardial perfusion scan in November 2014 were normal; (b) The results of the exercise echocardiogram on 15 October 2015 were equivocal; (c) The results of the exercise echocardiogram on 15 October 2015 did not show any high risk features; (d) The practitioner did not perform a fractional flow reserve measurement; (e) Patient B was asymptomatic; (f) Patient B did not require coronary angiography and stenting prior to the scheduled knee surgery.
This Particular has been dealt with in the decision we have made in relation to Particular 1. The subparagraphs of each of Particular 1 and Particular 2 are the same.

Conclusion on Particular 2

We repeat our conclusion for Particular 1 and we make the same finding (with different Particular number identified), namely: Having assessed all the evidence which addresses Complaint 1, Particular 2, we are satisfied that the evidence does not support a finding that on 5 March 2016, Dr Chatoor failed to exercise appropriate care or demonstrate appropriate judgement in that he proceeded to coronary angiography and stenting of Patient B in the circumstances set out in the Particular. As such it would not support the Complaint made pursuant to s 139B(1)(a), were it the only Particular relied upon.

Particular 3 and Particular 4 - The procedure undertaken on 5 March 2016

These two Particulars can be addressed together as they were addressed that way predominantly in the evidence before us. The details of the Particulars are as follows: 3. During the procedure on 5 February 2016, after the first attempt to deliver a Terumo Tsunami Gold bare metal stent ("the first stent") was unsuccessful, the practitioner failed to exercise appropriate care or demonstrate appropriate skill or judgement in that he attempted to deliver the first stent again in circumstances where: (a) The first attempt to deliver the first stent had been unsuccessful; (b) The first stent had apparently been caught in the right coronary artery; (c) The practitioner attempted to deliver the first stent again in the right coronary artery; (d) The practitioner should have attempted an alternate approach at that stage. 4. During the procedure on 5 March 2016, the practitioner failed to exercise appropriate care or demonstrate appropriate skill or judgement in that he pushed the first stent into the right ventricular wall branch in circumstances where: (a) There was insufficient reason to push the first stent into the right ventricular wall branch; (b) Pushing the first stent into the right ventricular wall branch was unsuccessful; (c) The practitioner should have attempted an alternate approach at that stage.
The complaint which is embodied in these two particulars is that the procedure described in the Particulars was conducted significantly below the standard, as referred to in section 139B(1)(a) of the National Law.
The particulars reflect the gravamen of the opinion provided by Associate Professor Gutman. His evidence on the procedure is found in his report, his evidence before the PSC, and his evidence before us.
In relation to the evidence, which addresses these two particulars, we have set out above, the detail of same. In reaching our finding we have particularly relied upon the following.
Crystallising the Particular 3, it is that there had been an unsuccessful attempt to deploy the first stent. Dr Chatoor attempted to deploy the second stent again in the same manner he attempted to deploy the first stent. In so doing, he should have attempted an alternate approach. The attempted deployment described was significantly below the standard.
Crystallising the Particular 4, it is that Dr Chatoor should not have "pushed" the first stent into the right ventricular wall. He should have attempted a different action with the stent. The way in which Dr Chatoor conducted the procedure was significantly below the standard.
These two Particulars were, in our view, intertwined in the way in which both Dr Chatoor and the expert witnesses gave their evidence.
We first recognise that the procedure undertaken by Dr Chatoor with Patient B on 5 March 2016, as it proceeded, changed from being a reasonably straight forward procedure, anticipated to take less than one hour, to extremely complex with very unusual complications/events which took four hours and resulted in Dr Chatoor calling upon colleagues for assistance. We accept from the evidence, that at the time of the procedure, the complications which Dr Chatoor experienced and dealt with, were rarely experienced. We note the submission of Dr Chatoor's counsel when he said in relation to Complaints 4 and 5, that: [I]t may not be possible to identify a relevant standard of care because the circumstances that confronted Dr Chatoor are sufficiently unusual that many practitioners of an equivalent level of training or experience may never have encountered them and there are no guidelines or published data to demonstrate an appropriate course of action.
