Health Care Complaints Commission v Gayed - [2018] NSWCATOD 165 - NSWCATOD 2018 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Gayed

[2018] NSWCATOD 165

NCAT Occupational|2018-06-06|Before: Dr J

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2018-06-06

Before

Dr J

Catchwords

Health Care Complaints Act 1993

Source

Original judgment source is linked above.

Catchwords

Health Care Complaints Act 1993

Judgment (35 paragraphs)

[1]

Introduction

These are disciplinary proceedings against the respondent practitioner under the Health Practitioner Regulation National Law (NSW) ("the National Law").The practitioner was first registered as a medical practitioner in New South Wales on 17 May 1994. He has been practising as a registered medical practitioner holding a speciality in obstetrics and gynaecology.
From 1999 onwards, the practitioner practised in a regional town and was a Visiting Medical Officer at the Public Hospital there. He also continued to occasionally practice at Mona Vale Hospital and Delmar Private Hospital. But his practice at those two hospitals had ceased in 2007. He also conducted a private practice in the regional town.
As a result of patient complaints, on 28 February 2016 the practitioner resigned from his position as a Visiting Medical Officer at the public hospital of the regional town.
There was a hearing of proceedings under s 150 of the National Law regarding the practitioner on 1 April 2016. The outcome was that extensive conditions were imposed on the practitioner's registration including:- 1. Not to perform certain specified surgery; 2. Not to perform laparotomy; 3. To practice under Category B Supervision; and 4. Not to perform any procedures in an operating theatre without approval of a supervisor.
On 29 November 2017 there was a hearing of an appeal by the practitioner from that decision. The result was that his registration as a medical practitioner was suspended from 30 November 2017. The suspension was subsequently lifted on 13 February 2018 and the practitioner surrendered his registration on 7 March 2018.
These disciplinary proceedings against the practitioner were in respect of professional conduct in the years 2015 and 2016 while he was practising in the regional town in New South Wales. The applicant Commission alleged that the practitioner has engaged in numerous incidences of unsatisfactory professional conduct and that together they amount to professional misconduct.

[2]

The Complaints

The complaints in the Amended Application filed on 4 June 2018 are: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) (The "National Law") HEREBY COMPLAINS THAT Dr Emil Gayed ("the practitioner") of Unit 5a, 5 Dee Why Parade, DEE WHY NSW 2099 being a medical practitioner registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each of the particulars individually justify a finding of unsatisfactory professional conduct. Alternatively, any combination of the particulars taken together justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT ONE The practitioner was first registered in New South Wales on 17 May 1994. He holds a speciality in obstetrics and gynaecology. At the relevant period, the practitioner was a Visiting Medical Officer in the Maternity and Gynaecological Division at a regional hospital. The practitioner resigned from this position on 28 February 2016. Patient A presented at the Emergency Department at the regional hospital on 27 January 2016 with severe abdominal and pelvic pain for the preceding five days. PARTICULARS OF COMPLAINT ONE Patient A 1. On 27 January 2016, the practitioner failed to provide appropriate care and treatment for Patient A in that he recommended to the Patient a hysterectomy as the only clinical option to remove a fibroid, on the basis of the pre-operative ultrasound report and the CT scan undertaken in the emergency department at the regional hospital which was not clinically indicated in light of Patient A's complex surgical history and other available treatment options. 2. On 27 January 2016, the practitioner failed to consider alternative, conservative treatment for Patient A that involved rest, analgesia and observation before performing a hysterectomy on the patient in circumstances where: a) Patient A wanted to limit the procedure to a myomectomy; b) Patient A had a complex surgical history. 3. On 28 January 2016, the practitioner failed to obtain informed consent from Patient A in relation to the hysterectomy in that: a) the consent form did not represent a clear description of intent or of possible complication associated with the procedure' b) Patient A requested that the procedure be limited to a myomectomy; c) Patient A's request was not recorded in the consent form. 4. Prior to performing the procedure on Patient A on 4 February 2016, the practitioner failed to consider and/or recommend conservative management of Patient A and/or refer Patient A to a tertiary facility for the procedure in circumstances where: a) the practitioner was aware of Patient A's surgical history; b) Patient A was a high risk, surgically complex patient; c) Patient A's condition was not so acute as to warrant immediate intervention. 5. On 4 February 2016, the practitioner performed a hysterectomy on Patient A at the regional hospital that was not clinically indicated in the circumstance where: a) a myomectomy would have been appropriate treatment; b) the practitioner knew that Patient A was a high risk, surgically complex patient; c) the practitioner was aware of contrary advice from the Director of Obstetrics and Gynaecology the regional hospital; d) Patient A requested conservative treatment such as a myomectomy and did not want a hysterectomy. 6. On 4 February 2016, during the hysterectomy procedure on Patient A, the practitioner failed to identify the large uterine fibroid that was present in circumstances where it was clearly identified on medical images and by another practitioner who attended the procedure which, had he identified it, would have clinically indicated that performing a myomectomy was the appropriate procedure instead of hysterectomy. 7. During the procedure on 4 February 2016, prior to the closing of the wound, the practitioner failed to adequately secure haemostasis from the: a) infundibulopelvic ligaments; b) posterior surface of the cervix; c) omentum, COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to ensure that the clinical record for Patient A was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that he failed to: a) document any evidence of an examination; b) provide a diagnosis; c) recording advice given to Patient A; d) provide any alternative options for management or advice relating to inherent risks; e) write the operative report despite the complexity of the surgery. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each of the particulars individually justify a finding of unsatisfactory professional conduct. Alternatively, any combination of the particulars taken together justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT THREE On 8 July 2015, Patient B was referred to the practitioner for management of a vaginal polyps and/or cyst. Patient B attended the practitioner on 15 July 2015 for initial consultation. PARTICULARS OF COMPLAINT THREE Patient B 1. During a consultation on 15 July 2015, the practitioner failed to undertake appropriate clinical examination and management of Patient B in relation to the need for an endometrial ablation in that: a) the ultrasound conducted in the practitioner's rooms lacked specificity in regards to the description of the size, number and position of the uterine fibroids present; b) the practitioner failed to take note of the endometrial thickness or the nature of Patient B's ovaries; c) the practitioner failed to refer Patient B for a formal ultrasound examination prior to discussion of treatment options; d) the practitioner failed to consider and/or discuss any alternative treatment options with Patient B. 2. On 15 July 2015, the practitioner failed to consider and/or recommend conservative management of Patient B and decided to undertake surgery as the first line of treatment in circumstances where Patient B's presentation and complaint was in relation to a vaginal polyp which would indicate a consideration for non-surgical treatment, such as the use of a Mirena device. 3. Following the initial consultation on 15 July 2015, the practitioner failed to perform a diagnostic hysteroscopy to ascertain Patient B's suitability for an endometrial ablation, prior to undertaking an endometrial ablation on 11 November 2015. 4. on 11 November 2015, the practitioner failed to undertake appropriate clinical examination and management of Patient B during a hysteroscopic endometrial ablation with rollerball diathermy in that: a) there was no cervical dilation recorded in the operative record, which would be expected prior to performing the procedure; b) the practitioner failed to identify the intra-uterine pregnancy; c) the practitioner failed to undertake any preoperative treatment with medication such as progestins or gonadotropin-releasing hormone analogue; d) the practitioner failed to review Patient B prior to the operation despite the number of delays in booking the operation. 5. Upon discovering Patient B's pregnancy around 15 January 2016, the practitioner failed to consult with a feto-maternal medicine specialist in relation to the risks to the fetus that the surgery on 11 November 2015 may have caused prior to recommending termination of the pregnancy as the only treatment option. COMPLAINT FOUR Is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars individually justify a finding of unsatisfactory professional conduct. Alternatively, any combination of the particulars taken together justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT FOUR The background to Complaint Three is repeated. PARTICULARS OF COMPLAINT FOUR 1. Around 15 January 2016, the practitioner failed to disclose a SAC 2 event (being the discovery of Patient B's pregnancy) immediately to either the Director of Obstetrics and Gynaecology and/or the Director of Clinical Services at the regional hospital in accordance with the 'NSW Health Incident Management Policy (PD2014_004)'. 2. The practitioner failed to appropriately manage the care of Patient B after discovering that the patient was pregnant in that he offered to pay for the termination of Patient B's pregnancy and the associated travel expenses to attend in Sydney on 18 January 2016 and made arrangements for same in circumstances where the practitioner: (a) failed to identify the pregnancy during the procedure on 11 November 2015; (b) recommended to Patient B that termination of the pregnancy was the only treatment option; (c) did not seek advice or guidance from supervisors or other experienced practitioners prior to making the arrangements. COMPLAINT FIVE Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 BACKGROUND TO COMPLAINT FIVE The background to Complaint Three is repeated. PARTICULARS OF COMPLAINT FIVE 1. The practitioner failed to ensure that the clinical record for Patient B was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that he failed to provide detail regarding: a) clinical findings; b) investigations conducted; c) differential diagnoses discussed; d) discussion of treatment options; e) benefits and disadvantages of treatments. COMPLAINT SIX is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010. BACKGROUND TO COMPLAINT SIX Patient C was referred to the practitioner on 15 September 2015 for opinion on termination of 11 week pregnancy. Patient C first attended the practitioner on 16 September 2015. PARTICULARS OF COMPLAINT SIX Patient C 1. The Practitioner failed to ensure that the clinical record for Patient C on 16 September 2015 was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) regulation 2010 in that he failed to document an adequate medical history including Patient C's current medications. COMPLAINT SEVEN Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 BACKGROUND TO COMPLAINT SEVEN Patient D first attended the practitioner on 11 May 2011 for management of a pregnancy. PARTICULARS OF COMPLAINT SEVEN Patient D 1. The practitioner failed to ensure that the clinical record for Patient D was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the clinical record was: a) brief; and b) perfunctory in nature. COMPLAINT EIGHT is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT EIGHT Patient E was attended the Emergency Department at the regional hospital on 4 February 2016 with musculoskeletal back pain. She was 15 weeks pregnant at the time. Patient E was admitted to the practitioner's care at 20:07 hours on 5 February 2016. The practitioner first attended on Patient E at 13:30 hours on 6 February 2016. PARTICULARS OF COMPLAINT EIGHT Patient E 1. The practitioner failed to conduct a clinical review of Patient E for over twelve hours after she had been admitted under his care in circumstances where: a) no explanation was provided for the delay; b) it was clinically inappropriate to delay reviewing Patient E given her clinical circumstances. COMPLAINT NINE is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT NINE Patient F attended the Emergency Department at the regional hospital on 8 March 2013 complaining of lower abdominal pain and intermittent vaginal bleeding. Patient F again attended the Emergency Department at the regional hospital on 13 March 2013. PARTICULARS OF COMPLAINT NINE Patient F 1. On 8 March 2013, the practitioner performed a suction curettage on Patient F, at first instance, to manage her secondary post-partum haemorrhage, which was not clinically indicated in circumstances where more conservative treatment methods such as admission, rest, analgesia, intravenous antibiotics and Tranexamic acid should have been attempted and only if they failed, should the suction curettage have been undertaken. 2. On 13 March 2013, the practitioner failed to undertake appropriate clinical examination and management of Patient F prior to performing a loop excision of the transformation zone ('LLETZ') and cone biopsy on Patient F in that he failed to: a) undertake a physical examination of Patient F; b) consider and/or discuss any alternative management plans with Patient F; c) discuss potential complications with Patient F. ] 4. On 13 March 2013, the practitioner's decision to perform a loop excision of the transformation zone ('LLETZ') and cone biopsy on Patient F to stem her post-partum cervical bleeding was not clinically indicated in that: a) an LLETZ and cone biopsy are procedures that are used for the diagnosis and management of pre-cancer of the cervix and there was no evidence that Patient F had cervical malignancy; b) these procedures should not have been undertaken at a regional hospital. 5. On 13 March 2013, the practitioner advised Patient F that he suspected she had cervical cancer and failed to provide adequate management for the patient in that he failed to refer Patient F to a gynaecological oncologist for further assessment in light of his suspicion. COMPLAINT TEN Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 BACKGROUND TO COMPLAINT TEN The background to Complaint Nine is repeated. PARTICULARS OF COMPLAINT TEN 1. The practitioner failed to ensure that the clinical records for Patient F was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the clinical records failed to record: a) a detailed medical history; b) details of a clinical examination; c) any discussion of alternative treatments; d) any discussion regarding risks and consequences of the procedures. COMPLAINT ELEVEN is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each of the particulars individually justify a finding of unsatisfactory professional conduct. Alternatively, any combination of the particulars taken together justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT ELEVEN Patient G represented to the Emergency Department at the regional hospital on 21 October 2015 with right sided lower abdominal pain in association with a missed miscarriage. Patient G again attended the Emergency Department at the regional hospital on 23 October 2015 complaining of abdominal pain which had been increasing. The practitioner saw Patient G on 24 October 2015 and noted she had "quite severe" pain. Patient G was booked for a laparoscopy and dilation and curettage to occur on 25 October 2015. On 2 November 2015, Patient G was brought to the regional hospital by ambulance and was complaining of severe pain. PARTICULARS OF COMPLAINT ELEVEN Patient G 1. On 22 October 2015, the practitioner performed a suction curettage, at first instance, on Patient G to manage her severe right iliac fossa pain, which was not clinically indicated in circumstances where the practitioner: a) failed to address Patient G's cause of pain which was her presenting symptom; b) failed to made a clear diagnosis for the cause of Patient G's pain; c) failed to consider any further examination or consultations to make a diagnosis; d) failed to consider alternative forms of treatment in light of Patient G's early pregnancy failure; e) was aware of Patient G's medical history and should have been reluctant to perform further surgical procedures. 2. On 25 October 2015 the practitioner performed a laparotomy on Patient G to manage her severe right iliac fossa pain, which was not clinically indicated in circumstances where the practitioner: a) did not consider any alternative means of performing a laparoscopy such as an open approach or an initial incision in the left upper abdomen. b) failed to consult with a general surgeon regarding Patient G's cause of pain; c) undertook the procedure without a proper diagnosis and/or clear objective.
1. On 25 October 2015, the practitioner performed a right salpingo-oophorectomy on Patient G to manage her severe right iliac fossa pain, which was not clinically indicated in circumstances where the practitioner:
a) there was no recorded evidence of significant abnormality in either the pre-operative imaging or from direction inspection during the operation;
b) the histopathology recorded normal findings;
c) unnecessarily removed Patient F's right fallopian tube and ovary which appeared normal.
1. The practitioner inappropriately discharged Patient G from the regional hospital on 31 October 2015 in circumstances where:
a) Patient G was still complaining of abdominal pain and bloating;
b) no diagnosis made as to the underlying cause of Patient G's pain. 5. The practitioner failed to diagnose Patient G's ureteric injury on her further presentation to the hospital on 2 November 2015 or consider the possibility of a ureteric injury and undertake further appropriate investigations, in circumstances where Patient G's presenting symptoms were indicative of a ureteric injury, namely: a) ongoing severe pain; b) excessive wound drainage; c) large amount of retroperitoneal fluid. COMPLAINT TWELVE Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 BACKGROUND TO COMPLAINT TWELVE the background to Complaint Eleven is repeated. PARTICULARS OF COMPLAINT TWELVE 1. The practitioner failed to ensure that the clinical records for Patient G were completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the clinical records failed to record: a) a detailed medical history; b) detailed record of examinations undertaken; c) detailed record of discussion of alternative treatment options. COMPLAINT THIRTEEN is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT THIRTEEN The backgrounds to Complaint One to Twelve is repeated. PARTICULARS OF COMPLAINT THIRTEEN 1. Complaint One, Particulars 3, 5 and 6 are repeated and relied on individually. 2. Complaint Three, Particulars 4 and 5 are repeated and relied on individually. 3. Complaint Four, Particular 2 is repeated and relied on individually. 4. Complaint Eleven, Particulars 2, 3 and 5 are repeated and relied on individually. 5. Complaints One to Twelve and the Particulars thereof are repeated and relied upon cumulatively.

