Health Care Complaints Commission v Hollenbach - [2019] NSWCATOD 118 - NSWCATOD 2018 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hollenbach

[2019] NSWCATOD 118

NCAT Occupational|2018-05-21

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Court

NCAT Occupational

Decision date

2018-05-21

Source

Original judgment source is linked above.

Judgment (86 paragraphs)

[1]

Background

Dr Hollenbach was first registered as a medical practitioner in 1985, having completed his tertiary education at the University of Melbourne. Between 1985 and 1993 he had a general clinical role, initially focusing upon paediatrics before commencing specialist training in ophthalmology. From 1995 to 1996 he was an ophthalmology registrar at the John Hunter Hospital in Newcastle before taking successive positions as Registrar, Senior Registrar and then Vitreoretinal Fellow at Sydney Eye Hospital. In 1999 he became a Fellow of the Royal Australian and New Zealand College of Ophthalmologists.
In 1999 he undertook sub-specialty training at three different hospitals in London over a period of three years before returning to Australia. Upon his return to Australia in November 2001, he practised his specialty as an ophthalmologist in the Hunter Region of New South Wales from practice premises in Newcastle.
In addition to his work in private practice, Dr Hollenbach has practised as a cataract, vitreoretinal and oculoplastic surgeon as Visiting Medical Officer Ophthalmologist at the Hunter Health Service since 2002.
Initially, he operated at both John Hunter Hospital and Royal Newcastle Hospital where he was the first vitreoretinal surgeon to be appointed. He also practised in the private sector with surgical rights at Hunter Valley Private Hospital and more recently at Lingard Hospital, Broadmeadow Day Surgery and Maitland Private Hospital. Since 2012 his public hospital appointments have included Kurri Kurri Hospital and Muswellbrook District Hospital.

[2]

[3]

PART 1. LIABILITY

Before turning to address the individual complaints, it is appropriate to make some preliminary observations relevant to this part of our reasons.
In addressing all complaints, the names of patients whose treatment has resulted in a complaint against Dr Hollenbach have been anonymised by assigning to each patient a synonym corresponding with a letter of the alphabet. The name of each patient and the letter assigned to that patient is attached to the Further Amended Complaint filed on 15 May 2018. In accordance with cl 7 of Sch 5D to the National Law, an order has been made prohibiting the disclosure to any person or entity of the name of any patient listed in the Schedule to the Complaint.
We were informed that two of the 13 patients whose treatment is the subject of complaint are now deceased. We were also informed that the remaining 11 patients were each available to give evidence relevant to their treatment. However, the legal representatives of Dr Hollenbach advised the Commission and the Tribunal that he did not seek to have any patient called to give evidence. The documentary evidence tendered before us included letters or statements from each patient.
As will become apparent, the matters that are the subject of Part A of each complaint are directed to the professional competence of Dr Hollenbach in treating patients who are the subject of complaint. They raise matters of some complexity relevant to the specialist medical discipline of ophthalmology. This circumstance makes the constitution and functioning of the Tribunal for the hearing of these complaints significant. Particularly is that so because we have received competing evidence from expert ophthalmologists called by each party.
By s 165B of the National Law, the constitution of the four member Tribunal to hear complaints against medical practitioners is to include two practitioners within the same division of the profession as the practitioner whose conduct is the subject of complaint. In the present case, the two professional members of this Panel are practising ophthalmologists. The role that the Tribunal plays in matters of the present kind, particularly in the use of the expertise of Panel members, is the subject of observation by Deputy President Boland ADCJ in Health Care Complaints Commission v Fraser [2014] NSWCATOD 29. Her Honour there observed that proceedings under the National Law are neither strictly inquisitorial nor strictly adversarial. The provisions of cl 2 of Sch 5D to the National Law, stating that the Tribunal in these proceedings is not bound to observe rules of evidence, "but may inform itself of any matter in the way it thinks fit" are, with respect, consistent with that observation. Her Honour then continued: 237 As presently advised, we do not consider the proceedings under the National Law are strictly inquisitorial. Nor are they strictly adversarial. We are also of the view that although a Tribunal, which is multi-disciplinary can inform itself of any matter in the way it thinks fit, that process must be in accord with the principles of natural justice and procedural fairness. That is, the Tribunal cannot form an opinion based on evidence it has gathered but not disclosed to the parties (see Hall v The University of New South Wales [2003] NSWSC 669 at [353]). 238 In reaching this conclusion however we do not overlook the primary reason for the constitution of the Tribunal that includes two professional members of the same division as the practitioner the subject of the proceedings. That primary reason is so that the specialist members of the Tribunal can apply their knowledge and expertise to the evidence before them [case citation omitted]. However, prudence will dictate that where there is a "genuine difference of view within the body of the profession concerned", such a conflict is best resolved by the adducing of expert evidence before the Tribunal… . Although the decisions to which we have referred were determined prior to introduction of the National Law, we are satisfied that the principles espoused in those decisions remain apposite to proceedings under the National Law.
Save for complaint number 14, each of complaints numbered 1 to 13 allege that Dr Hollenbach was guilty of unsatisfactory professional conduct under s 139B of the National Law in that he 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.
As Part A of the Complaints numbered 1 to 13 is in identical terms, we will not repeat those words of each complaint but it is the standard by which each complaint will be assessed. Particulars of and the background to each complaint are set out in the Complaint filed by the Commission and it is those matters that will be identified separately when addressing the respective complaints.

[5]

Particular 1: Post-operative visit

The allegation that Patient A was not provided with appropriate care and treatment on 10 October 2013 is denied by Dr Hollenbach. He states that he did see this patient post operatively on 9 October and on Day 2 following surgery, that is on 11 October. He acknowledged that the surgery on 9 October 2013 at Maitland Private Hospital was complicated by the circumstance that there was a capsular rupture necessitating placement of a sulcus intraocular lens after performing an anterior vitrectomy. While acknowledging that if there is a complication in carrying out a surgical procedure he will see a patient both immediately after the surgery and usually the next day, whether a visit the following day is to be made depends upon the nature of the complication. Dr Hunyor, called by the Commission, was critical of the fact that Patient A was not seen the day following surgery.
In his report addressing the treatment of Patient A, Dr Hunyor stated that it was standard practice to examine all patients undergoing cataract surgery on either "the first post-operative day, or in some cases to examine the operated eye later on the day of surgery." He then opined that "failure to examine a patient who had complicated cataract surgery on the first post-operative day was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct, and invites my strong criticisms."
Dr Lee disagreed. He considered that, notwithstanding the complication that had occurred during surgery on 9 October, the post-operative visit that same day coupled with the eye examination conducted by Dr Hollenbach on the second post-operative day reflected an appropriate standard of care for this patient. He stated that even when there is no complication, patients can experience ongoing pain after intraocular surgery. That Patient A was in discomfort following surgery was not surprising. Indeed, Dr Lee expressed the opinion that he was unsurprised that Patient A's pain did not settle down for a year. Neither Dr Hunyor nor Dr Lee identified any different treatment that may have been offered or available had Dr Hollenbach seen Patient A on the first day following surgery.
Dr Hollenbach stated that he had advised Patient A of the complications that had occurred during surgery at the time of seeing her in the recovery ward following surgery on 9 October. When he examined her on 11 October he described her vision as being poor and the left eye being sore. Examination revealed a malpositioned intraocular lens, indicating the need for further surgery in an endeavour to correct the position of the lens. That need was then explained to her.
He further states that on the morning following surgery patients are routinely contacted by hospital staff as well as one of his personal staff. If concerns are related by the patient, that fact is reported to him and a decision made as to whether the patient should be seen that day. It appears that nothing alerted him to the need for a consultation on 10 October, knowing that there was an appointment fixed to see Patient A on 11 October.
In the circumstances, we accept the evidence of Dr Lee. While a consultation on day 1 following surgery may have been seen as desirable, the fact that it did not occur, coupled with the fact that Dr Hollenbach had considered, subject to further eye examination on 11 October, that further surgery was recommended, the appointment for consultation with Patient A on 11 October was sufficiently compliant with common practice. Nothing related to Dr Hollenbach and nothing addressed by him identified the need for the consultation planned for 11 October to be brought forward to 10 October.
For these reasons, we are not satisfied that Particular 1 of the Complaint in respect of Patient A has been established. Dr Hollenbach's notes record that Patient A was seen and examined post-operatively and again on 11 October. His omission to examine her on 10 October is not considered to be "substantially" below the requisite standard.

[6]

Particular 2: Communication of capsular rupture

The second particular relating to Patient A is directed to the failure of Dr Hollenbach to provide adequate communication to the patient that she had a capsular rupture in her left eye.
A statement from Patient A is in evidence. She states that at the conclusion of the operative procedure on 9 October, Dr Hollenbach stated that he wished to see her "in Bolton Street tomorrow at 8am. We are going to have to do it again". She acknowledged that the next occasion upon which she saw Dr Hollenbach was at his rooms in Bolton Street, Newcastle on 11 October where she was told by him that she was to go to Lingard Hospital for further surgery arranged for 16 October. She states being aware that the further surgery was to replace the lens inserted into her eye by Dr Hollenbach. She states, however, that after suffering considerable pain in her eye and discomfort since both the surgery on 9 October and again on 16 October, she did not learn that she had suffered a capsular rupture until she consulted Dr Davies, another ophthalmologist practising in Newcastle, on 23 September 2014. Patient A was not required for cross examination.
For his part, Dr Hollenbach states that Patient A was informed that she had suffered a capsular rupture when he spoke to her post operatively on 9 October. He expressed doubt that he would have discussed the need for further surgery at that time, as it was rare for him to discuss the need for a second procedure while the patient was still in recovery from a first procedure that had just taken place. While the ophthalmic surgery is undertaken using a local anaesthetic, the patients are also administered twilight sedation. He states that rarely would he have made a decision to carry out or at least recommend further surgery without first examining the eye following the initial surgical procedure.
Dr Hollenbach states that he told Patient A of the need for a second procedure when he saw her on 11 October, explaining that it was needed because of the malposition of the lens after capsular rupture. He acknowledges that the discussion is not recorded in his notes and nor is the fact that he explained the capsular rupture again at that time. Contrary to the submission made on behalf of the Commission, we do not understand Dr Hollenbach to be stating that it was only on 11 October he informed Patient A of the capsular rupture. Rather, we understand his evidence to be that it was explained in the context of discussing the further surgery to take place on 16 October.
Given the passage of time, the differing versions of conversations that took place in October 2013 is unsurprising. The statement signed by Patient A is dated June 2015, some 20 months after the event. Dr Hollenbach has no contemporaneous notes recording the advice that he gave to Patient A either post operatively or when he saw her on 11 October. There are the only objective criteria, such as they are, that assist in resolving this factual issue.
Given that Patient A had, according to Dr Hollenbach's usual procedure, been administered with "twilight sedative" at the time of her cataract surgery on 9 October, it is objectively possible that she did not fully comprehend what she was told either before she left the operating room (her evidence) or what was said to her in the recovery ward. The fact that her recollection may not be precise is borne out by her statement that she was to see Dr Hollenbach in his Bolton Street room "tomorrow at 8am", that is on 10 October, whereas she saw him on 11 October. She did not assert that she had attended the surgery on 10 October but was unable to see Dr Hollenbach. The statement would appear to be a product of faulty recollection.
The statement by Dr Hollenbach tendered in evidence, in which he set out his recollection, so far as he could, and otherwise stated his usual procedure, was not the subject of cross examination when giving his oral evidence. It may well be that this was so, because his recollection was not founded upon any detailed contemporaneous record. However the fact that he was not challenged is, as his submission on liability states, at least some acknowledgment that there remained uncertainty as to the accuracy of Patient A's recollection.
Finally, in the ordinary course of medical practice, it would be expected that when Dr Hollenbach explained the need for further surgery on 11 October, he would also have explained the complication arising from capsular rupture. When Patient A consulted Dr Hollenbach on 11 October, she was accompanied by her daughter. At that time consent to surgery was signed. Although Patient A was then aged 74 years, it is likely, in the ordinary course of events, that a question would be asked as to the medical condition giving rise to the need for surgery as well as any complications then existing or that might arise.
Dr Hunyor accepted that if Dr Hollenbach's version of what occurred on both 9 and 11 October 2013 is accurate, his conduct was appropriate (T.15/5/18 pp.33:50-34:45). However, he opined that if the account of Patient A is accepted, the communication between Dr Hollenbach and her was "suboptimal".
Although we have not found the determination of the factual issue an easy task, having regard to the standard to which we have earlier referred when assessing competing factual issues, we are not satisfied that the version of events and conversations as related by Patient A more likely than not reflects what, in fact, occurred. This is not to be critical but we take account of the period that elapsed between the time of the relevant conversations and the time at which, on the evidence, those events are recorded by Patient A. In that context, we also take account of the fact that further medical consultations both with Dr Hollenbach and other professionals took place subsequent to 16 October 2013 which may give rise to some faulty recollection of the critical events that occurred in October 2013.
For these reasons, we do not find that the second complaint relating to the care of Patient A has been established.

[7]

Particular 3: Follow up care

The third particular directed to the claimed failure of Dr Hollenbach to provide appropriate care and treatment for Patient A claims an inadequate follow up of her left eye beyond two months after the procedures carried out in October 2013.
Dr Hollenbach described the surgery undertaken by him on 16 October 2013 as being "uneventful" with the original intraocular lens stabilised in the ciliary sulcus without having to be replaced. A single suture was used to suture the wound. Following that procedure, Patient A was reviewed immediately after the surgery and also on day 1 post operatively. When seen on that day Dr Hollenbach noted the lens "to be in good position" at that time, was confident that surgery had been successful and arranged for her to be seen two weeks later.
In fact, Patient A was seen by Dr Hollenbach on 29 October at which time he states that her vision was improving, although some inflammation of the cornea was manifest. He arranged for her to be seen again some four weeks later in order to remove the suture from her left eye.
On 4 December 2013, Patient A was again seen by Dr Hollenbach, on this occasion at his consulting rooms in Raymond Terrace. He noted that her vision had improved with testing measurements recorded. The suture was removed and he formed the opinion that her eye had settled down and her vision improved. He states that he was unaware of any dissatisfaction or distress. Following that consultation, Dr Hollenbach wrote to the patient's referring general practitioner, reporting the surgery she had undergone, explaining the complication with the initial surgery and requesting that the patient see her optometrist to have her glasses upgraded in the left eye.
Patient A was also proposed for cataract surgery on her right eye. However, she requested that the surgery be postponed for six months. When seen on 4 December, Dr Hollenbach states that the patient was asked to make follow up appointments as well as being placed on "the recall list" to be seen. This, he says, was both for follow up (presumably on the condition of her left eye) and also for further surgery on her right eye. According to Dr Hollenbach, she rang later in December to cancel planned cataract surgery and again in February telephoned his consulting room to cancel upcoming appointments. His records record the latter cancellation being made on 19 February 2014. This record was apparently made by a member of his staff, as Dr Hollenbach states that had he been made aware that future appointments had been cancelled he "would have insisted she come back in for a further check".
In his report, Dr Hunyor was critical of the failure of Dr Hollenbach to follow up Patient A after her December appointment in which the suture from her left eye was removed. Particularly was this so because he described the surgery as "complicated surgery", with an anticipation that the patient may have a complicated post-operative course. However, Dr Hunyor agreed in cross examination that if the left eye had improved when seen by Dr Hollenbach on 4 December; that a follow up for examination of that eye was scheduled for 19 February and that the patient had cancelled that appointment, the request in December for a follow up appointment in February was appropriate. He accepted that Dr Hollenbach could not be blamed for a lack of follow up when the patient cancelled the appointment (T.15/5/18: p.36).
It is unclear from the evidence as to whether an appointment had, in fact, been made for Patient A to consult Dr Hollenbach on 19 February 2014. Certainly, no record has been produced by Dr Hollenbach establishing that an appointment had been made for that date. However, in his written statement he does state at par 96 that when seen by him on 4 December she was requested to make a follow up appointment as well as being placed on the recall list to be seen.
It is true, as the applicant submits, that Patient A was proposing to have cataract surgery on her right eye and that the "recall" at least, was likely to have been in respect of surgery on her right eye. However, it seems to us, on balance, that the request for a follow up appointment was, more likely than not, to review the condition of the patient's left eye. While it may have been desirable for Dr Hollenbach to have fixed the appointment time himself or to check with his staff that the patient had done so, the fact that it was not done does not, in our opinion, constitute a standard that is "significantly below" the relevant standard. In her statement tendered to us, Patient A states (para 22) that following her appointment with Dr Hollenbach on 4 December, she had decided that she no longer wished to be treated by him. As Dr Hunyor accepted, the plaintiff's cancellation of all further appointments does not result in blame being attributed to Dr Hollenbach for failure to follow up as the particular of this complaint suggests.
For these reasons, we are not satisfied that the third particular of the Complaint concerning Patient A has established a basis upon which to make a finding of unsatisfactory professional conduct against Dr Hollenbach

[8]

Particular 4: Removal of suture with razorblade

The fourth particular of the Complaint concerning Patient A states that appropriate care and treatment was not provided for her because Dr Hollenbach removed the suture on the cornea of her left eye using an unsterilized razorblade. This incident occurred when Patient A consulted Dr Hollenbach on 4 December 2013. She states that after examining her eye, Dr Hollenbach told her that he intended to "take the stitch out of my eye". Patient A said that she saw him break a razorblade in half, then pick up one of the broken halves with a pair of tweezers. He told me to "keep still" as he was "going to cut the knot to remove the stitch". The stitch was cut with the blade and after its removal Dr Hollenbach showed Patient A what she described as a "tiny clear piece of nylon like fishing line."
The description by Patient A of what occurred on 4 December is confirmed in a separate statement from her daughter who accompanied her during the consultation with Dr Hollenbach on that day. She states that she saw Dr Hollenbach "take something from a tray and unwrap it". She described the unwrapped item as a "normal razorblade". According to her statement, she saw Dr Hollenbach pick up the razorblade with tweezers then "bang it on one side then the other which broke the blade." The broken blade was then used to "quickly remove the stitch".
In his initial response to this claim, Dr Hollenbach described his practice of using a blade breaker with a medical grade razorblade, stating that the blade as used was sterile. In the statement prepared by Dr Hollenbach and tendered before us, he states that he used a sterile razor to cut sutures from the cornea. In his oral evidence, Dr Hollenbach described the process and then said (at T.16/5/18: 98.48-99.4): So the razorblade is - although not sterile, it comes in an unopened pre-packaged package, which is opened - the sterile blade breaker is taken out of its sterilised package, the razorblade is opened up, the razorblade is attached to the handle - the blade breaker handle. With a flicking motion, a sharp - the razor is actually - razorblade is broken off so there is a sharp edge to it. That sharp edge is wiped with an alcohol wipe.
Dr Lee stated in his oral evidence that he last saw a razorblade being used to cut sutures some 20 years ago. He accepted the importance of a blade being sterile, indicating that there would be no utility in wiping a blade that was truly sterile with an alcohol wipe. When asked whether an unsterilized blade would be sterilised by wiping it with an alcohol wipe, he stated that such a wipe "would assist but it's not formal sterilisation". He continued: Just an alcohol wipe may not be, yeah, as good as formal surgical sterilisation with a sterilisation procedure. (T.17/5/18 p192:12).
Dr Lee considered that using a non-sterile blade wiped with alcohol would be adequate for cutting sutures because it is a superficial process, not involving any ocular penetration. However, given that the blade wiped with alcohol does not involve a full sterilisation process, he accepted that there was a risk of contamination when the cut sutures are removed.
Dr Hunyor was also critical of the process adopted by Dr Hollenbach. His focus was upon the sterilisation of the blade used. Although the razorblade may be individually packaged, such blades are not supplied in a sterile state. If a medical blade is used, Dr Hunyor stated that he would not be critical, provided that blade "was broken with an instrument that was itself sterile and wasn't a razorblade, which isn't sterile" (T.15/5/18 p.37:17-21). Taking account of the process described by Dr Hollenbach, together with the observations of Patient A and her daughter on 4 December 2013, Dr Hunyor did not consider the process adopted rendered the blade sterile. Like Dr Lee, Dr Hunyor was concerned at the risk of infection by use of the blade in a manner described by Dr Hollenbach.
Considering Dr Hollenbach's evidence in its totality, we find, on balance, that the blade used to remove a corneal suture from the left eye of Patient A on 4 December was a razorblade that, when used, was not a sterile blade appropriate for use in a medical procedure. We accept that the wiping of the blade with an alcohol wipe may have reduced the risk of infection but, as Dr Lee explained, using that wipe was not a "formal sterilisation" process. While we also accept that there is a reduced risk of infection from a blade used to cut a corneal suture because it does not involve any ocular penetration, nonetheless the risk of infection from an unsterilized blade remains. As a result, we accept the opinion of Dr Hunyor that removing a suture using an unsterile blade is conduct significantly below the relevant standard.
Thus, we find that the Complaint involving Patient A is established by reference to the fourth particular founding that complaint, namely, the use of a blade that was not surgically sterilised to remove a corneal suture from the patient's left eye.

[9]

Complaint 1B

This complaint alleges unsatisfactory professional conduct in that the practitioner contravened a provision of the Regulation. Particulars of the Complaint are stated as follows: On 9 October 2013 and 16 October 2013, the practitioner failed to maintain adequate medical records for Patient A in accordance with clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedure performed on those dates.
This complaint is admitted by Dr Hollenbach. Clause 7(1) of the Regulation required that a medical practitioner must, in accordance with that Part of the Regulation and Sch 2, "make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner". Schedule 2 to the Regulation relevantly provides: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient and is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues (if any) sent for pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. … 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning a patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in a form of a computer database or other electronic form, but only if it is capable of being printed on paper.
The primary concern with Dr Hollenbach's breach of the Regulation is directed both to the legibility of such records as he did make and the absence of information of the kind identified in cl 1(1) and (2) of Sch 2. Moreover the content of his records, both in the case of Patient A and in respect of other patients are insufficient to comply with the requirement of cl 2(2) of Sch 2, being insufficient to allow another medical practitioner to continue management of the patient's case.
The records concerning the surgical procedures performed on 9 and 16 October 2013 for Patient A have been provided. Dr Hunyor described those records as being "largely illegible". Those records, having been provided in the evidence tendered before us, we agree with that description. Dr Hollenbach accepted that his writing "is very hard to read and that my records are often scant". At par 37 of his statement tendered to us, Dr Hollenbach says: I admit that my records are not in keeping with expected standards of practice and are illegible to many other practitioners trying to read them. I also accept that they do not contain sufficient detail. I therefore admit the Complaints in relation to poor record keeping.
Dr Hunyor described the clinical record in respect of the two surgical procedures in question as being significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In light of that evidence as well as the admission made by Dr Hollenbach, we accept that to be the case. Complaint 1B has therefore been established.