Dr Chatoor in his evidence, both written and oral, which we have set out earlier in these reasons, described the procedure which he undertook on 5 March 2016 with Patient B. The description of the procedure is lengthy and we do not repeat the description provided by Dr Chatoor, which we have set out above.
There were aspects of the procedure which particularly attracted the criticism of Associate Professor Gutman and which were the focus of the evidence of the expert witnesses. Dr Chatoor was also extensively cross-examined on those matters.
In his letter to Patient B's GP, following the procedure which he performed on Patient B on 5 March 2016, Dr Chatoor stated that he was "able to push the undeployed stent into the RV wall branch but the more proximal aspect of the stent still extended into the main lumen of the mid-right coronary artery." The words "able to push" proved problematic in this hearing and we conclude were infelicitous when used by Dr Chatoor.
In his oral evidence before us, Dr Chatoor denied he had pushed the stent into the RV branch. He said it was not possible to push an undeployed stent in that fashion. He described how the stent fortuitously made its way to that RV branch. We accept that evidence.
The procedure had commenced with Dr Chatoor attempting to use the right radial route to deploy his first stent. That proved unsuccessful since the guide catheter would not sit adequately or provide optimal support. He then changed to the right femoral pathway however there was marked tortuosity in the right iliofemoral segment. He used a long sheath and this provided adequate support for cannulation of the right coronary ostium with a 6-French AR 1 guide. Dr Chatoor then placed two wires down the right coronary artery but it was not possible for him to deploy a 2.5 x 15 Tsunami stent "since it appeared to get caught in the right coronary artery more proximally." Following pre-dilation, Dr Chatoor attempted to deliver the stent again but it was still not feasible and on trying to withdraw the stent, Dr Chatoor realised that the stent had come off the balloon and was seen more proximally in the vessel.
Dr Chatoor made several differing techniques to try to retrieve the stent however all those attempts failed. The undeployed stent found its way into the right ventricular branch. Part of the stent was protruding into the right ventricular artery.
Dr Chatoor then decided to deploy a second stent in the mid-right coronary artery in order to ensure that the undeployed stent would not obstruct flow in the main vessel. However, this second stent also came off the balloon in the mid-course of the right coronary artery.
At that stage, Dr Chatoor called upon Dr Bellamy and Dr Oldfield to assist him with advice. He spoke to Dr Bellamy by phone and Dr Oldfield attended in the cath lab with him, scrubbed and ready to assist. He was able to retrieve the second stent.
After further attempts to retrieve the stent, which had migrated into the RV branch failed, Dr Chatoor decided to crush the stent against the vessel wall to ensure there was no compromise to the luminal flow.
Dr Chatoor deployed two synergy stents in the mid-course of the right coronary artery at 16 and 18 atmospheres respectively. The crushing of the first stent was achieved.
Dr Chatoor stated that he used bare metal stents, which are not as deliverable as second-generation drug eluting stents, because he did not want Patient B's surgery to be delayed beyond three months. He stated that the stent loss with both stents was due to angulation tortuosity and calcification in the proximal vessel.
The evidence from Associate Professor Gutman in relation to the procedure has been set out by us earlier. Associate Professor Gutman was firstly concerned with the number of stents which were used by Dr Chatoor in the procedure. He said the records show 5 stents were used. The letter from Dr Chatoor to Patient B's GP only accounts for three stents, however the description by Dr Chatoor of the procedure accounts for four stents deployed in the right coronary artery and one retrieved.
Associate Professor Gutman says the handwritten progress notes of Dr Chatoor state that he did stent the distal right coronary artery with a 2.25 mm x 8 Tsunami stent with a good result. Associate Professor Gutman did note that in his letter to the Commission dated 27 June 2016, Dr Chatoor mentions that he did stent the distal right coronary artery with a bare metal stent.
We noted earlier that Associate Professor Gutman opined that in some of his actions, Dr Chatoor had exhibited "a standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct". He also opined that some of Dr Chatoor's actions evidenced a departure from the standard which was significantly below that standard or otherwise and the departure from the standard invited his strong criticism.