[3]

The Evidence

The evidence comprised: - 1. Complaint dated 11 November 2017. 2. Certificate of Registration Status. 3. Complaint of Patient A dated 9 February 2016. 4. Statement of Patient A of 8 November 2016. 5. Statement of Dr Nigel Roberts of 22 March 2016. 6. (5)(a) Booking statement by Dr Roberts. 7. Statement of Dr Eliza Griffiths of 24 March 2016. 8. Notes taken from a telephone interview of Dr Terence Buckman of 11 February 2016. 9. Email from Dr Vanessa Tatham to Dr Omasa Ali A/Director Clinical Services of the regional hospital of 8 April 2016. 10. Medical Records - Dr Gayed. 11. Clinical records - of the regional hospital. 12. Complaint - Patient B of 30 March 2016. 13. Statement of Patient B. 14. Medical Records - Dr Gayed. 15. Clinical records - the regional hospital. 16. Complaint - Hunter New England Local Health District (HNELHD) of 24 February 2016. 17. Notification of outcome of investigation from HNELHD of 7 April 2016. 18. Confidential Internal Review Report of 5 April 2016. 19. Medical records - Dr Gayed. 20. Clinical records - the regional hospital. 21. Medical Records - Dr Gayed. 22. Clinical Records - the regional hospital. 23. Clinical records - the regional hospital. 24. Complaint - Patient F of 3 November 2015. 25. Statement of Patient F of 18 July 2016. 26. Clinical records - the regional hospital. 27. Medical Records - Dr Gayed. 28. Medical records - Dr David Walkom. 29. Clinical records - John Hunter Hospital. 30. Clinical records - T Private Hospital. 31. Clinical records - N Private Hospital. 32. Medical records - Dr John Bailey. 33. Complaint - Patient G of 17 November 2015. 34. Medical records - Dr Gayed. 35. Clinical records - the regional hospital. 36. Clinical records - John Hunter Hospital. 37. Letter from the Commission to Dr Geraghty of 22 November 2016. 38. Expert Report of Dr Geraghty of 6 January 2017 and documents referenced in the Report at Tabs 38 to 42. 39. Epidemiology, clinical manifestations, Etiology, diagnosis and natural history of uterine leiomyomas; EA Stewart; Up to Date Nov 16. 40. Interventions to reduce haemorrhage during myomectomies for fibroids; EJ Kongnymy & CS Wiysonge; Cochrane Gynaecology and Fertility Group; Cochrane Data Base; reviewed August 2014. 41. Avant: Guidelines for patient consent; avant.org.au 42. Endometrial ablation: Considerations and complications; Moulder JK & Yunker A Current Opinion in Obstetrics and Gynaecology; vol 28(4) Aug 2016 Pg 261-266. 43. Normal Ranges of Embryonic Length, Embryonic Heart Rate, Gestational Sac Diameter and Yolk Sac Diameter at 6-10 weeks: George I.Papaioannou, Argyro Syngelaki,Leona C.Y. Poon, Jackie A. Ross, Kypros H. Nicolaides; Fetal Diagn Ther 2010;28:207-219. 44. Email to Dr Geraghty from the Commission of 24 March 2017. 45. Email from Dr Geraghty to the Commission of 28 March 2017. 46. Letter from the Commission to Dr Anthony Geraghty of 16 August 2016. 47. Email from the Commission to Dr Anthony Geraghty of 10 October 2016 seeking clarification on expert standard. 48. a. Email from Dr Geraghty dated 13 October 2016. 49. Expert Report dated 28 September 2016 and documents referenced in the Report at Tabs 48 to 51. 50. Secondary post-partum haemorrhage; Challenges in evidence-based causes and management. Barbarinsa l.et al Euro J of Obs & Gyn and reprod Biol 159 (2011) 255-60. 51. Alexander J, Thomas PW, Sanghera J: Treatments for secondary postpartum haemorrhage. Cochran Database Syst Rev 2002; (1): CD002867. DOI:10. 1002/14651858.CD002867. 52. Postpartum Haemmorrhage, Prevention and Management (RCOG Green- top Guideline No. 52) Published: 11/05/2009. 53. Laproscopic Entry:A review of techniques, Technologies, and Complications. SOCG Clinical Practice Guideline. May 2007. 54. Supplementary report of Dr Geraghty of 25 November 2016. 55. CV - Dr Anthony Geraghty. 56. S28 letter from the Commission to Dr Gayed of 29 June 2016 regarding Patient A. 57. Letter to the Commission from Dr Gayed of 19 May 2016 regarding Patient A. 58. S28 letter from the Commission to Dr Gayed of 3 August 2016 regarding Patient B. 59. Letter to the Commission from Dr Gayed of 6 May 2016 regarding Patient B. 60. S28 letter from the Commission to Dr Gayed of 2 May 2016. 61. S28 letter from the Commission to Dr Gayed of 9 May 2016 regarding Patients A to E. 62. S40 letter from the Commission to Dr Gayed of 20 February 2017. 63. S40 Submissions from Dr Gayed of 21 March 2017. 64. Letter to the Commission from Dr Gayed of 20 November 2015 regarding Patient F. 65. S28 letter from the Commission to Dr Gayed of 19 February 2016 regarding Patient F. 66. Letter to the Commission from Dr Gayed of 18 December 2015 regarding Patient G. 67. S28 letter from the Commission to Dr Gayed of 29 February 2016 regarding Patient G. 68. S40 letter from the Commission to Dr Gayed of 18 October 2016. 69. S40 Submissions from Dr Gayed of 15 November 2016. 70. Letter from the Medical Council of NSW (MCNSW) to the Commission dated 8 April 2016 attaching Section 150 Documents (except medical records). 71. Written reasons for decision of Section 150 proceedings. 72. Audio recording of Section 150 proceedings held on 1 April 2016. 73. Transcript of proceedings on 1 April 2016. 74. Chronology. 75. Professional Standards Committee decision - 31 October 2001. 76. Report of First Performance Assessment 13 September 2004. 77. Report from counselling - Dr Peter Bland 2 November 2005. 78. Medical Tribunal decision - 30 March 2006. 79. Report of Second Performance Assessment - 25 October 2007. 80. Performance Review Panel decision - 25 June 2008. 81. Letter from Avant Law to NSW Medical Board of 12 February 2010 enclosing letter from Dr Gayed to the Board of 10 February 2010. 82. Report of Performance Re - Assessment - 25 February 2014. 83. Second Performance Review Panel Decision - 15 December 2014. 84. Minutes of Council's Performance Committee 27 January 2015. 85. Letter from the HNELHD to the Commission of 7 December 2015. 86. Email from AHPRA to MCNSW of 9 March 2016. 87. Letter from HNELHD to the MCNSW of 10 March 2016 enclosing clinical records (records contained elsewhere in brief). 88. Statement of Dr Gayed - 30 March 2016. 89. CV Dr Gayed. 90. Report of Professor Gordon Campbell of 2 March 2016. 91. Character reference from Dr Birgit Strong undated. 92. Letter from HNELHD to Patient G of 27 November 2015. 93. Transcript of s 150A review hearing on 29 November 2017. 94. Reasons of Delegates for decision in s150 review hearing on 29 November 2017 suspending Dr Gayed's registration. 95. Letter from the Commission to the HNELHD of 2 May 2016. 96. Letter from the HNELHD to the Commission of 27 May 2016 enclosing documents at Tabs 98 to 125. 97. Statement of CNS Anne Forrest of 17 March 2016. 98. Statement of Perioperative Circulating RN Lesley Bridges undated. 99. Statement of acting Midwifery Unit Manager Lyn Murray of 16 March 2016. 100. Statement of RN Noni Kerr of 10 February 2016. 101. Statement of Nursing Unit Manager Vicki Schubert of 10 February 2016. 102. Draft email from Dr Roberts to Dr Gayed of 5 February 2016. 103. Patient A - Precis. 104. Patient B - Precis. 105. Emails to and from Dr Roberts and Dr Gayed of 5 and 6 February 2016. 106. Report Dr Nigel Roberts - Removal from on-call duties - 6 February 2016. 107. Minutes of O & G Department of 8 February 2016 - First Meeting with Dr Gayed attaching document . 108. Dot points - Decision to remove Dr Gayed from on-call duties - 8 February 2016. 109. Letter from Dr Gayed to Patient B of 11 February 2016. 110. Email from Dr Roberts to Dr Gayed of 18 February 2016-Request not to contact Patient B. 111. Letter from Dr Gayed to the HNELHD of 18 February 2016 attaching documents at Tab 117. 112. List of Attachments to Dr Gayed's letter of 18 February 2016. 113. Bundle of attachments to Dr Gayed's letter of 18 February 2016. 114. Letter from Dr Ali to Dr Gayed of 24 February 2016. 115. Letter from Dr Ali to Dr Gayed of 26 February 2016. 116. Email from Dr Gayed to HNELHD of 26 February 2016. 117. Letter from Dr Gayed to Dr Ali of 4 March 2016 attaching a reference at Tab 122. 118. Reference from Dr Gordon Campbell Obstetrician Gynaecologist. 119. Letter from HNELHD to Dr Gayed of 8 March 2016. 120. Letter from HNELHD to Dr Gayed of 7 April 2016. 121. Letter from HNELHD to MCNSW of 7 April 2016. 122. RANZCOG Code of Ethical Practice November 2001, revised May 2006. 123. Good Medical Practice: A Code of Conduct for Doctors in Australia - March 2014. 124. NSW Health Code of Conduct 16 December 2015. PD2015_049. 125. Having a baby in NSW - Ministry of Health NSW. 126. Policy: Maternity Care. 127. Reply of the respondent dated 21 May 2018. 128. Report of Associate Professor Alan Lam dated 7 May 2018. 129. Report of Yh Tan and A Lethaby. 130. Review by Y H Tan and A Lethaby entitled "Pre-operative endometrial thinning agents before endometrial destruction for heavy menstrual bleeding". 131. CV of Clinical Associate Professor Alan M Lam. 132. Oral evidence of Dr D Roberts on 4 June 2018. 133. Oral evidence of Dr Geragthy on 4 June 2018. 134. Oral evidence of Associate Professor A Lam on 5 June 2018.

[5]

Expert evidence

The Health Care Complaints Commission relied upon expert evidence by Dr Anthony Geraghty, who is a VMO in obstetrics/gynaecology at Dubbo Base Hospital, Dubbo Private Hospital and Mudgee District Hospital. He has been in those roles since 1990. He qualified as a specialist in obstetrics/gynaecology in 1989 and became a Fellow of the College in 1990.
The practitioner relied upon expert evidence of Associate Professor Alan Lam, who has practised as a specialist in obstetrics/gynaecology since 1992. He has practised in the Sydney metropolitan area as a VMO in metropolitan hospitals, in private practice and as Associate Professor at the Sydney Medical School.
For all of the last 29 years, Dr Geraghty has been practising at the same rural hospitals in regional towns.
It appears from Associate Professor Lam's CV that he has for more than 20 years specialised in gynaecology and as a teacher and educator in that field both nationally and internationally. He has never practised in any regional or rural hospital. He has practised only in major hospitals in metropolitan Sydney.
Associate Professor Lam has devoted much more of his professional time to research, publications, journal reviews than Dr Geraghty. He has also devoted considerably much more of his time to presenting lectures and attending conferences than has Dr Geraghty. In addition, although Dr Geragthy has been involved in some teaching activities with his College and committees and also the AMA and Dubbo Medical Society, and has presented to other practitioners, he has devoted much less of his professional time to such activities than has Associate Professor Lam.
Similarly, Dr Geragthy has produced publications, but none since 1990, whereas Associate Professor Lam, in his CV has 160 publications since 1990 and another 43 articles in peer-review journals.
Associate Professor Lam also lists 40 surgical demonstrations at surgical conferences and workshops that he has presented since 1994.
The Tribunal is satisfied that Dr Geraghty is much more experienced in the day to day practice of obstetrics and gynaecology than Professor Lam. All of his experience is in regional hospitals whereas Associate Professor Lam has not practised in such locations and has only practised in major Sydney metropolitan hospitals.
The main need in relation to expert evidence was in terms of the issue of whether conduct complained of by the applicant fell within the definition of unsatisfactory professional conduct, particularly by para 139B(1)(a) as conduct demonstrating the knowledge skill or judgment possessed or care exercised by the practitioner is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience.
Tab 47 is the report of 28 September 2016 of Dr Geraghty (14 pages). At Tab 52 is a further detailed 3 page report of 25 November 2016 particularly responding to the practitioner's responses in respect of two the patients the subject of the complaints. Dr Geraghty's report of 6 January 2017 and documentary evidence is at Tabs 37 - 47 Volumes 3 and 4. Tab 37 is his revised report of 19 pages.
The body of Associate Professor Lam's report of 7 May 2018 is 21 pages.
Dr Geraghty's reports convey a much more careful and more detailed consideration of the issues.
Both Dr Geraghty and Associate Professor Lam gave considerable oral evidence. Dr Geragthy gave evidence in chief for about 50 minutes and then was cross-examined for more than 1½ hours. Associate Professor Lam gave very extensive oral evidence in chief to supplement his affidavit. That lasted for two hours. He was then cross-examined for about 90 minutes.

[7]

Professional Background of the Practitioner

The practitioner graduated with a Bachelor of Medicine and a Bachelor of Surgery in Egypt in 1976.
In 1993 he became a Fellow of the Royal Australia and New Zealand College of Obstetricians and Gynaecologists. He was first registered in New South Wales as a medical practitioner in 1994. He was registered as a "conditional specialist".
In July 1997 the Health Care Complaints Commission received a complaint by a patient alleging that she had consented for a laparoscopy but the practitioner had performed a laparotomy.
In October 1997 there was a further complaint to the Health Care Complaints Commission that the patient's bowel, ilium and uterus were perforated by the practitioner in a number of places ranging from 1cm to 5cm perforations. The complaint was dealt with by a Professional Standards Committee. He was reprimanded and ordered to undergo a performance assessment. It recommended informal counselling about some aspects of his practice.
In December 1998 there was another complaint from a patient of the practitioner who after surgery had needed to have further surgery to stop bleeding from an unknown source.
On 8 October 1998 the Health Care Complaints Commission received a complaint from Southern Area Health Service advising that a number of incidents had given rise to concerns about the practitioner's practice and led to his suspension from the Area Health Service. The allegations made were breaches of protocols for infection control and universal precautions, adequacy of patient's consents, alteration of a medical record, clinical competence, possible visual impairment and communication issues. These were all investigated and the matter was referred to a Professional Standards Committee. The Southern Area Health Service suspended the practitioner's visiting rights. The issues that gave rise to that suspension were about breaches of protocols including inadequacy of a patient consent.
On 15 December 1998 the Health Care Complaints Commission received a complaint from Cooma Health Service concerning care provided by the practitioner to two patients. One of those patients alleged that after the practitioner had performed a hysterectomy, she needed further surgery to stop the bleeding from an unknown source. There was an investigation and ultimately no further action.
On 23 December 1998 a patient complained to the Health Care Complaints Commission that she had suffered from incontinence since the practitioner had performed a D&C on her in August 1997. It was referred to the Professional Standards Committee.
The other patient to whom the Cooma complaint applied lodged a complaint in February 1999 saying that she had suffered ongoing problems with her health after she developed "bleeding in my stomach" requiring a laparoscopy, hysteroscopy and D&C performed by the practitioner. This was investigated but ultimately no further action was taken.
In April 2000 there was a complaint received from a patient alleging that she had required further surgery because she developed internal bleeding after surgery performed by the practitioner and also alleged that during a third operation later, it was found that the practitioner had stitched a section of her bowel to one of her ovaries. That complaint was investigated but no further action was taken.
A patient made a complaint to the Commission in May 2000 alleging that intercourse became painful after the practitioner performed a vaginal prolapse repair, that further surgery he performed failed to fix the problem, and subsequent surgery performed by another gynaecologist did. This complaint was referred to the Professional Standards Committee.
There was a Professional Standards enquiry on 20 - 28 August 2001. The Committee considered nine complaints to the Health Care Complaints Commission. He was found to be guilty of unsatisfactory professional conduct and to be an impaired practitioner owing to his vision problems. Conditions were imposed on his registration including limiting the types of surgical procedures he could undertake.
A Performance Assessment was conducted on 13 September 2004.
Among the orders made by the Professional Standards Committee was that the practitioner not undertake microsurgery and be periodically assessed by an ophthalmologist. It was also recommended that performance assessment be undertaken.
On 30 September 2003 North Sydney Area Health Service temporarily suspended the practitioner's VMO appointment because of a "cluster of seemingly adverse patient events". It was then decided there be a performance assessment.
On 4 March 2004 there was a complaint to the HCCC by a patient alleging that when it appeared that she had gone into labour at 22 weeks pregnant with twins, the practitioner refused to transfer her from the regional hospital to another hospital with facilities to care for very premature babies, and that the babies were left to die when they were born at 23 weeks. There was an investigation and ultimately no further action.
On 13 September 2004 there was a performance assessment of the practitioner and his professional performance was found to be "at the standard reasonably expected of a practitioner of an equivalent level of training or experience". The assessors recommended informal counselling of the practitioner about aspects of his practice which could be improved. That formal counselling occurred on 1 November 2005.
The Medical Tribunal conducted a review of the conditions of the practitioner's registration on 30 March 2006 and the conditions imposed in 2001 were removed.
The NSW Medical Board received notice on 16 March 2007 concerning a number of clinical incidents involving the practitioner and also notice that, by mutual agreement, the practitioner had resigned his appointment at Mona Vale Hospital. A further performance assessment was planned.
The Chair of the Medical Advisory Committee at Delmar Private Hospital notified the Health Care Complaints Commission on 26 March 2007 that the practitioner's clinical privileges had been temporarily suspended because of concerns about the care provided to three patients. The Board requested that the practitioner be assessed for impairment. The matter was referred to a performance committee.
The practitioner in 2007 resigned from his appointment at Mona Vale Hospital because of clinical incidents and complaints.
On 28 May 2007 the Medical Board received a complaint from a patient alleging that the practitioner perforated her bowel during a laparoscopy and then failed to recognise the complication. This was referred for performance assessment.
On 25 October 2007 there was another performance assessment. The practitioner's professional performance was found to be unsatisfactory in the areas of basic clinical skills (interviewing/examination), clinical judgment, patient management skills (treatment advice) and practical/technical skills.
On 23 April 2008 there was a Performance Review Panel hearing. The practitioner's professional performance was found to be unsatisfactory. Conditions were imposed in limiting the surgery that he could perform and requiring him to have a mentor. Re-assessment no sooner than six months' time was ordered.
On 6 July 2009 Patient G, who was one of the patients to whom the complaints in these proceedings relate complained to the Medical Board about a laparoscopy performed by the practitioner on her for endometriosis. She noted that he was not permitted to perform laparoscopies for moderate to severe endometriosis and queried why he was permitted to perform the surgery when he did not know what degree of endometriosis she had ahead of the surgery. The matter was referred to the Medical Board but no action was taken.
The Performance Committee of the Medical Board on 25 August 2009 decided that the mentorship condition on the practitioner's registration be removed.
On 24 May 2010 there was a complaint to the HCCC by a patient alleging that the practitioner failed to give her appropriate information about after-care following surgery he performed and that a large swab was left in her vagina, possibly causing an infection. It appears that the patient discontinued dealing with the Commission.
On 8 July 2011 there was a complaint to the Health Care Complaints Commission by a patient alleging that the practitioner did not obtain an informed consent from her before removing three-quarters of her cervix. She had consented to a laparoscopy and the practitioner had performed a laparotomy. There was also an issue that she required further surgery to remove an incorrectly placed stitch around the urethra. The matter was later referred to the Professional Standards Committee.
On 10 October 2013 the practitioner underwent a Performance Re-Assessment Review and his performance was found to be unsatisfactory in the areas of basic clinical skills (interview/examination), clinical judgment, practical/technical skills and interaction/communication with patients. The recommendation was that there be a Performance Review Panel hearing and regular ophthalmological assessment.
On 12 November 2013 there was a complaint to the Health Care Complaints Commission from a patient alleging that the practitioner had used non-dissolvable stitches following her Caesarean section but did not tell her of this, with the result that she required surgery one year later to remove the stitches.
On 16 October 2014 there was a second Performance Review Panel hearing. The finding of the hearing was that the practitioner's professional performance was of the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Panel considered that continuation of his existing conditions would be prudent, with variation to one condition.
On 27 January 2015 the Performance Committee considered the Panel's report and resolved to vary Condition 2 on the practitioner's registration to clarify the nature of the surgery that he is not permitted to perform.
On 5 March 2015 the HCCC received a complaint from a patient alleging that she developed a hernia at the site at which the practitioner performed a laparotomy, requiring further surgery.
On 18 November 2015 there was a complaint by the patient who had made a complaint to the Medical Board on 6 July 2009 alleging that she suffered serious complications after the practitioner did not recognise that he had severed a ureter during surgery performed to treat her endometriosis.
On 3 December 2015 the HCCC received a complaint from a patient alleging that the practitioner had provided inappropriate treatment for retained placenta following the birth of her child.
On 26 February 2016 there was a complaint received by the HCCC alleging that the practitioner performed a laparotomy on her in breach of his conditions.
On 4 March 2016 there was a notification from the Hunter New England Local Health District that the practitioner had been suspended from his duties at the regional hospital owing to concerns about the care he had provided to six patients. Those matters were being investigated by the HCCC.