[10]

Complaint 2A

This complaint relates to Patient B. As stated in the particulars to this complaint, Patient B suffered a left eye cataract. The particulars record that cataract surgery was performed on that eye by Dr Hollenbach on 5 March 2012. Following that surgery, Patient B suffered double vision and an intraocular lens prolapse. Further procedures were performed on the left eye by Dr Hollenbach on 16 April, 10 December 2012, on 27 August, 8 October and 19 November 2013; and again on 29 September 2014. The background also states that following these procedures Patient B suffered deteriorating vision in his left eye, a left iris prolapse and cystoid macular oedema.
The particulars of complaint are stated as being as follows: Between 22 August 2012 and 10 December 2012, the practitioner failed to provide appropriate care and treatment for Patient B in that he performed a pars plana vitrectomy, membrane peel and intravitreal injection on 10 December 2012 without first conducting an adequate trial of more conservative therapies, being intensive topical treatment followed by a trial of intravitreal therapy.
Dr Hollenbach records that prior to 5 March 2012 Patient B had been treated by other ophthalmologists, including Dr J O'Shea, with whom Dr Hollenbach then worked. He was being treated for glaucoma and had undergone cataract surgery on his right eye by another ophthalmic surgeon. He was referred to Dr Hollenbach's public list at Kurri Kurri Hospital with dense cataract of the left eye.
Cataract surgery was undertaken by Dr Hollenbach on 5 March 2012. That surgery included placement of an intraocular lens implant into the capsular bag.
Complications from that surgery were experienced later in March 2012, apparently as a result of a prolapse of the lens out of the capsular bag, as a result of which it was malpositioned. As a consequence, corrective surgery was undertaken by Dr Hollenbach at Kurri Kurri Hospital on 16 April 2012. Thereafter, Patient B was seen by Dr Hollenbach several times as a result of which he observed that his left eye vision was improving and the eye itself described as "quiet".
The patient's glaucoma was kept under review by others.
On 22 August 2012, Patient B attended for an emergency consultation because of blurred vision in his left eye, following a fall. Dr Hollenbach described examination of the eye on that occasion as being difficult. He was given Prednefrin Forte drops in that eye with arrangements made for a follow up with OCT screening. At that time, Dr Hollenbach made a diagnosis of macular oedema of the left eye.
An OCT scan on 30 August showed some intraretinal fluid underneath the macula of the left eye and vision in that eye had diminished. He was treated with topical Voltaren drops 4 times a day. Dr Hollenbach recorded, at that time, that if there was no improvement he may need to have a pars plana vitrectomy, internal limiting membrane peeling surgery with intravitreal Triamcinolone.
When seen four weeks later by Dr Hollenbach, Patient B's vision had not improved. A fluorescein angiogram performed at that time confirmed a diagnosis of cystoid macular oedema. He was then booked to have surgery. That surgery was undertaken by Dr Hollenbach at Kurri Kurri Hospital on 10 December 2012 and consisted of a vitrectomy, internal limiting membrane peel and intravitreal injection of Triamcinolone.
In his report of September 2016, Dr Hunyor criticised the surgical procedure carried out by Dr Hollenbach on Patient B's left eye on 10 December 2012. In his opinion the conduct of Dr Hollenbach was significantly below the relevant standard, attracting his "strong criticism" because it was an aggressive early surgical approach to a problem that is usually managed in a more conservative fashion. He states: The performance on the 10/12/12 of TPVV, membrane peeling and intravitreal Triamcinolone for what was essentially severe cystoid macular oedema seems to have been inappropriate as there was no vitreo-macular traction or significant epiretinal membrane, and more intensive topical treatment followed by intravitreal therapy would have been both safer and more likely to have a beneficial effect on vision.
Dr Lee differed from the opinion expressed by Dr Hunyor. In his report of 1 December 2016, he expressed, in terms, disagreement with the decision of Dr Hollenbach to proceed to surgery on 10 December 2012 rather than trial conservative therapies. In that report, based upon the clinical notes and information provided by Dr Hollenbach, Dr Lee stated that Patient B: … had an epiretinal membrane and epiretinal membranes with macular oedema often will respond best to removal of the epiretinal membrane. If there was no epiretinal membrane present then certainly other therapies could be trialled. The operative notes of Dr Eugene Hollenbach do state that there is a left epiretinal membrane and this was peeled. This is correct treatment for epiretinal membrane and associated macular oedema. His vision was slowly improving following removal of the epiretinal membrane. Ongoing macular oedema following epiretinal membrane surgery is not uncommon and patients may often require intravitreal therapy. I have no criticism with the pars plana vitrectomy and membrane peeling.
Dr Lee also recorded that the OCT scan obtained by Dr Hollenbach did show "vitreomacular traction indicating epiretinal membrane formation and leakage". That is, all indicia were present justifying the surgical procedure undertaken by Dr Hollenbach on 10 December.
In his oral evidence, Dr Lee maintained his support for the procedure under- taken by Dr Hollenbach. He stated that one did not need to have epiretinal membrane or traction as an indication to undertake the surgery, indicating that the surgery could be under taken even if there is no pathology or no traction (T.17/5/18, p.155:5).
Just as Dr Lee resisted the challenge to his opinion in the course of cross-examination, maintaining that the decision by Dr Hollenbach to proceed with surgery on 10 December was appropriate, so also Dr Hunyor maintained his position that more conservative procedures for treatment were appropriate before embarking upon the procedure undertaken by Dr Hollenbach on 10 December. At the conclusion of a series of questions in which the anticipated evidence of Dr Lee was put to Dr Hunyor, the concluding question and answer is pertinent (T.15/5/18, pp.40:37-41:5): Q. I suggest to you that it was reasonable practice, given Dr Hollenbach's concerns that the recalcitrant macular oedema could cause structural changes in the macula, to proceed with the surgical procedure, as he did, on 10 December? A. Well, if you are treating something that's actually pulling on the retina to cause the oedema, then surgery is definitely indicated. The absence of that, or the absence of an epiretinal membrane, which was not present, I think that a contentious topic, without having tried much more energetic conservative treatments.
There are two matters that emerge from that last answer. First, there is a difference between Dr Hunyor on the one hand and Drs Hollenbach and Lee as to whether there was something "actually pulling on the retina to cause the oedema". Both doctors Hollenbach and Lee consider that to have been the case. Second, the identification by Dr Hunyor of the decision to proceed with surgery as being "a contentious topic", is evident in the difference between the medical experts called by the parties in the present case.
In his statement, Dr Hollenbach stated that while his usual practice was to try intravitreal therapy before doing surgery, he considered the case of patient B to be unusual, which is why he undertook the surgical procedure earlier than he would ordinarily have done. He states that there is "room for legitimate debate as to the merits of early, as opposed to late surgery in these types of cases and also debate as to the merits of anti-inflammatory drops". He continued (at par 116 of his statement: In my opinion, given the recalcitrant nature of [Patient B's] oedema and the fact that it presented four months after the initial surgery, following a fall, it would not necessarily be unreasonable to do a surgical procedure to deal with the problem, as recalcitrant macular oedema of this duration quite often can cause structural changes in the macula and recalcitrant macular oedema often responds better to a surgical procedure.
In the final paragraph of his statement addressing the treatment of Patient B, including the treatment subsequent to December 2014, which is not, in itself, the subject of the complaint, Dr Hollenbach states that: "With the benefit of hindsight, in a similar presentation, I would probably adopt a more conservative approach and give a course of intravitreal therapy before trying surgery". We take that statement to be a candid assessment with the benefit of hindsight, rather than an admission of any fault at the time at which Dr Hollenbach made the decision in 2012 to proceed with surgery on 10 December of that year.
We do not take the statement to be an admission that the procedure evidenced unsatisfactory professional conduct. As the submissions of the Commission acknowledge, there is room for legitimate debate as to the merits of early, as opposed to late, surgery. However, the Commission submits that the present issue is to determine the period over which that conservative therapy should have been trialled before surgical intervention.
Each of the respective medical opinions in the evidence before us was advanced in terms that demonstrate what appears to us to be a difference that has rational support for either opinion. While Dr Hollenbach has acknowledged that, with hindsight, the more conservative approach advocated by Dr Hunyor may have achieved a better outcome for Patient B, that takes no proper account of the exigencies as they were in the latter months of 2012, when the decision was made to take the course of surgery in December that year. Given the support expressed by Dr Lee for the decision then taken by Dr Hollenbach, we are unable to conclude that the decision made by Dr Hollenbach to proceed with surgery when he did was significantly below the requisite standard.
For these reasons, Complaint 2A is not sustained.

[11]

Complaint 2B

The particulars of this complaint are expressed as follows: The practitioner failed to maintain adequate medical records for Patient B in accordance with clause 7 of Schedule of the Health Practitioner Regulation (NSW) Regulation 2010 in that the practitioner failed to record: (a) sufficient legible information on the operation report regarding the nature of the surgical procedure performed on 5 March 2012, 16 April 2012, 10 December 2012, 27 August 2013, 8 October 2013, 19 November 2013 and 29 September 2014; (b) sufficient legible information on the operation report regarding the surgeon's name, the date of the treatment and the pre-operative diagnosis on 5 March 2012; (c) sufficient legible information on the consent form regarding the nature of the proposed surgeries on 5 March 2012 and 16 April 2012, the risks and potential complications; (d) sufficient legible information on the operation report regarding which agent was injected during the procedure on 10 December 2012; (e) sufficient legible information, visual acuity and intraocular pressure on 20 December 2013 and 14 March 2014.
Dr Hollenbach has accepted, both by his Reply to the Complaint and in his statement of evidence, that his conduct in respect of each particular of this complaint was below the requisite standard, in that his record keeping did not comply with the requirements of the Regulation. Those records, such as they are, have been produced and considered by both Dr Hunyor and Dr Lee. As was the case in respect of Patient A, the relevant records and documents suffer both from illegibility, as well as the absence of essential information directed not only to the procedures but also in relation to diagnosis and explanations of that diagnosis to Patient B. Dr Hunyor was the more critical of the two experts instancing, for example, the identity of the agent injected during the procedure on 10 December 2012. While Dr Hollenbach states that the agent he used was Triamcinolone, the cryptic operative notes of Dr Hollenbach imply that it was "Avastin", even though the recorded dose of the injected agent is that appropriate for Triamcinolone.
Founded upon Dr Hollenbach's admission and the evidence of Dr Hunyor, we find that Dr Hollenbach is guilty of unsatisfactory professional conduct on the basis alleged in Complaint 2B.

[12]

Complaint 3A

This Complaint relates to Patient C. The background to the Complaint is said to arise from right cataract surgery performed by another ophthalmologist on 14 October 2013. On 16 October 2013, Dr Hollenbach performed right eye surgery on Patient C. Following the latter surgery, Patient C suffered distorted vision and discomfort.
Dr Hollenbach performed further right eye surgery on 30 October 2013. Following that surgery, Patient C suffered poor vision and discomfort in his right eye, corneal oedema, macular oedema and surgically induced astigmatism.
The particulars of the complaint by the Commission are stated in the following terms: 1. On 16 October 2013, the practitioner failed to provide appropriate care and treatment for Patient C in that he proceeded with further surgery to perform the intraocular lens repositioning on 16 October 2013 rather than first allowing time for the gross corneal oedema to clear. 2. Between 30 October 2013 and 6 January 2014, the practitioner failed to provide appropriate care and treatment for Patient C in that, despite Patient C's complaint of ongoing poor vision following the procedure on 30 October 2013, the practitioner failed to consider the possibility of macular oedema until 6 January 2014. 3. On 30 October 2013, the practitioner failed to provide appropriate care and treatment for Patient C in that during the right vitrectomy and removal of the intraocular lens with capsulectomy and suturing of the posterior chamber fixated lens, the practitioner used a prolene suture which was located unusually close to the limbus with protruding ends neither covered by scleral flap nor within a scleral pocket or groove.
In his statement tendered to the Tribunal, Dr Hollenbach states that he first met Patient C following complicated right cataract surgery that had been performed by Dr J O'Shea on 14 October. In the course of the surgery by Dr O'Shea, there was a capsular rupture necessitating an anterior vitrectomy with implantation of a sulcus fixated intraocular lens. Because of the complication, Dr Hollenbach was asked by Dr O'Shea to see Patient C the following day.
When Dr Hollenbach examined Patient C on 15 October, he noted that the patient had "hand movements" vision in the right eye and gross corneal oedema as a consequence of the surgery, as well as a subluxed intraocular lens.

[13]

Particular 1: Surgery on 16 October 2013

As a result of the examination made by Dr Hollenbach, following his examination of Patient C, he proceeded with right eye surgery on 16 October. That procedure involved a pars plana vitrectomy and anterior vitrectomy to remove the vitreous which had prolapsed through the capsular rupture into the anterior chambers from the posterior chamber and also to gain access to the subluxed intraocular lens. In the course of the procedure, the same lens was re-inserted into the ciliary sulcus and appeared to be stable at the conclusion of the procedure.
In undertaking that procedure, Dr Hollenbach did not suture the intraocular lens because, he says, he was able to manipulate the dislocated lens into the ciliary sulcus and thought that it was stable in that position. As he acknowledged, that did not prove to be the case and in his own words, Dr Hollenbach, with the benefit of hindsight, described the procedure as being "unsuccessful". On 25 October, when seen by another ophthalmologist, the lens inserted into Patient C's eye had again subluxed so that further surgical intervention was required.
Dr Hollenbach further states that he did not believe the unsuccessful result of the procedure carried out by him was due to poor visualisation because of the corneal oedema present in the patient's right eye at the time at which he undertook surgery on 16 October.
Dr Hunyor expressed the opinion in his September 2016 report that visualisation was not sufficient so that surgery should not have been performed at that time. Dr Hunyor states: There was a valid clinical indication for the procedure, as the Patient's intraocular lens (IOL) was subluxated following surgery by Dr O'Shea on 14 October 2013. The timing of the surgery was, however, questionable, as Dr Hollenbach documented in his letter of 23 January 2015 that there was 'gross corneal oedema' on the first post-operative day (15 October) and yet he proceeded with the next procedure on the following day (16 October) when the operative conditions, i.e. the visualisation through the oedematous cornea, would most likely have still been suboptimal. This may have contributed to the fact that the IOL then subluxed again in short time after Dr Hollenbach repositioned it on 16 October.
Later in the same report, Dr Hunyor repeats his concern that further surgery was undertaken where "gross corneal oedema" was present due to poor visualisation, noting that there was "nothing else documented to suggest any degree of urgency to perform the IOL repositioning". He continued: It would have been more prudent to allow time for corneal oedema to clear, permitting much better visualisation. This may in turn have that the second procedure, performed on 16 October 2013, might have been the last surgical intervention necessary. Instead, another even more complicated procedure … was performed on October 30.
Dr Lee was not unduly critical of the timing of the surgery undertaken by Dr Hollenbach on 16 October. He stated, in his report of 1 December 2016, that it was "best to operate on the patient early in order to clear the residual intraocular lens and clear vitreous in the anterior chamber to prevent further intraocular inflammation and possible glaucoma". He identified means by which corneal oedema can be addressed, although there is no evidence that Dr Hollenbach took the measures identified by Dr Lee in that regard.
Dr Lee also stated that if surgery is delayed: "The anterior segment (capsule and iris and cornea) may scar preventing an appropriate manipulation of the intraocular lens into a good position".
The possible consequence articulated by Dr Lee was put to Dr Hunyor in cross-examination. In response to the consequence of delay expressed by Dr Lee, he stated that the opinion was reasonable but was referable to a delay that was too long. Following that answer, the cross-examination continued: Q. On this occasion it was 2 days after the initial surgery. What would you consider to be delay that might cause scarring? A. Well, on therapy to prevent scarring, you would probably be looking at certainly several weeks but not 2 days. (T.15/5/18, p.44.25).
Later in his cross-examination Dr Hunyor was asked whether manipulation of an intraocular lens is easier at an earlier stage, rather than delaying time for the cornea to recover. His response again was to qualify the period of time for this to occur. He said: Again, as opposed to the first or second day, compared to two weeks later, it may be much easier to do things because you've got rid of a lot of the inflammatory process that was there at the start.
In essence, the debate between the experts would appear to turn upon the capacity for the surgeon to have sufficient visualisation in order to conduct the procedure without compromising the outcome. From the evidence, there seems little doubt that the presence of "gross corneal oedema", recognised by Dr Hollenbach, would have compromised the visualisation necessary to carry out the procedure. While Dr Lee stated that techniques are available to address the presence of corneal oedema, there is no evidence either in the records or other evidence from Dr Hollenbach that the techniques to which Dr Lee referred were utilised. Moreover, we accept the opinion of Dr Hunyor that while a delay of several weeks would be appropriate in treating the condition of Patient C as Dr Hollenbach described it, a short delay to allow the oedema to reduce, thus improving visualisation was the appropriate course to take. He was asked (at T.15/5/18, pp.44:39-45:5): Q. Do you agree with the statement that "an experienced retinal surgeon can manage corneal oedema and often with appropriate viewing systems, such as wide-angle viewing systems, the view of the vitreous can be obtained? A. Through significant corneal oedema, that's very difficult. You need a clear cornea, as well as absence of cataract or posterior capsular opacity, for instance, but corneal oedema significantly reduces your ability to see fine details.
The qualifications expressed by Dr Hunyor when addressing the general propositions expressed by Dr Lee were not, in our assessment, significantly countered by Dr Lee. While Dr Hunyor sensibly accepted that gross corneal oedema can, at times, take many weeks to heal, he stated that with medical management, it should improve over days or a week before it gradually improved visibility (T.15/5/18, p.47:25-40).
We accept that Dr Hollenbach did not have sufficient visualisation on 16 October 2013 when he performed the procedure earlier described. That finding is consistent with Dr Hollenbach's own description of a gross or corneal oedema in the right eye of Patient C on 15 October, coupled with his acknowledgment that visibility to conduct the procedure was poor by reason of that oedema.
We therefore accept the opinion of Dr Hunyor that proceeding to surgery on 16 October rather than affording the opportunity for the gross corneal oedema to clear or at least subside to permit appropriate visibility was conduct significantly below the relevant standard. As a consequence, unsatisfactory professional conduct has been established by reference to particular 1.

[14]

Particular 2: Failure to consider the possibility of macular oedema until 6 January 2014

The second surgical procedure undertaken by Dr Hollenbach was performed on 30 October 2013. That procedure again consisted of a right vitrectomy and removal of the intraocular lens with capsulectomy and suturing of a posterior chamber sulcus fixated lens with prolene suture.
Patient C was next seen by Dr Hollenbach some 3 weeks after that surgery. In the period since that surgery he had been examined by Dr David Infeld, who had investigated his vision and recorded measurement that Dr Hollenbach described as "fairly appropriate, given the amount of surgery that he had". Upon his visit on 14 November he was noted to have 4 dioptres of astigmatism with vision pinholing to 6/24.
Dr Hollenbach states that he would not normally do a routine OCT where he felt that the vision of the patient was appropriate for the amount of astigmatism that has been induced by the procedure and the fact that he had sutures inserted. He stated that his plan at the time for Patient C was to review him in 4 weeks in order to remove the sutures, as he did.
When Dr Hollenbach saw patient C on 6 January 2014, he noted that Patient C's vision was still poor, compared to his expectation. As a result an OCT was undertaken which revealed some macular oedema. While Dr Hollenbach acknowledges, in hindsight, that the OCT should have been performed on the earlier visits, in his judgment the astigmatism that he had recorded on those earlier visits were sufficient to explain the less than expected vision.
Dr Hollenbach further explained: I acknowledge that I did not consider the possibility of macular oedema because in my mind I was able to explain the poor vision by the obvious finding of corneal oedema and astigmatism. Had I thought to perform an OCT, I would have detected macular oedema as another contributing factor of the poor vision. One cannot see the macula when there is corneal oedema present. [Patient C] was seen on the first post-operative day and several times after, because he had some persisting corneal oedema following his surgery and I presumed that to be the obvious cause.
While noting Dr Hollenbach's statement as to his initial explanation for the cause of the poor vision that Patient C was reporting, the Commission points to the fact that 9 weeks elapsed between the surgery on 30 October and the ultimate diagnosis made by Dr Hollenbach on 6 January 2014. Following the surgery on 30 October, Patient C was seen by Dr Hollenbach on 31 October, 8 November, 14 November and 10 December. According to the statement from Patient C, he said that his vision was "hopeless" at the first post-operative visit on 31 October and also on his subsequent visits. He states that at each visit he reported to Dr Hollenbach that he "could not see properly" and that it was "like looking through thick fog".
Dr Hunyor was provided with the records pertaining to Patient C, relevant to his surgery on 30 October and subsequent visits leading to the diagnosis in January 2014 of a cystoid macular oedema. In his report, Dr Hunyor states: Macular oedema is a relatively common complication in situations where an eye has undergone multiple intraocular surgical interventions, especially where intraocular lenses are manipulated, exchanged etc. It appears that despite [Patient C's] complaint of ongoing poor vision following the third operation (30 October 2013), the possibility of macular oedema was not considered by Dr Hollenbach until the consultation on 6 January 2014, when an OCT scan was performed and CMO (cystoid macular oedema) was diagnosed."
Dr Hunyor continued in his report by opining that a 2 month delay in diagnosis of a well-known complication, easily diagnosed by OCT, "would be routinely considered in such a patient by an ophthalmologist", in particular by a proficient vitreoretinal surgeon. The failure on Dr Hollenbach's part in this regard is said by Dr Hunyor to fall significantly below the relevant standard.
Dr Lee did not share that opinion. He states that a two month delay in OCT scanning "can be standard practice" as there are many issues in dealing with the post-operative eye. He adds that a two month delay in diagnosing macular oedema "is not an issue" as often that oedema occurs following surgery and, in time, resolves without specific medical treatment. He also observed that OCT scanning may be difficult to obtain due to the corneal oedema in the case of Patient C.
The Commission submits that the latter difficulty referred to Dr Lee was not, according to Dr Hollenbach's records and evidence, adverted to when considering Patient C's condition. Indeed, Dr Hollenbach says that he has now changed his practice so that when a patient complains of poor vision post-operatively, an OCT scan is undertaken in order to eliminate macular oedema as the cause.
We have not found this aspect of the complaint easy to resolve. However, we consider the explanation given by Dr Hollenbach for his delay in arranging an OCT scan and only thereby diagnosing macular oedema to be a reasonable explanation. As is clear from the background facts given in respect of Patient C, he had a somewhat complex history with recent surgery as well as the astigmatism to which Dr Hollenbach refers in offering his explanation. That is a history that, when relied upon by Dr Hollenbach, is not criticised; the only criticism being the delay before undertaking the OCT scan. Judgment was clearly necessary when addressing the explanation for Patient C's poor vision, given his recent history, before seeking an explanation for that condition beyond that which was apparent. The circumstance that Dr Hollenbach has changed his approach to post-operative complaint of poor vision does not, of itself, detract from the reasonableness of the explanation given in the present case. While, in hindsight, other judgment might have suggested an earlier OCT scan, the failure to take that course until 6 January does not seem to us to be conduct that is significantly below the requisite standard. We find support in reaching this conclusion from the substance of the evidence given by Dr Lee.
We are not satisfied that the evidence referable to Particular 2 has established that Dr Hollenbach's conduct was significantly below the requisite standard.

[15]

Particular 3: The protruding prolene suture

There seem to be two issues that arise in respect of this complaint. The first is the location of the suture and the second relates to the protrusion of the ends of that suture. They are said to have caused the effect upon Patient C's vision.
In his statement, Dr Hollenbach states the procedure that he adopts for suturing a posterior chamber intraocular lens. He describes the procedure as follows: The scleral flap is sutured with a combination of mattress and interrupted 9.0 dissolvable Vicryl sutures and then the flap is covered with conjunctiva and sutured to the limbus where appropriate, and I make sure of the integrity of the flap. The prolene sutures which hold the lens in place are sutured to the sclera under a pre-fashioned scleral flap and are then covered by this flap which is then sutured to the adjacent sclera and these flaps are then covered with conjunctiva which is then itself sutured in place.
Dr Hollenbach refers to the summary in his operative notes that a superior scleral section was fashioned, those notes also containing some mention of some sutures in that area.
The primary medical evidence directed to this particular complaint is found in a report from Dr Davies, an ophthalmic surgeon practising in Newcastle. We record simply as a fact stated in evidence that, according to Dr Hollenbach, he does not and has not for some time enjoyed a cordial relationship with Dr Davies. In that context, we note that in the evidence directed to the Complaint generally, there are several letters from Dr Davies concerning the treatment of different patients. In considering the present particular complaint, it would seem that Dr Hunyor has, in turn, relied upon the report of Dr Davies. Dr Davies examined Patient C on 30 April 2014, following the decision of Patient C, conveyed to Dr Hollenbach, that he was seeking a second opinion. Dr Davies reports that upon examination, he observed a suture in the patient's right eye that was not covered by a scleral flap. The suture was exposed, apparently a source of irritation in the patient's eye.
On 2 June of that year Dr Davies carried out surgery to create a scleral flap in order to cover the suture apparently occasioning the irritation in the right eye of Patient C. Dr Davies carried out two further procedures on the eye before removing the protruding suture.
We have earlier quoted from the statement of Dr Hollenbach describing the procedure that he ordinarily undertakes for suturing a posterior chamber intraocular lens. He is unable to recall that his usual procedure was, in fact, followed when operating on the right eye of Patient C on 30 October but states that he has no reason to recall the case of Patient C being any different to the many other cases in which he had applied his usual procedure. As his description indicates, that included the fashioning of a scleral flap and covering the suture with conjunctiva. He states that suture erosion is a recognised problem with this procedure, but that he always endeavoured to minimise the likelihood of that occurring by following the technique that he used.
Dr Hunyor was again asked to assess the detail of this complaint on behalf of the Commission. It seems that he did so based substantially upon the report provided by Dr Davies. The report of Dr Hunyor does not, in terms, address the procedure described in detail in Dr Hollenbach's statement. It seems from Dr Hunyor's report that his assessment took no account of the description given by Dr Hollenbach because of the paucity of the latter's records. That criticism may be well-founded, but as Dr Hunyor himself acknowledged, poor record-keeping does not, of itself, "constitute a lack of ophthalmic skill or expertise". He accepted it to be possible for suture erosion to occur, even with proper coverage of the suture, although he thought it unlikely (T.15/05/18 p.47:5).
Dr Hunyor also appears to be critical of the location of the suture to Patient C's right eye, said to be "near the limbus at 8 o'clock". Why the suture in that location was a cause for criticism is not explained. Dr Lee does not support any of Dr Hunyor's criticisms, stating particularly that the suture is meant to be approximately 1mm from the limbus. Dr Lee articulated no criticism of Dr Hollenbach's technique for this procedure.
There can be no doubt that Dr Hollenbach's record keeping for this surgery (as well as other surgery) was seriously deficient in recording what he in fact did. That paucity of record keeping was, so it seems, the underlying basis for the opinion by Dr Hunyor that the conduct of Dr Hollenbach was significantly below the requisite standard. Having referred to the documentation of Hunter Eye Surgery (the practice of Dr Davies), Dr Hunyor stated: The performance of the third surgical procedure (on 30 October 2013) in which the original sulcus IOL was exchanged for a sutured PCIOL appears to have been substandard … Based on the documentation of the doctors at Hunter Eye Surgery, indicating that the suture used to fixate the IOL was unusually close to the limbus, with protruding ends not covered by a scleral flap, this is not consistent with the standard of surgery one would expect from an experienced and proficient vitreoretinal surgeon. It certainly appears to be at odds with Dr Hollenbach's statement that 'at all times standard procedure was followed'. In such circumstances it would generally be possible to examine a suitably detailed operative record to determine the veracity of such a statement, but no such record appears to exist.
We understand the difficulty that Dr Hunyor would have in making his assessment and the frustration in so doing by the paucity of records, a matter that goes to the next complaint in respect of which Dr Hollenbach has made admissions. However, the absence of those records does not mean that we feel bound to accept the assessment made by Dr Hunyor. When we take account of the "general procedure" taken by Dr Hollenbach and the fact that he had no reason to deviate from that procedure in the case of Patient C, coupled with the two matters in the hospital notes that tend to support his overall assessment, together lead us to the point where we cannot be satisfied, on the balance of probabilities, that the conduct of Dr Hollenbach fell significantly below the requisite standard.