In the Summary at the conclusion of the report, Associate Professor Gutman's concluding remark was as follows: I believe that the procedure was difficult and complex but despite that I felt that the standard was significantly below that standard of a practitioner of an equivalent level of training or experience.
In his response to letters from the HCCC in July 2017, Dr Chatoor denied he failed to exercise appropriate care or demonstrate appropriate judgment on 5 March 2016. He stated he had a history of over one thousand successful stenting procedures since 1997. He submitted that few, if any, practitioners have significant personal experience of managing the loss of a stent or stents. He sought advice and assistance from senior colleagues.
Further in his letter of 24 July 2017, we noted Dr Chatoor said: Stent loss is a rare complication occurring in 0.32% of cases [Incidence, Retrieval Methods and Outcomes of Stent Loss During Percutaneous Coronary intervention E Brilakis et al Catherisation and Cardiovascular Interventions 65:333-340]. I undertook my first coronary angioplasty in 1997. I have done well over 1000 stenting procedures since that time.
Dr Chatoor said Patient B's procedure was indeed long and difficult, but stenting was completed with a good final result and without adverse sequelae. It is also notable that Patient B underwent knee replacement surgery on 10 March 2017 with "a very satisfactory and uncomplicated postoperative course."
In his oral evidence before the PSC, Associate Professor Gutman set out his criticism of the stenting carried out by Dr Chatoor. He had no criticism of the stenting on the "distal part" which he said was satisfactory. He said: My preferred option, if you could not smear that mid right coronary stent, I would have crushed the stent on the side of the right coronary artery without going into the right ventricular side branch. Putting an undeployed stent in the side branch would increase the risk of clotting of that side branch.
He described the procedure as he understood it took place. That description did not appear to contain specific criticism. He laid the cause of the loss of the first stent from the guide as an operator error. For the purpose of this determination, we have considered that to be his criticism which included the pathway of approach to the heart, type of instrumentation used, the type of stent used, the size of balloon used.
Perhaps by way of admiration, Associate Professor Gutman said: They were able to, according to the evidence, wire the stent and that would be like finding a needle in a haystack. To wire into a stent, that is why I asked the question, into the lumen, of the free stent in the right coronary artery would be near impossible. I don't know how they do it.
Associate Professor Gutman described how Dr Chatoor and Dr Oldfield had considered: They had a wire into the right ventricular branch and they thought it was in the stent and it was through the stent. But it could have been alongside the stent. There is no way of proving it unless you put an ultrasound catheter down the wire and show that it was. He said: One of the reasons why they couldn't get even a small balloon down through the stent, was because they thought they had a wire down, but it wasn't in the stent itself. That is one aspect of the case. We have taken this last-mentioned comment of Associate Professor Gutman to be part of his criticism of Dr Chatoor's conduct of the procedure.
Associate Professor Gutman then said: The preferred strategy, if they had the wire in the middle of the stent … in our laboratory would be to then snare the stent….. That is an easy procedure, put the snare down, you snare the stent and pull it out. … my preferred option, if you could not sneer that mid right coronary stent, I would have crushed the stent on the side of the right coronary artery without going into the right ventricular side branch.
Associate Professor Gutman was critical of the deployment of the stent into the right ventricular side branch. He said it would increase the risk of clotting which would cause a heart attack. He said the heart attack might not be fatal but it could be significant.
Associate Professor Gutman said that he would have either used the lowest profile stent or he would have pre-dilated the big portion appropriately with either bigger balloons or high-pressure balloons to open up the artery appropriately so he could deliver the stent distally. He said he might then have the stent in the mid portion. He said it is better than losing stents.
We also understand Associate Professor Gutman to be critical of Dr Chatoor for not having used an instrument described as a "guideliner."
Associate Professor Gutman said that he would never have used a right-hand placed catheter which Dr Chatoor had used. We have noted that Dr Chatoor said he disagreed with Associate Professor Gutman on that view. He explained why. He cited the possibility of dissecting the right coronary vessel as you turn the Amplatz into the right coronary vessel. He said his view was that too big an Amplatz for the right coronary artery would cause more harm than good.