[8]

Complaint One - Particular 1 - Consideration

The evidence in relation to this particular is in Patient A's statement of 8 November 2016, the practitioner's statement (Tab 55), and the practitioner's letter to the Health Care Complaints Commission of 19 May 2016.
Patient A did not want a hysterectomy as a method of removing a large fibroid that needed to be removed surgically. The practitioner advised her that she would need to have a full hysterectomy. She expressed the view that if there was to be a full hysterectomy she should go to the John Hunter Hospital, a tertiary facility, and the surgery would be complicated because of the fact that she had a long surgical history including five deliveries, all by caesarean sections, including one set of twins. In one of the caesareans she had sustained a 9 cm laceration in the urinary bladder and the second pregnancy two years later, she had a right carotid artery bypass. In early childhood she had had a partial right nephrectomy for renal reflux. At age 12 she had ruptured pelvic abscess and an appendectomy at age 14.
Because of the complexities, the surgical history and the size of the fibroid, Dr Roberts, the head of Obstetrics and Gynaecology at the regional hospital advised the practitioner that she should be transferred to John Hunter Hospital. The patient expressed a wish to go to John Hunter Hospital if the more conservative surgery of myomectomy could not be adopted.
The practitioner included other options besides a myomectomy on the consent form, but with question marks behind "hysterectomy", telling the patient that it would only happen if it were proved necessary.
Dr Geraghty and Dr Roberts considered that a myomectomy would have been possible. Dr Geraghty considered that rest and analgesia were possible options given the degeneration of the fibroid and also because of the patient's surgical history and personal wishes. More conservative surgery than hysterectomy would have been a better option.
Although Dr Roberts advised the practitioner that because of the patient's surgical history and the complexity of the procedure and the limitations of the regional hospital, the patient should be transferred to the John Hunter Hospital so that any surgery could be carried out there.
The practitioner conceded that he had obtained a detailed surgical history and discussed myomectomy with the patient and the patient had instructed him that she wanted to keep her uterus and ovaries.
Associate Professor Lam noted at pages 6 - 7 of his report that when the practitioner recommended a hysterectomy to Patient A, he was still awaiting the results of an ultrasound.
Associate Professor Lam considered that surgery by the practitioner was "hasty and ill-considered" and expressed the opinion that the practitioner should have referred the patient for an MRI to further assess the nature of the 'atypical' fibroid mass. But associate Professor Lam considered that the hysterectomy was "appropriate".
Dr Geraghty's opinion was that because of the patient's history, and her personal wishes, more conservative surgery (a myomectomy) would have been a more suitable option.
He also found that the conduct of carrying out a hysterectomy was "significantly below the standard and warranted strong criticism".
The evidence of what happened in the surgery established that the patient suffered very serious haemorrhaging and serious risk. There are two other factors that are relevant as to whether a hysterectomy was appropriate that did not play a part in the opinion of Associate Professor Lam. One is the serious limitations of the regional hospital in terms of supporting the surgery and ensuring the safety of the patient. Another is that notwithstanding his long training and experience, there were very serious qualifications and risks in terms of the surgical competence of the practitioner.
Dr Roberts was aware of these. Dr Geraghty in his report gave greater weight to these than did Associate Professor Lam.
Given the patient's wishes, her surgical history and the added risk involved in performing a hysterectomy on the patient in the regional hospital, the Tribunal finds on the balance of probabilities that the performance of a hysterectomy was not the only clinical option and a myomectomy would have been a more suitable option. The Tribunal therefore accepts the opinion of Dr Geraghty that the conduct of the practitioner in recommending a hysterectomy to the patient as the only clinical option without an MRI to further assess the nature of the fibroid was conduct that demonstrated the knowledge, skill or judgment possessed and care exercised by the practitioner was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Accordingly it was unsatisfactory professional conduct.

[9]

Complaint One - Particular 2 - Consideration

Patient A's evidence is clear that she informed the practitioner before the hysterectomy that she wanted to limit the procedure to a myomectomy. She had a complex surgical history.
She told the practitioner she wanted to keep her ovaries. She said she had done research and told him that she did not want a hysterectomy.
She told the practitioner that she wanted the procedure to be limited to the removal of the fibroid only and not to have a hysterectomy or have her ovaries removed.
The practitioner admitted her for severe abdominal and pelvic pain for five days. He claimed he had examined her but there was no documentation of any examination.
In his letter of 21 March 2017 to HCCC he claimed that conservative treatment was considered for the first two days but surgery was then required as conservative treatment did not control the symptoms. He testified at the s 150 hearing on 1 April 2016 that:- "I did discuss the options of either non-surgical technique, the option of radiology, like intervention to shrink the fibroid, the use Zoladex, which I use a bit for endometriosis and all these options were discussed in the meeting and also for the patient, but eventually there was agreement between me, the meeting attended by everyone, Dr Strong, Dr Roberts, myself. I said that it was agreed on the day before the surgery that 'surgery would be beneficial because of the particular circumstances that this fibroid was really adhered to the abdominal wall which might remain for a long period of time'".
However his claim that he examined her was not documented in the notes, and his clinical records did not include any consideration of conservative treatment. Given the red degeneration of the fibroid, rest and analgesia were possible options.
Associate Professor Lam suggested the patient had been admitted on 27 January 2016 for rest and analgesia but the clinical records record that she stayed only two days and was admitted because of pain.
It might be said that she was being treated by rest and analgesia on those two days, but it appears from the records that it was her own decision and not at any stage recorded that the practitioner consider that conservative treatment such as rest and analgesia was an option. On the contrary, on 28 January 2016 the day after her admission, the practitioner recorded that he was "awaiting final ultrasound and CT reports for laparotomy, myomectomy, ?? TAH on 4/2/16". "TAH" was Total abdominal hysterectomy.
The practitioner was contemplating a total abdominal hysterectomy at the time of making that note, which was before 9:00 am on 28 January, when Patient A had been in the hospital less than 19 hours. The options he listed on the morning of 28 January did not include rest and analgesia.
The patient left the hospital at 9:45 am on 29 January. The practitioner did not include in the clinical notes for the patient any reference to more conservative treatments.
It is reported in the nursing notes on 29 January when the patient was discharged that the pain had settled and "patient to return next week for planned procedure".
There was no record of the practitioner considering any alternative conservative treatment for Patient A that involved rest, analgesia and observation before performing a hysterectomy on the patient.
The practitioner claimed in his evidence to the s 150 hearing on 1 April 2016 that he had discussed other more conservative options with Dr Strong, and Dr Roberts, but there was no record of any such discussion.
The opinion of Dr Geraghty is that the practitioner should have given more consideration to conservative surgery as being a more suitable option. His opinion was that failing to do that was conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Associate Professor Lam considered that the practitioner had considered alternative conservative treatment and failed to recognise the potential implications of an ultrasound report and failed to refer the patient for a further MRI. He concluded that the conduct was below the relevant standard, but not significantly. However, Associate Professor Lam's opinion was based on a false premise that the practitioner seriously considered alternative conservative treatment. The evidence, including particularly his conduct in the early stages of the surgery, indicate that he had not given any serious consideration to conservative surgery or non-surgery options.
The Tribunal is satisfied on the balance of probabilities that in accordance with the expert opinion of Dr Geraghty, the practitioner's conduct was significantly below the standard and merited strong criticism.
Accordingly, Particular 2 is established as unsatisfactory professional conduct.

[10]

Complaint One - Particular 3 - Consideration

The clear evidence of the patient is that the consent form that she was required by the practitioner to sign did not represent a clear description of her intent or of possible complications associated with the procedure. She requested that the procedure be limited to a myomectomy and that was not recorded on the form he had her sign. She told him on 27 January 2016 that if a hysterectomy was absolutely necessary she wanted to keep her ovaries. He had her sign a consent on the day after she went to the hospital to authorise for a laparotomy for removal of the fibroid, a oophorectomy or a hysterectomy (with questions marks after it).
On 2 February when the patient attended the pre-admission clinic, she spoke to the anaesthetist, Dr Buckman. As a result, she spoke to a nurse and also then tried to telephone the practitioner. She left a message for him. He returned her call on 3 February when she told him that as a result of discussions with the anaesthetist she was extremely worried what would happen if something went wrong during the operation. She told him that if the procedure was too complex then she would prefer to be operated on at the John Hunter Hospital. He rejected that suggestion and said "I've been doing these procedures for 38 years and have substantial experience as a result. Why would I transfer you to JHH? I am competent to carry out the operation".
She then requested that the procedure be limited to the removal of the fibroid only and he said that once you have large fibroids they keep coming back and if the uterus is removed then there will be no more problems. She also said she was adamant to him that she wanted only to have the fibroid removed and not to have a hysterectomy or have her ovaries removed. He then assured her that he would not remove her ovaries and that the written consent she had signed could be changed to reflect their discussion. He said that it would be organised and sorted on her admission the following day. He also told her that he had arranged a back-up surgeon to assist him during the procedure if necessary.
When she was being prepared for the procedure on 4 February 2016 she again had a discussion with the anaesthetist and told him that she had spoken with the practitioner the previous day and she wanted to change the written consent to the removal of the fibroid only and if that procedure was too complicated, she wanted to be "sewn back up and transferred to John Hunter Hospital". Dr Buckman assured her that he was going to look after her and that everything would be alright and the practitioner was aware that she only wanted the fibroid removed. While she was in the anaesthetic bay, she and her husband spoke with Dr Griffiths. Patient A understood from Dr Griffiths she would be assisting the practitioner in the procedure. She told Dr Griffiths that she had spoken with the practitioner the previous night and reiterated to him that I only wanted the fibroid removed and that the consent would need to be altered. She also told Dr Griffiths that the practitioner had reassured her that when she came the paperwork would have been changed to reflect her wishes. Her husband asked that Dr Griffiths request the practitioner to come and speak with Patient A prior to going into the theatre.
Dr Griffiths returned and informed Patient A and her husband that the practitioner was busy scrubbing, in preparation for the operation, and he was aware of her wish to limit the procedure to the removal of the fibroid only.
However, the written consent was not changed in accordance with the patient's wishes.
Particular Three of Complaint One has been proved on the balance of probabilities.
The expert evidence of Dr Geraghty is that the respondent claimed that the consent form clearly documented the planned surgery, but it clearly did not. The practitioner claimed that the risk of bowel, vascular or urinary tract injuries were fully explained and agreed to and the risk of bleeding was also mentioned. But clearly the consent form did not properly reflect the limits the patient had placed on her consent.
The practitioner merely denied that the patient had requested that her consent be limited in the way she alleged.
In the practitioner's letter of 21 March 2017 to the HCCC at p 4 he acknowledged that he knew that "The minimum surgery possible was appropriate" and that the patient "wanted to keep the uterus and ovaries". But he said: "Her wishes were respected but she understood and signed a consent that indicated further surgery may be required".
In the s 150 hearing on 1 April 2016 the practitioner said that he discussed the patient and her condition with Dr Roberts on three occasions; 28 January, the following Wednesday 7 February and then finally the day of the surgery (4 February). He said: "The first discussion was it's high risk and it's better to transfer to John Hunter, which I fully agreed to".
The practitioner alleged at Tab 55 that the consent form "clearly documented" the planned surgery. He claimed that the risk of bowel, vascular or urinary tract injuries were fully explained and agreed to. He said the risk of bleeding was also mentioned. There was no documented record of any such discussions.
He claimed he had a clear plan to perform a laparotomy and remove the fibroid. He was aware of the potential difficulties and that is why he said the consent form contained a hysterectomy and oophorectomy.
He denied that the patient had asked him to have her consent limited and alleged that the patient agreed to go ahead with surgery as planned.
He conceded in his letter of 21 March 2017 to the HCCC at p 4 he agreed with Dr Roberts before the surgery that they should do "the minimal surgery possible" and he said: "I was fully aware of [Patient A's] complex surgery history and I agree that the minimum surgery possible was appropriate. [Patient A] did not ask to alter her consent but wanted to keep the uterus and ovaries. Her wishes were respected but she understood and signed a consent that indicated further surgery may be required."
At p 3 of the same document the practitioner denied that Patient A asked for her consent to be limited. He said: "Before the surgery [Patient A] was a little nervous and I fully discussed consent with her and she agreed for the surgery to go as planned". And He also said: "I cannot proceed with surgery if there is any disagreement about consent". Dr Geraghty's evidence is that the consent form demonstrates either no clear surgical plan or desire to keep the options open if difficulties were encountered. He said that the use of question marks on a consent form do not show a clear description of the intent or possible complications to obtain informed consent. In his oral evidence on 4 June Dr Geraghty said that: "If the patient does not understand the meaning of medical terms including what is involved in a hysterectomy" informed consent cannot be given. He also said that the lack of clarity on the consent form is stark but there is no enunciation of a surgical intent.
The Tribunal finds Ground Three has been proved on the balance of probabilities.
Dr Geraghty concluded that the practitioner's conduct described in Complaint One Particular 3 is significantly below the relevant standard and raised his strong criticism.
Associate Professor Lam considered that the consent form Patient A signed on 28 January 2016 demonstrated a reasonable surgical plan "as it reflected the uncertainty of the underlying pathology etc". He considered the inclusion of oophorectomy reasonable and the issue with consent appeared to be related to the practitioner's communication.
Associate Professor Lam said that in the light of the ultrasound report and the high chance of adenomyoma or atypical fibroid pathology, he would recommend against myomectomy in favour of sub-total hysterectomy. He said that because of the failure of the consent form to clearly explain and document the consent process the conduct of the practitioner in that regard fell below the standard, but not significantly below.
It is clear that from conversations Patient A had with the practitioner that she withdrew any consent to a hysterectomy. It is also clear that she conveyed her position to the practitioner in conversation with the anaesthetist, nursing staff and Dr Griffiths, who apparently conveyed the position to the practitioner.
The Tribunal prefers Patient A's version of these matters to that of the practitioner.
The conclusion is that the practitioner did not have consent of Patient A to the hysterectomy performed on her. Performance of such a procedure without the consent of the patient amounts to an assault. It is very serious. The Tribunal finds it prefers the opinion of Dr Geraghty on this matter and that the conduct of the practitioner detailed in Particular 3 is significantly below the relevant standard and deserved strong criticism. It was unsatisfactory professional conduct.