[18]

Particular (a)

Dr Hollenbach provides background evidence relevant to this complaint. Patient D was first seen by Dr J. O'Shea who was working in Dr Hollenbach's practice. Dr O'Shea carried out cataract surgery to the left eye of Patient D on 18 August 2014. His pre-operative note stated his intention to insert a multi-focal lens into the left eye after completing cataract surgery. Such a lens would have allowed clear vision both in the distance and at near sight. For reasons not explained, a monofocal lens was implanted into the left eye at the time at which her cataract surgery was performed. Her post-operative course is described as being uneventful with improvement in vision, although she was not happy with the quality of that vision.
Dr O'Shea left the practice soon after and the patient was next seen by Dr Infeld on 8 October 2014. Dr Infeld recorded that Patient D remained unhappy as she had not expected to have to wear glasses, having been told by Dr O'Shea that he would be implanting a multifocal intraocular lens. She was then referred by Dr Infeld to Dr Hollenbach.
Dr Hollenbach first saw Patient D on 23 October 2014. He noted that her vision was poorer in the left eye than in the right eye. He diagnosed a nuclear sclerotic cataract in the right eye and a "well-placed intraocular lens in the left eye". Further examination and tests did not suggest any other condition of her eyes that required treatment. Dr Hollenbach suggested to Patient D that she try reading glasses in order to accommodate the left eye. He expressed confidence that he explained to her that a multi-focal lens had not been implanted in the left eye as the reason why she would need glasses to see at close distance, although that explanation is not recorded in his notes. In a report to Dr Infeld on 31 October, Dr Hollenbach identified issues regarding vision in her left eye following cataract surgery, stating his intention that cataract surgery to the right eye not be discussed but rather focus be had on improving vision in her left eye.
The following consultation with Patient D occurred on 9 December 2014. At that time vision had improved in the left eye with the use of reading glasses but in spite of that improvement, her reading vision was not good, with the result that she was wearing reading glasses at all times which she had not wanted to do.
Dr Hollenbach states that he recalls Patient D well. At the consultation on 9 December 2014, he states that he went through options with her, discussing them at some length. One option was to perform cataract surgery with multi-focal intraocular lens inserted which would allow spectacle independence of that eye, following which there were options available to be taken in respect of the left eye. One of those was to exchange the monofocal intraocular lens in the left eye and replace it with a trifocal lens similar to the one proposed to be implanted in the right eye. Other options were discussed. He stated that his priority was to rehabilitate vision in the left eye or, at least, to ensure no problems were occurring in that eye. However, Patient D had expressed at every appointment with Dr Hollenbach her disappointment that she could not see at near sight, which prompted his suggestion of putting a multi-focal lens into the right eye at the time of cataract surgery so as to give her clear vision in that eye without the need for glasses. He believed that to be in accordance with her goals and would provide an opportunity to improve her vision by appropriate measures taken in respect of the left eye at a later point in time.
Patient D underwent right cataract surgery in January 2015. At that time, a trifocal lens was inserted into that eye.
Dr Hollenbach reports that on her second post-operative consultation, the metric of her right eye was 6/9, but she had trouble with near vision in that eye. Two weeks later she had uncorrected vision of 6/6 in that eye, better than the vision uncorrected in the left eye. However, close up vision remained a problem. She was referred for an OCT scan to exclude any macular pathology, and that result showed that she was within "normal limits". She was again seen on 3 March 2015 when, upon testing, it was found that there was no refractive error in the right eye. Her distance vision was said to be clear but her near vision remained poor. As well, she was complaining of glare in both eyes, even when indoors.
Clearly, there is no factual issue raised by Dr Hollenbach in respect of this complaint. He accepts his awareness that a monofocal lens had been inserted into Patient D's left eye at the time he inserted the trifocal lens into her right eye. In his statement he says: I dispute the assertion that I planned to leave a multi-focal lens in one eye and monofocal lens in the other eye as I have clearly mentioned in my plan for the left eye after spectacle independence was achieved with a multi-focal lens in the right eye. It may not be conventional practice to have different lenses - and it is not my usual practice at all - but I do not accept that it is significantly below standard. It was an attempt to provide Patient D with the outcome she wanted, which was spectacle independence and then similar lenses.
There is a difference between Dr Hollenbach and Patient D as to the discussions that took place between them before surgery was undertaken in January 2015. Regrettably, we are told that Patient D is now deceased. On her version of events, she was concerned that vision in her left eye be improved before any step was taken in relation to her right eye. She claims that the operation carried out on her right eye in January 2015 was undertaken against her wish to have the left eye "fixed" first.
We accept, based on other general evidence by Dr Hollenbach, that his communication with patients was, at times, poor. It may well be that in this case there was not the communication and explanation that one would have expected of a specialist medical practitioner. Nonetheless, we think it unlikely that Patient D underwent surgery in January 2015 "despite her protestations" (to use the phrase that Dr Hunyor used in describing Patient D's position).
Founded upon Dr Hollenbach's paucity of records, the terms in which Patient D expressed her complaint, including a failure to explain the potential difficulties to her when one eye has a monofocal lens and the other a multi-focal lens, Dr Hunyor concluded that Dr Hollenbach "shows a lack of proper communication with the patient and poor clinical judgment on the basis of the known clinical evidence". For that reason, he concludes that the conduct was significantly below the standard expected but that it "does not invite my strong criticism".
Dr Lee again expressed a view contrary to that of Dr Hunyor. In effect, Dr Lee concluded that on the basis of the planned further assessment and treatment of Patient D, improvement to her overall vision was a realistic goal. In further response to the complaint Dr Hollenbach says: If in fact her vision after the cataract surgery in the right eye with a multifocal lens had improved and then she went on to have a piggy back multifocal lens implanted in the left eye, she may well have had a better quality of vision than if she just had a single multifocal lens implanted. There is no reason to suggest surgery done in this way would be inferior compared to having multifocal intraocular lenses done primarily in both eyes.
We believe that there is substance in the explanation given by Dr Hollenbach and in the opinion expressed by Dr Lee. In addressing this complaint, any judgment about Dr Hollenbach's communication skills is not appropriate. What is relevant is whether the step that he took towards securing better vision in a way that met Patient D's request was significantly below the relevant standard. In our opinion, it was not. The planned alternatives expressed by Dr Hollenbach and supported by Dr Lee would seem to have had the prospect of improving Patient D's vision. The fact that at the time at which she determined to consult other practitioners left only for speculation as to what the outcome might have been had Dr Hollenbach been afforded the opportunity to do as he intended. However, as we have said, his proposed further treatment of Patient D was appropriate.
In the circumstances, we have identified, we are not persuaded that the conduct of Dr Hollenbach in performing the procedure the subject of this particular was significantly below the relevant standard.

[19]

Particular (c)

Dr Hollenbach states that he recalled Patient D well. He does so because of the time spent discussing options with her for the improvement of her sight. He denies that he failed properly to communicate to her the consequence of having a monofocal lens in the left eye and a multi-focal lens in the right eye. The failure relied upon turns entirely upon the terms of the complaint from Patient D who, as we were told, is now deceased. The factual issue between Dr Hollenbach and Patient D is not assisted by the circumstance that Dr Hollenbach did not record the discussions with her in his clinical notes. Despite that circumstance and for the reason that he gives, he says that he has a clear recollection of the discussion outlining the various options because she was disappointed following the initial procedure by Dr O'Shea at not being able to see up close clearly without wearing glasses. He states that he offered her the option of multi-focal lenses in the right eye and if that was successful, undertaking a further procedure on the left eye which is likely to have been "the insertion of a piggy back multi-focal lens". The insertion of the multi-focal lens in the right eye was successful "in clinical terms" but, as Dr Hollenbach says, any further procedure for the let eye did not occur because, after a time, she chose not to consult with Dr Hollenbach.
He further states: In hindsight, I accept that her complaint indicates that I may not have communicated adequately with the patient. I devoted a significant amount of time to explaining the procedures that were undertaken to Patient D and obtained her informed consent but even so, reading the complaint, it is apparent that the discussions were not sufficient to convey the information and reassurances I had intended to, and did not make her feel that I listened enough to her concerns and I am sorry for that.
The Commission submits that the statement just quoted from the evidence of Dr Hollenbach should be seen to be an admission by him that his failure to effectively communicate the difficulties identified was significantly below the relevant standard. It refers, as well, to the circumstance that the complaint from Patient D was made on 20 April 2015, a little less than three months after the surgery in which the multi-focal lens was fitted to her right eye. In that complaint she states that she was "shocked to find out that my left eye had a single focal lens and the right eye had a multi-focal" when she first consulted Dr Davies for a second opinion in February 2015.
Counsel for Dr Hollenbach submitted that the "admission" by Dr Hollenbach upon which the Commission relies should be seen "as an insightful concession, and an acceptance of a lack of communication between doctor and patient that is not up to the highest standard, given that the patient clearly was upset". Nonetheless, it was submitted that not every failure to fulfil a patient's expectations is a failure to meet the requisite standard and should not be taken as an admission of unsatisfactory professional conduct.
If the account given by Patient D in her written complaint is accepted, that is, she had no understanding that a multi-focal lens was to be placed in her right eye nor told of potential difficulties she may have because of the different lens in her left eye, Dr Hunyor gave evidence that the conduct of Dr Hollenbach was significantly below the relevant standard. However, he did accept that if Dr Hollenbach's evidence as to the discussion of options with Patient D did occur, the communication by Dr Hollenbach was adequate (T.15/5/18 p.49.40).
As will be seen, Dr Hollenbach attracts strong criticism for the failure to keep proper records, including details of options given to or explained to a patient before surgery is undertaken. That failure is a circumstance that renders him vulnerable in circumstances, such as the present, where a patient complains of inadequate communication of the intended purpose for and possible consequences of a surgical procedure proposed to be undertaken. However, there will undoubtedly be circumstances in which an explanation of the purpose and possible consequences of a particular procedure will, objectively judged, be satisfactory but nonetheless is an explanation not comprehended by a particular patient. While undoubtedly there are checks that can be made to test comprehension of an explanation, the conveyor of the information is ultimately dependent upon the response of the receiver when determining whether, in fact the explanation has been understood.
Despite the absence of notes, we are not prepared to reject the evidence that Dr Hollenbach gave in addressing the present issue. The fact that he made concessions, acknowledging scope for improvement in communication and accepting that, by her complaint, Patient D apparently did not understand his explanation are matters indicative of an attempt to be candid in giving his evidence. That said, we do not suggest that when Patient D made her complaint, she did not hold the grievance there expressed. For obvious reasons, an objective foundation for that grievance could not be fleshed out in cross-examination.
We have earlier identified the principle to be applied in matters of this kind where we are confronted with potentially conflicting evidence and the "tools" often available to assist in resolving such conflicts are not here present. With that principle in mind, we are not persuaded to the requisite standard of satisfaction that Dr Hollenbach did fail to communicate to Patient D the matters alleged by this particular of the Complaint such as to conclude that his conduct fell significantly below the standard.
For these reasons, we do not uphold the complaint founded upon particular 3.

[21]

Complaint 5A

This complaint relates to Patient E. The background is stated in the complaint to arise from the circumstance that Patient E suffered bilateral cataracts and disc cupping. Dr Hollenbach performed left eye cataract surgery on 1 June 2009. Further eye surgery was performed on 7 October 2009 after which Patient E suffered inferior retinal detachment. Further eye surgery was performed on 4 December 2009, 13 December 2009, 29 January 2010, 26 February 2010 and 8 February 2011. Following the surgical procedures carried out on those dates, Patient E suffered painful blindness in her left eye.
There are five particulars given in respect of this complaint with a series of sub-particulars given in two cases. The particulars are stated as follows: 1. Between 27 May 2009 and 1 June 2009, the Practitioner failed to provide appropriate care and treatment to Patient E in that he: a. failed to conduct an adequate pre-operative assessment of the condition of the macula of Patient E's left eye; b. failed to check the visual field testing performed on 2 June 2008; c. failed to perform an OCT scan; d. failed to consider that the visual acuity difference between the left and right eyes and the similar degree of cataract in the two eyes indicated some additional pathology in Patient E's left eye. 2. On 7 October 2009, the Practitioner failed to provide appropriate care and treatment for Patient E in that an inadequate peripheral retinal examination was not performed by him at the end of the vitrectomy and he therefore did not notice that a retinal tear had developed during the vitrectomy on 7 October 2009. 3. The Practitioner failed to provide appropriate care and treatment for Patient E in that he conducted 5 further surgical procedures on Patient E's left eye: a. on 4 December 2009 (the first further surgery); b. on 13 December 2009 (the second further surgery); c. on 29 January 2010 (the third further surgery); d. on 26 February 2010 (the fourth further surgery); e. on 8 February 2011 (the fifth further surgery); f. in circumstances where: i. the Practitioner proceeded with the third and fourth further surgeries despite the fact that he was not able to achieve a fully re-attached retina during the first and second further surgeries; ii. the Practitioner proceeded with the fifth further surgery despite receiving a report dated 27 May 2010 from another ophthalmologist which recommended against further surgery and warned that the left eye may become phthisical; iii. following the further surgeries, Patient E developed blindness and phthisis. 4. After the second further surgery on 13 December 2009, the Practitioner failed to provide appropriate care and treatment for Patient E in that he did not refer Patient E to another practitioner for a second opinion or for prompt repair surgery. 5. Between 29 January 2010 and 26 February 2010, the Practitioner failed to provide appropriate care and treatment for Patient E in that he failed to promptly remove the heavy liquids used in the retinal surgery on 29 January 2010.
At the conclusion of the hearing, the Commission's counsel indicated that particular 2 was not pressed.
Dr Hollenbach describes Patient E as presenting a "particularly difficult case in an 81 year old woman". That patient first consulted Dr Hollenbach in May 2008 when she was referred for left cataract and also for a diabetic eye check. He noted that she had bilateral cataracts and severe disc cupping as a result of which she was booked on the public waiting list at Kurri Kurri Hospital for her left cataract surgery.
The Complaint alleges in respect of complaint 5A that each particular in itself justifies a finding of unsatisfactory professional conduct or, in the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
In her submission, counsel for Dr Hollenbach notes that the Commission does not submit that each sub-particular justifies a finding of unsatisfactory professional conduct and that we are "not being invited to reason in that way". As the Commission submits, we are required to focus on determining the subject matter of the complaint conformably with observations made by Wilson J in Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 at [30]-[37], particularly at [37].
Before proceeding to address the particulars, the response of Dr Hollenbach to them should be noted. He denies particulars 1 and 2. He admits the facts that are asserted in subparagraphs a.-e. and also accepts the contention made in sub-particular f.ii that the repeated surgery conducted by him was significantly below the relevant standard in circumstances that another surgeon had recommended against it. Dr Hollenbach has also admitted the particulars 4 and 5 in that he accepts that, in each case, his conduct was below the relevant standard but he does not accept that his conduct was significantly below that standard.

[22]

Particulars 1 and 2: adequate pre-operative assessment and failure to check visual field testing

It is convenient to deal with these particulars together because they are very much interrelated.
Dr Hollenbach states that Patient E was seen pre-operatively on 27 May 2009. He checked her vision at that time and found that the vision was 6/60 best corrected in the left eye, pinholing to 6/24. She also had a dilated pupil examination pre-operatively and was not noted to have "any problems other than the cataract".
One of the tests to which Dr Hollenbach had access at the time of his consultation on 27 May 2009 was a visual field test performed on 2 June 2008. The failure to address the results of this test seems to be the gravamen of particulars 1 and 2.
According to the evidence of Dr Hunyor, these tests showed a significant difference in central retinal sensitivity between the eyes with the left eye reduced compared to the right eye. He continues: This, combined with the absence of diabetic changes, and similar slight cataract changes in both eyes, and very asymmetric visual acuity, should have been an alert signal that there may be macular pathology in the left eye. It is concerning that a visual field test was performed and the result not checked.
Dr Hollenbach denies that he failed to check the visual fields. He states that there is mention in his notes of 27 May 2009 that the right field was unreliable and the left visual field was okay with a test to be repeated after cataract surgery. Further, he disputes the observation that the cataract was equal in both eyes pre-operatively as there is no mention of cortical cataract in his notes of the right eye but only in the left. He states that it is very common in patients who have cataracts in both eyes to find that visual acuity in one eye is significantly worse than the other.
The criticism directed to Dr Hollenbach's treatment or rather failure in this regard seems to be founded in the consequence of the surgery conducted on 1 June 2009. Following that surgery, Patient E complained of distorted vision and examination of her left eye showed that there was a macular hole. It is Dr Hunyor's thesis that the macular hole was likely to have been present prior to the surgery on 1 June and that more careful examination and testing prior to cataract surgery would have revealed the presence of the macular hole. In Dr Hunyor's opinion, it is "nearly certain" that the hole was present prior to that surgery.
Neither Dr Lee nor Dr Polkinghorne interpreted the visual field test in the way in which Dr Hunyor determined that it be read as providing evidence of present macula pathology. Dr Lee considered that there were other factors potentially affecting the reading in that test, such as determining the results in the presence of cataracts yielding false readings together with a lack of inconsistent pattern within the test results that would point to definite evidence of macular defect (T.17/05/18 p.156). He considered numbers in the test result beyond those relied upon by Dr Hunyor, indicating the expectation that surrounding numbers would be more inconsistent than they are if there was an underlying problem. Dr Polkinghorne expressed the opinion that interpretation of the field test was "impossible". When it was put to Dr Lee that his evidence was taking a very favourable approach to Dr Hollenbach, Dr Lee responded (T.17/05/18 p.180:32): Well, if you ask many ophthalmologists to look at it, you may get different opinions on what the visual field means and how it - how reliable it is to say that that is specifically a macular hole.
He suggested that further tests are not always done because cataracts or glaucoma are an artefact affecting test results so that one then moves to the next treatment plan. It was accepted in response to a question from a Tribunal member, Dr Higgins, that the field test in question may have had false positive errors related to a patient "hitting the button too many times" during the course of the test. That possibility cannot be discounted, particularly in an 81 year old patient.
Both Dr Lee and Dr Polkinghorne state that a visual field test is not a diagnostic tool to determine the presence of a macular hole. The consensus between them was that if a concern was had as to the presence of a macular hole, the best way to determine whether the possibility was a reality was to undertake surgery, particularly if that surgery was planned for another purpose (T.17/05/18 p.180:45).
Weighing the evidence before us, we are not persuaded that Dr Hollenbach did fail to consider the 2008 field test report in respect of Patient E. Moreover, while acknowledging the competing opinion of Dr Hunyor on the one hand and Drs Lee and Polkinghorne on the other, we are not persuaded that the pre-operative assessment of Patient E between 27 May 2009 and 1 June 2009 of the patient's macula and in particular, the assessment made by Dr Hollenbach of the 2008 visual field testing results was so inadequate as to be significantly below the requisite standard. The evidence led by the Commission does not persuade us that the opinions supportive of the assessment made by Dr Hollenbach did not reflect the appropriate standard in the present case.
Sub-particular c. is in a similar vein. It asserts, consistent with the opinion of Dr Hunyor, that the failure to have Patient E referred for an OCT scan prior to surgery was evidence of a failure to provide adequate care to such an extent as would support the contention that the failure constituted unsatisfactory professional conduct. As the evidence before us indicates, the question to be considered is not whether, by the standards of 2018, such a scan would be undertaken, but rather whether such a scan reflected the conduct of ophthalmologists in 2009.
Patient E's surgery was conducted at Kurri Kurri Hospital. She was seen at the Raymond Terrace rooms of Dr Hollenbach. There was no facility for an OCT examination in 2009. The nearest location for such a facility at that time was Newcastle and, given the pre-operative assessment Dr Hollenbach had made of Patient E, he said that he did not see a need to have her travel to Newcastle as it was difficult to have the patient come in for testing in any event. Indeed, he states that, at the time, a pre-operative OCT without a demonstrated or particular reason for it, was likely considered to be over-servicing. Now, OCT scans are accepted as a routine procedure, a position that differs from that in 2009.
In the latter regard, the position of Dr Hollenbach is supported by Dr Lee. He states that at the time it was not standard to perform OCT scans on patients. The suggestion that every patient requiring cataract surgery should have an OCT scan would, in 2008, "have been considered an over-servicing, and unnecessary".
Dr Hunyor agreed that in 2008 or 2009, an OCT was not standard procedure. Nonetheless, he again referred to the discrepancy in visual acuity in the 2008 field tests, leading to his opinion that Patient E should have been referred by Dr Hollenbach for an OCT scan. In the case of Patient E, an 81 year old woman, arrangements should have been made to take her by ambulance to Newcastle or Sydney for the purpose of having an OCT scan. It was submitted on behalf of Dr Hollenbach that such a process would not have been reasonably expected for a practitioner to send a non-urgent patient by ambulance for an OCT scan at that time.
When asked in cross-examination whether an OCT would, in 2008, have detected a macular hole, Dr Lee identified it as a different type of test but may have been able to provide an appropriate image, although it might be equivocal. He said that it was not possible to draw any conclusion that an OCT scan then taken would have made a difference to Patient E's care and treatment. The images provided by the OCT were not likely to be diagnostic.
Again weighing the evidence given by Dr Hollenbach and by Drs Hunyor and Lee, we are not persuaded to find that the failure by Dr Hollenbach to obtain an OCT scan prior to surgery on 1 June 2009 is demonstrative of conduct that is significantly below the requisite standard.
Sub-particular d. asserts failure on the part of Dr Hollenbach to consider the visual acuity difference between the left and right eyes, with a similar degree of cataract in those eyes, as indicating some additional pathology in Patient E's left eye. We have already given substantial consideration to this when dealing with particulars a. and b. If the measure by which Dr Hollenbach's conduct is to be determined is that identified by Dr Hunyor, then Dr Hollenbach acknowledges that he did not take the steps there identified.
As already recorded, Dr Hollenbach considered that the patient's cataracts played a significant part in rendering the field vision test unreliable for the purpose of determining underlying macula pathology. That opinion finds support in the evidence of Dr Lee.
While in hindsight it may have been that a further field test or OCT scan would have alerted Dr Hollenbach to such underlying pathology, there is no evidence before us enabling the conclusion to be drawn that had those additional tests been undertaken, the presence of macula pathology would have been disclosed. Dr Hollenbach described Patient E as having significant cataract, both cortical and nuclear sclerosis affecting acuity. He suggests that detection of a macular hole by further field tests or OCT is only speculation, given the amount of cataract present likely to have precluded a definitive fundal examination.
As earlier recorded, Dr Hollenbach stated that he did consider the differing visual acuity between the left and right eyes together with the similar degree of cataracts in the two eyes. The conclusion that he drew from his examination did not lead him to the conclusion that Dr Hunyor now expresses. Having regard to the evidence we have identified relevant to this topic, we remain of the opinion earlier expressed that the conduct of Dr Hollenbach in his pre-operative examination and consideration of the condition of Patient A was not such as to be significantly below the requisite standard. While that may not be the standard expected in 2018/19, it is necessary to make the judgment by reference to the standard in 2008/9.
It will be recalled that particular 2 of this complaint was not ultimately pressed.

[23]

Particular 3

Some further elucidation of the facts relevant to the surgery that is the subject of this complaint needs to be given. As the evidence reveals, a macular hole was discovered in the patient's left eye following the initial surgery on 1 June 2009. When seen by Dr Hollenbach on 16 July 2009, he noted that she had a "Stage 2 full thickness macular hole in the left eye with a cuff of sub-retinal fluid". When she returned, he described Patient E as having "a fairly longstanding retinal detachment". He recommended that she go to Sydney for treatment but stated that she did not wish to go and wished to be treated locally.
As a result, surgery was carried out by Dr Hollenbach on 7 October 2009 both to repair the retinal hole and to attach the detached retina. The procedure then carried out was successful in closing the macular hole but unsuccessful, as later events proved, in attaching the retina. The subsequent surgical procedures were undertaken in an endeavour to attach the detached retina.
Although Dr Hollenbach denies that the third and fourth surgeries he performed did not constitute inappropriate care and treatment, his admission in relation to the five further procedures undertaken by him means that his treatment fell significantly below the requisite standard allows all the matters identified in this particular to be treated together.
The Commission relies upon the evidence of Dr Hunyor and that of Dr P. Davies in this regard. On 27 May 2010 Patient E was referred by her general practitioner for a second opinion from Dr Davies. In his report, Dr Davies reported that Patient E could count "fingers vision in peripheral visual field only" and expressed the opinion that the left eye "may well become phthisical" and that he did not feel "any further surgery is warranted". Noting that Patient E was on the waiting list at John Hunter Hospital for further surgery, Dr Davies sent a copy of his report to Dr Hollenbach. Despite receiving that letter, Dr Hollenbach performed further surgery on 8 February 2011. It was after the final operation on that date that the patient's left eye deteriorated to become a painful blind eye.
While Dr Hunyor expresses some doubt about Dr Hollenbach's surgical procedure in failing to fully repair Patient E's detached retina, his principal criticism is directed both to the failure to refer Patient E for a second opinion following the failure of his surgery on 13 December 2009 being the second unsuccessful attempt to effect the repair that Dr Hollenbach hoped to achieve. His further criticism is directed to carrying out the fifth further surgery when he had the benefit of a second opinion from Dr Davies, albeit not sought by Dr Hollenbach that not only provided a very poor prognosis for Patient E, but recommended against any further surgery.
In admitting this aspect of the complaint, Dr Hollenbach accepts that he should have declined to proceed "to the final surgery" but did so as he thought it was a reasonable and responsible option. His reason for so saying is that the retina "did not look too damaged, although her vision was not good". He stated that he had the best interests of Patient E at heart and was trying to improve her situation while accepting that the prognosis was not encouraging. He acknowledged that prudent practice and the risk to the patient would, in hindsight, have dictated not proceeding. He also accepted that he had gone against the recommendation in the report of Dr Davies.
Dr Hunyor stated: It is hard to think of any good reason why Dr Hollenbach would have persisted in repeated operations without seeking help via a second opinion after failure of his intervention on 13/12/2009.
On the evidence before us, we accept that observation as appropriate.
Dr Lee stated that Dr Hollenbach had correctly managed Patient E with initial cataract surgery followed by a prompt diagnosis of a macular hole which was appropriately referred for vitrectomy in order to repair the macular hole. He states that the retinal detachment following a macular hole repair can occur and is a documented complication of macular hole surgery despite good intraoperative technique. He then referred to the several attempts made by Dr Hollenbach to repair the detached retina, albeit unsuccessfully. He compliments the dedication of Dr Hollenbach in continuing surgery to reattach the retina. Unfortunately, Dr Lee does not address the desirability of patient referral when repeated attempts to effect repair have proved unsuccessful.
By his admission, Dr Hollenbach has not regarded that opinion expressed by Dr Lee as supporting his position. He was, in our opinion, correct in taking that position.
As would be obvious from the evidence upon which we have commented, we not only accept as appropriate the admission made by Dr Hollenbach but accept the criticism levelled at his conduct in failing to refer Patient E for a second opinion prior to carrying out surgery on 8 February 2011. Indeed, as will be seen, we take the view that a referral should have been made sooner.
The conduct of Dr Hollenbach that is the subject of sub-particulars f.ii and iii is conduct that we find to be significantly below the relevant standard.
Dr Hollenbach was specific in accepting that his conduct was significantly below the requisite standard in that he carried out the fifth surgery on 8 February 2011. He did not offer the same concession in respect of the third and fourth surgeries carried out on 29 January 2010 and 26 February 2010. As we have said, Dr Hunyor was critical of the fact that Dr Hollenbach had not sought a second opinion after the second attempt to reattach Patient E's detached retina. We accept that a specialist medical practitioner in the circumstances being addressed by Dr Hollenbach should not be criticised for attempting a repair once detachment is first recognised. However, once a second repair has proved unsuccessful, we accept the opinion of Dr Hunyor that it was then appropriate to insist that Patient E be provided with a second opinion before proceeding with yet a third and fourth attempt at corrective surgery, no matter how well intentioned the undertaking of those procedures may have been. There was the clear possibility that a second opinion may have identified some aspect of the technique and repair being undertaken that could be modified or that there was an underlying condition, potentially not perceived by Dr Hollenbach, that militated against further attempts at corrective surgery.
We accept the evidence of Dr Hollenbach that when the complication of the macular hole was discovered following surgery on 1 June 2009, he recommended to Patient E that she go to Sydney for treatment, a recommendation that she did not accept. However, it is apparent that there were other vitreoretinal surgeons practising in Newcastle in the Hunter district to whom Patient E was prepared to be referred. So much is apparent from her consultation with Dr Davies in May 2010.
Essentially for the reasons we have already expressed, we find that the failure of Dr Hollenbach to refer Patient E for a second opinion before recommending and proceeding with the third and fourth surgical procedures, was significantly below the requisite standard. That conclusion responds to particular 4 of the present complaint.