We have noted Dr Chatoor's response to Particular 3 and 4 as: In relation to Particular 3(a), Dr Chatoor conceded that his first attempt to deliver the first stent had been unsuccessful. In relation to Particular 3(b) and (c), Dr Chatoor conceded the first stent had been caught in the right coronary artery and that he had then attempted to deliver another stent again in the right coronary artery. I relation to Particular 3(d), it being asserted he should have attempted an alternate approach, Dr Chatoor said he did do that. In relation to Particular 4(a) and (b), Dr Chatoor denied he pushed the stent into the right ventricular wall branch.
We note, in what we have set out above, that the comments of Associate Professor Gutman tend to be in the nature of stating what he would have done had he been required to undertake the procedure on Patient B. A statement that the expert would have undertaken the procedure by a different method is not necessarily critical of the method adopted by Dr Chatoor, certainly not to the extent of saying that to undertake the procedure in a different manner to that which Associate Professor Gutman would have adopted, with the benefit of knowing exactly what was unexpectedly encountered by Dr Chatoor, was substantially below the standard expected.
Nonetheless, we do have an understanding that Associate Professor Gutman's approach to the role he took on, as the expert for the HCCC, was that 'If it is not the method I would have undertaken then it is substantially below the standard expected'. This aspect of the way in which Associate Professor Gutman framed his evidence was tested by Dr Chatoor's counsel in cross-examination when it was put to Associate Professor Gutman, that specialist Cardiologists with extensive experience may choose to adopt a different approach to that which he would have used. No concession was made by Associate Professor Gutman that such approaches would amount to an acceptable standard.
In the cross-examination of Dr Chatoor in the hearing before the PSC, he answered the criticism of Associate Professor Gutman in relation to why he had not pre-deleted the middle portion with a bigger balloon or a non-compliant balloon, Dr Chatoor said: The risk you run in pre-dilating aggressively is that you dissect the vessel and then you are unable to deliver a stent to cover that area.
In cross-examination of Dr Chatoor before the PSC, it was put that the stent which was used was not the one which was intended, it was smaller than the first choice and that in itself would have given rise to a greater future cardiac risk for Patient B. We have assumed that was put because it was seen to flow from the evidence of Associate Professor Gutman. Dr Chatoor denied that and provided the answer we have previously set out. We have considered that explanation as reasonable.
In relation to the suggestion by Associate Professor Gutman that he would have used a "guideliner", Dr Chatoor was asked about the suggestion that a guideliner can be used when stenting is difficult because of tortuosity. He was asked if he used a guideliner. He said he had not on this occasion, although he has used guideliners in the past. He said he used other techniques. He said: … a guideliner is not without risk. If you advance a guide liner down a torturous coronary artery, the risk includes dissecting the right coronary artery and if you dissect a tortuous right coronary artery and you are already struggling to do a stent, it is a complete nightmare. The final issue with it is downstream ischaemia. If you have a torturous vessel and you put a guideliner down then you can get downstream ischaemia and if the patient becomes ischaemic during the procedure, it makes it all the more difficult. Dr Chatoor said that Patient B had tolerated the procedure without ischemia, without fluctuations in blood pressure, changes in heart rhythm, which is very reassuring when you are dealing with a difficult procedure.
In the written evidence of Dr Ali, which we have referred to herein, we note his evidence about the procedure.
Dr Ali said that in 2016, the choice to use a bare metal stent, given the patients pending surgery was within standard of care. A drug eluting stent would have confined him to a minimum of six months of dual antiplatelet therapy which would have precluded him from orthopaedic surgery.
Dr Ali opined that the procedure carried out by Dr Chatoor on Patient B on 5 March 2016 showed sound judgment. His choice not to perform atherectomy upfront, was within the standard of care.
