Before the Tribunal for determination is a proceeding which the parties agreed should be considered as a Stage One hearing to determine if the HCCC establishes its case that the Respondent is guilty of both unsatisfactory professional conduct and professional misconduct. Stage Two will be listed to determine if any protective orders should be made. In this case the Respondent has made many admissions and thus it was agreed that a Stage Two hearing will be necessary and the date for that hearing was set as part of the orders and directions made by the Tribunal at the conclusion of this hearing.
The HCCC proceeded in this hearing upon its Application for disciplinary findings and orders document filed on 19 April 2024. With leave granted by the Tribunal, it made some amendments to that document, which were not opposed by the Respondent.
The Respondent relied upon an amended Reply to the Application for disciplinary findings and orders. That document was tendered on the first day of the hearing, unopposed.
The HCCC relied upon the following documents which were marked as exhibits in this hearing:
1. Exhibit A1 The bundle of documents filed by the HCCC on 22 July 2024 (965 pages)
2. Exhibit A2 AHPRA certificate dated 14 October 2024.
3. Exhibit A3 Supplementary report from Dr Jeffrey Keir dated 15 October 2024.
4. Exhibit A4 Email from Dr Kumar to the HCCC dated 16 October 2024.
5. Exhibit A5 File note made 25 February 2022 by HCCC noting call from Dr Kumar re Patient C.
6. Exhibit A6 Draft statement Dean Chutterbuck dated 17 October 2024.
7. Exhibit A7 Good Medical Practice Code of Conduct dated March 2014 and published by the Medical Board of Australia.
The Respondent relied on the following documents which were tendered in the hearing.
1. Exhibit R1. Amended Reply filed in the hearing on 21 October 2024.
2. Exhibit R2 Statement of the Respondent signed 3 October 2024.
In addition to the documents tendered in the hearing, the parties each provided written submissions which were addressed in the hearing. The HCCC written submission was marked for identification as MFI 1. The Respondent's document was marked MFI 2.
The HCCC Application sets out the Complaints it seeks to establish. The document sets out the "Background to All Complaints" as follows.
Background to all Complaints
The practitioner obtained a Bachelor of Medicine / Bachelor of Surgery from Poona University in India in 1984. He was first registered as a medical practitioner in New South Wales in 1989.
From 2017 to May 2021, the practitioner worked three days per week as a General Practitioner ("GP") at the SunDoctors Skin Cancer Clinic Windsor ("the Clinic"). During this period, the practitioner also worked two-and-a-half days per week as a GP at the MyHealth Medical Centre North Rocks.
The practitioner treated Patient A at the Clinic on nine occasions between 8 January 2021 and 17 March 2021. Patient A was 65 years old during this period. He had non-insulin dependent diabetes mellitus.
The practitioner treated Patient B at the Clinic on around 40 occasions between 31 January 2020 and 17 May 2021 (an average of twice every three weeks). Patient B was 70 years old during this period. She had chronically sun damaged skin with a history of skin cancers.
The practitioner treated Patient C at the Clinic on around 64 occasions between 26 July 2017 and 10 February 2021. Patient C was 54 to 58 years old during this period. He had a history of anxiety and depression.
The Respondent in his Reply document, and confirmed by his written submission, admits he is guilty of unsatisfactory professional conduct as defined in section 139B(1)(a) as alleged in Complaint One. He admits he is guilty of unsatisfactory professional conduct as defined in sect 139B(1)(a) and/or (b) of the National Law as alleged in Complaint Two. He Admits he is guilty of unsatisfactory professional conduct as defined in s. 139B(1)(a) of the National Law as alleged in Complaint Three. In relation to Complaint Three, the HCCC advised the Tribunal it was not pressing the allegation in Complaint Three (ii) which is: "engaged in other improper or unethical conduct relating to the practice or purported practice of medicine".
The Respondent denies Complaint Four and Complaint Five. In relation to Complaint Four, which incorporates the provisions of s.139B(1)(l) of the National Law, the Respondent did agree during submission that arranging to meet Patient C and in fact meeting him with the intention of seeking to persuade him to withdraw his complaint against the Respondent, was in itself, conduct which would be improper and thereby unsatisfactory professional conduct as defined in s.139B(1)(l) of the Health Practitioner Regulation National Law (NSW) No 86a (NSW), ("National Law"). The Respondent denied a key allegation of Patient C that the Respondent had offered to pay him $1,000 if he withdrew the complaint. The Respondent denies Complaint Five which alleges he is guilty of Professional Misconduct as defined by s. 139E of the National Law.