[24]

Particular 5: Delay in removing heavy liquid from the eye of Patient E

Dr Hollenbach accepts criticism of the period for which heavy liquid was left in the eye of Patient E following surgery to attempt repair of her detached retina. He states that his usual practice is to take the liquid out fortnightly but that the list in which that procedure was to be undertaken was cancelled so that the liquid remained in her eye for four weeks rather than two weeks. While Dr Hunyor expressed the opinion that heavy liquid is more usually removed at the end of the procedure but occasionally left in the eye for up to two weeks, his concern was that a heavy liquid left longer than two weeks may have toxic effects upon the retina.
While Dr Hollenbach says that he would have preferred to have removed the liquid within two weeks, he states that in this case "leaving it in a little longer, to allow the laser retinopexy to work, did not seem unreasonable so that after the heavy liquid-silicon exchange, the retina would remain flat. He had previously stated that there had been extensive laser in that area` of the left eye and there was still silicon oil in the area. Dr Hollenbach further states that as the heavy liquid is only a small tamponade and not affecting the central retina, he did not believe that retinal toxicity was an issue.
Having considered the competing evidence on this topic, we accept the concession by Dr Hollenbach that leaving the heavy liquid in the left eye of Patient E beyond two weeks did not reflect optimal practice. However, in the circumstances explained by Dr Hollenbach, we are not persuaded that his conduct in that regard was significantly below the requisite standard.
In summary, complaint 5A has resulted in a finding by us that the conduct of Dr Hollenbach was unsatisfactory professional conduct, essentially by reference to particular 3. While we have identified aspects of his conduct identified within that particular, it is appropriate to make clear that the overall finding, directed to the conduct of the five surgical procedures identified, without seeking a second opinion once the second attempt at corrective surgery on 13 December 2009 was not successful, is the conduct that attracts the finding of unsatisfactory professional conduct.

[25]

Complaint 5B

Complaint 5B alleges unsatisfactory professional conduct by reason of contravention of the Regulation and improper or unethical conduct relating to the practise or purported practise of medicine. Particulars of the complaint are stated to be as follows: 1. On 1 June 2009, 7 October 2009, 4 December 2009, 13 December 2009, 29 January 2010 and 26 February 2010, the Practitioner failed to maintain adequate medical records for Patient E in accordance with clause 4 and Schedule 1 of the Medical Practice Regulation 2008 in that the Practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedures performed on those dates. 2. On 5 February 2011 the Practitioner failed to maintain adequate medical records for Patient E in accordance with clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the Practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedure performed on that date.
As would be apparent from the dates to which this complaint relates, the Regulation to which we have referred in addressing earlier complaint could not apply to conduct that occurred before its making on 1 July 2010. The Regulation that addressed medical records prior to that date was the Medical Practice Regulation 2008 (the 2008 Regulation). The provisions of clause 4 and Schedule 1 to the 2008 Regulation are in essentially the same terms of clause 7 and Schedule 2 respectively of the 2010 Regulation. I have earlier quoted the provisions of the latter so that the breaches alleged may be understood.
Dr Hollenbach has admitted this complaint. From an examination of the records pertaining to the relevant surgical procedures, he was justified in so doing. As before, notes are generally both unduly cryptic and, as Dr Hunyor observed, often illegible. As had been the case in respect of earlier complaints, the clinical record contained no mention of explanations given to the patient in respect of the procedures undertaken.
We have no hesitation in concluding that the conduct of Dr Hollenbach in respect of his medical records that are the subject of this complaint is significantly below the requisite standard.

[26]

Complaint 6

This complaint relates to Patient F who was diagnosed with bilateral cataracts. Left cataract surgery was performed on 27 May 2011 by Dr Hollenbach and right cataract surgery performed by him on 23 November in that same year. Following the latter surgery, Patient F suffered a detached retina in the right eye. Surgery to attach the right retina was undertaken on 1 June 2012 but following that surgery Patient F suffered a re-detachment of that retina.
Further surgery was performed on the right eye on 6 August 2012, 3 September 2012, 17 September 2012, 19 October 2012, 5 March 2013 and 18 March 2013. Following the last surgery, Patient F was found to be blind in the right eye.
That is the background recorded in the Complaint. Particulars of the complaint are stated to be: 1. Between 6 August 2012 and 19 October 2012, the Practitioner failed to provide appropriate care and treatment for Patient F in that he used heavy liquid in Patient F's right posterior chamber on 6 August 2012 and did not remove it until 19 October 2012. 2. After 6 August 2012, the Practitioner failed to provide appropriate care and treatment for Patient F in that, having not reattached Patient F's left retina during the two procedures on 1 June 2012 and 6 August 2012, the Practitioner continued to do 5 further procedures on 3 September 2012, 17 September 2012, 19 October 2012, 5 March 2013 and 18 March 2013 without seeking a second opinion. 3. On 5 March 2013, the Practitioner failed to provide appropriate care and treatment for Patient F in that the Practitioner undertook the insertion of a scleral buckle in circumstances where Patient F had already had right eye procedures on 23 November 2011, 1 June 2012, 6 August 2012, 3 September 2012, 17 September 2012 and 19 October 2012 and Patient F's right eye had an extremely poor prognosis.
Dr Hollenbach admits particulars 1 and 2 of this Complaint. By way of further background, Dr Hollenbach states that when Patient F was seen in April 2012, five months after cataract surgery was performed on his right eye, his vision in both eyes was good. However, in May 2012 he presented with "a total bullous retinal detachment with light perception vision". It was unclear when symptoms had developed but he was booked as an emergency case at the Royal Newcastle Centre for Retinal Detachment Repair which was carried out on 1 June 2012. At that time he was found to have numerous peripheral retinal tears said to be typical of pseudophakic retinal detachment. Part of the process at that surgery was the use of heavy liquid. His post-operative course is described by Dr Hollenbach as being initially uneventful apart from "some residual bubbles of heavy liquid", removed with further surgery on 23 July 2012 at Kurri Kurri District Hospital. Retinal detachment followed with further surgery undertaken on 6 August consisting of further vitrectomy, cryopexy and silicon oil. At that time, Patient F was found to have a tear superonasal in the eye as well as a macular hole. Heavy liquids were again used and left in the eye at the end of the procedure.
Post-operatively, he was seen by Dr O'Shea on two occasions when there is no record of any retinal pathology being present. He was next seen by Dr Hollenbach on 20 August and again on 28 August 2012 by which time his vision had improved. However, examination showed that there was some heavy liquid that had migrated into the interior chamber and his intraocular pressure had risen. When next seen on 3 September 2012, his intraocular pressure had risen to 38. As a result, he had a right anterior chamber washout as an emergency in order to reduce the pressure by removing the heavy liquids.
Once again, his intraocular pressure rose following that procedure with the result that a second washout was undertaken on 17 September 2012. When seen by Dr Hollenbach on 20 September 2012, his intraocular pressure was described as being "within normal limits". However, he still had 50% heavy liquid fill in his right eye and was listed for removal of that liquid surgically.
When seen pre-operatively on 15 October, Patient F's vision was down to hand movements. He was noted to have a superior detachment above the heavy liquids. Those observations caused Dr Hollenbach to again perform surgery, this time at the John Hunter Hospital on 19 October 2012.
By this time, heavy liquid had been in the eye for over 10 weeks.
When examined post-operatively, there was some re-detachment of the retina. By that time, Dr Hollenbach considered that visual prognosis was poor. Notwithstanding that prognosis, further surgery was carried out on dates earlier identified. In all, there were eight surgical interventions for Patient F.

[28]

Particular 2: The need for a second opinion

Dr Hollenbach concedes that referral to another specialist would have been a wise course of action in the treatment of Patient F. He acknowledges that the case was difficult and that the management of those difficulties would have been assisted by referral to another surgeon for a second opinion. Indeed, Dr Hollenbach states that he would not now take the same approach to a complex case such as that of Patient F and would not persist with surgical procedures in an attempt to correct earlier attempts that had not been successful. Further, he acknowledges that eight procedures were, with the benefit of hindsight, "probably too many attempts to fix an intractable problem". Nonetheless, he states that the course that he took offered the patient "the best chance at restoration of eyesight".
In his report, Dr Hunyor succinctly summarises his assessment of the procedures undertaken by Dr Hollenbach in the following terms: Considering the very high success rate for re-attachment of the retina in acute bullous pseudophakic detachments by well trained, competent, vitreoretinal surgeons, most surgeons would at least have organised a second opinion, having failed to reattach the retina in two successive operations. However, to then continue and do 7 more procedures, none of which restored sight or even reattached the retina permanently, without a second opinion, is quite extraordinary.
Once again, based upon Dr Hollenbach's frank admission as to the need for a second opinion, as well as the opinion expressed by Dr Hunyor, we have no hesitation in accepting that the failure of Dr Hollenbach to refer Patient F for a second opinion when two attempts at corrective surgery were not successful, is conduct that is significantly below the standard. In drawing that conclusion, we have taken the substance of the complaint to be directed to the right eye of Patient F, rather than the left eye as stated in the Complaint. Clearly, reference to the left eye was in error given that all the evidence was directed to the right eye, including the admission made by Dr Hollenbach.

[29]

Particular 3: Insertion of a scleral buckle

It is to be remembered that this particular is given to support the overall complaint of unsatisfactory professional conduct in respect of the treatment of Patient F. We have already determined, based upon the first two particulars, that the complaint is established. Indeed, that is consistent with the admission made by Dr Hollenbach. Consideration of this third particular only becomes relevant for consideration if the assumption is made that it is, in effect, considered in isolation from the matters identified in particulars 1 and 2.
The technique of using a scleral buckle in the surgery performed on 5 March 2013 is not accepted by Dr Hollenbach as representing a significant departure from acceptable practice. He states that there is little consensus among vitreoretinal surgeons as to where buckles should or should not be used for inferior retinal detachments in combination with vitrectomy surgery. He states that it is a technique that he was taught to use in the case of persistent inferior detachment, although it is not a procedure used in every case where detachment has occurred.
Dr Hunyor accepts that holes or tears located inferiorly may be more difficult to tamponade or seal than those situated superiorly. He accepts that in some cases it is wise to combine a scleral buckle with vitrectomy and use of an internal tamponade to relieve residual tractional forces that can reopen tears, thereby causing re-detachment. However, he is of the opinion that to undertake that procedure after seven previous failed operations in an eye with extremely poor prognosis "is extremely difficult to justify".
Dr Lee acknowledges that Dr Hollenbach was using all available techniques in his attempt to flatten the retinal detachment. Given that he had attempted other recognised methods, he states that another way of attempting to reduce retinal detachment is to perform scleral buckling. Doing so, according to him, may add up to another 10% improvement in success.
On our understanding of the evidence, the use by Dr Hollenbach of scleral buckling, as a technique to address detachment in a difficult case, such as that presented by Patient F, would appear to be appropriate. The evidence does not support a finding that, viewed in isolation, the procedure to conduct scleral buckling nor the technique used by Dr Hollenbach to undertake the procedure attracted criticism. On that basis, we do not find that the procedure, of itself, manifested any lack of appropriate skill and care.
However, the thrust of the particular is directed to the conduct of this procedure, or perhaps any other attempt at remedial surgery, following the number of surgical procedures that were undertaken prior to 5 March 2013. This particular is, properly understood, an aspect of the conduct we have addressed in failing to seek a second opinion once two attempts at retinal reattachment had proved to be unsuccessful. It is Dr Hollenbach's judgment to undertake the eighth procedure, whether it involved scleral buckling or something else, which attracts the complaint made by the Commission. As a consequence, we regard particular 3 as an aspect of the conduct addressed in particular 2. As an independent procedure, there is no adverse finding to be made against Dr Hollenbach.

[32]

Complaint 7

This complaint concerns Patient G. According to the background stated in the Complaint, Patient G suffered left eye cataract and cupping. According to the stated background, on 2 November 2011 Dr Hollenbach performed a left cataract extraction, intraocular lens insertion and trabeculectomy. Following that procedure, Patient G suffered deteriorated left eye vision, left corneal oedema and raised intraocular pressure.
The stated background also indicates that on 23 July 2012, Dr Hollenbach performed a left vitrectomy, intraocular lens exchange and a sulcus fixated intraocular lens and revision of the trabeculectomy. Following that procedure, Patient G is said to have suffered continued poor vision and corneal oedema.
There are a number of particulars of complaint 7A. They are stated as follows: 1. On 2 November 2011, the Practitioner failed to provide appropriate care and treatment for Patient G in that he proceeded with the Trabeculectomy and sulcus fixation of the Alcon Acrysof intraocular lens and in circumstances where: a. a trabeculectomy was contraindicated after the posterior capsule ruptured; b. sulcus fixation of the Alcon Acrysof intraocular lens is contrary to the manufacturer's instructions; c. the Practitioner did not first consider more conservative therapies, being elective laser trabeculoplasty or additional eyedrops. 2. After 2 November 2011, the Practitioner failed to provide appropriate care and treatment for Patient G post-operatively in circumstances where: a. the Practitioner did not examine Patient G until 13 March 2012; b. after performing the trabeculectomy, the Practitioner made no observations of the state of the drainage bleb; c. after the intraocular pressure remained elevated, the Practitioner failed to attempt to establish drainage using an antimetabolite and needling of the scleral flap. 3. On 8 May 2012, the Practitioner failed to provide appropriate care and treatment for Patient G in that he decided to operate again on Patient G on 23 July 2012 in circumstances where: a. it was unnecessary to replace one sulcus fixated intraocular lens with another; b. he failed to consider the likelihood that further surgical manipulation under poor visibility within the anterior chamber would cause further corneal damage. 4. On 23 July 2012, the Practitioner failed to provide appropriate care and treatment for Patient G in that he operated on Patient G on 23 July 2012 in circumstances where further surgical manipulation: a. failed to sufficiently secure the intraocular lens; b. caused further corneal damage. 5. Between 23 July 2012 and 27 August 2012, the Practitioner failed to provide appropriate care and treatment for Patient G post-operatively in that he did not review Patient G until 27 August 2012.

[33]

Particular 1: Surgical procedure on 2 November 2011

Although there are three aspects of the complaint concerning the procedure on 2 November 2011, it is convenient to deal with particular 1 globally. Dr Hollenbach denies that he failed to provide appropriate care and treatment by reference to the three matters identified in this particular.
Patient G was first examined by Dr J. O'Shea on 4 November 2010 at the practice conducted by Dr Hollenbach in Raymond Terrace. The referring optometrist had identified the patient as suffering both cataracts and glaucoma. In addition, she was shown to have higher than ideal intraocular pressures.
When seen by Dr O'Shea in February 2011, her intraocular pressures were described as being "uncontrolled" and her vision in the left eye had reduced. Her cataracts were described as being dense and she was booked at that time for a combined cataract operation and trabeculectomy to address her intraocular pressures. She was placed on the waiting list at Kurri Kurri District Hospital for that purpose.
Patient G was first seen by Dr Hollenbach in April 2011. He determined that she had a significant cataract in the left eye and her vision at that time was down to 6/60. He recorded that she had severe disc cupping, meaning that the glaucoma was quite advanced. He determined that the hospital booking for a left cataract operation with implantation of an intraocular lens and trabeculectomy at the same time was the appropriate procedure.
She was next seen by Dr Hollenbach on 18 May 2011 when again her intraocular pressure was uncontrolled in the left eye, confirming the need for surgery as planned. She was again seen by Dr O'Shea on 13 October followed by the surgery undertaken by Dr Hollenbach at Broadmeadow Private Day Surgery.
In the course of that procedure, a rent in the posterior capsule was sustained requiring an anterior vitrectomy and a sulcus fixated intraocular lens. Dr Hollenbach describes the trabeculectomy as proceeding uneventfully despite the rent in the posterior capsule.
Dr Campbell was retained by the Commission for the purpose of assessing this case. Dr Campbell stated in his report that the trabeculectomy would have been contraindicated once the posterior capsule had ruptured. He states that to be so because subsequent drainage of aqueous "would have been very likely to fail due to blocking of the outflow by vitreous".
Dr Hollenbach does not accept that to be the case. He said that he performed a phaco-trabeculectomy, indicating that once the capsule ruptured he dealt with the vitreous complication "adequately". He states that there was still enough capsular support to implant a lens. He performed an anterior vitrectomy in order to stop any aqueous permeating into the trabeculectomy bleb. Aqueous flow through the bleb was checked at the end of the procedure and the integrity of the bleb further tested by the flow of liquid to make sure that sutures formed a seal over the bleb. On the basis of the measures taken, Dr Hollenbach did not consider that there was any vitreous escaping into the bleb with the result that there was any contraindication to performing the trabeculectomy part of the procedure.
The procedure undertaken by Dr Hollenbach is supported by the evidence of Dr Lee. He states, in terms, that the reasoning of Dr Campbell to support the statement that proceeding with trabeculectomy was contraindicated because of potential drainage of aqueous was incorrect. In his opinion, if an anterior vitrectomy is performed, as Dr Hollenbach did, the vitreous is cleared from the interior part of the eye, thereby reducing the tendency for blockage of the outflow by the vitreous. He also considered that the trabeculectomy was necessary to reduce the intraocular pressure associated with the patient's glaucoma.
While Dr Campbell, in response, took issue with Dr Lee in a supplementary report and in oral evidence, neither expert advanced reasoning demonstrative of an erroneous opinion held by the other. Recognising this to be the case, the Commission fairly invited us to determine the competing views, utilising the expertise of the two professional members of this Panel.
For our part, we are disposed to the opinion expressed by Dr Lee. The render having occurred, declining to proceed with the trabeculectomy would not have improved the condition of Patient G. We also consider that there was substance in the observation of Dr Lee that proceeding with the trabeculectomy was necessary given the elevated intraocular pressures that the patient's glaucoma was occasioning.
There is also a difference between the expert ophthalmologists who gave evidence concerning the sulcus fixation of the intraocular lens described in this particular.
Dr Hollenbach accepts that insertion of such a lens into the sulcus was not a recommended procedure. However, at the time of surgery, he considered that the lens had sufficient capsular support and no alternative lens was then available to him. His rationale for using a sulcus intraocular lens was that capsular rupture occurred at the time of cortical removal. He points to his own past experience where a foldable acrylic lens has been inserted into the ciliary sulcus and complications have developed in cataract surgery. This has occurred without apparent problem and, so he states, is an observation made of the same procedure undertaken by other ophthalmic surgeons.
Dr Lee acknowledges that the Alcon AcrySof intraocular lens is designed to be placed inside the capsular bag. However, he acknowledges that placement in the ciliary sulcus may still occur at times when there are no other alternatives lenses available.
Dr Campbell states that the lens used by Dr Hollenbach is designed to be placed in the intact capsular bag; to that extent, he and Dr Lee are in agreement. However, Dr Campbell further states that sulcus fixation for such a lens "is contrary to the manufacturer's instructions and the American Society of Cataract and Refractive Surgeons also recommend against this practice".
We accept that the preferred placement of such a lens is within the capsular bag. However, our appreciation of the literature, including the manufacturer's instructions, do not recommend placement in the sulcus but do not, in terms, proscribe that use. The experience of Dr Hollenbach in the use of such a lens by other surgeons in the manner in which Dr Hollenbach used it in the case of Patient G accords with experience of the expert Tribunal members and is reflected in the evidence of Dr Lee. Dr Hollenbach was required to respond to a complication arising in surgery, and the only lens available to him was that which has been described. While not ideal, his action in inserting the lens into the sulcus appears to be consistent with the practice of other surgeons in the circumstances confronting Dr Hollenbach at the time.
In short, we are not satisfied that by inserting the acrylic lens that he did into the sulcus reflected a standard of practice that was significantly below the requisite standard. Our conclusion in that regard is aided by evidence from Dr Polkinghorne who referred to contemporaneous articles indicating that at an American Academy of Ophthalmology Symposium on cataract complications, a poll indicated that nearly half of the respondents thought that if capsular support was adequate, a single piece lens could be placed in the sulcus. That was a view reflected in an article published in 2009. While current views would not support the approach taken by Dr Hollenbach in early 2012, it was certainly a practice recognised, if not supported by all, at the time.
Following the assessment of Dr O'Shea, Dr Hollenbach agreed that conservative therapies appropriate for some were not appropriate for Patient G. Options for more conservative therapies, include eye drops or laser treatments. Patient G was allergic to beta blocker drugs which, if used, can induce asthma or cause cardiovascular problems and she was not a suitable patient for laser treatment. Further, both Dr Lee and Dr Polkinghorne point out that many of the barriers to continuing with conservative treatment, such as cost, ineffectiveness of medication, compliance, ocular and systemic side effects are but some of the issues that supported, in this case, proceeding with a trabeculectomy. Ultimately, Dr Campbell's oral evidence was that, in this particular case, the trabeculectomy of itself had not led to any adverse effects for Patient G, his criticism being directed to the risk of failure and the inadequate trial of medical therapy (drops) and laser treatment.
In its totality, the evidence does not support criticism of Dr Hollenbach in failing to proceed with "conservative measures" before proceeding with the surgery that he undertook on 2 November 2011. Moreover none of the three items identified in this particular of complaint 7 identify to us, either individually or collectively, any basis upon which to conclude that the care and treatment of Patient G on 2 November 2011 by Dr Hollenbach was significantly below the requisite standard.

[34]

Particular 2: Post-operative care following surgery on 2 November 2011

There were three particulars provided in respect of this complaint. At the conclusion of the hearing, the Commission stated that it did not press the first of those particulars, namely that Dr Hollenbach failed to examine Patient G until 13 March 2012 following the surgery undertaken on 2 November 2011.
The second allegation founding this particular is the asserted failure of Dr Hollenbach to observe the state of the drainage bleb following the trabeculectomy performed on Patient G.
Following her surgery on 2 November, Patient G was seen by Dr O'Shea at two weeks and four weeks post-operatively. When seen by Dr Hollenbach on 13 March 2012, he states that she then had persistently poor vision of hand movements in the left eye due to corneal decompensation, although her intraocular pressures were controlled. There was a poor intraocular view due to corneal decompensation. He states that he did not make observations of the state of the drainage bleb at the time as on her preceding visits to Dr O'Shea, there was no recorded mention of the bleb. Had there been any problem, he states that he would have observed and recorded such a problem.
In cross-examination, Dr Hollenbach accepted that his failure to record the state of the bleb was atrocious and below an acceptable standard (T.16/05/18 p.124:45). As his counsel observed, that was not an admission that he failed to notice the bleb at all.
The evidence for this aspect of the complaint comes from the evidence of Dr Campbell. He stated that the state of the bleb would have been "a very important observation to make in a patient who had undergone a complicated phaco trabeculectomy".
Dr Lee accepted that there was no record of the condition of the drainage bleb in the notes made by Dr Hollenbach. Nonetheless, he stated in oral evidence that "the most important thing is a measure of how the bleb is functioning T.17/05/18 p.186:20). He further stated that there should have been a note made of the bleb but continued by saying that if there is a functioning bleb, it is able to be seen. He accepted that the failure to record the state of the bleb was below standard.
Our assessment of this evidence, including that given by Dr Hollenbach, leads us to conclude that the bleb had functioned as intended but by the time the patient was seen by Dr Hollenbach on 13 March 2012, it had served its function with no aspect of it attracting the need for Dr Hollenbach to further address it. Given that a functioning bleb could be seen according to Dr Lee, we think it more probable than not that Dr Hollenbach would have observed it. The underlying vice of his conduct is the failure to record his observations in his clinical notes. That failure is the subject of complaint 7B which will later be addressed by us.
The other aspect that is the subject of this particular is the failure to attempt to establish drainage using antimetabolite and needling of the scleral flap. The need for that process to have been undertaken is said to be the elevated intraocular pressure that remained in the left eye of Patient G.
The response of Dr Hollenbach is succinct. He states that when Patient G consulted Dr O'Shea post-operatively, and intraocular pressure was measured, Dr O'Shea instituted medical therapy that resulted in the intraocular pressure being lowered to "normal levels". Following the success of that therapy, there was no indication that antimetabolite needling was indicated and Dr O'Shea alerted Dr Hollenbach of the need for such treatment.
Given that the patient was being treated by Dr O'Shea following the surgery on 2 November 2011, it is difficult to attribute fault to Dr Hollenbach, given that the patient was receiving treatment for intraocular pressure which is recorded to have been lowered. The statement in the report of Dr Campbell does not appear to take account of the fact that the patient was being treated for the condition by Dr O'Shea and that the treatment did occasion the lowering of intraocular pressure.
In summary, we do not find either of the elements identified by the Commission to support the complaint so far as it relates to the care and treatment of Patient G following surgery on 2 November 2011. The one qualification to that observation is the appropriate criticism directed to the failure of Dr Hollenbach to have recorded his observations of the bleb but, as earlier stated, that is a matter that falls within the failure to make appropriate clinical records that is the subject of complaint 7B.