Dr Ali opined: Techniques attempted by the practitioner show expertise in interventional cardiology. Amongst the described techniques include, advancing a balloon through the stent, inflating the balloon, and withdrawing the stent; twirling two wires around the stent; loop snare; biliary forceps; retained fragment retriever; and basket retrieval device. The practitioner attempted advancing a balloon through the stent, inflating the balloon, and withdrawing the stent and snaring. The other techniques may be of limited success because of severe calcification. Appropriately, the operator chose to exclude the stripped stent by placing a second stent and crushing the dislodged stent against the wall. This would maximise the lumen area and minimise the amount of metal that could obstruct flow within the main right coronary artery.
Dr Ali said: Previous studies have shown that exclusion of a dislodged stent by crushing it with another stent does not lead to major adverse cardiovascular events (Brilakis et al. Catheter Cardiovascular Interv, 66 (2005), pp. 333-340). The operator chose to use Synergy stents known to be of the lowest possible profile in 2016, showing judgement in stent choice even after these events.
In relation to Complaint 1, Particular 3, Dr Ali said: "it is not unusual for a stent not to deliver on the first occasion." Dr Ali set out detail from studies he referred to in relation to atherectomy. He opined that Dr Chatoor's "choice not to perform atherectomy upfront was within standard of care."
In relation to Complaint 1, Particular 4, Dr Ali said: "I disagree". He said: After failing to retrieve the first dislodged stent using a small balloon inflation and snaring techniques, excluding the stent from the main vessel circulation into the right ventricular margin branch, was a prudent manoeuvre. …. in chronic total occlusion percutaneous coronary intervention, sacrifice of the marginal branch during percutaneous coronary intervention is extremely common, with very infrequent consequence … exclusion into the right ventricular free wall branch, and exclusion by crushing of the residual stent into the side wall was an advanced manoeuvre. Moreover, many interventional cardiology techniques require crushing of stents including for example bifurcation stenting.
Dr Ali was critical of Associate Professor Gutman suggesting there was a discrepancy in the number of stents deployed by Dr Chatoor. He methodically described the count made by him which accorded with the count from Dr Chatoor and also the cath lab inventory.
Dr Ali commented upon Associate Professor Gutman's assertion that the American Cardiology guidelines do not recommend routine coronary Angiography before non-cardiac surgery. He said that statement was correct. However, Dr Ali suggests that Associate Professor Gutman failed to address the fact that the indication for angiography in Patient B was not strictly for perioperative risk assessment.
Dr Ali referred to Associate Professor Gutman suggesting that an alternative to using two wires is to use a guide extender then balloon dilation and stenting of the more proximal segment in the mid portion of the vessel may have assisted in stenting. Dr Ali said that was correct, however this must be balanced against additional metal and unnecessary vascular injury. As Patient B was originally planning to have orthopaedic surgery, Dr Ali said additional stents would increase the risk of stent thrombosis, particularly with bare metal stents and increase the risk of restenosis. Dr Ali said: I disagree that placing stents in areas without significant atherosclerosis and luminal narrowing would be prudent. It is unclear whether the Guideliner, or guide catheter extension was available to the practitioner, however this would have been one methodology to deliver the stents.
Associate Professor Gutman suggests Dr Chatoor attempted to perform the same procedure and predictably failed again. In response, Dr Ali said: Again it is certainly not uncommon for an operator to fail to deliver a stent on a first pass attempt, and use local techniques such as guide catheter manipulation, wire manipulation, to aid in successful delivery.
Dr Ali addressed Associate Professor Gutman's suggestion that most stent dislodgement occurs when the stent comes off the balloon, when the stent is withdrawn back into the guide which is not coaxial with the origin of the artery in angulation and results in shearing of the stent off the balloon. Dr Ali said dislodgment may be explained by various mechanisms. Dr Ali gave three different scenarios where that may occur. He said: Factors predisposing the stent dislodgement are: Poor support of the guiding catheter for the guide wire; vessel tortuosity proximal to the lesion; in adequate pre-dilation; and vessel calcification.
Dr Ali was critical of Associate Professor Gutman's statement that he was unsure how Dr Chatoor was able to deliver the balloon distal to the stent which was still on the wire. Dr Ali said: "This is actually a common technique". Dr Ali explained how that would be achieved.