[11]

Complaint One - Particular 4 - Consideration

There is ample evidence that the practitioner was aware of Patient A's surgical history. He said in his letter of 19 May 2016 to the HCCC that because of the complexity of her case he discussed "her management in the daily handover meeting with Dr Roberts on three occasions on 28/1/16, 3/2/16 and 4/2/16". He acknowledged that initially it was agreed she may be transferred to John Hunter hospital, "our tertiary centre in Newcastle".
It is alleged that the considerations that played against this was that she was "in severe pain" and "keen to have the surgery in [the regional town] because of her need for family support".
He also in that letter spoke of the seriousness of the pain she was experiencing of which he said: "At times her severe pains were not adequately controlled by Morphine or Endone".
Dr Roberts' evidence is that he informed the practitioner that on the morning of 28 January in conversation with the practitioner he became aware that the practitioner intended to "take it out". When he asked him what he meant by that, the practitioner said he meant a hysterectomy. Dr Roberts' evidence is that he advised the practitioner that it was not an operation that needed to be done urgently and it was an operation that Dr Roberts would not perform at the regional hospital. He said: "Specifically I said that if it was a fibroid causing acute pain that it was likely undergoing a 'red degeneration' and could be treated conservatively with narcotic analgesia." He said he also said: "That if an operation had to be performed and the minimal possible should be done - in this case a myomectomy. I informed the practitioner that the operation would be better performed at John Hunter Hospital. My specific concerns were that the operation was likely to be very difficult due to multiple surgeries. There was likely to be bowel adhesions due to previous caesarean section and the ruptured pelvic abscess. The bladder was likely to be adherent to the uterus making any hysterectomy difficult, and the consequences of ureteric injury would be particularly severe given the history of renal surgery".
The clinical records indicate that within 24 hours of Patient A being admitted to the hospital because of pain, the options the practitioner was considering, according to his clinical notes were all surgical. They did not include rest and analgesics.
It appeared that the practitioner in his evidence relied upon an allegation that Dr Roberts approved surgery being performed on Patient A at the regional hospital. Dr Roberts did not have authority to give or refuse approval for surgery by VMOs such as the practitioner. The advice of Dr Roberts was that the surgery should be limited to removal of the fibroid and if there was going to be any more invasive surgery beyond that, then the patient should be transferred to the John Hunter Hospital which would be better equipped to deal with any complications.
In the s 150 hearing on 1 April 2016 the practitioner claimed that he had agreed to the first discussion the procedure was high risk and it was better to transfer the patient to John Hunter. He said: "I fully agreed to". But then he said that the woman was not transferred because of the pain she was suffering "but she was very keen to be in [the regional town] for family reasons".
He clearly thought that it was not a matter for him to decide whether Patient A with a complex surgical history and an exceptional risk, should be subject to surgery in the regional town with limited facilities rather than transferred to the referral hospital, John Hunter Hospital.
In his written report, Associate Professor Lam took the view that the practitioner did consider conservative management of the patient's condition. But he said that his criticism of the practitioner was that it was failure to recognise the potential implications and the appropriate course of action would have been to refer the patient for MRI and referral to a tertiary unit for a sub-total or total hysterectomy. In his report he considered that although the conduct of the practitioner was below the standard, it was not significantly below the standard. In oral evidence he conceded that this was a case where there was a very real known risk of significant bleeding and he agreed that in those circumstances the need for specialist involvement from an intensivist and/or vascular specialist would be required and that was more likely available in a tertiary hospital. He also conceded in cross-examination that if the patient was adamant regarding not wishing to have a hysterectomy or oophorectomy, then conservative management still carried risks and the possibility of requiring a hysterectomy.
He also conceded that in oral evidence that clear documentation of the risks/benefits in the case of surgery was required. No such documentation was prepared.
It is clear that Dr Roberts had a much better awareness of the limitations of the regional hospital in terms of significant surgical complexities such as heavy bleeding. Indeed in the surgery heavy bleeding occurred. One of the practitioners referred to the bleeding saying that the patient at one stage was "bleeding to death".
Dr Roberts also had a much more reliable knowledge of the practitioner's level of professional competence and of his level of professional incompetence and/or inadequacies.
Dr Geraghty expressed concern at Point 3 of his report of 6 January 2017 that the practitioner "Showed no capacity to reflect on the potential difficulty of the procedure, the possible need for the skills of other doctors such as a general surgeon and the recognition that longer experience does not necessarily equate to better skills".
The Tribunal finds Particular 4 of Complaint One proved on the balance of probabilities.
In relation to the question of whether the conduct was significantly below the relevant standard, Dr Geraghty found that it was significantly below the relevant standard and invited his strong criticism. Associate Professor Lam in his report prior to the other concessions that he made orally, found that the conduct was below the standard but not significantly.
The Tribunal finds it prefers the opinion of Dr Geraghty to that of Associate Professor Lam expressed in his report, because of the concessions made orally by Associate Professor Lam after the opinion expressed in his report, but also because Dr Geraghty had much better knowledge and appreciation of the implications and inadequacies of complex surgery being performed in a regional hospital rather than a tertiary hospital and much better knowledge of the practitioner's professional skills and inadequacies.
This particular conduct was proved and was unsatisfactory professional conduct.

[12]

Complaint One - Particular 5 - Consideration

The evidence establishes that the practitioner performed a hysterectomy on Patient A at the regional hospital, myomectomy would have been appropriate treatment, the practitioner knew that Patient A was a high risk, surgically complex patient, the practitioner was aware of contrary advice from the Director of Obstetrics and Gynaecology at the regional hospital and Patient A had requested conservative treatment such as a myomectomy and did not want a hysterectomy.
The evidence of Dr Roberts is that no approval was sought or provided. His evidence also is that the practitioner was counselled to send the patient to John Hunter Hospital for any surgery. He denied in oral evidence that the decision to operate was a departmental decision. He also gave evidence that the hysterectomy was performed after a successful myomectomy. That is consistent with evidence of the operation notes (Tab 10 P 31) and the statement of the Obstetric and Gynaecology Registrar (Tab 6).
The fact that the practitioner had made a decision for a full hysterectomy to be performed as early as 27 January 2016 is evidenced by the changeover notes where the "Clinician Response:" is "for full hysterectomy". (Tab 10 P 216). On Thursday 28 January, the day after Patient A was admitted to the regional hospital, Dr Roberts discovered from the theatre booking offices that the practitioner had booked Patient A for a hysterectomy on his list the next week. Dr Roberts had that day already told the practitioner it was not an operation that needed to be done urgently and it was an operation that he would not perform in the regional hospital. He specifically said that if it was a fibroid causing acute pain it was likely undergoing "red degeneration" and could be treated conservatively with narcotic analgesia.
The practitioner claimed it was planned to do only a myomectomy. But he says that as intraoperative bleeding continued a hysterectomy had to be performed. (Page 3 of his letter of 19 May 2016 to the HCCC). The patient had been receiving blood transfusions from only half an hour after the start of the surgery.
He said elsewhere that he had taken the advice of Dr Roberts and completed the myomectomy but continual bleeding occurred and therefore he carried out a sub-total hysterectomy to stop the bleeding. He said that he was forced to do a total hysterectomy because after the fibroid was removed and adhesions released, the uterus was no longer an intact organ.
Dr Geraghty in his report highlighted the absence of a clinical indication in the records that intraoperative circumstances mandated a hysterectomy and said there was no possible explanation why a hysterectomy was performed. He said that if a myomectomy was intended as the practitioner claimed, there would be no requirement for transverse incision down to the posterior lower segment of the uterus. He said that the conduct of the practitioner indicated that he intended a hysterectomy from the outset. In oral evidence on 4 June Dr Geraghty said that if a hysterectomy was not intended it was inexplicable why the practitioner was attempting to dissect the bladder from the anterior uterus and make a sharp dissection of omental adhesions with divided sections of omentum tied off.
Dr Geraghty said that even accepting the practitioner's evidence regarding the intraoperative blood loss, there was still no apparent reason for a hysterectomy. He said it was therefore reasonable to conclude that the hysterectomy was not clinically justified.
The evidence establishes that a hysterectomy was not clinically indicated.
Dr Geraghty found that the practitioner's conduct under this particular was significantly below the relevant standard and required his strong criticism.
Associate Professor Lam said in his report: "Taking the high risk, surgically complex nature of [Patient A's] past history, in my opinion a total hysterectomy would have been the most appropriate treatment option: (i) to minimise the risk of bleeding (by ligation of uterine vessels, avoiding cutting through the body of the uterus to search for a submucosal, highly vascular mass); (ii)) minimise the risk of bladder injury (due to multiple past C sections); (iii) to remove what could have been an adenomyoma which is often fully defined (as shown by the final pathology report) (iv) for a rare but possible sarcoma (on the basis of the ultrasound findings of a heterogenous, atypical vascular mass)."
He then said that the advice to perform a myomectomy was suboptimal, "and put the patient at greater risk of bleeding due to difficulty in identifying the poorly defined, deep-seated submucosal fibroid with co-existing adenomyoma and possibly a potential risk of worsening the prognosis had the atypical, vascular mass turned out to be a rare Sarcoma".
He also said for the reasons he had given, Patient A should have "best been counselled by [the practitioner] and the Director of Obstetrics and Gynaecology at [the regional hospital] to undergo sub-total hysterectomy at a tertiary referral centre in the hands of an experienced surgeon". Of course, the practitioner did not give such advice to Patient A.
Again the findings of the experts were different. Dr Geraghty considered that the conduct of the practitioner under this particular was significantly below the relevant standard and invited his strong criticism. For his part Associate Professor Lam found that the practitioner's conduct was "consistent with the standard reasonably expected".
It is clear that it was the practitioner's decision to undertake surgery on Patient A notwithstanding the surgically complex background and the high risk it entailed. It was his decision to reject the suggestion that the surgery should occur (whether by him or someone else) at a tertiary hospital which would be better equipped to cope with the patient's needs. It was his decision, notwithstanding the patient's instructions for a more conservative procedure and opposition to a hysterectomy, to carry out a hysterectomy.
On the evidence he had an intention to carry out a hysterectomy on 27 January 2016, the day the patient presented at the hospital.
The Tribunal preferred the reasons of Dr Geraghty in finding that the practitioner's conduct under this particular is significantly below the relevant standard.
The finding therefore is that the conduct under this particular is unsatisfactory professional conduct.

[13]

Complaint One - Particular 6 - Consideration

Dr Griffiths was the Obstetrics and Gynaecology Registrar at the hospital and from her written statement, formed a view from her discussions with the practitioner before the surgery that he intended to perform a hysterectomy.
The surgery commenced with a mid-line laparotomy and then sharp dissection at the level of the sheath. Once the abdominal cavity was entered, dense adhesions were encountered. She said the uterus was not immediately visible due to these adhesions. She said the practitioner used his hand to perform dissection of these adhesions inside the laparotomy wound. She said there were some sharp dissection of omental adhesions. She could see this happening as she was trying to "tie off the divided sections of omentum".
She noted there was bleeding after this blunt dissection was done. She said the practitioner then proceeded to attempt to dissect the bladder from the anterior uterus. She said:- "I recall him stating that the uterus was enlarged and that there was not a discrete fibroid. I had not palpitated the uterus myself at this point, but was surprised by his comment, as on visual inspection (the top portion of the uterus was now visible as the adhesions were divided) there appeared to be a large fibroid at the fundus of the uterus. There was ongoing bleeding and difficulty with visualisation of the operating field. [The practitioner] requested a second surgical assistant. While waiting for the second assistant [the practitioner] then requested the presence of Dr Roberts. Once Dr Roberts arrived, [the practitioner] reiterated that there was no identifiable fibroid, but that the uterus was enlarged. The pre-operative imaging was brought up on the monitor in the OT at the request of Dr Roberts, who was now scrubbed. Dr Roberts suggested that a myomectomy be performed. The anatomy was distorted due to previous surgery. This makes it difficult to identify the cause of the ureters. I recalled Dr Roberts asking [the practitioner] if the ureters had been identified. I do not think that [the practitioner] responded".
A myomectomy was performed. After this was done, the practitioner continued to attempt to dissect the bladder from the anterior uterus (i.e. continuing the steps in a hysterectomy). After a sub-total hysterectomy was performed, there was continuing bleeding from multiple areas, especially on the right pelvic side wall. Steps were taken to control this bleeding as detailed in the operation report.
The fibroid had been identified on medical images available before the surgery commenced.
According to the oral evidence of Dr Roberts on 4 June and also the evidence of Dr Griffiths, successful myomectomy was performed before the hysterectomy.
That is also recorded in the hospital record of the operation at P 31 of Tab 10, which appears to have been written by Dr Griffiths.
In his letter of 19 May 2016 to the HCCC, the practitioner said the plan was to do only a myomectomy, but it was because of high intra-operative bleeding continuing that a hysterectomy had to be performed. In his letter of 21 March 2017 to the HCCC, however, he said that the reason the myomectomy was not appropriate was that the fibroid was submucosal. Then later in the same document he said that he had followed Dr Roberts' advice to do the minimal surgery possible and he agreed with that. He said though that when the myomectomy was completed, the fibroid was removed and the uterus was "stitched up". But there continued to be bleeding from multiple points and as a result he decided to perform a sub-total hysterectomy, which he said had helped to stop the bleeding at the time.
Then in the s 150 hearing on 1 April 2016 the reason he gave was "We had to do a total hysterectomy because after the fibroid was removed and the adhesions released, the uterus was no longer an intact organ. There were multiple points of bleeding and it took almost 20 minutes just to remove the top part of the uterus, leave the cervix and keep the haemostasis as much as we could".
He said that the bleeding eventually was estimated at 1800 mml. Dr Griffiths in her statement said that: "The bleeding after the hysterectomy was performed was from multiple areas, especially on the right pelvic side wall". She said that after Dr Roberts had left the operating theatre to go to some emergency, the practitioner "continued to check for bleeding points. At one point he asked me to check if there was ongoing bleeding from the pelvic side wall. I stated that bleeding was still occurring and he placed further sutures in this area. He did not allow me the opportunity to re-check that the bleeding areas I had identified had been secured with these sutures".
She also said: "[The practitioner] did not check that the omental adhesions that had been divided and tied off at the start of the procedure were not bleeding at the end of the first procedure".
Dr Griffiths in her statement said that later that day there was a call about Patient A in recovery. "She was haemodynamically unstable and her haemacue was low (I can't recall the exact figure)." Dr Roberts told her that Patient A was going back to the theatre for "presumed ongoing intraabdominal bleeding". She returned to the operating theatre where the procedure had partly been completed. Dr Roberts had taken the role as lead surgeon. The practitioner was also in attendance when she got there. It was found that ongoing bleeding was occurring from several bleeding points. According to Dr Griffiths "A BSO was performed to control bleeding from the ovarian vessels. The omentum that had been divided at the start of the first procedure was inspected and also found to be bleeding. [The practitioner] left before the end of the second operation. Dr Roberts and I re-checked the haemostasis and closed the wound".
In his letter of 21 March 2017 to the HCCC the practitioner at page 4 said: "I can understand Dr Roberts' perception that when he entered the theatre later in the procedure that the dissection looked as though I was attempting to complete a hysterectomy from the outset. The dissection was completed to obtain access and this part of the surgery was not seen by Dr Roberts".
Dr Roberts' evidence is that the practitioner told him when he arrived at the surgery "There is no fibroid, just a large boggy uterus". He testified that he was certain that the practitioner had said those words and hence Dr Roberts went to view the images on the screen to identify where the fibroid was.
The evidence establishes that in carrying out the hysterectomy the practitioner failed to identify the large uterine fibroid that was clearly identified on medical images available to him and was visible to Dr Roberts and the Registrar assisting him, which, if he had seen it would have clearly indicated that the appropriate procedure was a myomectomy rather than a hysterectomy.
The Tribunal finds that Particular 6 has been established on the evidence.
Dr Geraghty's opinion was that the fibroid was clearly identified by Dr Roberts and was large (about 9 - 10 cm) and would still have a capsule and would be easily found upon opening the uterus, particularly if reference was being made to the CT images. Dr Geraghty concluded that the practitioner's conduct under this particular was significantly below the relevant standard and invited his strong criticism.
In his report, Associate Professor Lam disagreed. He said on the basis of the pre-operative ultrasound he would have predicted that the fibroid would be difficult to identify due to the high vascular bleeding and a myomectomy would put the patient at higher risk of bleeding than a sub-total hysterectomy. However, such was the situation where the patient had withdrawn her consent to having any hysterectomy. That option was not open and Particular 6 is specifically about the practitioner's failure to identify the large fibroid which was on medical images and was identified by Dr Roberts.
On the other hand, because he considered that a hysterectomy was the preferable procedure because of the likely difficulty in identifying the fibroid because of the mainly vascular and poorly defined border, Associate Professor Lam testified, in oral evidence that whichever of the procedures was undertaken, it would have the potential for significant bleeding.
It cannot be though, that the standard for practitioners with similar training and experience would permit the practitioner to conduct the procedure to which, as in this case, the patient had withdrawn her consent.
The Tribunal is satisfied that when the practitioner on 4 February 2016 during the conduct of a hysterectomy of Patient A failed to identify the large uterine fibroid where it had been identified on the medical images available to him, he should have in all the circumstances, given the complexity of the patient's medical history, the risk involved and the absence of consent to a hysterectomy, not undertaken surgery or undertaken only a myomectomy, rather than a hysterectomy.
The Tribunal accepts the evidence of Dr Geraghty on the issue of whether the conduct was significantly below the relevant standard and finds that the conduct particularised in Particular 6 of Complaint One is unsatisfactory professional conduct.