[35]

Particular 3: Surgery conducted on 8 May 2012

There are two aspects of this complaint, both of which are denied by Dr Hollenbach. Both aspects of the complaint arise from the decision of Dr Hollenbach made on 8 May to proceed with further surgery on the patient.
Upon review of patient G on 8 May, Dr Hollenbach assessed that she still had poor vision on the left side. An OCT showed left macular oedema. There was a poor intraocular view and he expressed uncertainty as to the position of the intraocular lens. The decision then made was that Patient G have a vitrectomy with revision of her trabeculectomy. The intraocular lens position was to be checked to ensure that this was not contributing to the corneal oedema or poor vision. He also determined that there should be some intravitreal triamcinolone to deal with the macular oedema.
He stated that he thought it sensible to check the position of the lens as he could not tell whether or not it was stable. He thought that if the lens was not sitting within the visual axis, replacing the lens might improve centration. If the intraocular lens had been displaced in the posterior pole, a vitrectomy would have been necessary. Although he acknowledged that Patient
G subsequently had a further subluxation of the lens, he did not consider that fact to contradict the undertaking of the surgery as, if successful, the lens would be permanently in a better position. The surgery was carried out at Kurri Kurri Hospital on 23 July 2012.
Dr Campbell is critical of the procedure. He states that given the persistence of corneal oedema following the patient's previous surgery, Dr Hollenbach would not be able to visualise the intraocular lens. Moreover, the replacement of one intraocular lens with another intraocular lens is not satisfactorily explained. The process of replacing the existing lens with a new lens would, according to Dr Campbell, involve further manipulation under poor visibility within the anterior chamber and "in all probability would cause further corneal damage", a prospect that proved to become a reality. Dr Campbell considered the only logic for the lens exchange combined with a vitrectomy would be a lens prolapse into the vitreous cavity but that could not be determined because Dr Hollenbach could not see into the eye through the cornea.
Dr Lee does not accept the criticism made by Dr Campbell. He concluded that it was appropriate for Dr Hollenbach to have the intraocular lens position checked to ensure that it was not contributing to the corneal oedema or poor vision. He also considered that surgical manipulation under poor visibility is not a significant problem because "good microscope viewing systems can allow reasonable visibility in difficult cases".
Whether Dr Hollenbach had such equipment available at Kurri Kurri Hospital at the time or used such equipment is not the subject of any evidence.
Given that the corneal oedema in the left eye of Patient G had persisted for 8 months since her previous surgery, it was appropriate for Dr Hollenbach to consider the position of the intraocular lens that had been placed in the sulcus. However, for the reasons stated by Dr Campbell, undertaking further surgery on this patient with her history of prior surgery, the poor visualisation of the state of her eye, which made a pre-operative examination unclear as to whether there was lens displacement and the probability of corneal damage, together militated against carrying out the surgery. We make this observation in the absence of the evidence of availability and use of the "good microscope viewing systems" of which Dr Lee spoke.
Considering the two aspects of this particular, we are satisfied that the decision to conduct the surgery performed by Dr Hollenbach on 27 July was below the requisite standard.

[36]

Particular 4: Securing the intraocular lens and occasioning corneal damage

This particular is also related to the surgery conducted by Dr Hollenbach on 23 July 2011. The additional particulars provided are directed to two aspects of that procedure. The first of those suggested that, contrary to his stated intention, Dr Hollenbach did not sufficiently secure the intraocular lens inserted during the procedure. Second, the complaint identifies the prospect of further corneal oedema resulting from the surgery as having in fact occurred.
Dr Hollenbach does not accept that because the lens exchange was not successful and that there was further corneal decompensation is not demonstrative of conduct that is significantly below the requisite standard. In effect, he states that he weighed the possible benefit from his intended procedure against the competing risks and considered it appropriate to proceed.
In addressing the specific allegation, Dr Hollenbach stated that the procedure undertaken by him included the "intraocular lens exchange with sulcus fixated intraocular lens". While he stated in a transcript of notes that the exchange lens "was sutured in position", Dr Campbell states that there is no record of that fact in the operations notes from Kurri Kurri Hospital and that the clinical notes of Dr Hollenbach are "extremely brief, difficult to interpret and accompanied by a very simple diagram". Dr Campbell further states that the exchange lens utilised by Dr Hollenbach "theoretically should be more stable in the sulcus" than the lens that it replaced, yet five weeks later "the lens had subluxed inferonasally". That having occurred, Dr Campbell suggests it was unlikely to have been sutured in place.
It would seem that the objective indicia identified by Dr Campbell, namely the absence of specific record directed to the suturing of the lens in place together with the expected stability of the exchange lens, if affixed and the fact that the exchange lens had subluxed within five weeks of surgery, together give rise to an inference that, contrary to Dr Hollenbach's intention, the exchange lens was not sutured in place. Against that is the transcribed record of Dr Hollenbach, which apparently only he could decipher, indicated that he did fix the lens in place. As there are only inferences available against the express statement of Dr Hollenbach that he did do as he said, we are not prepared to disbelieve him.
For our part, what is more significant in terms of the procedure undertaken is that to which we have already referred, namely the further corneal decompensation following the procedure.
Notwithstanding the statement by Dr Lee that decompensation of the cornea can be attributed to a number of causes, we understand the evidence of Dr Hollenbach to be that the risk associated with the surgery that he contemplated was further decompensation occasioned by the surgery. The fact that it occurred renders it more probable than not that it did so as a consequence of the surgery or, at least, that the surgery had played a part in that decompensation occurring.
As we have earlier said, that risk seems to us to outweigh any possible benefits to the patient, given her surgical history. As a result, we consider this particular in conjunction with particular 3, so that the conduct we have identified in respect of Patient G does demonstrate conduct that is significantly below the requisite standard.
At the conclusion of the hearing, the Commission indicated that it did not press particular 5 of Complaint 7A. In the result, we have found that the conduct of Dr Hollenbach in treating Patient G was significantly below the requisite standard by reference to matters identified in particulars 3 and 4.

[38]

Complaint 8A

This complaint relates to Patient H. It concerns surgery carried out at Muswellbrook District Hospital on 30 November 2012 and at Kurri Kurri District Hospital on 10 December of that same year.
The background recited in the Complaint is that that Patient H suffered bilateral cataracts. On 30 November Dr Hollenbach performed right cataract surgery during which the patient sustained a capsule rupture. Following that surgery, he inserted an intraocular lens that subluxed.
On 10 December 2012 Dr Hollenbach performed a right vitrectomy, removal of the intraocular lens and the insertion of a 3 piece intraocular lens. Following that surgery, Patient H suffered deteriorated vision, cystoid macular oedema, vitreomacular traction with a lamellar hole. As well, the intraocular lens haptic had perforated the patient's iris.
The particulars of this complaint are stated as follows: On 30 November 2012, the Practitioner failed to provide appropriate care and treatment for Patient H in that he performed right cataract surgery in circumstances where: he did not adequately dilate the pupil; he created a tear in the posterior capsule; he used stroll vitrectomy which is not indicated for vitreous prolapse; he inserted a Hoya 251-piece acrylic intraocular lens which is not designed to be placed in the ciliary sulcus; the Practitioner did not first consider the indication for right cataract surgery given Patient H's pre-operative visual acuity. On 10 December 2012 the Practitioner failed to provide appropriate care and treatment for Patient H in that he caused significant surgical trauma due to poor technical performance when performing further right eye surgery resulting in corneal stromal oedema, Descemet's folds and haemorrhage in the anterior chamber and iris trauma observed on 11 December 2012. Between 10 December 2012 and 11 March 2013, the Practitioner failed to provide appropriate care and treatment for Patient H post-operatively in that he: conducted reviews of Patient H only on 17 December 2012, 11 March 2013, which was not adequate follow-up; failed to recognise the protruding intraocular lens haptic as a major contributing factor in her poor vision; failed to instigate effective treatment of her suspected cystoid macular oedema.

[39]

Particular 1: Cataract surgery on 30 November 2012

In response to the challenge to his conduct and surgery on patient H on 30 November 2012, Dr Hollenbach admits, as a fact, that he did create a tear in the posterior capsule of that patient's right eye and that he did insert the nominated intraocular lens, which was not designed to be placed in the ciliary sulcus. While he also acknowledges using stroll vitrectomy, he denies that the procedure was not indicated for vitreous prolapse. He also denies that he failed first to consider the indication for right cataract surgery, having regard to the Patient's pre-operative visual acuity. To the extent to which the facts are admitted, he denies that they demonstrate that in performing surgery on this occasion, his conduct fell significantly below the requisite standard.
Patient H was 87 years old when first seen by Dr Hollenbach in 2012. She had become a patient following the retirement of a practitioner who retired and whose practice in the Upper Hunter region had been taken over by Dr Hollenbach. She was seen by Dr P. Kim, on 16 August 2012 and noted by him to have cataracts in both eyes. As a result, she was booked on the Public Waiting List for cataract surgery at Muswellbrook Hospital on the Surgical Waiting List of Dr Hollenbach. He saw her pre-operatively on 28 August 2012 for the first time and confirmed that she did have cataracts in both eyes. He described the cataract in the right eye as being "dense".
Surgery was undertaken at Muswellbrook District Hospital on 30 November 2012.
Dr Hollenbach described her as having "a small pupil" as many of his patients did. In his statement tendered to the Tribunal, he said that sometimes he will use a pupil dilator "and sometimes not, if there is enough pupillary exposure to perform the cataract surgery". His statement did not say whether or not he had, in fact, dilated the pupil of Patient H on that occasion.
Dr Campbell observed that the surgical notes of Dr Hollenbach make no mention of using any of the available means of pupil dilation "such as intracameral injection of a pharmacological agent, pupil stretching or iris hooks. However, while not professing specific recollection, Dr Hollenbach explained in cross-examination that, based on his usual practice and his knowledge of the equipment available at Muswellbrook Hospital at that time, he "would have" dilated the right pupil in Patient H's eye by using Kuglen hooks (T.128:18).
We are prepared to accept that Dr Hollenbach did dilate the pupil of Patient H and that the allegation to the contrary is probably a product of the failure by Dr Hollenbach to record, as he was required to do, a proper record of the procedure. The absence of such a record is not condoned and falls within complaint 8B to be addressed later.
The tear in the posterior capsule is said to have occurred during the irrigation/aspiration stage of the procedure. This resulted in vitreous prolapse into the anterior chamber, which was addressed by Dr Hollenbach with stroll vitrectomy.
Dr Campbell was critical of that procedure. He stated: In the current era of intraocular surgery there is no indication for stroll vitrectomy, which may cause excessive traction on the retina; prolapsing vitreous should be removed with the vitreous cutter supplied with modern phaco-emulsification consoles.
Dr Hollenbach defends his position for proceeding in the manner that he did. He states that for Patient H "It was the only option available because an anterior vitrectomy was not possible as there was no anterior vitrector available at Muswellbrook Hospital at that time". He described the situation as being "very difficult" because of the capsule rupture, stating that "as much of an anterior vitrectomy as possible was performed with a stroll". He further states that the technique that he used was one that he had been taught by another surgeon. He states that he chose stroll vitrectomy "primarily because it was the best option in the circumstances".
Dr Lee was not as critical as was Dr Campbell. In his report of 1 August 2017, Dr Lee expressed the opinion that stroll vitrectomy is appropriate "when there is only a small amount of vitreous prolapse or where there is not available vitrectomy equipment to perform anterior vitrectomy". In his oral evidence he repeated the limited scope of that procedure that he described as an old technique, used in the "third world" (T.17/5/18, p.166:38) and that it could perhaps remove a small amount of vitreous (T.17/5/18, p.167:35).
In paragraph numbered 17 of his 2017 report, Dr Lee described Muswellbrook Hospital as a "peripheral hospital" at which Dr Hollenbach was conducting surgery on Patient H who "had a difficult cataract which was quite dense with a small pupil which puts the rate of capsular rupture up". While the stroll vitrectomy was undertaken, she needed further surgery "with more formal vitrectomy at the Muswellbrook Hospital". We will return to that observation shortly.
Dr Lee also recognised that the use the Hoya intraocular lens into the ciliary sulcus was appropriate "where there was not a larger lens available". As we have earlier indicated, in the context of another complaint, so much may be accepted but the circumstances in which the surgery occurred need to be considered in their totality.
The pre-operative examination of Patient H, particularly her presentation with a small pupil and very dense cataract in the right eye are circumstances that seem to us to require consideration of adequacy of equipment at the facility where surgery is proposed. It is apparent from Dr Hollenbach's own statement that he recognised the limitations imposed in the conduct of ophthalmic surgery at Muswellbrook Hospital. Clearly, there were better facilities available at Kurri Kurri Hospital, where further surgery was undertaken only 11 days later.
While the surgery was no doubt important to the patient, it was not conducted as an emergency procedure, given that the patient was confirmed for full surgery on 28 August 2012; that is, some 3 months prior to the surgery being performed. The clear impression we gained from the evidence of Dr Lee was that the use of a stroll vitrectomy and insertion of a one-piece acrylic lens as being appropriate "in certain situations especially if there is no back-up lens" are all consistent with circumstances needing to meet the exigencies of an unexpected complication or event. The absence of a vitrector and the limited availability of appropriate lenses seem to us to have warranted consideration being given beforehand to the appropriateness of surgery for Patient H at Muswellbrook Hospital, where the lack of available equipment was known and indicated otherwise.
Clearly, from the evidence of Dr Hollenbach himself, the use of the stroll vitrectomy technique was a fall-back position that he did not utilise when the patient was taken for further surgery to Kurri Kurri Hospital. While Dr Hollenbach states that it would have been better for the surgery to be conducted at Kurri Kurri Hospital but that "he was not really in a position to effect that", must have warranted consideration as to whether Patient H should have been referred to someone else who was able to undertake the surgery at a better equipped facility. Indeed, no insight is provided by Dr Hollenbach's evidence as to why 10 days after the surgery at Muswellbrook he was able to perform further surgery on Patient H at Kurri Kurri.
We have formed the opinion that the combination of factors that are identified in this particular demonstrate that the decision to proceed with surgery on 30 November reflects conduct by Dr Hollenbach that was significantly below the requisite standard. The circumstances in which that surgery was conducted at Muswellbrook did not, on the evidence before us, demonstrate the need for compromise by being undertaken at that hospital when the shortcomings in the available surgical equipment and materials were known in advance.

[40]

Particular 2: Surgery on 11 December 2012 at Kurri Kurri Hospital

The detail of the surgery is not clear. Dr Hollenbach admits that complication occurred in the course of this procedure but denies that it amounted to a significant failure of standards due to poor technical performance.
Dr Campbell has endeavoured to interpret the operation notes, an exercise that he described as "difficult". The operation notes includes the statement "IOL displaced into PC". Dr Campbell states that PC is generally an abbreviation for posterior chamber, but suggests that such a reference does not make sense. A diagram attached to the notes he describes as being of little value as it shows the position of a single limbal suture. A pars plana vitrectomy was said to be performed but the reason for doing so is not apparent. The notes show that a 1-piece intraocular lens was removed and replaced with a 3-piece lens in the sulcus. Dr Campbell continued: Although no details are provided in the operation note, the post-operative evidence points to significant surgical trauma during the procedure. In his examination on the next day, Dr Paul Kottos describes corneal stromal oedema Descemet's folds +++, haemorrhage in the anterior chamber, iris trauma and no view of the IOL.
In his statement, Dr Hollenbach seeks to respond to the passage quoted from Dr Campbell's report. He says that the observation of trauma the following day indicates that there was likely to be blood in the eye, demonstrating "a very difficult case". He further observed that a combination of ruptured capsule, iris trauma and bleeding means "the eye will not look its best day 1 post-operatively"; but says that those observations do not demonstrate "a complication" has not been addressed adequately.
Based on his understanding of the procedure undertaken by Dr Hollenbach on 10 December and having regard to the post-operative evidence quoted from the report of Dr Campbell, he (Dr Campbell) observed that the "findings" indicate "very poor technical performance of the operation". Dr Campbell sees the post-operative findings as being at odds with the statement in a letter of 13 December 2013 from Dr Hollenbach to the Commission, in which Dr Hollenbach states that "the surgery went uneventfully".
At paragraph 251 of his statement, Dr Hollenbach acknowledges that the surgery performed on Patient H "was complicated but I do not accept that it was entirely due to my poor technical performance". Having expressed himself in those terms, it is not otherwise apparent from his statement why he did not believe that his technical performance was not a significant failure, nor why he had said that the complications were not entirely due to that performance.
For his part, Dr Lee does not offer great assistance in addressing this particular issue. He states that it was appropriate for a vitrectomy and lens exchange, given the displacement of the intraocular lens that had been inserted into the sulcus on 30 November. He does not, with respect, offer any insight into the complexities that had arisen in the course of or resulting from that surgery. He concludes the specific passage of that part of his report by expressing agreement with the suggestion that Dr Hollenbach's performance was below standard.
Later, in his report he responds to a question seeking general comment upon the ophthalmic care delivered by Dr Hollenbach in which he refers to the reason for the procedure on 10 December stating that it is "often performed, where there is vitreous loss, particularly where there was lack of equipment at the first hospital". That observation rather supports the conclusion earlier expressed when addressing the previous particular. Other than repeating the fact that the procedure on 10 December was to remove further vitreous and to optimise position of the intraocular lens using a lens exchange, the general observations do not discuss the complications that had occurred in the surgery and therefore provide no material that assists us in deciding the present issue.
Dr Hollenbach acknowledged in his written statement that Descemet's folds are an indication of eye trauma "but not necessarily significant trauma". He suggests that positive findings in the notes indicate that the complication has been dealt with adequately (T.16/05/18, p.131).
We are of the opinion that the observations and criticism levelled by Dr Campbell as to the poor technical performance of Dr Hollenbach on this occasion was well-founded. The indicia of trauma manifest in the observations made on the day following surgery are, in the absence of detailed explanation by Dr Hollenbach that we do not have, evidence of very poor technical performance. We are satisfied that in carrying out surgery on that day, the conduct of Dr Hollenbach was significantly below the relevant standard.

[41]

Particular 3: Post-operative care

We have earlier set out this particular in more detail. Dr Hollenbach denies the inadequacy of post-operative consultations as well as the failures directed to recognition of the intraocular lens protrusion as a major contributing factor to the poor vision of Patient H. He also denies that he failed to instigate effective treatment of the suspected cystoid macular oedema.
Patient H was first seen post-operatively by Dr Hollenbach on 17 December 2013; that is, one week after her surgery. She was seen by Dr Kim in January and then again by Dr Hollenbach on 11 March. She was then seen following hospital admission for a broken hip.
Dr Campbell noted the three post-operative consultations between surgery on 10 December and the consultation with Dr Hollenbach on 11 March. The only note available in respect of the consultation with Dr Hollenbach on 17 December records that the intraocular lens was in good position and a comment is made about the cornea, which Dr Campbell describes as being "illegible". At the consultation with Dr Kim on 18 January 2013 there was a diagram that Dr Campbell says indicates persistent corneal oedema and Descemet's folds. As we have said, the third consultation with Dr Hollenbach was on 11 March. It will be recalled that when seen at that last consultation, Dr Hollenbach considered that the patient's vision had deteriorated. Dr Campbell expresses the opinion that given the surgical trauma that Patient H had suffered on 10 December, together with the evidence provided by the observations made and recorded on 11 December, he would have expected greater involvement by Dr Hollenbach in the Patient's post-operative care. To that might be added the acknowledgement by Dr Hollenbach that the surgery on 10 December was complicated.
Dr Lee was requested to express an opinion on this particular. There was some curiosity in the manner in which Dr Lee addressed this matter. He recalled a statement attributed to Dr Hollenbach that "he and his locum saw the Patient a number of times in the post-operative phase". He does not focus on the three occasions upon which Patient H was seen post-operatively between December and March. Dr Lee does record that there was a "delay in review due to the Patient's broken leg (sic) but he then stated that when seen on 11 March 2013 Patient H "had improved to 6/24 in that eye". That statement is at odds with the statement by Dr Hollenbach that when he saw Patient H on that day, "her vision had deteriorated at this time to 6/36". The statement just quoted appears in para 252 of Dr Hollenbach's statement. However, in para 251 he states that: "her vision on 11 March 2013 had improved to 6/24 in that eye". The apparent inconsistency between these statements was not explained.
One aspect of the contention that there was inadequate post-operative review that has not been fully addressed is the indication that Patient H was not able to attend for review because of her injury and hospitalisation for a fractured hip. Regrettably, Dr Hollenbach does not identify appointments made but cancelled because of the Patient's indisposition due to injury. If review was delayed for that reason, given the terms of the complaint, we would have thought that Dr Hollenbach would provide information demonstrating that fact. None has been forthcoming.
Given the fact that Patient H had, in the space of 10 days, undergone two surgical procedures, described as "complicated" and in the second one of which she had suffered surgical trauma, we consider that Dr Hollenbach ought to have made endeavours to check her condition more frequently than he did. Had he attempted to do so but for reasons independently of her eye trauma she was not able to attend, then we would take a different view. However, as there is no such evidence before us, we conclude that the failure to be more robust in reviewing Patient H was a significant failure on his part.
Dr Hollenbach acknowledges that the protruding haptic of the intraocular lens inserted on 10 December did cause corneal oedema superiorly. He states that while Patient H had been seen by Dr Kottos, Dr O'Shea and himself following the second procedure, no-one had noticed the protruding haptic which was in the periphery of the iris. He posits that the protruding haptic may have been the cause of haemorrhage in the anterior chamber but that "the issue of the small pupil and iris trauma which could have resulted in those problems". He states it to be unlikely that the protrusion directly led to macular oedema, acknowledging that the protruding haptic "is not a good outcome, even though it was not picked up for quite some time". He did not consider that this was the cause of the patient's poor vision that needed to be remedied, if possible. An OCT scan on 22 March is said by him to show vitreo macular traction to be the primary macular problem rather than macular oedema.
Dr Campbell considered that there is some confusion in the statements of Dr Hollenbach as to whether Patient H had cystoid macular oedema or vitreo macular traction. Copies of the OCT and fluorescein angiogram were sought from Dr Hollenbach but he was unable to provide them. Dr Campbell states that it seemed more likely that Patient H did have cystoid macular oedema and that there was a very high probability that the protruding haptic of the intraocular lens would have been a major contributing factor to that condition. As a result, he expressed strong disagreement with Dr Hollenbach's statement that the protruding haptic "in no way influenced the vision" and was not a cause of the poor vision.
Dr Lee stated that the Patient "developed macular oedema noted by Dr John O'Shea, confirmed on OCT scan". He acknowledged that "at one stage" in the post-operative phase, the OCT scan did not show macular oedema but vitreo macular traction with a lamellar macular hole. However, a subsequent OCT showed a cystoid macular oedema. He states that the cystoid macular oedema can fluctuate and "is often a result of complicated cataract surgery", stating that the lens haptics rubbing on the iris can also be a causative factor "though this is not the only causative factor".
Given that Dr O'Shea had noted cystoid macular oedema; that the oedema can fluctuate and is often a result of complicated cataract surgery, which was the case in respect of Patient H, it seems to us that insufficient consideration was given to the prospect of haptic protrusion as a possible cause of the cystoid macular oedema. Contrary to the opinion expressed by Dr Hollenbach, we accept the opinion of Dr Campbell that the presence of the protruding haptic into the iris is likely to have been a significant factor, even if not the sole factor, contributing to the poor vision in the Patient's right eye.
Dr Campbell is critical of the management of the cystoid macular oedema that was confirmed by the OCT in May 2013. He describes the mainstay of treatment as topical steroid with consideration of intravitreal triamcinolone if topical therapy is ineffective.
In his statement Dr Hollenbach states that his treatment was initially with non-steroidal drops and if those did not work, subsequent treatment with intravitreal steroid was planned for Patient H, as was further surgery to reposition the intraocular lens where the haptic had eroded through the iris. Following the fluorescein angiogram conducted on 2 May, he states that the patient was given "some topical medication". The planned surgery and opportunity for intravitreal triamcinolone did not eventuate as she was not seen after 17 June 2013 and is now deceased.
The evidence before us in relation to the appropriateness of treatment afforded, once Dr Hollenbach established the presence of cystoid macular oedema, leaves uncertainty as to whether that treatment was appropriate. On one view, Dr Hollenbach had instigated a process that is not inconsistent with that posited by Dr Campbell. As we are required to be persuaded, on balance, that the treatment was, in fact, inappropriate, the evidence does not satisfy that criterion.
As we have done previously, we take a global view of the conduct directed to this Complaint. Taking account of the inadequate follow-up, given the surgery undertaken upon Patient H and the trauma it created, coupled with the failure to recognise the protruding lens haptic as a cause of her poor vision, even if not the sole cause, together satisfy us that between 10 December 2012 and 11 March 2013 the post-operative care provided for Patient H was substantially below the requisite standard.

[43]

Complaint 9A

This complaint relates to Patient I. The background recorded in the Complaint indicate that Patient I suffered a left macular hole. On 20 October 2004 Dr Hollenbach performed macular hole surgery. In the course of that procedure, Patient A suffered a retinal tear. Following that surgery she suffered deteriorated vision and left retinal detachment.
On 8 December 2004, 15 December 2004 and 11 October 2005, 2 November 2005, 16 November 2005, 22 November 2005 and 29 November 2005, Dr Hollenbach performed further surgical procedures involving both eyes. Following the surgery on 29 November 2005, Patient I was found to be blind in her left eye and severely vision impaired in her right eye.
Particulars of this Complaint are recorded in the Complaint as follows: 1. Between 15 November 2004 and 4 April 2005, the practitioner failed to provide appropriate care and treatment for Patient I post-operatively in that he conducted reviews of Patient I only on 22 December 2004, 10 January 2005 and 4 April 2005, which was not adequate follow-up. 2. On 11 October 2005, the practitioner failed to provide appropriate care and treatment for Patient I in that conducted [sic] surgical repair for the right macular hole in circumstances where he: a. failed to detach the posterior vitreous face from the retina during the procedure; b. failed to first refer Patient I to the Sydney Eye Hospital. 3. On 2 November 2005, the practitioner failed to provide appropriate care and treatment for Patient I in that he used heavy liquid as the tamponading agent for the superior break during the procedure. 4. Between 16 November 2005 and 21 November, the practitioner failed to provide appropriate care and treatment for Patient I in that he failed to recognise the developing retinal detachment in the right eye. 5. On 29 November 2005, the practitioner failed to provide appropriate care and treatment for Patient I in that he removed the heavy liquid and failed to replace it with silicone oil. 6. Between 14 and 15 December 2005, the practitioner failed to provide appropriate care and treatment for Patient I in that he failed to recognise the extent of the retinal detachment. 7. On 15 December 2005, the practitioner failed to provide appropriate care and treatment for Patient I in that he failed to immediately refer her to Sydney Eye Hospital.