Dr Ali was critical of Associate Professor Gutman's declaration that he would have personally not pushed the undeployed stent into the RV wall branch. Dr Ali said: "I believe that this was a prudent manoeuvre after delivery of the balloon and snares failed". Dr Ali explained that statement.
Dr Ali said he did agree with Associate Professor Gutman that "rather than try and directly deploy a second stent to crush the dislodged first stent, pre-dilation should be performed". Dr Ali said: "Another technique to withdraw a dislodged stent is to use the technique known as wire wrap." Dr Ali said that Dr Chatoor "wired the side of the stent in the right ventricular marginal branch in an attempt to retrieve it by tingling in it. Unfortunately, this failed. This was an appropriate attempt prior to crushing the stent".
In his oral evidence before us, we noted that in relation to the stent which was located in the side branch, Dr Ali was asked if he agreed with Associate Professor Gutman's evidence that it would have been preferable to crush the stent in the main artery. He said: "I disagree with that evidence." He said: Because the less metal that is placed in the main artery the better. In fact in many complex interventional procedures, we purposely shear them off without consequence. So, if having to compromise the main vessel versus the right ventricular marginal branch, one would always favour the main vessel.
Dr Ali said he did not believe there was any evidence to support Associate Professor Gutman's statement that crushing the stent in the side branch increases the risk of myocardial infarction. Dr Ali did not agree that the use of smaller stents would have created an increased risk for Patient B. He did not believe a fractional flow test should have been conducted prior to proceeding with angiography.
Dr Ali was asked whether he agreed with Associate Professor Gutman when he said "right coronary stenosis before any operation will not improve the prognosis in someone who is asymptomatic." He said he did not agree with that and explained why.
Dr Bellamy said: I think Dr Chatoor went through the steps quite logically when he was trying to sort out the problem and I think this patient was also saved from having urgent bypass surgery. I think a lot of interventionalists in Australia who are all practising good fellows would have sent the patient for a urgent bypass surgery which is not a good outcome… I think Dr Chatoor is to be congratulated for his role in this procedure because I think a lot of other people would have cracked under the pressure and not done as well and not got such a good result.
Dr Bellamy said in his report: I have reviewed Patient B's angiogram from the procedure and the steps taken to retrieve the stents were logical. Clearly, I felt that the way Dr Chatoor handled himself during this procedure was of high standard. I do not agree with Associate Professor Gutman's assessment of the procedure. He said that: [T]he departure from the standard was significantly below that standard or otherwise. Having performed many procedures and seen many complications both my own and other practitioners, I would say that the performance of the procedure was at or above the standard required of an interventional cardiologist. I think the procedure was carried out well and the complications were dealt with appropriately and skilfully.
Dr Oldfield set out in his credentials that he has implanted more than 3,000 stents in his career. He attended at the time of the procedure in response to a request for assistance from Dr Chatoor. In his report, he said: At no stage did I feel it necessary to take over the case. Dr Chatoor undertook Patient B's coronary procedure calmly and skilfully. His decision-making in this case was appropriate and his interventional performance was certainly at or above the level of a practitioner of an equivalent level of training and experience. My overall recollection is that Dr Chatoor behaved professionally and extremely competently throughout the time I was present. I strongly disagree with Associate Professor Gutman's assessment of his interventional performance in this case.
Dr Oldfield said that Associate Professor Gutman: [A]lso stated that he would not push the lost stent into the RV wall branch. This was undertaken during Patient B's case and was both a reasonable choice and effective in managing this complication. He questioned Dr Chatoor's ability to wire the stent in the RV wall branch but I can confirm that Dr Chatoor was able to do just that, which I personally verified with the use of fluoroscopy in orthogonal views.
Dr Oldfield disagreed with Associate Professor Gutman's view that: [T]he deployment of two Synergy stents in the mid RCA to jail the stent in the RV wall is by no means below an acceptable standard and I therefore strongly disagree with Associate Professor Gutman's statement in that regard. I have seen a number of very experienced interventionalists perform this very procedure over the years.