[14]

Complaint One - Particular 7 - Consideration

The practitioner in his letter of 19 May 2016 to the HCCC falsely stated: "After Dr Roberts left the theatre, there were a few oozing points. I continued surgery until complete haemostasis was secured. Finally, the vaginal vault and the pelvic walls were dry and all bleeding points were secured".
In the s 150 hearing on 1 April 2016 he testified: "I managed to do what seemed to be like straight forward surgery and I spent time on securing all of the bleeding points and almost 30 minutes to make sure there is no bleeding. When we stopped, there were (sic) complete haemostasis".
But in his subsequent letter of 21 March 2017: "I apologise for not ensuring adequate haemostasis. After I completed the surgery I spent a further 25 minutes to secure haemostasis from multiple points and left a drain in the pelvis in situ. I believe at the time that adequate haemostasis had been achieved".
The evidence of Dr Griffiths establishes that the practitioner failed to adequately secure the 3 wounds specified in Particular 7 to prevent bleeding and failed to check for closing at the end of the surgery. Consequently, later Patient A had to return to the operating theatre and undergo subsequent surgery that was necessary because of bleeding.
Particular 7 is proved.
Associate Professor Lam testified that based on operative reports the practitioner failed to adequately secure haemostasis.
Dr Geraghty agreed that haemostasis was not obtained prior to wound closure. He noted that the anaesthetist in his report had said that Patient A was not severely hypotensive at any stage and gave further evidence of failure to secure haemostasis.
Associate Professor Lam said the conduct was below the relevant standard but not significantly below that standard. Dr Geraghty's opinion was that it was significantly below the standard and invited strong criticism.
The Tribunal has preferred the opinion that Dr Geraghty finds the conduct of the practitioner was significantly below the standard, and invited a strong criticism. The conduct was unsatisfactory professional conduct.

[15]

Complaint Two - Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 - Consideration

The allegation is that the practitioner in relation to his clinical records for Patient A failed to comply with the requirements in five respects.
Clause 7 of the regulation requires a medical practitioner to comply with Schedule 2 and make and keep a record, or ensure that a record is made and kept, for each patient in accordance with Part 4 of Schedule 2.
In his letter of 21 March 2017 to the HCCC the practitioner said that he examined Patient A on 27 January 2016 at the regional hospital "But I am sorry I did not record it in the medical records". That was a breach of Sub Clause 1(2)(a) of Schedule 2 of the Regulation, as was his failure at the same time to include in the clinical record a diagnosis, and advice given to Patient A.
In addition he did not record advice given to Patient A in breach of Sub Clause 1(3) of Schedule 2. His clinical records did not include alternative options for management or advice relating to inherent risks.
He did not write the operative report of the surgery, despite the complexity and this was a breach of Sub Clause 1(4) of the Second Schedule.
The practitioner conceded in his letter of 21 March 2017 to the HCCC that the report of the medical procedures was written by his fourth year registrar "As part of her training". He said in that letter: "I accept that in hindsight I would have added more detail to the operative report". But he did not.
He also did not amend the consent form to include in it the patient's instructions that she did not want to have a hysterectomy.
Then, on the practitioner's own evidence, his attempts to explain the risks in the alternative surgical options and the notes he made of the interactions with the patient on 27 January 2016 failed to include any record of examination, diagnosis, advice or discussions.
Complaint Two is proved.
Dr Geraghty found that the practitioner also failed to note any discussions regarding implications and risks of treatment options. Dr Geraghty concluded that the conduct of the practitioner under complaint 2 is significantly below the relevant standard and invited his strong criticism.
Associate Professor Lam agreed. Accordingly the Tribunal finds that the conduct under this particular is unsatisfactory professional conduct.

[16]

Complaint Three - Particular 1 - (Patient B) - Consideration

This relates to the consultation between the practitioner and Patient B on 15 July 2015. In his Amended Reply filed on 4 June 2018, the practitioner denied all of the 5 allegations in this particular.
Allegation 1 of particular 1 of complaint 3. The practitioner claimed he examined patient B but no examination is documented in his clinical records. She went to him for excision of a vaginal polyp. The Tribunal finds on the balance of probabilities that he did not examine the patient.
Allegation 2 of particular 1 of complaint 3. It is alleged the ultrasound he conducted in his rooms, and on which he relied, lacked specificity in regards to description of the size, number and position of the uterine fibroids present. The practitioner in effect concedes this. He said elsewhere that he believed there were fibroids, His response is that the ultrasound in his rooms did not reveal any anomaly in the endometrium or the ovaries. He said that because that ultrasound did not raise any concerns, he therefore did not consider a formal ultrasound was necessary. At the S 150 hearing he said no ultrasound was performed.
Allegation 2 was proved.
Allegation 3 of particular 1 of complaint 3 was that the practitioner failed to take note of the endometrial thickness or the nature of Patient B's ovaries. The practitioner appeared to admit this allegation because his response at Tab 61 Page 7 was that such assessment is not required unless hyperplasia or malignancy is suspected. He said. "Endometrial ablation is one of my areas of strength and I have performed approximately 1000 over the last 20 Years." He conceded at the s150 hearing that the patient had a large uterus "like 10 weeks", some fibroids and a history of heavy bleeding. But he also said that the enlargement was not significant. Allegation 3 is proved.
Dr Geraghty gave evidence that the endometrial thickness and nature of the ovaries would be required to decide the advisability of endometrial ablation and a formal ultrasound examination was necessary prior to discussing treatment options.
Allegation 4 of particular 1 of complaint 3 is that the practitioner failed to refer Patient B for a formal ultrasound examination prior to discussion of treatment options. This allegation was proved.
Allegation 5 of particular 1 of complaint 3 is that the practitioner failed to consider and/or discuss any alternative treatment options with the patient. There is no record in evidence of any such considerations or discussions. From the available evidence Dr Geraghty concluded that the practitioner recommended endometrial ablation without offering alternative treatments and was recommending it as a treatment for a condition for which the patient had not requested an opinion and he undertook little by way of assessment for her suitability and without discussion of possible alternative treatments.
Associate Professor Lam agreed.
Associate Professor Lam also agreed with the conclusion of Dr Geraghty that the conduct under particular 1 of complaint 3 was significantly below the relevant standard and warranted strong criticism.
The allegations in particular 1 of complaint 3 are proved and constitute unsatisfactory professional conduct.
Complaint Three - Particular 2 - (Patient B) - Consideration
Particular 2 of complaint 3. This is that the practitioner failed to consider and/or recommend conservative treatment for Patient B on 15 July 2015 and decided to undertake surgery as the first line of treatment in circumstances where Patient B's presentation and complaint was in relation to a vaginal polyp which would indicate a consideration for non-surgical treatment, such as the use of a Mirena device.
In the Practitioner's evidence at the s 150 hearing on 1 April 2016 at p 46 he testified that "I was comfortable when we finished that that went quite alright, according to what I knew that day". And then when it was put to him "Well clearly it didn't?" he conceded that was true. At page 46, line 14, he said that "In general I do offer alternatives before operating" and conceded that he used Mirena "a lot" but he couldn't recall whether he discussed that option with the patient.
Dr Geragthy in oral evidence testified that the polyp in that position was likely to be a "skin tag" that would not require surgery for removal. His opinion was that it was inappropriate to offer surgery as the first line of treatment. His opinion was that the conduct of the practitioner under this particular was significantly below the standard and warranted his strong criticism. Associate Professor Lam agreed with Dr Gerathy.
The conduct in particular 2 was unsatisfactory professional conduct.
Complaint Three - Particular 3 - (Patient B) - Consideration
Particular 3 of Complaint 3 is an allegation that the practitioner failed to perform a diagnostic hysteroscopy to ascertain Patient B's suitability for an endometrial ablation prior to undertaking that ablation on 11 November 2015.
Dr Geraghty's opinion was that it is preferable to perform the diagnostic hysteroscopy with biopsy beforehand to assess the suitability of the patient for endometrial ablation. Associate Professor Lam agreed.
In his letter of 21 March 2017 (Tab 61 at p 7) the practitioner concedes no diagnostic hysteroscopy was performed and that he did not perform the hysteroscopy until commencement of the ablation.
Dr Geraghty in his report of 6 January 2017 expressed his opinion that a diagnostic hysteroscopy with biopsy should have been conducted beforehand to assess the suitability of the patient for endometrial ablation.
He and Associate Professor Lam agreed that the hysteroscopy should have been performed beforehand to also ascertain the existence of fibroids. He said that failure to obtain endometrial tissue to be sent for histological examination prior to the surgery falls below the standard. They agreed that the conduct was significantly below the standard.
Accordingly, the Tribunal finds that the conduct in Particular 3 of Complaint 3 has been established and constitutes unsatisfactory professional conduct.
Complaint Three - Particular 4 - (Patient B) - Consideration
In his statements in correspondence with the HCCC the practitioner does not deny that notwithstanding that he had carried out examination and assessment of Patient B before surgery and had undertaken surgery by way of endometrial ablation and removal of a vaginal polyp, he was not aware that the patient despite a number of delays and the surgery having been postponed, was 10 weeks pregnant.
It is common ground that the practitioner did not ascertain or record cervical dilation of Patient B, he failed to identify the intrauterine pregnancy, and he failed to undertake any preoperative treatment with medication such as progestins or gonadotropin-releasing hormone analogue, and failed to review Patient B prior to the operation despite the number of delays in booking the operation.
The practitioner claimed that cervical dilation was performed, but that is not recorded in the records.
Dr Geraghty's opinion was that the practitioner's failure to discover the pregnancy before the surgery was conduct that was significantly below the standard reasonably expected of a practitioner with similar training or experience and solicited his strong criticism.
Associate Professor Lam, although he did not agree that failure to undertake preoperative treatment with the medication was conduct below the standard, did agree that overall the practitioner's conduct under Complaint 3 was significantly below the standard.
The conduct under Particular 4 of complaint 3 was proved and constituted unsatisfactory professional conduct.

[17]

Complaint Three - Particular 5 - (Patient B) - Consideration

Particular 5 is the failure of the practitioner around 15 January 2016, upon discovering the pregnancy of Patient B, to consult with a feto-maternal medicine specialist in relation to risks to the foetus that surgery on 11 November 2015 may have caused prior to recommending termination of the pregnancy as the only treatment option.
There is no evidence that the practitioner consulted any such specialist or suggested to Patient B or her spouse that such advice might be sought. On the evidence the only suggestion he made to Patient B and her husband was a termination.
The practitioner conceded that there was no evidence of any physical damage to the foetus. He said he did not refer to a feto-maternal specialist because Patient B and her partner were concerned about the ongoing pregnancy, regardless of risk to the baby.
Particular 5 of complaint 3 is proved.
Associate Professor Lam and Dr Geraghty agree that this conduct was significantly below the standard. It was therefore unsatisfactory professional conduct.
Complaint 4- Particular1 - Patient B
This particular is failure of the practitioner to disclose the discovery of Patient B's pregnancy immediately to either the Director of Obstetrics and Gynaecology at the regional hospital or the Director of Clinical Services at the hospital in accordance with the NSW Health Incident Management Policy (PD2014_004).
The practitioner in his Reply admitted this particular. At Tab 91 p 28 is a copy of the referral by the practitioner of Patient B to the medical practice called "Contraceptive Services" dated 15 January 2016. It stated that Patient B was then at that stage 19 weeks pregnant.
But Patient B's evidence, which the Tribunal prefers, is that the practitioner "could not tell us if the baby would be 'normal' or if it suffered any trauma during my surgery" and elsewhere she said "My partner and I discussed our options. As Dr Gayed could not tell us if we would have a healthy baby the only option for us was to terminate".
Dr Geraghty's evidence is that once the pregnancy was diagnosed, the practitioner failed to report the matter as would have been expected, and did not seek advice from his colleagues as to the best course of action. He said that the practitioner recommended termination on the basis of presumed but unproven harm to the baby and offered to pay for the termination himself.
The practitioner did not deny that he failed to disclose the event as required by the policy. His response was to say that he gave Patient B and her partner "full support" and after a lengthy consultation she decided to go ahead with termination of the pregnancy. He said that an ultrasound that had by then been performed ruled out a bicornuate uterus. He also said that he had discussed this with Patient B and her husband and indicated that it was unlikely to have any risk as the pregnancy appeared to have progressed normally to 20 weeks.
He agreed that there was no evidence of any physical damage to the foetus. The practitioner said that he did not notify the pregnancy as required, but he planned to discuss the matter with Dr Roberts once all the information was available and after the termination was complete. But he failed to report it, even after he received the report after the termination.
Dr Geraghty's opinion was that the conduct described in Complaint Four Particular 1 was significantly below the standard reasonably expected of a practitioner with similar training or experience.
In oral evidence he said it was highly unethical of the practitioner to give money to the patient to pay for the termination and not consult with his colleagues about the issue of the termination.
Dr Geraghty and Associate Professor Lam agreed that the conduct was improper or unethical conduct relating to the practice or purported practice of medicine. It therefore came within the definition of unsatisfactory professional conduct.
In relation to Particular 2 of Complaint Four, the complaint is the practitioner failed to appropriately manage the care of Patient B after the discovery of the pregnancy by offering to pay for the termination of the pregnancy and associated travel expenses for Patient B to attend Sydney for the termination and made arrangements for the termination where he had failed to identify the pregnancy during the procedure on 11 November and recommended the termination as the only option and did not seek advice or guidance from supervisors or other experienced practitioners prior to making the arrangements.
The practitioner did not dispute the alleged conduct. He alleged that he explained to the patient that it was not appropriate for a doctor to give her money and that he realised there was no time for them to get the money. After lengthy discussion, he said that "out of care and compassion" he would pay for the surgery. In another version he alleged that the partner of Patient B demanded money for the termination and he explained to him that it was not acceptable for a doctor to do that. He also said that he gave the money to Patient B for the termination because otherwise she would be forced to keep the baby and the trauma would be a lot more. He conceded that he did not consult with his colleagues and said he thought about it, but it was "complicated".
Dr Geraghty's evidence, with which Associate Professor Lam agreed, was that the practitioner's conduct under Particular 2 of Ground Four was unethical conduct relating to the practice or purported practice of medicine. It therefore constituted unsatisfactory professional conduct under s 139B(1)(l) of the National Law.
Complaint Five - Discussion
The practitioner denies that he failed to ensure that the clinical record for Patient B was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that he failed to provide detailed recording of: (a) clinical findings; (b) investigations conducted; (c) differential diagnoses discussed; (d) discussion of treatment options; and (e) benefits and disadvantages of treatments.
In Tab 61 p 10 of the documents of the Health Care Complaints Commission in response to the allegation: "Your clinical notes in regard to [Patient B] of admission and consultation were inadequate in many respects". He responded by saying "I accept that my records were inadequate. My letters were usually detailed, informative and comprehensive".
But Dr Geraghty's evidence was that the practitioner's clinical notes were brief and lacked detail regarding clinical findings, investigations, differential diagnoses, discussion of treatment options and the benefits and disadvantages of treatments. He noted that the notes in many instances were unreadable. He confirmed the complaint and his opinion was that this conduct was significantly below the standard reasonably expected from a practitioner of similar training or experience and warranted strong criticism. Associate Professor Lam agreed.
Accordingly the Tribunal finds that Complaint Five is proved and establishes unsatisfactory professional conduct as defined under para 139B(1)(b), being a contravention of a provision of the Health Practitioner Regulation (NSW) Regulation 2010.