[45]

Particular 2: Surgical procedure on 11 October 2005

The first element of this particular is admitted by Dr Hollenbach. He states that at the time he thought he had detached the posterior vitreous face from the retina but accepts that he did not do so. The surgery he was undertaking was to address the macular holes in the Patient's eye. The procedure called for the need to take vitreous gel off the back of the eye, a process called "inducing the posterior vitreous detachment". He described it as being fundamental to the procedure and that it is "an obvious occurrence when it occurs". He described the procedure as "something that is done on every occasion". However, he acknowledged that on some occasions vitreous detachment is not complete, although it appears to be so.
Dr Campbell notes that the transcription of records in respect of Patient I indicates that she underwent a right pars plana vitrectomy for a macular hole on 11 October. There is no mention in the notes of Dr Hollenbach of detaching the posterior vitreous face from the retina. A subsequent surgical procedure conducted by another surgeon noted that there was "an extensive layer of membrane, which appeared to be residual posterior cortical vitreous, was covering the posterior retina". That observation, according to Dr Campbell, made it appear that Dr Hollenbach failed to perform "this important part of the procedure". Dr Campbell described that failure as indicating that Dr Hollenbach's performance of the procedure on 11 October 2005 "was significantly below the expected standard".
The submission made to us on behalf of Dr Hollenbach describes what occurred as "an error of practice" but that does not necessarily indicate that "it fell significantly below the relevant standard". We are not persuaded that this is an apt characterisation of the apparent omission by Dr Hollenbach on this occasion. As he acknowledged, detaching the posterior vitreous face from the retina is "fundamental to the procedure". While Dr Hollenbach now says that his practice has changed in respect of this surgery, the fact that a fundamental element of the procedure was not successfully undertaken on 11 October, seems to us to attract the observation that the procedure then conducted was significantly below the relevant standard.
The second element of this particular is a failure to have referred Patient I to Sydney Eye Hospital. Dr Hollenbach accepts that he did not do so but does not accept that this amounts to a failure to provide appropriate care and treatment as he considered that he had " the skills and experience to treat the Patient.
The surgical procedure undertaken on 11 October 2005 was the third procedure undertaken to address the sight problems of Patient I. The previous two procedures had been complex and had failed to repair the detachment in her left eye. Having noted those facts, Dr Campbell states: Then when she developed a macular hole in her right eye and having seen the result of his surgery on the left [Dr Hollenbach] should have given her the option of seeking another opinion rather than taking on the surgery himself.
Whether it be to a vitreoretinal surgeon at Sydney Eye Hospital or elsewhere, it does seem to us that it was appropriate for Dr Hollenbach to refer the Patient for a second opinion before proceeding with the surgery on 11 October 2005. Notwithstanding the confidence in his own capacity to manage the condition of Patient I, the failure to refer the Patient for a second opinion prior to undertaking surgery on 11 October 2019 was, in our opinion, below the requisite standard.

[46]

Particular 3: Heavy liquid tamponading

Dr Hollenbach denies that the use of heavy liquid as a tamponading agent on 2 November 2005 was inappropriate. He states that at surgery, Patient I was noticed to have a peripheral retinal tear. "Cryopexy was applied" and the decision to perform a heavy liquid tamponade was made so that the retina around the tear would not detach. The heavy liquid was used as Patient I could not posture face-down and he did not want to risk the macular hole reopening. The successful use of gas or silicon depended upon the ability and willingness of the patient to posture face-down for some period. Where that was not feasible, in this case with an elderly and unwell patient, the heavy liquid enabled her to lie face-up.
Dr Campbell criticises the use of heavy liquid as a tamponade. He states this to be inappropriate, "as heavy liquid is not as effective as gas for superior breaks, which was proven on the first post-operative day, when there was already fluid around the tear". When addressing this particular, Dr Campbell does not directly address the different tamponading agents, depending upon the capacity of the patient to posture face-down.
By contrast to the opinion expressed by Dr Campbell, Dr Lee considered that the post-operative care was adequate (T 17/05/18 p.169). He explained that if the patient cannot keep his or her head down or forward, then a supine position is necessary. Using the heavy liquid, gravity pushes back and that can tamponade the superior retina (T168.40). He referred to published literature stating that heavy liquid "works quite well for large giant retina tears and it can work for the giant tears which involve the superior retina and can extend to the inferior retina. It can cover both superior and inferior." (T169.5)
We accept that while contemporary practice may not necessarily support the use of heavy liquids, in circumstances that pertain to Patient I, by the practice adopted in 2005 when this procedure was adopted by Dr Hollenbach, the procedure was considered to be acceptable. That accords with the opinion expressed by Dr Lee.
As a consequence, we do not find this particular as reflecting adversely upon the care provided by Dr Hollenbach to Patient I.

[47]

Particular 4

Dr Hollenbach denies that in the period identified, he failed to recognise developing retinal detachment in the right eye of Patient I. In his opinion, the clinical condition of the patient changed from being a cyst to a rhegmatogenous retinal detachment over the course of a few days. On 17 November he was of the opinion that the macula hole was still open despite the tamponade that he had used. He considered that she had an inferior cyst in the right eye with vision deteriorating over the next couple of days. He states that, in hindsight, the cyst was probably part of the vitreoschisis but developed into an inferior retinal detachment.
Dr Lee is not critical of the explanation given by Dr Hollenbach. He states that an inferior retinal cyst may only indicate a localised cystic change in the retina or a small area of sub-retinal fluid. At that point in time, Dr Lee did not consider it necessary to reoperate on the patient. He states that he would not have recommended intervention on 17 November 2005 for an inferior retinal cyst.
Dr Hollenbach acknowledged that failure to diagnose a retinal detachment on 17 November was possible, but he explained it to have been unlikely, given his experience as a clinician and vitreoretinal surgeon, knowing "what a retinal detachment looks like" (T.16/05/18 p.136). He acknowledged that a chronic retinal detachment can cause a retinal cyst but also believed that a retinal cyst can occur in conjunction with retinoschisis without detachment.
We accept the opinion of Dr Campbell in this regard. Given the patient's history, the existence of a "large cyst inferiorly" as was stated to be the case, coupled with the circumstance that a cyst would have been an unlikely development, as Dr Campbell has stated, there were sufficient indicia of a developing detachment such as to warrant treatment for that consequence at that point in time. We conclude that the failure to diagnose the onset of retinal detachment was significantly below the requisite standard.

[49]

Particular 6: Failure to recognise the extent of retinal detachment

Following surgery on 29 November 2005, Patient I was seen by Dr Hollenbach on 14 December. At that consultation, he recorded that her vision was reduced down to 6/36 accompanied by reopening of her macular hole. He determined that it was not appropriate to perform surgery at that time, but rather to wait "to see how she progressed". When seen again on 15 November, he described her vision as having decreased "with shallow retinal detachment so the clinical picture had changed over 24 hours". Thereupon he contacted Dr Justin Playfair, a senior Visiting Medical Officer at Sydney Eye Hospital, for a second opinion and requesting that he perform any further procedures. Dr Playfair was not available immediately so she was referred to Prof. Alex Hunyor (not the expert of the same name retained by the Commission for the purpose of these proceedings) who performed several more procedures on the patient's eye.
Dr Campbell has reviewed the records pertaining to Dr Hollenbach's assessment of Patient I on 14 December 2005. He notes that Dr Hollenbach recorded reopening of the right macular hole but made no other comment about the state of the patient's retina. He then identified Dr Hollenbach's note on 15 December, referring to the decreased vision of the patient and the observation of shallow retinal detachment. Dr Campbell continued: However, in [Prof] Alex Hunyor's pre-operative note dated one day later on 16 December, his findings were 'a total retinal detachment with severe posterior proliferative vitreoretinopathy which was causing marked tractional ring around the disk and macular area. There was macular oedema, but there did not appear to be an open macular hole.
Dr Campbell then states it to have been "inconceivable" that a retinal detachment could progress to such a degree over a 48 hour period. He expresses the conclusion that either Dr Hollenbach was unable to interpret the clinical picture correctly or that his records "are a misrepresentation of the true findings".
Although Dr Hollenbach denies that his conduct on 14 December warrants the criticism made by Dr Campbell, there is not before us any evidence that rebuts that opinion. While we make no finding that the notes made by Dr Hollenbach on 14 December are a "misrepresentation" of what he truly found, we accept the criticism that he failed to interpret correctly "the clinical picture" as Dr Campbell opined. We consider this failure to be significant.

[52]

Complaint 9B

This complaint also alleges unsatisfactory professional conduct by reason of the contravention of the Regulation by Dr Hollenbach in meeting the requirements for appropriate medical records for Patient I. The particulars recorded in respect of this complaint are in the following terms: 1. On 20 October 2004, 8 December 2004, 15 December 2004, 11 October 2005, 2 November 2005, 16 November 2005, 22 November 2005 and 29 November 2005, the Practitioner failed to maintain adequate medical records for Patient I in accordance with clause 5 and Schedule 2 of the Medical Practice Regulation 2003 in that the Practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedure performed on those dates.
The 2003 Regulation that is the subject of this complaint is not, in substance, different in its requirements from that of the 2010 Regulation to which we have referred in addressing the majority of complaints against Dr Hollenbach, so far as they relate to a failure directed to the content of his medical records. In a written submission made on behalf of Dr Hollenbach at the conclusion of the hearing it was contended that evidence had not been tendered demonstrating that his records were inadequate and in breach of the provisions of the 2003 Regulation.
Dr Campbell relied upon a transcription of those records and based upon that transcription, he describes them as lacking "important details" and containing "a number of confusing or incomprehensible statements, particularly in regard to [Patient I's] multiple surgical procedures". He describes the clinical record as significantly below the expected standard.
Although a copy of Dr Hollenbach's original records were marked for identification, they were not tendered before us at the hearing. With the consent of his solicitor, those records have now been provided to us. They appear to lack the legibility identified in other records, to be cryptic and to lack detail in respect of the identified surgical procedures to which Dr Campbell refers.
We have no hesitation in accepting the general admission made by Dr Hollenbach in this regard and concluding that the records that are the subject of this complaint do not meet the requirement of the 2003 Regulation. We take the particulars of this complaint to reflect the correct breach rather than the general statement made in framing this complaint that there was a contravention of the 2010 Regulation. However, if we are wrong in this respect, then the other aspect of the complaint, namely that Dr Hollenbach engaged in unethical conduct in medical practice in that he failed to comply with the 2003 regulation, applicable at the time of the complaints made in respect of Patient I, is established.

[53]

Complaint 10A

This complaint relates to Patient J. The background as stated in respect of this complaint is that Patient J suffered reduced vision in his right eye.
On 13 November 2013, Dr Hollenbach performed right cataract surgery. Following that surgery, the patient suffered vision loss. Further surgery was performed by Dr Hollenbach on 20 November 2013 and again on 28 November of that same year. Patient J did not regain vision in his right eye following those surgical procedures.
The particulars given in respect of this complaint are stated as follows: 1. Between 20 November 2013 and 28 November 2013, the Practitioner failed to provide appropriate care and treatment for Patient J in that he did not: a. deal with the profound ocular hypotony measured on 26 November 2013; b. diagnosed the right retinal detachment visible on the ultrasound on 28 November 2013.
Dr Hollenbach was first consulted by Patient J in 2005. No treatment was undertaken at that time. He next returned to consult Dr Hollenbach on 17 October 2013, then aged 81. He was referred by a local optometrist because of complaints of blurred vision and distortion in the left eye. Examination carried out by Dr Hollenbach on 17 October 2013 showed Patient J to have bilateral cataract and a florid epiretinal membrane which was confirmed by an OCT scan.
Following an explanation of the surgical procedure available, Dr Hollenbach says that Patient J was keen to proceed with that surgery. As a consequence, a fluorescein angiography was performed in order to ensure there was no underlying leak of the retina. No leak was reported.
Surgery proceeded on 13 November 2013 at Lingard Hospital. It involved right cataract extraction, implantation of an intraocular lens, a vitrectomy and membrane peeling. The surgery was described as being uncomplicated.
Patient J was seen by Dr Hollenbach on the first day post-operatively. At that time his vision was described as being "hand movements" but, according to Dr Hollenbach, the retina appeared flat. However, when seen 6 days later on 20 November he had a florid endophthalmitis. Upon diagnosing that infection, Dr Hollenbach decided to proceed with surgery on that same day consisting of a vitrectomy, intravitreal antibiotics and dexamethasone.
He was seen on 21 November when Dr Hollenbach noted that he had a further hypopyon and poor vision. He was seen by Dr Hollenbach several times over the next few days.
Given the condition of Patient J, Dr Hollenbach undertook further surgery on 28 November 2013 when he noted that the patient had developed "a black spot in his vision resulting in surgery consisting of a vitrectomy, cryopexy and gas. At that time he was found to have two superior tears in the retina. They were treated and a gas tamponade applied. Dr Hollenbach reports that his vision improved over the next few weeks, a position that pertained on 20 December 2013 being the last occasion upon which Dr Hollenbach saw Patient J. He noted that there was some inflammation of the eye, but the retina was flat and Dr Hollenbach considered that he was improving at that time. He stated that he expected to see him early in January 2014.

[54]

Particular 1a: Failure to address profound ocular hypotony on 26 November

One of the occasions upon which Patient J was reviewed by Dr Hollenbach following his surgery on 20 November 2013 was on the 26th of that month. Upon that review, Dr Hollenbach acknowledges that the patient did display ocular hypotony. He was sent from Nelson Bay to Newcastle where he had an ultrasound on that same day which showed "large choroidals".
As a result of the ultrasound scans, Dr Hollenbach determined that further surgery was required, being the surgery that he carried out on 28 November 2013.
Dr Campbell examined the ultrasound scan taken on 26 November. He confirms that the scans demonstrate large choroidal effusions but considers that detached retina was also visible from those scans. He expresses the opinion that Dr Hollenbach's failure to deal with the profound ocular hypotony and his inability to diagnose and record the presence of retinal detachment at that time, was conduct significantly below the expected standard.
The position taken by Dr Campbell is not accepted by either Dr Lee or Dr Polkinghorne. In their opinion, the presence of large choroidal swelling was a poor indicator of retinal detachment. The surgery that Dr Hollenbach carried out two days after the scan confirmed the choroidal swelling was an appropriate response. When the retinal tears were identified on 28 November, Dr Lee states that they were appropriately treated. He accepted that the scans obtained on 26 November did give an indication of retinal detachment but did confirm the provisional diagnosis of Dr Hollenbach resulting in the surgery that he performed on 28 November. Dr Lee further observes that often in retinal surgery "the presence of choroidal swelling requires a period of observation". He says that retinal observation may be a secondary serous detachment from the choroidals and a short period of observation is warranted before intervening with vitrectomy.
Dr Campbell does not identify what it was that Dr Hollenbach failed to do when addressing the profound ocular hypotony that he diagnosed on 26 November. The opinion of Drs Lee and Polkinghorne was, as we have said, that DR Hollenbach made an appropriate response to the diagnosis. We agree with that conclusion.

[57]

Complaint 11A

This complaint relates to Patient K. It concerns the treatment of that patient between June and October 2014. Patient K suffered blepharitis and bilateral cataracts.
The background provided in the Complaint indicates that on 18 June 2014, Dr Hollenbach performed right cataract surgery and inserted an intraocular lens. During the surgery, Patient K suffered a capsular rupture. Following that surgery, the patient suffered myopia. Further surgery was performed by Dr Hollenbach on 13 August 2014 when the intraocular lens inserted on 18 June was replaced.
Further surgery was performed on 15 October 2014 for left cataract surgery. Following that surgery, Patient K suffered loss of peripheral vision and right retinal detachment. The particulars provided in the Complaint are as follows: 1. On 18 June 2014, the Practitioner failed to provide appropriate care and treatment for Patient K in that he performed right cataract surgery and inserted a +19.5 dioptre Zeiss trifocal intraocular lens into the ciliary sulcus in circumstances where: a. the Practitioner caused a rent in the posterior capsule; b. that lens is not designed to be inserted in the ciliary sulcus; c. a lens with that dioptric power should not have been used; d. the Practitioner did not first consider the indication for cataract surgery given Patient K's pre-operative visual acuity, allergic conjunctivitis and blepharitis.
By way of further background, Dr Hollenbach stated that Patient K was experiencing difficulty in focusing, particularly when playing golf. Upon examination in May 2014, he was noted to have both nuclear sclerotic and cortical cataract. Dr Hollenbach did not see that that diagnosis contraindicated the performance of cataract surgery. He says that Patient K agreed to have a multifocal intraocular lens implanted in an endeavour to achieve spectacle independence.
Surgery was carried out on 18 June 2014. It was complicated by a capsular rupture in the course of the procedure requiring an anterior vitrectomy and sulcus fixated intraocular lens. His eye is said to have recovered uneventfully after surgery but he was left myopic.
Patient K continued to have "halos" in his vision at night and was unhappy with his distance vision. As a result, Dr Hollenbach decided to undertake an intraocular lens exchange with a weaker sulcus fixated multifocal lens, the procedure that he performed on 13 August 2014. That surgery is described as being uneventful with no post-operative complications.
Patient J subsequently underwent left cataract surgery that is also described as being uneventful. The present complaint arises from the latter surgery.

[59]

Particulars b and c: The lens inserted into the ciliary sulcus and the dioptric power of that lens

Dr Hollenbach accepted that the particular type of multifocal lens with a plate haptic, used in the procedure performed by him on 18 June, was not designed for the ciliary sulcus. However, he took the position that if the lens can "sit well in the desired position and it is stable", there are occasions when a particular lens, not designed by manufacturers to be used other than in the capsular bag, can still be successful if fixated in the ciliary sulcus.
Further, he stated that if there is a capsular rupture, it becomes difficult to implant a multifocal intraocular lens but if the attempt is not made to do so, the patient will be left with no option but to wear reading glasses. That is the very consequence of the procedure that, in accordance with the wishes of Patient K, Dr Hollenbach was endeavouring to avoid.
Dr Campbell described the +19.5 dioptre Zeiss trifocal intraocular lens, being the lens intended to be used by Dr Hollenbach at the outset of surgery, as a "soft one-piece injectable lens designed to go into the capsular bag". He stated that it was not a lens that should be inserted in the sulcus. Not only should a different style of intraocular lens have been used, it should have been of "slightly lower dioptric power than that which was used. It was the insertion of that lens that occasioned Patient K's eye to be myopic.
Dr Lee acknowledges that the use of such a lens in the ciliary sulcus "is not preferred". He further states that there are no available trifocal lenses specifically designed for the sulcus. However, he states that it is appropriate in an emergency situation to place the lens in the sulcus. That is what Dr Hollenbach said he did because there was no three-piece lens then available to him in the operating theatre.
We consider that there is substance in Dr Campbell's criticism. The combination of an inappropriate lens for insertion into the ciliary sulcus coupled with a lens that was too strong for placement in that position did result in performance of surgery on 18 June that was significantly below the expected standard.
In his statement, Dr Hollenbach is frank in addressing those two aspects of the matter. Not only does he acknowledge, as already stated, that the lens was not recommended for insertion into the sulcus, he accepted that a lens with the dioptric power of that inserted "was too strong and will leave him myopic". Although he considered that result would advantage the patient "with his near sight vision", it had not been discussed with the patient that he was intending to persevere with the lens because no other was presently available. In hindsight he recognised that this was not the best way to proceed. He said so because it could "compromise the consent process" as well as leading to an unsatisfactory outcome.
We accept, as we have earlier said, that a hindsight concession does not equate to an admission of unsatisfactory professional conduct, nor necessarily incur a finding that mandates disciplinary consequences (Health Care Complaints Commission v Dr Nguyen [2013] NSWMT 18 at [30]-[31]). However, the fact that Dr Hollenbach came to that position is consistent with the position we have taken that it was inappropriate in the circumstances and significantly below the requisite standard.

[63]

Complaint 12

This Complaint concerns Patient L. The background as stated in the complaint is that Patient L was booked for left cataract surgery by another practitioner in the surgical list of Dr Hollenbach at Muswellbrook Hospital. On 18 June 2012 Dr Hollenbach performed cataract surgery. During that procedure, Patient L suffered a posterior capsular tear and iris trauma. Following the procedure the patient suffered a subluxed intraocular lens and lost 33% of vision in his left eye.
Dr Hollenbach explains that Patient L had been a patient of Dr Colin Worner since 2002 and was last seen by Dr Worner on 1 February 2012. At that time he was booked for left cataract surgery as a public patient in the Muswellbrook District Hospital. He was first seen by Dr Hollenbach on 18 June 2012 prior to cataract surgery being performed on that day. Prior to surgery being performed. His vision was said to be only a little worse than 6/6 in the right eye and 6/12 or a little worse in the left eye.
His cataract was removed in that procedure but there was the complication of a posterior capsular tear and some iris trauma necessitating the implementation of a sulcus intraocular lens. Dr Hollenbach states that although occurring infrequently, posterior capsular rupture is the most common complication of cataract surgery.
Patient L was seen post-operatively on 19 June, the day after surgery and on 21 June. He was subsequently seen by other practitioners. His intraocular lens was noted to have subluxed when seen by Dr Hollenbach on 16 July, but because there was no other pathology, in particular no macular oedema, Dr Hollenbach increased his topical anti non-steroidal drops at the time and suggested that he have an OCT scan. When next seen by Dr Hollenbach on 27 August, he was noted to have a lot of astigmatism but having regard to acuity tests carried out at the time, it was thought that spectacles would most likely fix his refractive problem.
Particulars of this complaint are stated to be the following: 1. On 18 June 2012, the Practitioner failed to provide appropriate care and treatment for Patient L in that he performed left cataract surgery and inserted a Hoya 251 single piece acrylic intraocular lens into the ciliary sulcus in circumstances where: a. the Practitioner caused a rupture of the posterior capsule; b. the Practitioner caused iris trauma; c. that lens is not designed to be inserted into the ciliary sulcus; d. the Practitioner failed to observe the vitreous prolapse; e. the Practitioner failed to first consider the indication for cataract surgery given Patient L's pre-operative visual acuity.
Dr Hollenbach admits, as a fact, the matters that are the subject of paragraphs a, b and c of this particular. He denies the facts asserted in paragraphs d and e. Given that particulars a-d are all part of the procedure performed on 18 June, it is appropriate that we address those four elements of the complaint collectively. We are reinforced in so doing because of the manner in which Dr Campbell has addressed this complaint. It is appropriate to record the manner in which he has done so: Dr Hollenbach performed left cataract surgery at Muswellbrook District Hospital, which was complicated by rupture of the posterior capsule during the irrigation / aspiration stage. It should be noted that capsule rupture is more common when this procedure is performed by a less skilful surgeon. As a result of this complication he was no longer able to insert an intraocular lens into the capsular bag, but had to place it into the ciliary sulcus instead. He opted to use a Hoya 251 single-piece acrylic IOL, which is designed to go in the capsular bag and should not be inserted in the sulcus. This lens very quickly became unstable and by 5 July the notes reveal it had sub-laxed superiorly. There must have been vitreous prolapse into the anterior chamber, which Dr Hollenbach could not have noticed, because he did not perform an anterior vitrectomy; consequently on 21 June a strand of vitreous to the paracentesis was observed by Dr Peter Kim. An iris tear and transillumination defects were also recorded post-operatively, indicating damage to the iris, most likely from the phaco-emulsification probe, during the cataract surgery. In my opinion, because of the complicated nature of the cataract surgery, including posterior capsule rupture, vitreous prolapse, which was undetected by Dr Hollenbach, iris trauma and insertion of the wrong type of intraocular lens into the ciliary sulcus, his performance of the procedure on 18 June 2012 was significantly below the expected standard and that departure invites my strong criticism.
The fact that Dr Hollenbach has admitted the posterior capsule rupture and iris trauma does not, of itself, identify conduct that attracts the conclusion expressed by Dr Campbell. For reasons we have given in addressing the Complaint with respect to Patient J, the assertion that capsular rupture "is more common" when the procedure is performed "by a less skilful surgeon" does not establish the Complaint. In the absence of some explanation as to the occurrence in this particular case, having regard either to what Dr Hollenbach has stated, what his notes reveal or the observations of others, we could not conclude, in accordance with the principles earlier discussed, that the complications arising in this case were demonstrative of a significant lack of skill. Indeed, while Dr Campbell stated that capsular rupture occurs rarely in the hands of skilled practitioners, he agreed that it is recognised as a common complication of cataract surgery (T.21/05/18 p.229:35).
The insertion of the single-piece acrylic intraocular lens in the sulcus falls into a different area of assessment. In dealing with the previous complaint concerning Patient K, we have expressed our conclusion in the use of a lens not recommended for placement in the sulcus. In this case we do not have the added factor present in the previous case that the lens inserted was of an inappropriate strength. However, placement of the single-piece acrylic lens used in this case warrants our criticism.
Dr Hollenbach seeks to explain its use in this case by indicating that, at the time, he was not familiar with the facilities at Muswellbrook Hospital. He had taken over the public hospital list from Dr Worner and knowing that Dr Worner had been carrying out cataract surgery at the hospital for the past 10 years, assumed that all equipment was available. He had not checked the availability of lenses or other equipment, including an anterior vitrector in the operating facilities at that hospital. With hindsight, Dr Hollenbach says that he should have checked the availability of all requisite items and equipment before proceeding to surgery. We consider that to be a fair and appropriate acknowledgment having regard to Dr Campbell's opinion together with the acknowledgment made by Dr Hollenbach himself that the use of the single-piece acrylic intraocular lens was not appropriate and reflected practice that was substantially below the relevant standard.
The evidence of Drs Lee and Polkinghorne addressing this aspect of the complaint is somewhat guarded in supporting the use of the lens in question, confirming that it is not recommended but acknowledging that, in an emergency, it may be used with the prospect of further surgery to correct it. It does not seem to us that the circumstances here identified an emergency that would dictate the need for use of that lens, particularly when no pre-operative check was made as to the availability of a lens in the event of the recognised complication of cataract surgery, namely, that it may occasion a rupture of the posterior capsule.
We turn next to consider the contention that Dr Hollenbach failed to observe the vitreous prolapse into the anterior chamber, suggested to be a contributing factor to the subluxed lens. Dr Hollenbach responds by stating that he did observe the vitreous process and that is why he placed the lens in the sulcus rather than in the capsular bag. The inference drawn by Dr Campbell must be contrasted with the statement of Dr Hollenbach as to what he, in fact, observed. In that circumstance, we cannot be satisfied that Dr Hollenbach did fail to observe vitreous prolapse into the anterior chamber.