The Complaints set out in the Application are extensive and we consider this case warrants the entirety of the Complaint being included in this judgment. The document is as follows:
COMPLAINT ONE
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
PARTICULARS OF COMPLAINT ONE
Patient A
1. On 18 January 2021, the practitioner excised an actinic keratosis with at least one area approaching in situ squamous cell carcinoma ('SCC") from Patient A's forehead in circumstances where excision was not necessary and the lesion could instead have been treated, at least in the first instance, with non-surgical options such as topical therapies, serial curettage with cautery or serial curettage with cryotherapy.
2. On 18 January 2021, the practitioner failed to obtain Patient A's informed consent prior to performing the excision of an actinic keratosis from Patient A's forehead in circumstances where he did not discuss with Patient A any alternative treatments other than Efudix or the comparative risks of excision.
3. On 18 January 2021, the practitioner failed to offer Patient A a specialist referral where the lesion requiring excision was in a cosmetically sensitive area and the practitioner was not a specialist in dermatology or cosmetic surgery.
4. On 1 March 2021, the practitioner excised a small SCC from Patient A's left mid-calf in circumstances where:
a. excision was not necessary and the lesion could instead have been treated, at least in the first instance, by non-surgical options such as topical therapies, serial curettage with cautery or serial curettage with cryotherapy;
b. excision carried a higher risk to Patient A than those alternative treatments, including of infection and wound dehiscence, when:
i. the excision site was on Patient A's lower leg; and
ii. Patient A had non-insulin-dependent diabetes mellitus.
5. On 1 March 2021, the practitioner failed to obtain informed consent from Patient A prior to performing the excision of a small SCC in circumstances where he did not discuss with Patient A any alternative treatments or the comparative risks of excision, including the matters set out in particular 4 above.
6. On 1 March 2021, the practitioner purported to perform a modified keystone flap repair of the excision on Patient A's left mid-calf referred to in particular 4 in circumstances where:
a. a flap closure was not necessary and the defect could instead have been closed primarily, for example using a long ellipse or s-plasty;
b. the practitioner did not have adequate training in performing advanced flaps such as keystone flap repair or seek out guidance from a mentor before performing the procedure;
c. the practitioner's purported modification to the keystone flap repair was not a form of modification recognised in the relevant scientific literature or otherwise among competent professional peers.
7. On 1 March 2021, the practitioner failed to obtain informed consent from Patient A in circumstances where he did not discuss with Patient A the risks of the proposed flap procedure or any alternative procedure.
Patient B
8. On 31 January 2020, the practitioner failed to take a thorough patient history and perform a thorough baseline examination at Patient B's first consultation.
9. Between 31 January 2020 and 17 May 2021, the practitioner failed to properly manage Patient B's condition of chronically sun damaged skin, including by:
a. failing to document and make an appropriate plan to address all lesions or areas of concern requiring treatment or biopsy, including which should be prioritised;
b. failing to select methods of treatment appropriate to the nature, number and change in Patient B's lesions or areas of concern, for example by starting with non-surgical field treatments to reduce disease burden; and
c. failing to otherwise take a considered, deliberate and systematic approach to managing Patient B's condition in a holistic manner.
10. On 31 January 2020, the practitioner excised an ulcerated papular lesion from the Patient B's right mid arm in circumstances where:
a. the practitioner used an excessive margin; and
b. the practitioner closed the wound with a flap repair when that was not necessary and the wound could instead have been closed primarily, for example with an s-plasty repair.
11. On 30 March 2020, the practitioner excised an actinic keratosis with an area approaching SCC in situ from Patient B's right shoulder in circumstances where excision was not necessary and the defect could instead have been treated, at least in the first instance, with non-surgical options such as serial curettage with electrodessication, cryotherapy or topical 5-Fluorouracil ("5FU.
12. On 30 March 2020, the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the actinic keratosis in circumstances where he did not discuss with Patient B any alternative treatments or the comparative risks of excision.
13. On 18 May 2020, the practitioner excised a SCC in situ from Patient B's right upper back in circumstances where the excision was not necessary and the defect could instead have been treated, at least in the first instance, with non-surgical options such as serial curettage with electrodessication, cryotherapy or topical 5FU.
14. On 18 May 2020, following the excision of the SCC, the practitioner inappropriately closed the wound with a flap repair when the wound could instead have been closed primarily, for example with an s-plasty repair.
15. On 18 May 2020, the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the SCC in circumstances where he did not discuss with Patient B any alternative treatments or the comparative risks of excision.
16. On 15 June 2020, the practitioner excised a large cell acanthoma from Patient B's right forearm in circumstances where excision was not necessary and the defect could instead have been, at least in the first instance, assessed dermatoscopically, treated with non-surgical options such as cryotherapy, or treated by performing a shave biopsy.
17. On 15 June 2020 the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the large cell acanthoma in circumstances where he did not discuss with Patient B any alternative treatments or the comparative risks of excision.