Dr Oldfield said that Dr Chatoor's: [I]nterventional ability in dealing with the complication was at or above the level of a practitioner of an equivalent level of training and experience. Patient B's cardiovascular outlook is likely to be better following percutaneous revascularisation. I do not share many of the criticisms which have been so strongly expressed by Associate Professor Gutman.
We have set out a sample of the evidence which we have reviewed in reaching a conclusion in this matter. It has not been possible to simply "dot point" concise summary of the evidence which has been of the greatest influence upon us in reaching our decision.
If it is possible to summarise the evidence which we have accepted in this matter, it is that we have been particularly influenced by the evidence of both Dr Ali and Associate Professor Holloway. We have been significantly assisted by the evidence of both Dr Bellamy and Dr Oldfield who have both supported the evidence given by Dr Ali.
We find that the HCCC has not established, to our satisfaction, that: During the procedure on 5 February 2016, after the first attempt to deliver a Terumo Tsunami Gold bare metal stent ("the first stent") was unsuccessful, Dr Chatoor failed to exercise appropriate care or demonstrate appropriate skill or judgement in that he attempted to deliver the first stent again in the circumstances set out in Particular 3.
Further, we find that the HCCC has not established, to our satisfaction, that: During the procedure on 5 March 2016, the practitioner failed to exercise appropriate care or demonstrate appropriate skill or judgement in that he pushed the first stent into the right ventricular wall branch in circumstances set out in Particular 4.
We are further not satisfied that the evidence touching upon Particulars 3 and 4, combined, establishes to the requisite standard that Dr Chatoor engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Particular 5

The particular alleges as follows: 5. During the procedure on 5 March 2016, when the practitioner deployed another Terumo Tsunami Gold bare metal stent ("the second stent"), the practitioner failed to exercise appropriate care or demonstrate appropriate skill or judgement to avoid the second stent coming off the balloon in the mid-course of the right coronary artery in circumstances where: (a) The first stent had already come off the balloon; (b) The first stent had apparently come off the balloon due to tortuosity and calcification in the mid right coronary artery; (c) The practitioner had not attempted to overcome the tortuosity and calcification in the mid right coronary artery; (d) The practitioner should have attempted an alternate approach at that stage.
The evidence which addresses this Particular has been set by us in these reasons. We do not accept that the HCCC has established, to our satisfaction, that: During the procedure on 5 March 2016, when Dr Chatoor deployed another Terumo Tsunami Gold bare metal stent ("the second stent"), he failed to exercise appropriate care or demonstrate appropriate skill or judgement to avoid the second stent coming off the balloon in the mid-course of the right coronary artery in circumstances set out in the Particular.
We do not restate the evidence which touches upon this Particular as we have set it out, as we considered Particulars 3 and 4 and elsewhere in these reasons.
In so determining, we have accepted the evidence of Dr Chatoor, Dr Ali, Dr Bellamy and Dr Oldfield in preference to the evidence of Associate Professor Gutman. We do so because of the concerns we have already raised about the role and function which Associate Professor Gutman demonstrated as an expert witness. We have also accepted the logic and referenced opinions of Dr Ali. We were particularly struck by the logic of Dr Ali's words in relation to the necessity for the procedure undertaken by Dr Chatoor, where he said: I think we have to take into account that the patient was planned for surgery in one week's time and as a result, the things that may be, or potentially be, the most deadly to the patient should be ruled out in sequence, of which, I would say primary artery disease would be on the top of that list.
We were impressed by the practical experience of Dr Bellamy and his reference to "Local Guidelines/Practices". We were impressed with the evidence of Dr Oldfield as a very experienced interventional cardiologist and his evidence as to the manner in which Dr Chatoor conducted himself during the procedure. We accept that others may not have been so calm and persistent faced with the trauma which emerged for both proceduralist and patient.