[67]

Complaint 13A

This complaint concerns Patient M. He suffered bilateral cataracts.
The background recorded in the Complaint is that Dr Hollenbach performed right cataract extraction on 9 August 2007. Left cataract extraction was performed on 16 September 2008. During the latter surgery, Patient M suffered a capsular rupture. On 19 November 2009 Dr Hollenbach performed a right Yag capsulotomy on the right eye. Following surgery, Patient M suffered capsular opacification in the right eye and decreased vision as well as a traumatic posterior vitreous haemorrhage in the left eye.
Further surgery was performed by Dr Hollenbach on 12 April 2010, 13 May 2010, 30 August 2011 and 27 September 2011. Following those surgeries, Patient M suffered surgically-induced astigmatism and corneal decompensation.
The background given by Dr Hollenbach states that Patient M was first seen by him on 27 February 2007 following referral from his local optometrist. He had bilateral cataracts with symptoms for two years which was worse in the right eye. He complained of glare both with distance and reading. Examination revealed a subcapsular cataract ++ in the right eye and a mild cataract in the left eye. He was booked initially for right cataract surgery followed by left cataract surgery.
Right cataract surgery was performed on 9 August 2007 which involved cataract extraction and intraocular lens implantation. His post-operative course is described as being uneventful.
Cataract surgery was performed on the left eye on 16 September 2008. That surgery was complicated by a capsular rupture. An anterior vitrectomy was performed, a sulcus intraocular lens implanted and the wound was sutured. His post-operative course is described as being uneventful and at review on 1 May 2009, his vision was 6/9 best corrected in both eyes. He consulted Dr Hollenbach on 7 August 2009 who diagnosed mild capsular opacification as a result of which further surgery was booked. That surgery took place on 19 November 2009. The surgery involved a right Yag capsulotomy. At that time, the patient noticed that there was decreased vision in his left eye, examination of which revealed a small vitreous haemorrhage. Following that surgery, Dr Hollenbach states that his vision "continued to be good".
Patient M next contacted Dr Hollenbach's practice rooms in April 2010 because his vision in the left eye had deteriorated due to "flashes and floaters". He was seen on that day by Dr O'Shea who noted that he had pseudophakia, an interior retinal detachment with tear inferotemporally.
As a result of that diagnosis, he was taken to surgery by Dr Hollenbach at Broadmeadow Day Surgery on 12 April 2010. The procedure involved a left vitrectomy and cryopexy with gas. Two tears in the retina were found which were treated. Dr Hollenbach states that apart from a gas bubble in the anterior chamber, the post-operative course was unremarkable. He acknowledges that when he dealt with the retinal detachment, it appeared to him that the gas used at the time caused the intraocular lens to be dislodged.
The patient was seen again on 6 May 2010 when his vision is described as having improved with spectacles but Dr Hollenbach noted that there was a displaced haptic from the intraocular lens, probably due to the gas bubble earlier described and the intraoperative manipulation during the time of his retinal detachment surgery. His retina was described as being flat and arrangements made to have the intraocular lens repositioned at Kurri Kurri District Hospital on 13 May 2010. On that day, Dr Hollenbach noted deposits on the lens and that Patient M's vision had deteriorated. He endeavoured to clean the deposit of that lens surgically by way of an anterior vitrectomy. The lens was placed into a better position in the ciliary sulcus and the haptic replaced into the sulcus. There were no immediate complications arising from that surgery.
When seen on 24 June 2010 he was observed to have slightly decreased vision due to pre-macular fibrosis and mild cystoid macular oedema that was seen on OCT scanning. He was treated conservatively for that condition. When seen on 12 August 2010 his vision had improved with new spectacles but deposits on the intraocular lens as well as the retinal epiretinal membrane were present. He was given eye drops in an endeavour to have the intraocular lens deposit "quieten down". Two months later on 1 October 2010 he was noted to have a mild epiretinal membrane and deposits still remaining on the intraocular lens.
Further surgery was performed by Dr Hollenbach on 30 August 2011. At that time he found the intraocular lens to be "quite opacified" and on manipulation it was displaced into the posterior segment and removed from the eye. He was described as being left aphakic at that time, so it was decided to undertake a secondary procedure, suturing a new intraocular lens into the ciliary sulcus.
That procedure was undertaken on 27 September 2011 at Broadmeadow Day Surgery. It consisted of a left vitrectomy, sutured posterior chamber intraocular lens with removal of the old lens capsule. That surgery proceeded uneventfully as did his post-operative course. However, Patient M developed corneal oedema which did not settle, as a result of which he was referred to Dr Peter Kim, a refractive corneal surgeon.
The particulars of this complaint are stated to be as follows: 1. On 16 September 2008, the Practitioner failed to provide appropriate care and treatment for Patient M in that he performed left cataract surgery and inserted a single-piece acrylic intraocular lens into the ciliary sulcus in circumstances where: a. the Practitioner caused a rupture of the posterior capsule; b. the Practitioner failed to remove the rest of the lens; c. that lens is not designed to be inserted into the ciliary sulcus. 2. Between 16 September 2008 and 1 May 2009, the Practitioner failed to provide appropriate care and treatment for Patient M in that he: a. reviewed Patient M only on 19 September 2008 and 1 May 2009 which was not adequate follow up; b. did not remove the single 10.0 nylon limbal suture inserted on 16 September 2008 until 1 May 2009. 3. On 30 August 2011, the Practitioner performed surgery on Patient M to remove the intraocular lens and charged both MBS item number 42722 "capsulectomy by posterior chamber sclerotomy or removal of vitreous or vitreous bands, or both, from the anterior chamber by posterior chamber sclerotomy, by cutting and suction and infusion" and item number 42719 "capsulectomy or removal of vitreous, or both, via the anterior chamber by any method" when it was not appropriate to charge both item numbers for the same procedure. 5. On 27 September 2011, the Practitioner failed to provide appropriate care and treatment to Patient M in that he performed surgery which caused surgically-induced astigmatism by using excessively tight sutures.
We record that at the conclusion of the hearing, the Commission indicated that it did not press particular 2(b) of this complaint, nor particular 5.

[68]

Particular 1: Surgery on 16 September 2008

The first two elements of this particular are admitted by Dr Hollenbach, that is that a rupture of the posterior capsule did occur in the course of surgery and that he failed to remove "the rest of the lens" inserted in previous surgery. We have earlier addressed a matter in which Dr Campbell, whose report is relied upon to sustain criticism of Dr Hollenbach's surgery, does not, on the evidence he provides, sustain criticism that allows us to conclude that the fact of rupture is a consequence of performance that is significantly below that of the requisite standard. Neither Dr Lee nor Dr Polkinghorne agrees with the opinion expressed by Dr Campbell in this regard. They do not identify the circumstance that the complication occurred justifies the criticism that Dr Campbell brings as being practice below a standard reasonably expected of a practitioner of an equivalent level of training or experience.
Dr Lee expresses the opinion that capsular rupture can occur in a significant percentage of patients undergoing cataract surgery and offers reasons why this could be so.
We do not find the fact that a posterior capsular rupture occurred, of itself, reflects a substandard performance of surgery by Dr Hollenbach.
A similar conclusion is reached by us in respect of the claimed failure to remove "the rest of the lens" in the course of this procedure. Dr Hollenbach described the "lens matter" as being incorporated in the lens capsule with no need for its removal.
In his evidence before us, Dr Campbell stated that the more of the lens that is removed "the better because any residual lens matter can induce an inflammatory response in the eye and predispose it to cystoid macular oedema which is swelling in the macula and therefore impaired vision" (T.21/05/18, p.233:7-12). In cross-examination that followed, Dr Campbell stated: "You may not be able to remove all of it, but you would certainly try." We do not understand from the evidence before us that Dr Hollenbach was indifferent to the removal of lens fragments.
Dr Lee stated that "often" where there is capsular rupture, not all lens fragments are able to be removed, particularly those that adhere to the capsule. He adds that when an anterior vitrectomy is adequately performed, removal of all fragments may be difficult and surgeons often leave remnants of the lens fragments that may dissolve over time "or perhaps need to be addressed at a later stage".
We accept the opinion of Dr Lee in this regard and for the reasons he gives. The circumstance that lens fragment remained in the eye of Patient M does not identify conduct that, of itself, is significantly below the standard.
The final item of this particular is the use of the single-piece acrylic intraocular lens into the ciliary sulcus. We have addressed this matter in respect of previous complaints and maintain the position there expressed. Dr Campbell adds to what has already been stated, that there is "insufficient clinical data to demonstrate its safety and efficacy for placement in the ciliary sulcus". Dr Polkinghorne described the placement of a single-piece acrylic lens into the ciliary sulcus as "not ideal" but suggests that it may be a reasonable clinical decision in appropriate circumstances. We do not understand his evidence to demonstrate that the circumstances present on 16 September 2008 were of the kind identified by him. Dr Lee accepts that the placement of such a lens in the sulcus "might not be standard", although it is not uncommon among ophthalmologists.
Our consideration of these additional matters does not change the opinion that we have earlier expressed in this regard. The placement of the single-piece acrylic lens in this case into the ciliary sulcus does not reflect a standard expected of specialist vitreoretinal surgeons of the training and experience of Dr Hollenbach. His procedure in so doing on this occasion, as in the other occasions to which we have referred, was significantly below the requisite standard. That reflects a conclusion upon which we address the conduct of Dr Hollenbach's surgery on 18 September 2008.

[69]

Particular 2: Inadequate follow-up of Patient M between 16 September 2008 and 1 May 2009

Dr Hollenbach admits the facts asserted by this particular but denies that they reflect unsatisfactory conduct on his part. Following surgery on 16 September 2008, Dr Hollenbach reviewed Patient M on 19 September 2008. We do not understand the criticism to be directed to that period of review. Subsequent to his review on 19 September 2008, the patient was seen by another ophthalmologist who considered that the patient did not, at that time, need to be seen by Dr Hollenbach. The latter consultation apparently occurred about one month after being seen by Dr Hollenbach on 19 September. As a result of that report, Dr Hollenbach did not see any reason why the patient needed to be reviewed more frequently. He did not return to Dr Hollenbach until 1 May 2009 when the suture inserted at surgery on 16 September 2008 was removed.
Dr Campbell considered that in view of the surgical complications of the procedure on 16 September 2008, together with "possible post-operative problems that could arise", he would have expected review at more frequent intervals.
In the circumstances that applied at the time, the criticism made by Dr Campbell is not supported by Dr Lee or Dr Polkinghorne. Each noted the immediate post-operative consultation with Dr Hollenbach and the assessment then made of the general condition of his eye and the measurement of visual acuity. It was also recorded that his intraocular pressure was normal. Both also refer to the report from another ophthalmologist who saw the patient on 15 October 2008 indicating that review until the following year was unnecessary. They also refer to notes of two missed appointments by the patient before being seen by Dr Hollenbach on 1 May 2009.
Dr Polkinghorne further expresses uncertainty as to what complications the patient might have developed that would have required Dr Hollenbach's more frequent attention. The patient was recorded as stating that the eye was comfortable and the examination revealed that he was seeing well with normal pressure. In those circumstances, he considered Dr Hollenbach's review of the patient as being satisfactory. We accept the opinion of Dr Lee and Dr Polkinghorne. Given the post-operative events recorded, particularly the satisfactory state of the patient's eye when seen by Dr Hollenbach on 19 September together with the assessment by the other ophthalmic surgeon who was consulted, further insistence that the patient attend for further assessment has not been substantiated.
As we have earlier recorded, the second particular concerning this period and relating to the removal of the single suture is no longer pressed.

[70]

Particular 3: Surgery occasioning trauma on 30 August 2011

From Dr Campbell's report addressing this aspect of the complaint, it seems that the fundamental problem understanding the procedure then undertaken is a product of the absence of coherent medical or surgical notes. After referring to some of those difficulties, Dr Campbell says: The problem in trying to interpret exactly what happened and what was done means it is difficult to comment on Dr Hollenbach's performance of the surgery. However, the presence of multiple Descemet's folds (DMF) on 2 September indicates there had been trauma to the cornea as a result of surgical manipulation to remove the IOL.
Dr Hollenbach admits that some degree of trauma was caused in the procedure conducted on 10 August 2011. However, he states that Descemet's folds regularly occur after intraocular surgery and usually settle down with time as they had when Dr O'Shea saw the patient on 6 September of that year. Dr O'Shea recorded no evidence of any corneal treatment at that time. Indeed, Dr Hollenbach suggested that corneal trauma is more likely to have been caused in the subsequent operation on 27 September when the newly-inserted lens was sutured into the eye. However, he acknowledged in his oral evidence that a proper understanding of the notes made by Dr O'Shea on 6 September did record Descemet's folds still to be present at that time. Notwithstanding the relationship between those folds as evidence of cornea trauma, in oral evidence Dr Hollenbach was far less certain of their significance in that diagnosis (T.21/05/18, p.234:5-35). Dr Lee has stated that the presence of Descemet's folds after "retinal surgery" is a common occurrence and that no concern should attach to it.
While some trauma to the iris is, as we have stated, accepted by Dr Hollenbach to have occurred, the consequence for that, in reflecting upon Dr Hollenbach's care for Patient M is not articulated in his report. We do not understand the circumstance that some trauma is occasioned is, of itself, a manifestation of conduct below the relevant standard, nor do we understand the fact of Descemet's folds occurring to indicate skill below that standard.
For these reasons, we do not accept the fact that cornea trauma was caused in the medical procedure undertaken by Dr Hollenbach on 30 August 2011 involved conduct that was significantly below the requisite standard.

[71]

Particular 4: MBS claims

We take it that the inclusion of this particular is directed to that part of the misconduct alleged in this Complaint asserting unsatisfactory professional conduct because Dr Hollenbach has engaged in improper or unethical conduct relating to the practise of medicine. Although a complaint of this kind can be tantamount to a breach of the Health Insurance Act 1973 (Cth), that is not alleged in the Complaint, no doubt because the Tribunal would not have jurisdiction to entertain such an allegation. However, we accept that the Commission is entitled to allege in proceedings of this kind incorrect billing of Medicare as amounting to unsatisfactory professional conduct (Health Care Complaints Commission v Liu [2016] NSWCATOD 133).
That said, counsel for Dr Hollenbach has raised a jurisdictional issue concerning this particular of the complaint. The submission arises from the report of Dr Campbell who commences his discussion of MBS items by stating that Dr Hollenbach's billing for the procedure he undertook "deserves close scrutiny". After identifying the two relevant item numbers in the MBS schedule, he states that the charge for the two items identified "for the same procedure is highly questionable". That, so it seems to us, is an unsatisfactory basis for the Commission to assert conduct that is "improper or unethical".
What Dr Campbell thinks might require scrutiny or is questionable in the use of particular items in the MBS is, we would think, of no relevance. What is of potential relevance is whether the claims by reference to two different item numbers in the MBS schedule, as it was at the time the claims were made, are claims that, by law, are unable to be made. If Dr Hollenbach was not in breach of the Health Insurance Act by making those claims, then we fail to see how the fact that they were made could engage the provisions of the National Law, directed to unsatisfactory professional conduct or professional misconduct. In the case earlier cited of HCCC v Liu, the determination that the medical practitioner was not entitled to make the claim in question was, as is submitted in the present case, the subject of determination under Commonwealth processes, establishing that the Practitioner was incorrect in making the claim. When the Tribunal dealt with the matter, the fact that the process had so determined was admitted, with the task of the Tribunal only to determine whether the making of incorrect claims constituted unethical or improper conduct. A decision of the Tribunal that Dr Hollenbach had made MBS claims that he was not entitled to make is, in the absence of an admission, a determination that the Tribunal does not have power to make (Burns v Corbett [2018] HCA 15). As that case establishes, the Tribunal is not a State court, able to exercise federal jurisdiction.
The source of power under which the MBS Schedule is imposed is the Commonwealth Health Insurance Act. As a consequence, it is submitted on behalf of Dr Hollenbach that a breach of the law governing the entitlement to bill for particular procedures in the MBS is to be determined by reference to the Commonwealth legislation.
The submission made on behalf of Dr Hollenbach in this regard was a supplementary submission provided to the Tribunal after the stage 1 hearing had concluded. There has been no response that we have received to this submission from the Commission. In the absence of any such submission, we would not finally determine the issue raised on behalf of Dr Hollenbach, but it is one that does seem to us to have substance.
In any event, a consideration of the MBS schedule, applicable at the time at which the impugned claims were made, does not readily make apparent that the cause for concern expressed by Dr Campbell is necessarily well-founded. Reference to the schedule as it applied in 2011 does not appear to us to preclude the making of MBS claim by reference to both items numbered 42722 and 42719. Dr Hollenbach describes these as referable to different procedures. A reading of the description assigned to each of the item numbers would appear to bear out that statement. On that basis, and having regard to the terms in which Dr Campbell has expressed himself, we simply conclude that, as a matter of fact, this aspect of the Complaint does not, on the evidence provided, establish to us that on this account, Dr Hollenbach's conduct fell significantly below the requisite standard.

[72]

Complaint 13B

This is a further complaint directed to Dr Hollenbach's records. The complaint alleges unsatisfactory professional conduct on the part of Dr Hollenbach in that he had: (i) contravened a provison of the Health Practitioner Regulation (NSW) Regulation 2010 and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
The background to the complaint is expressed as follows: (1) On 9 August 2007, the practitioner failed to maintain adequate medical records for Patient M in accordance with clause 5 and schedule 2 of the Medical Practice Regulation 2003 in that the practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedure performed on that date. (2) On 16 September 2008, 19 November 2009, 12 April 2010, 13 May 2010, the practitioner failed to maintain adequate medical records for Patient M in accordance with clause 4 and schedule 1 of the Medical Practice Regulation 2008 in that the practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedures performed on these dates. (3) On 30 August 2011 and 27 September 2011, the practitioner failed to maintain adequate medical records for Patient M in accordance with clause 7 and schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the practitioner failed to record sufficient legible information in the operation report regarding the nature of the surgical procedures performed on these dates.
Dr Hollenbach has admitted this complaint.
Dr Campbell describes the medical record as "almost illegible, excessively brief, confusing and omit important details". In providing transcription of his notes, it appears that he experiences difficulty himself in interpreting his own records. A further example of failure to comply with the relevant Regulation is given by Dr Campbell in recording the suture material used during surgery. The operation note in respect of the surgery conducted on 30 August 2011 reecord the suture material used for that procedure on that date but while similar procedures had been performed previously, no record of the suture material used is recorded.
Having regard to the admission made by Dr Hollenbach, the observations of Dr Campbell and the records themselves, we are satisfied that the surgical notes in respect of the operations alleged are sufficiently inadequate to reach the conclusion that they are significantly below the requisite standard.

[73]

Complaint 14A

This complaint does not relate to conduct that has not already been addressed in the preceding complaints. Rather, it seeks to draw together all of those complaints for the purpose of determining whether, considered cumulatively, the conduct of Dr Hollenbach should be regarded as constituting professional misconduct. The complaint is framed to allege professional misconduct by reference to each of the components of s 139E of the National Law that are capable of constituting professional misconduct. As we have earlier recorded, the section defines the concept of professional misconduct of a registered health practitioner to mean: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
As will be seen, both paragraphs are relied upon by the Commission. The particulars given for this complaint are stated as follows: 1. Complaint Five A Particular 3 and Complaint Six A Particular 2 are repeated and relied upon individually. 2. Complaints One A to Thirteen B and the particulars thereof are repeated and relied upon cumulatively.
Dr Hollenbach accepts that his conduct constitutes unsatisfactory professional conduct. However, he denies that his conduct constitutes professional misconduct.
Particular 1 of the complaint nominates two of the complaints that we have already considered that, individually, amount to professional misconduct. Each involves multiple attempts by Dr Hollenbach to reattach the retina of the respective patients after initial attempts had failed. In respect of Complaint Five A, the third particular of that complaint identifies the failure of Dr Hollenbach to provide appropriate care and treatment of Patient E by undertaking five surgical procedures for retina attachment when two procedures had been unsuccessful and the fifth was undertaken against the advice of another ophthalmologist who had advised against the procedure because the patient's eye may become phthisical that happened to be the consequence of the fifth further surgery that Dr Hollenbach performed on Patient E.
We have already found that Dr Hollenbach's conduct in relation to these procedures was significantly below the requisite standard. The outcome for Patient E was clearly serious and we accept that the conduct of Dr Hollenbach involve serious errors of judgment.
Likewise, we have already concluded that Particular 2 of Complaint Six A also reflects conduct that is significantly below the accepted standard. That finding was also made as a result of repeated surgical procedures to reattach the retina in the left eye of Patient F when earlier procedures had proved unsuccessful. The repeated procedures were undertaken without referring the patient for a second opinion before doing so. The result for Patient F, like that for Patient E, was also serious. The decision of Dr Hollenbach to proceed, as he did, in the treatment of Patient F also manifested a serious error of judgment.
The Commission submits that not only do each of these complaints, considered separately, amount to unsatisfactory professional conduct, the conduct in each case is of a sufficiently serious nature to justify suspension or cancellation of Dr Hollenbach's registration (s 139E(a) of the National Law). In response, it is submitted on behalf of Dr Hollenbach that in pursuing the repeated procedures in each case, he was motivated by a desire to provide the patient with a better surgical outcome than had initially been achieved, even where such a result was unlikely to be achieved. Dr Hollenbach acknowledges, in hindsight, that he was wrong to have proceeded as he did but to do so was misjudgment rather than the product of a wrong intention. It is submitted that his was not a case of "fault beyond error of judgment", being the measure that should be applied in a case such as the present because the procedures were not undertaken "wilfully and with wrong intent".
By way of response, the Commission submits that the test articulated on behalf of Dr Hollenbach is not the appropriate test upon which to determine whether the conduct is so serious as to justify suspension or cancellation of Dr Hollenbach's registration. So much is apparent from the judgment of Basten JA (Leeming JA agreeing) in Chen v Health Care Complaints Commission [2017] NSWCA 186 where at [20] his Honour said: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practice his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practice medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
As we have said, we evaluate the conduct of Dr Hollenbach in respect of each of the two complaints in question to manifest serious errors of judgment. Although his conduct in each case would warrant consideration being given to suspension of his registration, ultimately we are not persuaded that, considered separately, the unsatisfactory professional conduct would justify suspension of his registration.
However, that conclusion does not determine the decision to be made when addressing the second basis upon which this complaint is advanced by invoking the provisions of par (b) of s 349E of the National Law. We have found unsatisfactory professional conduct on the part of Dr Hollenbach in respect of 10 of the 13 complaints directed to what might be characterised as his professional capacity in performing surgical procedures. That number of complaints, in itself, is significant when it is remembered that the conduct giving rise to those complaints occurred over a period of years between 2004 and 2015. While some of the unsatisfactory professional conduct we have found may not attract profound criticism, the majority of complaints, particularly complaints numbered 5A, 6A, 8A, 9A and 11A, involved serious errors or judgment.
Added to the surgical procedure complaints are the 13 complaints directed to the medical records made and kept by Dr Hollenbach, all of which we have found constitute unsatisfactory professional conduct. In each case, the deficiencies in those records are, as we have found, significant. They fail to meet an important objective of the Regulation and its predecessor Regulations in that they do not record sufficient information in respect of each patient and each procedure to enable another practitioner to continue management of that patient. Many of the records that have been examined are not only lacking detail so as to understand the procedure followed by Dr Hollenbach, in a number of cases the clinical judgment made by Dr Hollenbach is not recorded (cf cl 3 of Sch 2 to the Regulation). These collective shortcomings in so many patient records render the unsatisfactory professional conduct we have found to be serious.
Taken together, the number of established incidents of unsatisfactory professional conduct we have determined do, when considered together, amount to conduct that we consider to be of a sufficiently serious nature as to justify suspension, if not cancellation, of the registration of Dr Hollenbach.
For these reasons, we determine that the conduct of Dr Hollenbach is professional misconduct within the meaning of s 139E(b) of the National Law.

[75]

The Tribunal's powers

Having found that the subject matter of the 10 "competence" complaints and 13 of the "records" complaints have been proved, the Tribunal is empowered by s 149A of the National Law to do any one or more of the following in relation to the practitioner: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
In addition to exercising power identified in the preceding paragraph, the Tribunal may also impose a fine under s 149B since it has found that Dr Hollenbach is guilty of both unsatisfactory professional conduct and professional misconduct. However, under s 149B(2)(b) that power cannot be exercised unless: The Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.
We do not perceive the need to consider the exercise of that power given, as will become apparent, there are orders that, in combination, are appropriate to be made in the public interest.
In addition, the Tribunal may suspend or cancel the practitioner's registration under s 149C(1)(b) as it has found that Dr Hollenbach is guilty of professional misconduct.
In considering the scope of the orders that we may make, we note the observations made by Lonergan J in Health Care Complaints Commission v CSM [2018] NSWSC 102. Her Honour there stated at [75]: It is within the discretion of the Tribunal to make some (or all) of the protective orders available in the legislation in pursuit of the requirement to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. There is no obligation that a Tribunal make all, or any particular combination of available protective orders.
With that understanding upon the scope of powers that we may exercise, it is appropriate to consider the principles that should guide the Tribunal in so doing.

[76]

Applicable principles

The factors that the Tribunal is required to consider in the exercise of its protective jurisdiction are found in the terms of the National Law, to be discerned either from principles expressed, in terms, or those that arise by implication from the subject matter, scope and purpose of that Law (Health Care Complaints Commission v Do [2014] NSWCA 307 at [33]). Those factors include the following: 1. In the exercise of its functions under subdivision 6 of Div 3 of Pt 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (ss 3A and 4 of the National Law; Do at [34]); 2. The protection of the health and safety of the public includes: 3. protecting patients or potential patients of a particular practitioner from the continuing risk of the practitioner's malpractice or incompetence; and 4. protecting the public from the similar misconduct or incompetence of other practitioners; and 5. upholding public confidence in the standards of the profession, which can be achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct (Do at [35]). 6. The Tribunal must also exercise its functions having regard to the objectives of the registration, accreditation and complaints scheme established by the National Law including: 7. providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; and 8. facilitating access to services provided by good practitioners in accordance with the public interest (ss 3(2)(a) and (e) and 4 of the National Law; Do at [34]). 9. Protective orders serve to denounce misconduct and involve elements of specific and general deterrence, or, to put it more positively, serve to encourage practitioners to recognise both the importance of complying with professional standards and the risks of failing to do so (Do at [35]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]). 10. Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order (Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20]).
The Tribunal in this case has accepted that Dr Hollenbach's conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration. Nonetheless, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Why this is so was explained by the Court of Appeal in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. The decision in that case was made under the Medical Practice Act 1992 (now repealed) but the relevant provisions of that Act are sufficiently similar to the corresponding provisions of the National Law that the reasoning of the Court of Appeal can be applied to the present case. At [67], Basten JA (Giles JA and Bergin J agreeing) said: The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of the nature sufficiently serious to justify suspension or removal of the practitioner's name from the register: the Act, s 37 [similar in terms to s 139E of the National Law]. However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [provisions that are substantially the same as those now found in ss 149 to 149C of the National Law], which provides the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]…Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76]….
Before turning to the particular circumstances relevant to the exercise of our powers, it is appropriate to identify the orders that the parties seek.
As we have noted, the Tribunal exercises a protective jurisdiction. As was noted by the former Medical Tribunal in Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20] the outcome should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)". The decision of the New South Wales Court of Appeal in NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114] is cited in support of that proposition.