18. On 28 September 2020, the practitioner excised an actinic keratosis with an area approaching SCC in situ from Patient B's right lateral forearm in circumstances where excision was not necessary and the defect could instead have been treated, at least in the first instance, with non-surgical options such as serial curettage with electrodessication, cryotherapy or topical 5FU.
19. On 28 September 2020, the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the actinic keratosis in circumstances where he did not discuss with Patient B any alternative treatments or the comparative risks of excision.
20. On 12 April 2021, the practitioner excised a SCC in situ from Patient B's right trapezius in circumstances where excision was not necessary and the defect could instead have been treated, at least in the first instance, with non-surgical options such as serial curettage with electrodessication, cryotherapy or topical 5FU.
21. On 12 April 2021, the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the SCC in circumstances where he did not discuss with Patient B any alternative treatments other than Efudix or the comparative risks of excision.
22. On 26 April 2021, the practitioner excised a SCC in situ from Patient B's left anterior shoulder in circumstances where excision was not necessary and the defect could instead have been treated, at least in the first instance, with non-surgical options such as serial curettage with electrodessication, cryotherapy or topical 5FU.
23. On 26 April 2021, the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the SCC in circumstances where he did not discuss with Patient B any alternative treatments other than Efudix or the comparative risks of excision.
24. On 17 May 2021, the practitioner excised an actinic keratosis with at least one area approaching in situ SCC and a "small scaly lesion nearby" from Patient B's proximal right arm in circumstances where excision was not necessary and the defects could instead have been treated, at least in the first instance, with non-surgical options.
25. On 17 May 2021, the practitioner failed to obtain informed consent from Patient B prior to performing the excision of the SCC in circumstances where he did not discuss with Patient B any alternative treatments or the comparative risks of excision.
Patient C
26. From 26 July 2017 to 10 February 2021, the practitioner excised 48 lesions from Patient C's body in circumstances where:
a. until his first consultation with the practitioner, Patient C had not had a skin lesion removed despite having at least annual skin checks for the previous six years, and had no family history of melanoma;
b. each lesion excised, and each of five further lesions biopsied by the practitioner, was shown to be benign in pathology results received shortly after each excision or biopsy;
c. the rate of benign lesions removed from Patient C's body was substantially higher than the average of primary care doctors trained in dermatoscopy (approximately 10 benign lesions for every melanoma removed);
d. the practitioner did not offer to Patient C or perform techniques that would assist in reducing excisional biopsies and detecting early melanoma in patients with multiple nevi, such as:
i. serial imaging;
ii. dermatoscopic monitoring; and/or
iii. total body photography;
e. by reason of subparagraphs 0 to d, at least the substantial majority of the excisions performed by the practitioner on Patient C were not necessary.
27. On or around 14 March 2018, the practitioner inappropriately, and notwithstanding the matters set out in particular 25 above, diagnosed Patient C with dysplastic nevus syndrome and maintained that diagnosis up to and including his consultation with Patient C on 10 February 2021; in circumstances where:
nearly all of the lesions reported as nevi measured three millimetres or less in diameter, with approximately 75% measuring two millimetres or less in diameter such that they did not qualify for a diagnosis of dysplastic nevus syndrome or atypical mole syndrome;
the clinical and histopathological evidence did not otherwise support a diagnosis of dysplastic nevus syndrome at any time during the period from 26 July 2017 to 10 February 2021.
28. At consultations with Patient C occurring in the period from 26 July 2017 to 10 February 2021, the practitioner:
a. made statements to Patient C to the following effect which were not accurate and/or contrary to the clinical and/or histopathological evidence available to the practitioner:
i. lesions on his body would likely be fatal if not removed;
ii. the doctors he previously consulted missed "potentially fatal" lesions;
iii. he was "riddled" with pre-melanomas;
iv. he would only live for six months if lesions were not removed;
v. that such lesions would be fatal if not removed;
b. made those statements to Patient C despite knowing that Patient C had been diagnosed with anxiety and depression and had a fear of developing cancer.
29. On 2 November 2020, the practitioner performed a larger excision than was necessary when removing an epidermal cyst or papule from Patient C's ear.
Patients A - C
30. The practitioner failed, in his management of Patients A to C, as a primary skin care practitioner, to consult relevant guidelines including the Cancer Council Australia "Clinical practice guidelines for keratinocyte cancer".
COMPLAINT TWO
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (b) of the National Law in that the practitioner has:
i. 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; and/or
ii. contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016 ("the Regulation").
PARTICULARS OF COMPLAINT TWO
Patient A
1. In the alternative to Complaint 1, particulars 2 and 3 in respect of services provided on 18 January 2021 relating to the excision referred to in complaint 1, particular 1, the practitioner failed to document in Patient A's clinical record any of the following matters:
a. that the practitioner discussed with Patient A any alternative treatments to excision other than Efudix;
b. that the practitioner discussed with Patient A the comparative risks of excision to those alternative treatments; or
c. that the practitioner offered Patient A a referral to a specialist for the excision or discussed with Patient A the cosmetic sensitivity of the site of the proposed excision,
contrary to:
d. clause 6 and Schedule 4, clauses 1(3) and/or 3 of the Regulation.