[18]

Complaint Six - Patient C - Discussion

Complaint Six is in relation to Patient C. It was alleged that Patient C was referred to the practitioner on 15 September 2015 for an opinion on termination of an 11 week pregnancy. She first attended his practice on 16 September 2015. The complaint is that the practitioner failed to ensure that the clinical record for Patient C on 16 September 2015 was completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that he failed to document an adequate medical history including Patient C's current medications.
The relevant medical record is at p 38 of Tab 18 of the applicant's documents.
It appears that the patient's initial appointment with him was on 16 September 2015. On that record as pre medical history he recorded: "PMH: Lovan now Prozac for anxiety, depression".
Dr Geraghty considered that the complaint had been made out and that the conduct was significantly below the standard and constituted the failure to take an adequate medical history and medication information at the initial visit.
Associate Professor Lam appeared to reach the view that the practitioner's conduct the subject of the complaint "was consistent of the standard expected of a practitioner of an equivalent level of training or experience" and that the practitioner's conduct in failing to record an adequate history would be considered as below the standard reasonably expected of a practitioner of an equivalent level of training or experience, but not significantly below. However, it is not clear whether Associate Professor Lam was considering the particular record referred to in the complaint, "an adequate medical history including Patient C's current medications". Dr Geraghty said that the proper information not provided would have been considered essential.
In the circumstances the Tribunal has preferred the opinion of Dr Geraghty that the record of past medical history was significantly below the standard reasonably expected of a practitioner of similar training or experience and invited strong criticism. The Tribunal therefore finds Complaint Six proved and finds that the conduct complained of was unsatisfactory professional conduct.

[20]

Complaint Eight - Patient E - Discussion

This complaint is that the practitioner failed to conduct a clinical review of Patient E for over 12 hours after she had been admitted to hospital under his care in circumstances where:- (a) there was no explanation provided for the delay; and (b) it was clinically inappropriate to delay reviewing Patient E given her clinical circumstances.
Patient E was admitted at 10:07 pm on 5 February 2016. At 11:45 pm Dr Talib recorded that she had been admitted under Dr Gayed. When Dr Talib spoke to the practitioner on the night of 5 February, the practitioner apparently told Dr Talib that he would see Patient E the following morning. At 11:45 pm she was still complaining of pain in her back, which she said had "mildly improved". The doctor recorded that she "Appears mildly distressed. Not keen to go".
The next day at 10:30 am it is recorded on the progress notes that Dr Gayed was contacted. He was informed that she had been taking Endone "with good effect". He informed the staff member that he would see the patient later and that if she was feeling better she could go home. He said that he had requested a urine test. He did not at that time indicate when he would be attending on the patient.
At 12:10 pm on 6 February 2016 the hospital records show Dr Roberts attended on her. He was attending on another patient when he observed her. She was pregnant and told him that she had felt unwell with nausea and vomiting, which was followed by back pain.
The nursing staff provided the patient with paracetamol. The practitioner arrived to see the patient at 1:30 pm on 6 February 2016. At Tab 61 p 11 it is documented that before he came he was "busy in the labour ward having performed operative vaginal delivery with complex suturing for another patient". He said that he had been reassured by a registered nurse that the patient had "mild back pain" and could have been sent home. He said that he was aware that she was 15 weeks pregnant and had advised "against her being discharged before he could assess her".
The patient was admitted at 10.07 pm on 5 February under Dr Gayed. Dr Gayed did not attend on the patient until 1:30 pm on 6 February. That was nearly 15 and a half hours after the patient was admitted. In the intervening period, Dr Talib had seen the patient, nursing staff had attended on her and then about 14 hours after she had been admitted to the hospital, Dr Roberts attended on her. The contact that the practitioner had at 10:30 am with a member of the nursing staff was initialised by the staff member phoning the doctor. The explanation that the practitioner gave for the delay was not in relation to the period prior to him being contacted by nursing staff at 10:30 am on 6 February. He offered no explanation for that delay of more than 12 hours.
Dr Geraghty noted that the practitioner had offered no explanation for the delay when he had told Dr Talib he would review the patient the following morning after her admission. Dr Geraghty considered that given the patient's clinical circumstances that delay would be unacceptable. Dr Geraghty considered the conduct was significantly below the standard and merited strong criticism.
Associate Professor Lam conceded that "it would have been better for Dr Gayed to see her earlier". He said the patient had been given Endone with good effect and she was assessed by Dr Roberts at 12:10 pm on 6 February 2016 but contact had been made earlier with Dr Gayed at 10:30 am on 6 February and he had ordered the patient to have a urine test. Associate Professor Lam said that such a delay "is not out of the ordinary". He disagreed with Dr Geraghty that the delay of the practitioner was substantially below the relevant standard.
The Tribunal was not satisfied on the evidence that the practitioner's delay up to 10.30 am on 6 February2016 in reviewing Patient E was clinically inappropriate. It appeared that despite the delay, the patient's pain was managed and her condition improved.
The ground accordingly was not proved.

[21]

Complaint Nine - Particular 1 - Patient F - Discussion - Consideration

This complaint is that on 8 March 2013 the practitioner performed a suction curettage on Patient F, at first instance, to manage her secondary post-partum haemorrhage, which was not clinically indicated in circumstances where more conservative treatment methods such as admission, rest, analgesia, intravenous antibiotics and Tranexamic acid should have been attempted and only if they failed, should the suction curettage have been undertaken.
Patient F's evidence is at Tab 23 and Tab 24. On 18 February she had given birth to her sixth child, who was premature by six weeks. Her obstetrician was Dr Walkom. She was sent home on the second day after the birth but the baby remained in the nursery at the hospital for one month and she visited him three times a day or more to feed and care for him.
In the fourth week after the birth she was persuaded by hospital staff to have an ultrasound as they were concerned about the size of her stomach(sic). This was undertaken and it was discovered that there was afterbirth still retained after almost four weeks. She was taken to the operating theatre and the only gynaecologist/obstetrician available was the practitioner. He performed a suction curettage on Patient F on 8 March 2013. Afterwards the patient was in serious pain overnight and suffered heavy bleeding. The practitioner advised her that the cervix was bleeding a lot, but "should be OK". A few days later at night she rose to feed the baby and suffered a serious bleed. She was taken to the Emergency Department at the hospital.
The practitioner was called. He told her that her cervix was damaged and he needed to do a cancer operation because he thought she had cancer. She waited from 5:00 am until 9:00 pm to go to surgery and after the surgery the practitioner informed her that she would not be able to have any further children and he had taken a piece of her cervix as he was sure she had cancer. He also informed her that she needed a blood transfusion and to take iron tablets. Her evidence is that she was told that she was at risk of death that night from blood loss, but she should go home.
She received a telephone call about two weeks later from the practitioner's receptionist advising her that she did not have cancer.
When Dr Walkom returned she consulted him and he discovered that the cervix was closed and there was no opening for her to menstruate. He told her that she would need surgery, but he was going overseas. He also told her that the day he delivered the baby her cervix was "fine" but that her cervix was damaged during the curettage by Dr Gayed.
Patient F obtained a referral to a specialist at the John Hunter Hospital to undertake the repair of the damage to the cervix. She says that she suffered "months and months of pain". She has continuing problems including that she suffers severe bleeding after intercourse, which she believes is caused by the surgery by the practitioner.
The practitioner in his letter of 20 November 2015 to the Commission says that Patient F was admitted on 8 March 2013 with "continued and heavy PV bleeding since delivery, which proved to be due to retained products". He says that he was on call that day and performed a curettage and retained products were confirmed by histology report.
He said that his operative notes for that day confirmed the cervix was very vascular and eroded and there was significant bleeding from the cervix once it was dilated "to allow the removal of the retained products".
He says that "eventually I had to apply diathermy to the cervix and insert four spongesans tampons to achieve adequate haematosis". He said "It is of note that a vascular cervix, which bled excessively, with a finding I had to manage rather than a complication I have caused".
He said in relation to the patient's re-admission on 13 March 2013 that she had heavy PV loss and: "I explained to her that she would need to go to theatre to investigate what the problem was. Knowing how significant the bleeding from the cervix was, I consented her for possible Large Loop Excision Transformation Zone, which is usually performed for pre-cancer and possible cone biopsy of the cervix. My operative notes on that day (attachment V) document that the cervix was very vascular and significantly eroded with excessive contact bleeding. Initially a Large Loop Excision Transformation Zone procedure was performed, which is removing a thin layer of the bleeding cervical tissue using a diathermy loop. This procedure could not arrest the bleeding and finally a cone biopsy of the cervix was taken and a few haemostatic sutures were applied."
He relied on a histology report, cervical specimen, which he said detailed "there were prominent haemangiomatous proliferation with numerous telangiectatic dilated vascular channels" which he said a pathologist had told him "was a vascular anomaly, which would obviously have caused the excessive bleeding from the cervix".
He alleged that follow-up surgery performed by Dr Walkom on 13 March 2013 that rather than Patient F returning to his rooms to discuss what happened during the surgery and be informed of the histology report, she went to Dr Walkom and he failed to explain to her the reason for leaving products after a caesarean section he had performed, forcing her to have a curettage procedure for continued heavy PV bleeding after delivery, but told her the cervix was normal at the time of surgery. The practitioner alleged "It is quite clear that the cervix was quite inflamed and eroded and that was documented since 2009".
The practitioner claimed that the decision to perform a curettage was clinically appropriate and confirmed by the histology report documenting products of conception. He said that he had already given two courses of antibiotics without improvement. He also quoted Guideline 52 of the Royal College of Gynaecologists which is that "fibrinolytic inhibitors (such as Tranexamic acid) seldom have a place in the management of an obstetric haemorrhage". He said that he does not use them but said he sometimes uses it for gynaecological haemorrhage. In his letter of 15 November 2016 to the Health Care Complaints Commission the practitioner at page 2 agreed with Dr Geraghty that it hindsight it would have been more appropriate to avoid a curette. He made the same admission at the s 150 hearing on 1 April 2016 (at Transcript p 29 point 8) when he said "In hindsight, yes, probably could have avoided the curette, …".
He conceded in his letter of 15 November 2016 to the Health Care Complaints Commission (Tab 67) that in hindsight it would have been more appropriate just to use a curette under ultrasound guidance. In the s 150 hearing on 1 April 2016 when he was asked whether "With the initial assessment, was there any opportunity to manage her conservatively? What pushed you to manage her surgically". And he answered "The clinical issue was telling about very heavy bleeding and large clots. She was very distressed. Clinically when I assessed her the cervix was partially opened. The ultrasound scan showed products of conception. So when I did the curette, it was definitely placenta pieces and that was my histology."
But he was then asked whether, when the curette was used, there was not a large amount of curetting. He delayed responding and then he was asked "32 x 22 x 6 mm and I have had the advantage of looking at this very recently?" And then he replied: "Right, OK. In hindsight yes, probably could have avoided the curette, but on the day because of her significant distress and history of significant bleeding, I thought it may be the best interests of the patient to do the curette and remove retained products".
Later he conceded "And, yes, I agree it was a small amount, but still it showed some form of retained products".
He conceded in further questioning the first operative description says she was taken to the theatre for retained products, in the operating theatre there was minimal retained products and then she bled from the cervix.
The decision to perform the curette was based on a clinical scenario plus the ultrasound. He later conceded that "The complication here was the cervix, which was nothing to do with anything else, you know, just that's the way the cervix was. So it's - I guess if she hadn't had the D&C the cervix wouldn't have bled….. but on the other hand, she - then the cervix wouldn't have bled either".
In his report of 28 September 2016 Dr Geraghty (Tab 47 at p 3) gave some detailed discussion about retained products. He noted that the practitioner's notations in the medical record showed no evidence that he examined Patient F. Also there was no record of him having discussed with her her options for management which would have included admission, rest, analgesia, possible intravenous antibiotics and the use of agents such as Tranexamic acid either orally or intravenously to reduce the bleeding.
He noted that surgical intervention was undertaken despite the patient's vital signs (i.e. pulse, blood pressure, respiratory rate, temperature all being in the normal range and an ultrasound report which did not suggest a significant amount of retained products).
He said: "The potential risk of post-partum curettage did not appear to have been explained to her as there is no record in the notes of such a discussion. At this time following delivery, the uterus is still recovering from pregnancy and is still enlarged, soft and easily damaged. Recovering uterine lining is thin and contains areas of organised blood clot especially over the areas of placental attachment and as such is easily stripped off resulting in further bleeding and scarring long-term".
He then said: "The risk includes uterine perforation and if there is significant scarring, a condition called Asherman's syndrome where the cavity of the uterus is replaced by scar tissue which prevents future pregnancy. The cervix is likewise friable and easily damaged and likely to bleed."
His opinion was that: "Given the risks and the evidence available I believe that most practitioners of an equivalent level of training and experience would have managed this case conservatively, at least, initially as described above and only resorted to curettage in the face of failed treatment after 2 - 3 days."
In oral evidence Dr Geraghty said that against the background of vomiting intravenous antibiotics should have been trialled to achieve efficacy. He also said that in his oral evidence that post-partum the uterus is delicate, soft, easy to perforate and can easily traumatise the cervix hence conservative treatment is warranted unless retained products are of such quantity to stop the uterus from contracting. As a curette strips down the muscle of the uterine lining, it is a risky procedure. His view is that given the risks and evidence available conservative management should have been considered at least initially. His view was that the conduct of the practitioner was significantly below the relevant standard and promoted strong criticism.
In his report Associate Professor Lam disagreed with the conclusion of Dr Geraghty that the conduct was significantly below the relevant standard. His opinion was that the conduct was consistent with the standard. However in oral evidence he agreed that the curettage could not be correctly classified as "urgent" as indicated on the triage pre-operative record (Volume 2 Tab 25 p 116 of the applicant's documents). That form, signed by the practitioner, certified that the priority category was "ET2 organ limb threatening (within four hours)".
On all the evidence, the Tribunal finds the performance of the suction curettage on 8 March 2013 was not clinically indicated because more conservative treatment methods which had not been tried, should have been attempted and only if they failed, the suction curettage should have been undertaken. Accordingly, in accordance with the opinion of Dr Geraghty, the conduct of the practitioner was significantly below the reasonable standard for a practitioner of similar training or experience and demonstrated his knowledge, skill or judgment or care exercised in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Accordingly the conduct the subject of Complaint Nine is proved and constitutes unsatisfactory professional conduct.