[77]

Orders sought and Dr Hollenbach's response

We have been assisted by the parties providing to us a draft of their respective protective orders. As will be seen, on some critical matters they are not in agreement as to the orders we should make.
We will not set out in their detail the precise terms in which the parties propose orders. It is sufficient for present purposes that we identify their substance.
For its part, the Commission seeks an order that the registration of Dr Hollenbach be cancelled. It further proposes that such an order not be available for review under s 149C(7) of the National Law for a period of two years from the date the decision is made to cancel Dr Hollenbach's registration.
In the alternative, the Commission proposes that Dr Hollenbach be reprimanded and that a number of practice conditions be imposed upon his registration. Those conditions include a requirement that: 1. that he not undertake vitreoretinal surgery; 2. that before undertaking a second or subsequent repair surgery, he either refer the patient to another ophthalmic surgeon to undertake that surgery or obtain the opinion of another ophthalmologist supporting the second or further surgery being undertaken by Dr Hollenbach; 3. that he maintain a log of patients for whom he has obtained a written opinion and to provide a copy of that log to the Medical Council (the Council) at the end of each month and authorise contact by the Council with the practitioner or practitioners providing the second opinion; 4. that he provide monthly reports to the Council with a record or surgery undertaken during that month; 5. that he submit to an audit of his medical practice by the Council after three months and subsequently as required by the Council; 6. that he authorise an exchange of information between the Council and Medicare; 7. that he authorise the Council to advise persons or organisations at places where he is working of any issue arising from compliant with the conditions imposed; 8. that he practise under Category B supervision; and 9. that he bear the costs arising from compliance with the conditions.
Dr Hollenbach did not accept an order that his registration be cancelled. He proposed practice conditions upon his registration to the following effect: 1. that he discontinue all vitreoretinal surgery after December 2019; 2. that he practise under Category C supervision with the following exceptions to that level of supervision: 1. the supervisor to provide supervision reports to the Council each three months; 2. the supervisor to conduct a random audit of his medical notes within three months; 3. supervision is to involve face to face meetings on at least six occasions over the next 12 months; 1. supervision for 12 months and thereafter as determined by the Council; 2. topics to be discussed at supervision meetings to include recording patient follow up, clinical outcomes, complications and any follow up surgery in such cases; 3. nomination of a professional mentor to mentor him for a minimum of 12 months; 4. provide authority to the Council in terms of paragraph (f) and (g) of the conditions proposed by the Commission.
In addition to the orders that we have identified, the Commission seeks an order that Dr Hollenbach pay its costs.

[78]

The evidence

As with almost every aspect of this case, there was voluminous evidence provided to us for the purpose of the Stage 2 hearing. We intend no disrespect to the parties for their labours in assembling this material but we will endeavour to deal with this evidence, so far as it is relevant, in a summary manner.
The evidence tendered by the Commission included a transcript of proceedings held before the Medical Council under s 150 of the National Law in September 2018. That hearing concerned three complaints, one from a patient, one from the Hunter New England Local Health District (the District) and one from the Pharmaceutical Regulatory Unit. The first two complaints concerned Dr Hollenbach's performance of vitreoretinal surgery, the second of those two complaints being directed to that surgery conducted in the public hospital system. The third concerned the records of Dr Hollenbach and the use recorded in those records of eye drops, including the use of cocaine drops. His use in surgery of cocaine drops as a local anaesthetic has ceased.
The decision of the Council was given on 25 September 2018. It determined that, on the material before it, there was no reason to take action directed to the public interest on the basis that "the grounds for taking action are not made out in this case". In light of that determination, the facts giving rise to the Council's consideration under s 150, together with the documents also tendered by the Commission that related to the subject matter of complaints, have no significant bearing upon our determination of the present complaints.
That said, there is one aspect of the complaint made by the District that needs to be noticed. That complaint appears to have been preceded by an investigation carried out in 2017. It involved reference both to Dr Vanderleur for consideration as well as an independent ophthalmogist. The result of that investigation was provided to Dr Hollenbach by letter on 27 December 2017. In that letter Associate Professor Pooshan Navathe, the Directory of Medical Services for the District stated "it appears that your clinical practice is within the boundaries of good surgical practice and that the concerns raised did not constitute unsatisfactory professional conduct." That statement is said to be founded upon a report of Dr Vanderleur and a review of Dr Griffiths, the independent consulting ophthalmologist. In his recommendation, Associate Professor Navathe recommend only one "interim limitation" namely that Dr Hollenbach not perform vitreoretinal surgery in the public hospital system until a retrospective audit of all vitreoretinal surgery performed by him had been completed.
After considering the report of that investigation, Dr Hollenbach volunteered that he would not undertake vitreoretinal surgery in the public hospital system. On 20 April 2018, Dr Hollenbach was advised by the new Director of Medical Services for the District, Emeritus Professor Michael Hensley, that a requirement that Dr Hollenbach provide a bi-monthly list of all surgeries performed to enable an ongoing audit of complications had been lifted. That is stated to have been taken on advice that all other surgery undertaken by Dr Hollenbach in the public system "has been going well at both Muswellbrook Hospital and John Hunter Hospital".
In addition to the documents tendered for the specific purpose of the Stage 2 proceedings, the essential elements of which we have identified, the Commission understandably relies upon the evidence adduced in the course of the Stage 1 proceeding.
We received a very detailed Statement of Evidence from Dr Hollenbach, being an amendment of the statement that he had prepared for the purpose of the hearing, as well as his oral evidence. In addition, a shorter statement was prepared specifically for the purpose of this Stage 2 hearing. It would be fair to observe of him that by the time the Stage 1 proceedings were heard and, perhaps even more so by the time the Stage 2 proceedings were heard, Dr Hollenbach had shown insight into the shortcomings of his practice as a specialist ophthalmic surgeon. His initial insight was manifest in his response to the Complaint as well as his tendered statement that his record keeping did not meet the requirements of the Regulation. While it might be said that his position in that regard was indefensible, the fact that from the outset he acknowledged that shortcoming was an appropriate starting point. To that might be added his acknowledgement, albeit limited, that in respect of components of two complaints he admitted that his conduct was significantly below the requisite standard.
His insight is also manifest from the terms in which he prepared the additional statements for the purpose of this stage of the hearing. He commenced by expressing apologies "to all the patients and relatives to whom I caused distress or who had poor visual outcome" symptoms, pain and discomfort as a result of surgical complication that he performed. He further acknowledges underlying, at least some of the complaints, are statements by a former patient reflecting poorly on his skill as a communicator. He further acknowledges, in hindsight, that his manner may have been short or abrupt but he has taken seriously the need to improve in that regard. Part of that process was to attend and complete a course run by Carramar Education (Enhancing Professional Practice Program) for medical practitioners. That course was designed to assist health practitioners to manage change in areas such as communications, critical analysis, record keeping and practice skills. He described the course as a humbling experience. He has included in the material tendered on his behalf at the Stage 2 hearing, self-assessment assignments that he was required to undertake during the four week period of that course. They would appear to show the insight to which he referred. He states that the course taught him to be an "active listener".
There are a number of other aspects in which he states that his practice has changed. First, he has taken active steps to reduce his workload that he states would not only reduce his daily hours but the number of days per week on which he works. In addition, he proposes to cease vitreoretinal surgery, albeit at the end of 2019. The reason for deferment, as he explains it, is that a vitreoretinal surgeon that he has currently brought into his practice will not be free of a restraint of trade clause in a prior employment agreement until December 2019. Thus, he wishes to preserve the opportunity to pass his vitreoretinal practice to that surgeon. We will make further observations about that request in due course.
As part of the improvement on his communication skills, he has taken a different approach to the process of obtaining pre-operative consents from patients. That change provides greater focus on the patient's understanding of the procedure to be performed. He says that he provides opportunities for his patients to ask questions and to respond, thereby enabling patient expectations to be realised. In the context of pre-operative consents, he states that his practice now is to have the patient repeat to him the understanding of the procedures involved and possible complication, after first explaining those matters to the patient. Any difficulty of the patient in recounting what has been said is then appreciated and addressed.
Recognising that his record keeping had been poor and substandard, both in terms of illegibility and by the paucity of information included, he has sought to remedy that by dictating summaries of clinical notes, having those typed and then copied onto the patient notes. He has also recognised the need to expand the information provided and, as we have indicated, offers to have his records audited.
At present he is working in Newcastle, Nelson Bay, Raymond Terrace, Singleton and Maitland. In Newcastle, Singleton and Maitland he has associates who work with him.
In addition to his work in the Hunter region, he states that he has committed to providing ophthalmic care in developing and underprivileged communities. Bi-annually he performs eye surgery and trains local ophthalmologists in Myanmar. He is a senior member of the Myanmar Eye Health Program where he works with local vitreoretinal surgeons. For some years he worked in Katherine and surrounding areas in the Northern Territory involved in indigenous health.
Since July 2017 Dr Hollenbach has been subject to the supervision of Dr Vanderleur. As we have said, Dr Vanderleur gave evidence before us as well as producing reports that he had prepared over the time of Dr Hollenbach's supervision. In the period between July 2017 and December 2018 they had had 16 meetings, three of which were face to face. The remaining meetings were had by telephone calls each of which had occupied between 1.5 and 2 hours. Dr Vanderleu described Dr Hollenbach as having improved over the past 12 months to the point that he regards him as no longer requiring supervision and that Dr Venderleur had become more of a mentor than a supervisor. In the course of their discussions, Dr Vanderleur stated that he had been told by Dr Hollenbach of cases in which he had experienced difficulty and they had selected for review cases that appeared to be complex. Given that he considered Dr Hollenbach no longer to require supervision, the impression we gained was that Dr Vanderleur would be prepared, if required, to continue in that role but only for a limited period.
The references tendered on behalf of Dr Hollenbach range across a number of medical practitioners having different specialties but including ophthalmologists and who have had an opportunity to observe Dr Hollenbach in a clinical environment. All who provided references were aware of these current proceedings and the nature of the complaints made against Dr Hollenbach. Dr Kwon Kang worked closely with Dr Hollenbach in Newcastle and as well as in the Myanmar eye care project. He was commendatory not only of Dr Hollenbach's time in providing service in Myanmar but also of the surgical skill that he observed him perform. Commendatory references were also obtained from patients and from nursing staff.
One of the references tendered on behalf of Dr Hollenbach was from Dr Ian Macdonald, a general surgeon. Dr Macdonald is the chairman of the Medical Advisory Board at Maitland Private Hospital, one of the private facilities at which Dr Hollenbach conducts surgery. Dr Macdonald states that during the time at which he has been chairman of the Medical Advisory Board, no complaints had been presented to the Board regarding the professional behaviour of Dr Hollenbach. As a general surgeon, Dr Macdonald further states that he does not have professional involvement with Dr Hollenbach's work but, having spoken to nursing staff at the hospital, no major concerns have been expressed with Dr Hollenbach's treatment of nursing staff and no adverse reports had been provided to Dr Macdonald concerning Dr Hollenbach's attitude to patients at the hospital. He also records having spoken to anaesthetists who work with Dr Hollenbach and who report that his treatment of staff and patients has been satisfactory.
Dr Ian McKendry is the Director of Anaesthetics for the Lower Hunter group of hospitals. He states that he has worked with Dr Hollenbach at Kurri Kurri Hospital for some time and continuously over the past six years. He describes Dr Hollenbach as being respectful to and well regarded by his patients, some of whom are known to Dr McKendry. He also describes Dr Hollenbach as being "well-liked by colleagues and staff" at the hospital.

[79]

Assessment

The Commission submits that in the circumstances disclosed by the evidence directed to the complaints and our acceptance that Dr Hollenbach's conduct, in its totality, constitutes professional misconduct, his registration should be cancelled. The numbers of complaints over a period of years together with the nature of his conduct are, it is submitted, demonstrably serious. On the findings we have made, counsel appearing for the Commission asks rhetorically whether the public can properly be protected by an order other than one requiring cancellation of registration.
The Commission refers to the fact that Dr Hollenbach is a highly qualified and very experienced ophthalmic surgeon from whom patients are entitled to expect a level of care commensurate with that training and experience. Yet he has failed properly to exercise that skill and experience by conduct such as repeated surgery that when, objectively assessed, was unlikely to benefit the patient and had a potential to harm. His failure to refer patients for a second opinion when reasonably appropriate to have done so also manifest inadequacy in his skill and judgment.
Reference is made to the decision of the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWCA 264 in which the Court observed that the necessity to impose restrictive conditions on a practitioner's registration demonstrated that the practitioner was unfit to practice. That approach was, so it was submitted, appropriate to be taken in the present case, having regard to the conditions that the Commission considers would be necessary in the present case if cancellation is not ordered.
Reference was also made to the decision of the Tribunal in Health Care Complaints Commission v Gayed [2018] NSWCATOD 165. At [430]-[431] the Tribunal said: [430] 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. [431] The practitioner has repeatedly subjected patients to serious risk and harm. This 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.
The submission, as we understand it, is to liken the observations as to conduct made in that case to the evidence in the present case.
The Commission also drew attention to Dr Hollenbach's poor record making and his apparent ignorance of the Regulation as it pertained to the requirements for records. From such a senior practitioner, that was submitted to be unacceptable and his acknowledgment of the requirement too belated. In this context, criticism was also made of the failure of Dr Vanderleur to audit Dr Hollenbach's records, as his supervisor so that the Tribunal is presently bereft of evidence supporting the claim by Dr Hollenbach that he has addressed his recognised inadequacy in the making of records.
The Commission further submitted that suspension of Dr Hollenbach would serve no purpose. That submission was made on the basis that if suspension only was imposed, conditions would be required and for the reasons earlier stated, they would not, in the circumstances, be appropriate.
In reflecting upon the conduct of Dr Hollenbach as it has, there is substance in the submissions made by the Commission. As we have already stated, in a number of the complaints that we have found established, Dr Hollenbach has shown a serious lack of judgment.
We also accept that considerations of the kind reflected in Litchfield are to be noticed in considering whether it is appropriate to impose conditions as distinct from cancellation. However, we take the observations made in that case to be referable to the facts there being considered and do not take that statement as being one of general principle. So much is apparent from the later decision of the Court of Appeal in Health Care Complaints Commission v Wingate [2007] NSWCA 326. In his judgment, Basten JA (McColl JA and Harrison J agreeing) stated at [62] that care must be taken when seeking to derive a principle from Litchfield. He continued: It might be argued from Litchfield that a condition should only be imposed to provide necessary protection to the patients of a practitioner, but that if such a condition is reasonably necessary, the practitioner must lack a precondition to entitlement to continue practice and accordingly the need to impose the condition demonstrates unfitness to practice. Clearly that reasoning is, when stated at that level of generality, fallacious. Conditions can be imposed in varying circumstances and for various purposes. The circumstances and purposes will always be important, in part because of the need for the Tribunal to be satisfied that the condition will be effective.
His Honour is clearly drawing attention to the necessity to identify the appropriateness of conditions, having regard to the facts of a particular case. Those facts will obviously include consideration of the objective seriousness of a practitioner's impugned conduct but will also require consideration of subjective circumstances, including those referable to the utility of conditions. It seems to us that if there is a reasonable basis upon which to accept that conditions imposed will address perceived shortcomings in the practitioner's practice so as to address any concern for the health and safety of the public but nonetheless allow a practitioner to practice his profession, the imposition of condition may be appropriate. Such an approach would be consistent with the decision of the Medical Tribunal in Ly at [20], a passage from the judgment of that case to which we have already referred.
The submissions made on behalf of Dr Hollenbach do not seek to avoid the objective seriousness of the complaints that we have found established. The essence of the submission made on his behalf is really twofold. First, by his evidence, Dr Hollenbach has shown considerable insight into the cause of the complaints and sought to address those causes. Second, with the benefit of that insight and the changes made to the manner of his practice, the health and safety of the public can be protected with the imposition of appropriate restrictions upon his registration.
His insight is said to be manifest in a number of ways, some of which we have already recorded. His evidence tendered to the Tribunal as to the causes of complaints made against him include: 1. an increased work load following purchase of the Muswellbrook practice without having appropriately considered the management of that work load; 2. the self-imposed time constraints by attempting to attend to each practice resulted in a failure to spend sufficient time with patients in some cases, contributing to complaints about his communication skills and to his failure to maintain appropriately detailed records; 3. surgical procedures at Muswellbrook Hospital were undertaken on substandard equipment (for example, the lack of a vitrector in the theatre); and 4. he lacked awareness of his poor communication skills, a defect that he has sought to remedy by undertaking the Carramar course to which earlier reference has been made and has resulted in a material change to the manner in which he interacts with patients.
Further, he has made changes to the manner in which he conducts his practice. He has both reduced his work load and, in doing so, attracted the assistance of new associates. Further, he has refrained from undertaking vitreoretinal surgery in public hospitals at which he is a Visiting Medical Officer and intends to cease all such surgery in the private hospital system by 30 November 2019.
The manner in which he records procedures and consultations have changed by dictating notes to be typed for record purposes, a product not only of the insight provided by the complaints brought in that regard against him but addressed as a result of the Carramar course that he undertook in 2018.
In order to address the basis upon which complaints, in general, have been made, his evidence is as follows: 1. the conduct of weekly meetings to plan and arrange delivery of lenses needed for surgery; 2. by his own efforts, together with the system used with staff, post-operative care has changed with a system of recall to patients both to check on their post-operative condition and to ensure that follow up appointments are booked; 3. referral of patients for a second opinion is now occurring regularly; 4. a complaint process has been established internally within his offices, including provision of explanatory brochures indicating the process for complaint, including the contact details of the Commission; and 5. he has ceased using razor blades for suture removal.
Both in his written statements to the Tribunal and in his oral evidence he has expressed remorse for the pain and distress occasioned to patients and relatives as a result of surgical procedures that he has undertaken.
We have earlier recorded that Dr Hollenbach has given oral evidence before us on two occasions. In doing so we considered that he was forthright and truthful in addressing the complaints directed to him, admitting areas of practice that required reassessment on his part. In general, we accept his evidence. We accept that he was genuine in expressing the remorse that he did and that he was also genuine in stating that he will reduce his practice both in time and scope to those areas of practice that do not appear to have involved the level of complaint that has arisen from other areas of practice, in particular from his conduct of vitreoretinal surgery.

[80]

Conclusion

While acknowledging this to be a matter of some complexity, we are satisfied, on balance, that the health and safety of the public will be appropriately protected if Dr Hollenbach is permitted to retain his registration subject to appropriate restriction. In so saying, we take account of the self-expressed insight that he has shown, the support that he has received from his referees, the fact that recent audits of his conduct, particularly those conducted by the District, have shown his practice to be "within the boundaries of good surgical practice" and the fact that he has the support of Dr Vanderleur who has been supervising him since June 2017. We also take account of the fact that he has provided and intends to continue to provide service to the community in the form of voluntary treatment of patients and training of ophthalmologists in Myanmar.
We propose that Dr Hollenbach be reprimanded. In considering the concept of general deterrence and the need to uphold public confidence in the standards of the profession, we believe that these factors will be adequately addressed if the misconduct of Dr Hollenbach is denounced, in the sense of being openly condemned, by reprimanding him and imposing other restriction upon his registration.
Given that a number of the complaints we have found established arose from complications following vitreoretinal surgery, we intend to impose a condition that no such surgery be undertaken after 1 September 2019. However, we do not see the need for that restriction to constrain his capacity to give intravitreal injections. In truncating the period by which he proposed to cease vitreoretinal surgery, we see the need to have this condition imposed without considering as relevant to our function the desire of Dr Hollenbach to maintain that aspect of his practice so that he may assign it to another practitioner in December next.
As will be seen, we also intend that he should not perform a second intraocular surgery on the same eye.
We accept that the supervision afforded by Dr Vanderleur has been beneficial. However, we do not see the necessity for that supervision or supervision by any other practitioner to be mandated by restriction at this time. While we would certainly encourage Dr Hollenbach to collaborate with colleagues in respect of his practice, the need for formality in this regard is not presently apparent to us.

[81]

Costs

The Commission seeks an order that Dr Hollenbach pay its costs of the proceedings. At the conclusion of the Stage 2 hearing we gave a direction as to the filing of submissions for costs if the parties could not agree. Regrettably, no agreement has been reached. As a result of the failed attempt to reach agreement, the Commission qualifies the orders sought by seeking an order for a fixed amount, in this case said to be $189,358.31. While Dr Hollenbach accepts, given the outcome, that an order in favour of the Commission is appropriate, he disputes the amount sought, particularly on the basis that the Commission was not successful in establishing three of its complaints as well as some of the separate particulars that were given in respect of complaints that were otherwise found to be established.
The power of the Tribunal to order costs in cases of the present kind is found in cl 13 of Sch 5D to the National Law. Subclause (1) of that clause vests discretion in the Tribunal to order a party to pay costs to another party "as decided by the Tribunal". The clause is expressed to apply instead of s 60 of the Civil and Administrative Tribunal Act 2013 that would otherwise apply. By subclause (3A) of cl 13, the Tribunal has power to fix the amount of costs or order that the amount of costs be assessed by a costs assessor under the Legal Profession Uniform Law Application Act 2014 or on any other basis.
The principles that should be applied in determining an award of costs is not disputed between the parties. Both refer to the decision of the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 where at [42] Emmett JA stated (Meagher JA and Beech-Jones J agreeing) that as a general rule, "costs of proceedings before the Tribunal should follow the event". That is the expression of the general rule as to costs and as a consequence, would, in the present case, entitle the Commission to expect an order in its favour.
In submitting that some discount should be applied in his favour, Dr Hollenbach seeks to analyse each of the complaints and each particular of complaint for the purpose of identifying where it is that the Commission has not been successful. It is certainly the case that of the 13 complaints directed to identified patients, the Commission was unsuccessful in establishing that the content of three of the complaints established unsatisfactory professional conduct. It is also correct to observe that where the remaining complaints were found to be established, not every particular relied upon to support the complaint did, in itself, ground a finding of unsatisfactory professional conduct. Nonetheless, as he correctly observes, evidence was required to be directed to each particular because the Commission had contended in its complaint that each particular of a complaint was, in itself, sufficient to justify the finding that it sought. Adding some factual complexity to the debate is the retort of the Commission that even in respect of those complaints directed to professional competence that were not found established, the subsidiary complaint directed to Dr Hollenbach's records in respect of each of the 13 patients was sustained. It is implicit in the submission of the Commission that the evidence of its medical experts was necessary to address the competence complaint in order to address the records complaint.
Both parties accept that the Court of Appeal has again spoken, at least at a level of principle, on the present debate between the parties. The Court did so in Lucire v Health Care Complaints Commission (No.2) [2011] NSWCA 182. One of the issues there arising related to the costs order made in the disciplinary Tribunal from which the appeal was brought, then being the Medical Tribunal. The Commission in that case had not succeeded in establishing all of the particulars pleaded against the practitioner, albeit an adverse finding had been made against him. When addressing the cost question, Sackville JA said at [50] (McColl and Basten JJA agreeing): Secondly, the Commission failed to establish each of the particulars pleaded. This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established, it may be appropriate to reduce the costs to be recovered by the Commission.
We take that approach in the present case. Paragraph counting of particulars is inappropriate. However, we acknowledge that three complaints were not established at all and, as we have noted, there were several particulars, some of which attracted debate in the evidence which we find appropriately attracts a discount from the costs otherwise properly payable by Dr Hollenbach. Precise evaluation is neither necessary nor possible. Making allowance for the matters we have identified, we consider the appropriate discount to be 30%.
As we have indicated, the Commission seeks a precise sum for its costs. That sum has been determined by what appears to be a very detailed bill of costs. Regrettably, those advising Dr Hollenbach have not provided any response to that detail by suggesting that any particular amount included in that detailed bill is inappropriate. That said, we are in no position to assess whether the costs identified in that bill are reasonable. Indeed, we are not equipped to carry out a costs assessment function when a detailed bill of that kind is presented.
While we appreciate that in propounding a fixed sum cost order, the Commission was well-intended in that it was seeking to avoid the costs to both parties of the cost assessment process. However, in the absence of some agreement or identification of where, in the Commission's quantification of its costs, there are items to be challenged, we cannot rationally exercise the power available under cl 13(3A) of Sch 5D to the National Law. Properly exercising our function, we can do no more than order that Dr Hollenbach pay 70% of the Commission's legal costs as agreed or assessed. That reflects the exercise of power under cl 13(1) of Sch 5D.

[84]

Conditions

No vitreoretinal surgery is to be undertaken after 1 September 2019, provided that this restriction does not operate to prevent the administration of an intravitreal injection.
No second intraocular surgery on the same eye of a patient upon which surgery has first been carried out by the practitioner.
In the event that any complication occurs in or following any procedure undertaken by the practitioner, he must refer the patient to another registered ophthalmologist who is a Fellow of the Royal Australian and New Zealand College of Ophthalmologists for the purpose of addressing that complication.
No later than 7 days after the end of each month, the practitioner must forward to the Medical Council a report of any complication from a procedure undertaken during the preceding month, identifying the nature of the complaint and the identity of the practitioner to whom the patient or patients have been referred.
The practitioner must authorise the Council to contact that ophthalmologist to ascertain the opinion of that practitioner as to the nature and likely cause of the complication.
The practitioner must submit to an audit of his medical practice by a person or persons nominated by the Council and: (i) the audit is to be held within 3 months from the date of decision upon which these restrictions were imposed and subsequently as required by the Council; (ii) the auditor is to assess, by a random selection of his medical records, his compliance with good medical record keeping standards and legislative requirements, paying particular attention to recording consent, indications for surgery, consultation findings, intraoperative findings, complications and follow up; (iii) authorise the auditor to provide the Council with a report on the findings; (iv) meet all costs associated with the audit and any subsequent audits and reports.
Authorise consent to any exchange in information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions.
Authorise the Council to notify current and future persons or organisations at places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions.
Bear all costs arising out of compliance with these conditions.

Health Care Complaints Commission v Hollenbach

At a glance

Court

Decision date

Source

Judgment (86 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (5)