We have accepted that "the standard" against which s 139B(1)(a) requires to be considered is that stated by Dr Ali and Associate Professor Holloway and which standard, by their evidence, is supported by Dr Bellamy and Dr Oldfield. We are therefore not satisfied that on 5 March 2016, when the practitioner deployed another Terumo Tsunami Gold bare metal stent ("the second stent"), the practitioner failed to exercise appropriate care or demonstrate appropriate skill or judgement to avoid the second stent coming off the balloon in the mid-course of the right coronary artery. We are not satisfied that the conduct of Dr Chatoor was "significantly below" the standard, which we have determined should be applied to this decision.
We have considered each particular and we are satisfied that none of the Particulars alone would establish, to our satisfaction, that Dr Chatoor has acted in a manner, which satisfies the requirements of s 139B(1)(a), and which would then establish he was guilty of unsatisfactory professional conduct. In so deciding we are applying "the standard" which we accept was that recognised and evidenced in the words of Dr Ali and Associate Professor Holloway (supported by Dr Bellamy and Dr Oldfield). Further, we are not satisfied that all the particulars, seen as a whole, would establish the Complaint brought by the HCCC against Dr Chatoor. That determination is founded upon our acceptance that Dr Ali and Associate Professor Holloway establish to our satisfaction "the standard" in this case.
In conclusion, we are not satisfied the Complaint has been established and we propose to dismiss it.

Orders

We will make the following orders: 1. The appeal filed by Dr Chatoor on 28 January 2020 against the decision of the Professional Standards Committee made 7 January 2020 is allowed and the Complaint filed by the HCCC against Dr Chatoor on 15 March 2018 is dismissed. 2. The Cross-Appeal by the HCCC filed on 3 February 2020 against the decision of the Professional Standards Committee made 7 January 2020 is dismissed. 3. The parties are to confer in relation to any costs application which either may seek to pursue arising from the Tribunal's decision in this matter. If an agreement is reached, a minute of an agreed order is to be forwarded to the Registrar for referral to the Tribunal. In the event of no agreement as to costs being reached within 21 days from the date of this order, either party may apply for a cost order, provided any such application is made, in writing, to the Registrar and to the other party, on or before six weeks from the date of this order, supported by a written submission. 4. Should a cost application be made pursuant to Order 3 hereof, then any response to same which is sought to be relied upon is to be provided to the Registrar and the other party, within 14 days of receipt of the application.

Endnotes

Section 3A of the National Law
Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]
Section s3(2)(a) of the National Law; HCCC v Do [2014] NSWCA 307 at [35]
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637
Transcript 13/5, page 51-52 [37]-[7].
Dr Oldfield report, tab A6a
Transcript, tab 9, Day 1, p
Tab A8a, p 21
Tab A8a, p 24
Briefing letter to Dr Bellamy, tab A5c
Tab 9, page 477 [10]-[13].
Transcript 13/5 page 71, [26]-[30].
Dr Bellamy report, tab A5a
Briefing letter to Dr Bellamy, tab A5c
Dr Bellamy report, tab A5a p 46
Briefing letter to Dr Bellamy, tab A5c
Dr Bellamy report, tab A5a
Dr Gutman's PSC evidence, Tab 9, page 480 [6]-[11].
Dr Bellamy PSC evidence, Tab 9, page 511 [7]-[22].
Tab A8a, page 14
Tab 9, page 570 [19]-[31].
Patient B's Complaint, tab 2
Tab 9, page 565 [17]-[22].
Tab A8a, page 11
Tab 9, 593 [6]-[29].
Transcript 14/5 page 28 [8]-[29].
Transcript 14/5 page 34 [37]-[45].
Practitioner's submissions, tab A3
Tab 9, page 482 [11]-[20].
Patient B's Complaint, tab 2
Tab A8a, pages 15 and 16
Practitioner's submissions, tab A3
Practitioner's evidence, Tab 9, page 467 [21]-[25].
Tab 9, page 548 [2]-[6]. 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: 08 February 2021

Medical Practice Act 1992(NSW)

(Priestley JA). Under the Medical Practitioners Act 1938(NSW)

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (2)

Cases Cited (7)