[22]

Complaint Nine - Particular 2 - Patient F - Discussion

This Particular alleges that on 13 March 2013 the practitioner failed to undertake appropriate clinical examination and management of Patient F prior to performing a LLETZ and a cone biopsy on Patient F by failing to:- (a) undertake physical examination of Patient F; (b) consider and/or discuss any alternative management plans with Patient F; (c) discuss potential complications with Patient F.
Patient F's evidence is that Dr Gayed reviewed her in the evening of 13 March 2013. Her husband was present. He told them that he needed to take her to the operating theatre to investigate the cause of the heavy blood loss. He told her he anticipated that he would need to undertake a "LLETZ procedure and would remove one-third of her cervix". He also said that the procedure would ensure any questionable cervical tissue would be removed and the bleeding would stop. He also said he would most likely need to undertake a cone biopsy. He also told her that he was "almost certain" that she had cervical cancer, but he would need to send the tissue to pathology to confirm the existence of any cancer cells following the procedure. He also told Patient F that she could not carry any more children due to her damaged cervix.
On the basis of that advice the patient signed a consent for the LLETZ procedure and a cone biopsy. She was extremely concerned after that discussion about having cervical cancer.
The consent form was signed by the doctor and the patient on 13 March 2013 and according to the form it was signed at 1:00 pm.
According to the practitioner's letter of 15 November 2016 to the Health Care Complaints Commission, the bleeding had stopped on 8 March 2013 and on the E.D. handover on 12 March 2013 the bleeding had started again and was very heavy.
He alleged that on the second presentation there was no evidence that the bleeding was uterine and the ultrasound showed an empty uterus. His clinical note on 13 March 2013 indicated that the bleeding was coming from the cervix. He claimed that he did discuss with the patient the proposed surgery and potential complications.
Dr Geraghty noted that the procedures listed on the consent form were both used for the diagnosis and management of pre-cancer of the cervix. He said there is no evidence in the records of a physical examination or consideration of any alternative treatment options or a discussion regarding possible consequences of the treatment the practitioner proposed.
Dr Geraghty described that treatment, which the practitioner carried out, as "three destructive procedures". He said in his report that there was no record of any explanation to Patient F regarding the potential risks of post-partum curettage. He said that the risks include uterine perforation, a condition called Asherman's syndrome where the cavity of the uterus is replaced by scar tissue, which prevents future pregnancy. There was also a risk of the cervix being easily damaged and likely to bleed. Dr Geraghty's opinion was that given the risks and the evidence available most practitioners of an equivalent level of training and experience would have managed the patient conservatively, at least, initially as described, and have only resorted to curettage in the face of failed treatment after 2 - 3 days. His opinion was that: "If curettage is performed, it should be undertaken in the least traumatic fashion and is more safely performed under ultrasound guidance. Dr Gayed's performed procedure from the report … has been traumatic, resulting in excessively (sic) bleeding from the cervix and possibly from the uterus".
Dr Geraghty also noted: "The Histopathology report shows the presence of a small amount of tissue and blood clot … with single 'tissue resembling decidua/old trophoblast but also showing Superficial myometrium'; which is the uterine muscle wall deep to the surface layer. This indicates the surface was stripped off and tissue below the surface removed which would have resulted in further bleeding."
Dr Geraghty's opinion was that the practitioner's conduct under this Particular was significantly below the standard reasonably expected of a practitioner of similar training or experience and warranted strong criticism.
Associate Professor Lam agreed that the practitioner failed to adequately explain the reasons for suspecting retained products and/or document seeing bleeding from the cervix or discussing the benefits/outcomes and risk of his recommended plan of action. He said that because of this Dr Gayed's consent was at risk of being misunderstood or misinterpreted for the diagnosis and management of pre-cancer of the cervix. Associate Professor Lam, notwithstanding what the practitioner had told the patient and her husband, said that he did not believe Dr Gayed suspected a cervical malignancy. Associate Professor Lam said that he believed that the practitioner's failure to adequately explain and communicate with Patient F, rather than the recommended plan of action, represented conduct below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He did not state whether he considered the conduct was significantly below the standard. The Tribunal accepts the opinion of Dr Geraghty that the conduct was significantly below the standard.
Accordingly, the conduct under Particular 2 of Complaint Nine was unsatisfactory professional conduct.

[24]

Complaint Nine - Particular 4 - Patient F

This is a complaint that on 13 March 2013 the practitioner's decision to perform a loop excision of the transformation zone (LLETZ) and cone biopsy on Patient F to stem her post-partum cervical bleeding was not clinically indicated in that: 1. An LLETZ and cone biopsy are procedures that are used for the diagnosis and management of pre-cancer of the cervix. There was no evidence that Patient F had a cervical malignancy. And 2. These procedures should not have been undertaken at a regional hospital.
Patient F said that the practitioner told her that he was "almost certain" that she had cervical cancer. It was on this basis that the practitioner had Patient F on 13 March 2013 sign the consent to the procedures.
Although the practitioner told Patient F that he thought she had cancer, (he denied this) there is no statement by the practitioner in the records that he considered the issue of malignancy or that he informed the patient that he believed that she may have cancer.
Dr Geraghty's opinion was that if the practitioner was of the opinion that Patient F may have cervical malignancy, the procedure should not have been conducted in a regional hospital.
Dr Geraghty considered that the conduct of the practitioner under this Particular is significantly below the standard reasonably expected of a practitioner with a similar level of training or experience.
Associate Professor Lam is of the opinion that the failure of the practitioner to adequately explain and communicate with Patient F represented conduct below the standard, but he did not believe that the course of action of the practitioner represented conduct below the standard.
The Tribunal has concern that if the procedure was not adequately explained to Patient F, then there was no valid consent to the procedures that the practitioner carried out on Patient F.
The Tribunal has preferred Dr Geraghty's opinion as to the conduct being significantly below the standard. Accordingly, it was unsatisfactory professional conduct.
Complaint Nine - Particular 5 - Patient F
The allegation under this Particular is that on 13 March 2013 the practitioner advised Patient F that he had suspected she had cervical cancer and failed to provide adequate management for the patient in that he failed to refer Patient F to a gynaecological oncologist for further assessment in light of his suspicion.
Patient F's evidence is that the practitioner, on the day she was admitted to hospital after the bleeding,: "Told me my cervix was damaged and he needed to do a cancer op (sic). He thought I had cervical cancer. My body was in shock from blood loss".
She also said that after the surgery: "He told me I couldn't have any more children and he had taken a piece of my cervix as he was sure I had cancer".
She said that two weeks later the receptionist for the doctor contacted her and told her that there was no cancer.
The practitioner said that Patient F a few days after the initial "D&C" operation suffered a heavy bleed and phoned the practitioner. In his letter to the Health Care Complaints Commission of 20 November 2013 at page 6 the practitioner said: "I am concerned about this misunderstanding as implied by [Patient F]. I told her a small piece of cervical tissue may have to be removed by a Loop diathermy, which is called Large Loop Excision of the Transformation Zone (LLETZ). I would have mentioned that this is the same procedure we perform for pre-cancer, however for cancer you have to do a hysterectomy. Obviously she misunderstood what I said and thought, mistakenly, that she may have had a cervical cancer".
In his subsequent letter to the Commission of 25 November 2016 he again said that he had not told Patient F that she had pre-cancer or cancer of the cervix. He said that he had not found any reason to suspect she had cancer and that is why there was no record of him telling that he suspected she had cancer.
Dr Geraghty said that despite the practitioner's denial of informing Patient F of possible cancer, it could be easily assumed by the operations on the consent form that he anticipated she had cancer.
In that case a referral to a gynaecological oncologist would have been expected. Dr Geraghty said there was no reason to perform those "deconstructive procedures" unless they were potentially life-saving and there was no evidence of the need. His view was that accordingly his conduct was significantly below the relevant standard and invited his strong criticism.
Associate Professor Lam accepted the practitioner's claim that he intended to perform suction curettage to exclude retained products. But he found that the practitioner failed to adequately document the reasons for his management plan. He disagreed with Dr Geraghty as to the question of the alleged diagnosis of cancer. He accepted the practitioner's denials of having conveyed to Patient F that he suspected she had cancer.
However, Associate Professor Lam found that the practitioner failed to adequately communicate and document the reasons for his management plan. For that reason Associate Professor Lam found that the conduct of the practitioner fell below the standard.
The tribunal accepts the evidence from Patient F as to what the practitioner told her about a suspicion that she had cancer. Accordingly, the Tribunal also accepts the opinion of Dr Geraghty that the practitioner if he suspected Patient F had cancer, should have referred her to a gynaecological oncologist for further assessment. He did not do so. Accordingly, in accordance with the evidence of Dr Geraghty, his conduct was significantly below the reasonable standard and invited strong criticism. The conduct was therefore unsatisfactory professional conduct.

[26]

Complaint Eleven - Particular 1 - Patient G - Discussion

This Particular alleges that on 22 October 2015 the practitioner performed a suction curettage, at first instance, on Patient G to manage her severe right iliac fossa pain, which was not clinically indicated in circumstances where the practitioner: (a) failed to address Patient G's cause of pain which was her presenting symptom; (b) failed to make a clear diagnosis for the cause of Patient G's pain; (c) failed to consider any further examination or consultations to make a diagnosis; (d) failed to consider alternative forms of treatment in light of Patient G's early pregnancy failure; and (e) was aware of Patient G's medical history and should have been reluctant to perform further surgical procedures.
The operation record of 22 October 2015 is at p 12 of Tab 34 of Volume 3 of the material from the Health Care Complaints Commission.
In his letter of 18 December 2015 to the Commission, which is at Tab 64 of Volume 4 of the Commission's material, the practitioner states that Patient G was admitted under his care on 21 October 2015 with "quite severe right iliac fossa pain". A pregnancy test was positive but an ultrasound scan showed "blighted ovum". He said: "I promptly performed a curettage procedure the following morning and later that day [Patient G] was discharged home. Histology confirmed products of conception".
In his letter to the Commission of 15 November 2016 the practitioner said in that document that the ultrasound scan showed "a benign corpus luteal cyst involving the right ovary".
In his letter of 15 November 2016 the practitioner, responding to this Particular did not provide any evidence that he diagnosed the cause of the pain, which was the reason for the patient's presentation at the hospital. Indeed in his letter of 15 November 2016 at Point 1 of page 9 the practitioner acknowledges that: "The diagnosis of a blighted ovum was confirmed by ultrasound scan …" and: "The curettage I performed on 22/10/15 was to manage her blighted ovum and not for her right iliac fossa pain".
And also stated: "Her ongoing and chronic right iliac fossa pain was another but secondary concern on that admission".
He also acknowledged that "Conservative management is usually recommended for spontaneous miscarriage, but not for blighted ovum because uterine contractions don't usually occur and a curettage is required in most cases". He also acknowledged that the patient had been known to have chronic pelvic pain for the last 15 years and this was her main concern.
Dr Geraghty in his report of 28 September 2016 noted that at no stage during the admission was there any clear diagnosis of the cause of the pain other than the ultrasound finding of the cyst. His evidence was that as she was not bleeding, in all likelihood, the miscarriage was not the cause of the pain.
He said in his report: "He undertook to perform a suction curettage on an early pregnancy failure without offering her alternative forms of treatment which would have likely spared her from a surgical procedure. He addressed the failed pregnancy but failed to address the cause of her pain which was the presenting symptom. There is scant record of a history or examination having been undertaken by him in this matter and she was discharged without resolution of the problem. Dr Gayed failed to consider any further examinations or consultations to make a diagnosis. [Patient G] was well known to him from extensive previous contacts and given that knowledge, he should have been reluctant to undertake any further surgical procedures. The standard expected of a practitioner of an equivalent level of training and experience would have been to offer [Patient G] alternative means of managing her miscarriage, explaining the consequences and further investigating the cause of her pain which was her reason for presentation."
Dr Geraghty also noted that before surgery the practitioner did not seek the opinion of other colleagues and undertook surgery without a diagnosis and clear objective.
He said that surgery should have been avoided if at all possible and should only have been undertaken in the presence of a significant diagnosis, a deterioration of clinical state, and by laparoscopy if at all possible.
Dr Geraghty also said in his response to Dr Gayed's statement that there were concerns about the safety of a laparoscopy and the practitioner then changed Patient G's procedure to laparotomy, but Patient G was unaware that limitations on the practitioner's registration existed regarding advanced laparoscopic procedures. No mention of that was made by the practitioner in the notes at the time. It is clear though that an advanced laparoscopic procedure was not an option that the practitioner could offer. However, Dr Geraghty noted that there was no evidence that the practitioner sought a colleague who would be prepared to do such a procedure.
Dr Geraghty noted that apart from mentioning endometriosis, in that note, there was no evidence that the practitioner had a list of different diagnoses for the cause of the acute pain and no evidence of a surgical plan of management. He said that the clinical record did not substantiate the practitioner's claim that endometriosis was the "working diagnosis" nor that the removal of the ovary was necessarily planned.
Dr Geraghty further noted that there was no evidence in the clinical record that [Patient G] was made an offer of another opinion or the choice of being transferred to a tertiary facility, and despite her family commitments, it would have been responsible for her to have been made such offers.
Dr Geraghty also noted that the practitioner's operative description did not lend itself to be interpreted. He noted that the patient had presented with acute pain and following the procedure her pain was not only unresolved, but exacerbated.
Dr Geraghty also reported: "Post-operatively, [Patient G] was in a greater degree of pain requiring epidural anaesthesia and admission to ICU for Metaraminol infusion because of persistent low blood pressure, where she remained for the next three days. Contact is made to Dr Gayed by Registrar Dr Tatham no alteration in management recommended. As mentioned in the initial report, there is a substantial amount of unaccounted for wound damage. No explanation is ventured and no investigations initiated to determine the nature of the drainage or its origin, although Dr Gayed does change his mind to keeping the drain in-situ after initially ordering its removal".
He further reported: "There is no evidence in the clinical record of [Patient G] being seen by Dr Gayed or any of his gynaecological colleagues until seen by Dr Gayed on 28 October, some three days post-operatively and when seen there is no attempt to explain or investigate the possible causes for her excessive pain and wound drainage. Although he states that: 'Three other gynaecologists were fully aware', there is no evidence in the clinical record of any of them giving an opinion regarding her management although one or all may have done so verbally".
Dr Geraghty noted that in the surgery the practitioner had removed Patient G's right fallopian tube and ovary "which histologically showed no obvious pathology and inadvertently [he had] injured her left ureter".
No laparoscopy for advanced pelvic endometriosis was available at the regional hospital. The patient did not want to go to the tertiary facility in Newcastle because she had four young children. At the s 150 hearing on 1 April 2016 he said that he agreed to do the laparotomy and not a laparoscopy because "She had some midline incision".
The conduct of the practitioner complained of in Particular 1 of Complaint Eleven is proved and the experts agreed on that. The opinion of Dr Geraghty, with which Associate Professor Lam agrees, is that the conduct of the practitioner under this Particular was substantially below the reasonable standard for practitioners of similar training or experience and invited strong criticism. It was therefore unsatisfactory professional conduct.

[27]

Complaint Eleven - Particular 2 - Patient G - Discussion

This complaint is that on 25 October 2015 the practitioner performed a laparotomy on Patient G to manage her severe right iliac fossa pain which was not clinically indicated in circumstances where the practitioner: (a) did not consider any alternative means of performing a laparoscopy such as an open approach or an initial incision in the left upper abdomen; (b) failed to consulted with a general surgeon regarding Patient G's cause of pain; and (c) undertook the procedure without a proper diagnosis and/or clear objective.
According to the practitioner's letter of 18 December 2015 to the Health Care Complaints Commission, he first met Patient G in January 2000 when she was admitted to the regional hospital with "severe and acute pelvic pain". He performed a laparoscopy the same day "and treated severe pelvic inflammatory disease and very dense pelvic adhesions".
He subsequently had regular consultations with her. Her son was born in May 2003 and her daughter was born in April 2005. In February 2009 she suffered a miscarriage and in April 2009 he performed a laparoscopy on her and then diagnosed and treated her for pelvic endometriosis. She started hormone treatment and he gave her two Zoladex hormone implants on a monthly basis. She was admitted to the regional hospital on 14 June 2009. Another doctor performed a further laparoscopy on 8 July 2009. She remained under the care of that doctor when she subsequently had two more children. Patient G was admitted to the regional hospital on 23 October 2015 with "quite severe right iliac fossa pain". He said that she had been using strong medication (IV morphine) but her pain score remained as 9/10. He said that he offered her surgery to control her pelvic pain but could not perform the operation on 24 October because of other urgent procedures including two emergency caesarean sections.
He said in the letter: "Her pain continued despite her regulation medication. I advised against laparoscopy because of the mid-line vertical incision she had and she agreed for a laparotomy procedure".
He said in the letter: "It was expected that the right tube and ovary would be removed because of the chronic nature of her right sided abdominal and pelvic pain".
The practitioner said that while the patient was awaiting theatre on Sunday 25 October 2015 he had a discussion with her and: "I noted her previous medical history of appendectomy, cholecystectomy, severe pelvic inflammatory disease and chronic pelvic endometriosis. Because of the chronic nature of her debilitating pelvic pain she was also suffering from depression and using the antidepressant Sertraline 200 mg in the morning".
He said in the letter: "I also noted that [Patient G] was on the current medications: Pregabalin (Lyrica) 75 mg 3 times daily, for neuropathic pain; Targin 10/5 mg 3 times daily; Oxycodone 10 mg 8 hourly PRN, for pain relief; Pantoprazole, an antacid, 40 mg twice daily; Ibuprofen 400 mg 8 hourly as required; and Temazepam 10 mg 4 night sedati".
He reported in the letter: "I performed a difficult laparotomy, as expected, which lasted about 90 minutes. There were severe pelvic adhesions because of chronic pelvic endometriosis. The right ovary was slightly cystic. After extensive dissection on the right side of the pelvic wall, the right ovary and fallopian tube were carefully separated from the surrounding structures, small and large bowel and right ureter, before they were finally removed, as detailed in handwritten operative notes. On the left side pelvic adhesiolysis was also performed but no tissue was removed. The operation appeared to have been concluded without a problem and there was no suspicion of any ureteric injury during or immediately after the procedure was completed".
The practitioner says that he advised against the laparoscopy because of "the midline vertical incision". He claimed the patient had agreed to a laparotomy. He said in his letter of 15 November 2016 to the Commission at p 9 that: "Pelvic endometriosis was the main diagnosis and removing the right tube and ovary was planned".
He stated also: "Clinically she had a leaking corpus luteum cyst and the ovary was trapped."
At p 10 of that letter he stated that: "[Patient G] was keen to have the right tube and ovary removed as she was fully aware of her main diagnosis of pelvic endometriosis. It also correlated to her pain being mainly on the right side".
The practitioner noted: "The expertise to perform laparoscopy for advanced pelvic endometriosis was not available at the [regional hospital] and could only be done at the tertiary centre at Newcastle".
He said: "Having four young children in [the regional town] she was not keen to be transferred to a tertiary centre".
At the s 150 hearing on 1 April 2016 the practitioner testified at p 35 of the transcript that he agreed to do: "the laparotomy and not laparoscopy because she had some midline incision, although when I checked this, eventually it was laparoscopic cholecystectomy, but she had several centimetres cut, so I am not sure."
Dr Geraghty said in his report of 28 September 2016 at Point 11 that the practitioner undertook a diagnostic laparotomy. He noted that the practitioner before the surgery did not seek the opinion of any other colleague and undertook the surgery without a diagnosis or a clear objective. Dr Geraghty's opinion is that surgery should have been avoided if at all possible and should have only been undertaken in the presence of a significant diagnosis, a deterioration of clinical state and by laparoscopy if at all possible.
In his response to the practitioner's statement (Tab 52) on p 2 he noted that there was no evidence in the records of Patient G being given an offer of another opinion or of a choice of being transferred to the tertiary hospital in Newcastle. Dr Geraghty was concerned about the safety of a laparoscopy by the practitioner. Patient G was aware of the limitations of the practitioner's practice. It was clear that he could not offer advanced laparoscopic procedure. However, no attempt was made to seek a colleague who could do this.
Dr Geraghty concluded that the clinical notes showed no evidence of a surgical plan of management and did not substantiate the claim that endometriosis was the working diagnosis nor that the removal of the ovary was necessarily planned.
Associate Professor Lam said there was an absence of a proper diagnosis or differential diagnoses to account for the pain and that the criticisms by the HCCC were therefore fair and reasonable. The tribunal finds that this particular is proved. Associate Professor Lam agreed with the opinion of Dr Geraghty that Particular 2 of Complaint 11 was proved. Associate Professor Lam agreed with the opinion of Dr Geraghty that the conduct of the practitioner under this Particular was significantly below the standard and justified strong criticism. It was therefore unsatisfactory professional conduct.

[28]

Complaint Eleven - Particular 3 - Patient G - Discussion

This Particular is that the practitioner on 25 October 2015 performed a right salpingo-oophorectomy on Patient G to manage her severe right iliac fossa pain, which was not clinically indicated in circumstances where: (a) there was no recorded evidence of significant abnormality in either the pre-operative imaging or from direction inspection during the operation; (b) the histopathology recorded normal findings; and (c) the practitioner unnecessarily removed Patient G's right fallopian tube and ovary which appeared normal.
The respondent's evidence in relation to this Particular is the pathology report (Tab 33 p 9) shows that the fallopian tube was normal and the right ovary showed "a corpus luteum" and "fibrous adhesions are noted and these show decidualisation".
The operation record noted that the right ovary was "slightly enlarged" with corpus luteum cyst.
In his letter of 18 December 2015 to the Commission the practitioner claimed (at p 2) that "It is clearly documented in the hospital record … that the procedure was discussed and risks explained" and "It was expected that the right tube and ovary would be removed because of the chronic nature of her right sided abdominal and pelvic pain".
Dr Geraghty found that there was no record of any significant abnormality to the right fallopian tube or the ovary. He also found that there was no evidence in the pre-operative imaging or direct inspection at operation that the tube and ovary were a possible site of pain. They were also reported as normal on histopathology.
The respondent said in his letter to the Commission of 18 December 2015 that: "There were severe pelvic adhesions because of chronic pelvic endometriosis. The right ovary was slightly cystic after extensive dissection on the right side of the pelvic wall, the right ovary and fallopian tube were carefully separated from surrounding structures, small and large bowel and right ureter, before they were finally removed …".
In his letter to the Commission, the practitioner said that following the laparotomy Patient G's pain management was provided by him and the anaesthetist on call when she was admitted to ICU for close observation. The anaesthetist was unable to control her continued pelvic pains. He provided her with an epidural at midnight the day of the operation. By the following morning she was reviewed by the ICU team, the anaesthetist and the practitioner. She was in a stable condition by 27 October, two days after the surgery. She was not well and was using a PCA for pain relief. The practitioner arranged for a CT scan of her abdomen and pelvis. He said: "There was a suggestion of a small haematoma in the rectus muscle measuring 5 x 3 cms. It reported no overt uretic obstruction. The only abnormal finding at that time was possible 200 ml of fluid in the recto-peritoneum".
On 29 October Patient G was still in the hospital. The practitioner arranged for a pelvic ultrasound scan, which showed on 34 cc of fluid located within the Pouch of Douglas with no other fluid seen within either iliac fossa.
The practitioner noted that the practitioner recorded five days after the surgery, on 30 October Patient G: "Was feeling better and she was started on antibiotics and continued with her pain relief". He said that he had a discussion with Patient G in the presence of another practitioner and 'decided on a plan for managing her chronic pelvic pain'".
When Patient G left the hospital six days after the surgery, she was still in pain and taking medications for pain relief.
In his letter of 15 November 2016 to the Commission the practitioner stated that the ultrasound scan "was suggestive of haemorrhagic corpus luteum cyst involving the right ovary". He said too that the right oophorectomy with extensive pelvic adhesiolysis was expected to improve pain.
Dr Geraghty highlighted that there was no recorded evidence of significant abnormality to the right fallopian tube and ovary, there was no evidence in the pre-operative imaging nor direct inspection at operation that the tube and ovary were a possible site of pain, and they were reported as normal on histopathology.
He said that the surgery performed by the practitioner was not appropriate in the absence of clear knowledge and consent of the patient and some reason for doing so (e.g. strong family history).
He also said that the operative report appeared to be insufficient to claim that the ovary was involved with extensive pelvic endometriosis and to justify its removal.
Dr Geraghty reported that the conduct of the practitioner under this Particular was significantly below the standard reasonably expected of practitioners of a similar level of training or experience and justified strong criticism.
Associate Professor Lam reported that in the absence of a proper diagnosis or differential diagnoses to account for the pain, criticisms by the applicant were fair and reasonable. He agreed with Dr Geraghty.
Complaint Eleven Particular 3 has been proved and constitutes unsatisfactory professional conduct.

[29]

Complaint Eleven - Particular 4 - Patient G - Discussion

This Complaint is that the practitioner inappropriately discharged patient G from the regional hospital on 31 October 2015 in circumstances where: (a) Patent G was still complaining of abdominal pain and bloating; and (b) no diagnosis had been made of the underlying cause of Patient G's pain.
Patient G subsequently consulted Dr Constantindis, a locum RMO in Obstetrics and Gynaecology at the hospital. At p 208 of Tab 34 is a report by Dr Constantindis to Dr McLeod at the regional hospital. Her report of 2 November 2015 to Dr McLeod recites that Patient G had been again at the hospital and had a background of depression and chronic pain in the context of known endometriosis, for which she had had multiple laparoscopies. She reported to Dr McLeod: "On arrival to ED, she was febrile to 39.1, tachycardic to 105 and hypotensive with a BP 98/58. Abdomen was soft, with generalised tenderness, predominantly affecting her RIF and R flank. She had no signs of peritonism. Baseline bloods revealed WCC to be 12.3 with neutrophilia, Hb 93, Cr 89, eGFR 73, CRP 70. Urine dipstick was unremarkable blood cultures are negative to date. In the context of her sepsis she was fluid resuscitated in ED and treated with triple/broad spectrum IVAB therapy (Ampicillin, Gentamicin, Metronidazole)".
The letter advised that: "CT abdomen revealed bilateral low pelvic ureteric compression but no collection of other intra-abdominal pathology. Her case was subsequently discussed with Urology at John Hunter and their advice, a CT urogram was performed this afternoon to exclude ureteric injury. This study confirms a urine leak? bladder? ureteric."
The patient's case was discussed again with Urology and a plan made for transfer of care and definitive management under Dr McLeod.
The operation record of the practitioner of the previous surgery on 25 October 2015 noted that the right ovary was slightly enlarged with corpus luteum cyst. The practitioner claimed that: "There is clear literature that the histology of the ovary doesn't always confirm endometriosis in every case".
Dr Geraghty in his report of 28 September 2016 inappropriately discharged Patient G from the regional hospital in circumstances where:- (a) Patient G was still complaining of abdominal pain and bloating; and (b) no diagnosis was made as to the underlying cause of Patient G's pain.
The clinical notes show that Patient G was still complaining of severe pain on 30 October 2015. The practitioner recorded that she was keen to go home the following day. The notes also show that the patient was still complaining of pain on 31 October and was unsure whether she should go home.
The practitioner said that on the morning of 30 October Patient G was feeling better and started on antibiotics.
Dr Geraghty in his report of 28 September 2016 at Point 13 noted on 30 October the practitioner recorded "keen to go home tomorrow" notwithstanding her continuing to complain of abdominal pain and bloating. On 31 October, the day she was sent home, it was recorded that because of pain she was still unsure as to whether she should go home. She was discharged at 11:35 am. She was referred to the pain clinic for further advice on pain management. At that time no diagnosis had been made as to the underlying cause of the pain and no plan of management and the practitioner was concentrating on pain relief rather than investigating the possible cause.
Both Dr Geraghty and Associate Professor Lam are of the opinion that these criticisms are fair and reasonable and the partitioner's conduct was significantly below the standard reasonably expected of practitioners with similar training or experience. Accordingly, the conduct in Particular 4 of Ground 11 has been proved and is unsatisfactory professional conduct.

[30]

Complaint Eleven - Particular 5 - Patient G - Discussion - Consideration

This allegation is that the practitioner failed to diagnose Patient G's injury on her further presentation to the hospital on 2 November 2015 or consider the possibility of a ureteric injury and undertake further appropriate investigations in circumstances where Patient G's presenting symptoms were indicative of ureteric injury, namely: (a) ongoing severe pain; (b) excessive wound drainage; and (c) large amount of retroperitoneal fluid.
Dr Constantindis confirmed on 2 November 2015 a concern that there was a bladder leak or "urine leak? bladder? or uretic?".
On 2 November 2015 Dr Richard Lees, from a radiology practice performed a scan on Patient G for a possible ureteric injury. In his report to the practitioner he stated: "There is a leak from either the urethra or bladder as there is urine in the Pouch of Douglas". It also stated: "There is an indwelling catheter in the bladder, which is only partially filled. A small amount of air is present in the bladder. This probably entered via the catheter, a very common situation".
His conclusion was that there was a urine leak and stated: "If the situation does not resolve clinically I would suggest doing a CT cystogram in which contrast is injected into the bladder via the catheter. This should detect any leak from a tear or nick in the bladder. If a ureteric perforation is suggested I would suggest repeating the procedure as an IVP but with the bladder empty. The CT should be performed within a couple of minutes of the injection of the contrast with the bladder empty and then repeated every few minutes, possibly up to 10 minutes".
The practitioner said that he had investigated Patient G's ongoing pain by arranging for a CT scan of the abdomen and pelvis. The only abnormal finding in that was a possible 200 ml of fluid in the recto-peritoneum.
When he reviewed the patient on 29 October he said there was no evidence or ureteric injury. He followed up with a pelvic ultrasound scan.
When she was re-admitted on 2 November she was started on triple IV antibiotics and a CT scan was performed. The scan showed a leak from either of the ureter or the bladder.
The practitioner's evidence is that it was suggested that for further investigation the patient should have a CT cystogram and that was the scan the result of which showed a leak.
The practitioner in his letter of 18 December 2015 to the Commission said that when a laparotomy was performed in October care was exercised and no injury to ureters or urinary bladder was suspected at the time. Clearly it was not expected until the CT scan result was available. The practitioner's evidence was that "If injury was suspected or diagnosed immediate steps would be taken to repair that injury".
The practitioner agreed "in hindsight" that the recto-peritoneal fluid would have been linked to ureteric injury but at the time, he said: "It was considered to relate to the complex pelvic pathology, the lengthy surgery and repeated surgeries".
In the s 150 enquiry on 1 April 2016 the practitioner testified at p 41 that there was a urologist on site and if on the day "I found any suspicion of injury" I would have consulted the urologist and he said: "and we called them once or twice in the last ten years and [there] was no injury".
Dr Geraghty was critical of the practitioner because at no point did he consider a CT intravenous urogram to assist with diagnosis nor did he consider assessing the content of the fluid drainage to determine whether it could have been urine.
Dr Geraghty was of the opinion that without determining the nature of the 200 ml of retroperitoneum, it would be difficult to know whether it would be re-absorbed. The practitioner assumed that it would be.
Dr Geragthy was also critical that despite unambiguous reports of a large fluid collection, the practitioner ordered a pelvic scan for further investigation and gave no explanation as to what diagnosis he had in mind.
Dr Geragthy was also critical of the delay in diagnosis as the actual injury was not considered a possibility by the practitioner and no further investigations were made in that regard. He also had given no indication in his clinical notes as to his understanding of the cause of the pain. He sought no advice from his colleagues on management.
Dr Geraghty was also critical of the amount of wound damage and the fact that no explanation was ventured and no investigations initiated to determine the nature of the drainage or its origin.
He further said that contrary to the practitioner's evidence, ureteric injury is not rare and occurs when operating on the pelvic side wall. His opinion was that this operative complication should be one of the first to be excluded when a patient's post-operative course is complicated.
The Tribunal finds that this particular has been proved. Dr Geraghty and Associate Professor Lam agreed that the conduct the subject of Particular 5 has been proved. Associate Professor Lam and Dr Geraghty agree the conduct the subject of this Particular is substantially below the standard that can reasonably be expected from a practitioner of similar training or experience to the practitioner.
That conduct is therefore is unsatisfactory professional conduct.

[31]

Complaint Twelve - Patient G - Discussion

The Complaint is that the practitioner failed to ensure that the clinical records for Patient G were completed in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the clinical records failed to record: (a) a detailed medical history; (b) detailed record of examinations undertaken; and (c) detailed record of discussion of alternative treatment options.
In his letter to the Commission of 15 November 2016 the practitioner claimed that in his pre-operative consultation on 25 October 2015 with Patient G: "I clearly documented her history, explained the choice of surgery and reasons for it and confirmed that the risks were explained".
He then sought to list the various stages and interviews seeking to justify them as adequately recorded. However, his responses were largely about when the patient was "reviewed" rather than the records. In addition, his response revealed that he largely relied upon a Registrar or a Resident to make notes of reviews of the patient, even when he was present personally.
Dr Geraghty's opinion is that the clinical notations are less frequent than would be expected in a case of such length and complexity. He said that the practitioner gives "scant history, little indication that he has examined Patient G or offered her alternative treatment". His evidence is that the clinical records are of a less than acceptable standard. Associate Professor Lam agreed. The experts both found that the practitioner's conduct in this particular fell significantly below the relevant standard.
The conduct under complaint 12 is unsatisfactory professional conduct.
Complaint Thirteen - Discussion
Complaint Thirteen is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that he has engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The unsatisfactory professional conduct found proved has involved wide ranging and serious failures of the practitioner in his professional conduct including the areas of clinical examination, diagnosis and assessment of patients, in recognising the need for and making proper surgical and clinical records, in properly recognising and properly considering alternative treatment options, in properly informing patients of treatment options, particularly less invasive and less risky options (including the implications and the risks), and in obtaining informed and valid consent of patients to procedures performed on them.
The practitioner has repeatedly subjected patients to serious risk and harm. The extent and seriousness of the unsatisfactory professional conduct proved would require that for the protection of the public, if he were still registered, his registration be cancelled.
Given the findings already made the Tribunal is compelled to find that the practitioner is guilty of professional misconduct being numerous instances of unsatisfactory professional conduct which, when considered together, were of a sufficiently serious nature to justify the cancellation of his registration.

Health Care Complaints Commission v Gayed

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (35 paragraphs)

Parties

Cases Cited (1)

Cited By (1)