2. In respect of services provided on 15 February 2021 relating to excision of a lesion from Patient A's left forearm, the practitioner failed to document in Patient A's clinical record any of:
a. the size of the lesion; or
b. the dose of local anaesthetic used,
contrary to:
c. clause 6 and Schedule 4, clauses 1(4) and/or 3 of the Regulation.
3. In respect of services provided on 1 March 2021 relating to the excision and flap repair referred to in Complaint 1, particulars 4 and 6, the practitioner failed to document in Patient A's clinical record any of:
a. the size of the lesion;
b. the dose of local anaesthetic used;
c. the margins used;
d. the dissection required;
e. the description of any flap;
f. the orientation of any flap;
g. any assessment of postoperative haemostasis; or
h. in the alternative to complaint 1, particulars 5 and/or 7 - that the practitioner discussed with Patient A:
i. any alternative treatments or the comparative risks of excision, including the matters set out in complaint 1, particular 0; and/or
ii. the risks of the proposed flap procedure or any alternative procedure,
contrary to:
clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
Patient B
4. In respect of services provided on 31 January 2020 relating to the excision referred to in complaint 1, particular 10, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion; or
ii. the dose of local anaesthetic used; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 32 millimetres when the diameter of the defect would have been approximately 22 to 23 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(4) and/or 3 of the Regulation.
5. In respect of services provided on 30 March 2020 relating to the excision referred to in Complaint 1, particular 11, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the dose of local anaesthetic used; or
ii. in the alternative to Complaint 1, particular 12 - that the practitioner discussed with Patient B any alternative treatments or the comparative risks of excision; and
b. did not accurately document in Patient B's clinical record any of:
i. the nature of the lesion in that the practitioner recorded that the lesion was proven Bowen's disease when the biopsy result was actinic keratosis with an area approaching SCC in situ; or
ii. the surgical defect dimensions in that the practitioner recorded a diameter of 16 millimetres when the diameter of the defect would have been approximately 11 to 12 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
6. In respect of services provided on 4 May 2020 relating to the excision of a lesion from Patient B's right trapezius, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion; or
ii. the dose of local anaesthetic used; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 17 millimetres when the diameter of the defect would have been approximately 13 to 14 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(4) and/or 3 of the Regulation.
7. In respect of services provided on 18 May 2020 relating to the excision referred to in Complaint 1, particular 13, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion;
ii. the dose of local anaesthetic used; or
iii. in the alternative to complaint 1, particular 0 - that the practitioner discussed with Patient B any alternative treatments or the comparative risks of excision; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 32 millimetres when the diameter of the defect would have been approximately 18 to 19 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
8. In respect of services provided on 15 June 2020 relating to the excision referred to in Complaint 1, particular 16, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion;
ii. a description of the lesion;
iii. whether any dermatoscopic examination had taken place;
iv. the dose of local anaesthetic used; or
v. in the alternative to complaint 1, particular 17 - that the practitioner discussed with Patient B any alternative treatments or the comparative risks of excision; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 10 millimetres when the diameter of the defect would have been approximately 6.5 to 7 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
9. In respect of services provided on 6 July 2020 relating to the excision of a lesion from Patient B's right forearm, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion;
ii. objective descriptors of the lesion such as changes in size, shape, signs of inflammation, scale or tenderness; or
iii. the dose of local anaesthetic used; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 16 millimetres when the diameter of the defect would have been approximately 12 to 13 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(4) and/or 3 of the Regulation.
10. In respect of services provided on 28 September 2020 relating to the excision referred to in Complaint 1, particular 18, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion;
ii. the dermatoscopic appearance of the lesion;
iii. the dose of local anaesthetic used; or
iv. in the alternative to Complaint 1, particular 19 - that the practitioner discussed with Patient B any alternative treatments or the comparative risks of excision; and
b. did not accurately document in Patient B's clinical record any of:
i. the nature of the lesion in that the practitioner recorded that the lesion was proven Bowen's disease when the biopsy result was actinic keratosis with an area approaching SCC in situ; or
ii. the surgical defect dimensions in that the practitioner recorded a diameter of 16 millimetres when the diameter of the defect would have been approximately 9 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
11. In respect of services provided on 11 December 2020 relating to the excision of a lesion from Patient B's left shoulder, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion;
ii. objective descriptors of the lesion such as changes in size, shape, signs of inflammation, scale or tenderness; or
iii. the dose of local anaesthetic used; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 9 millimetres when the diameter of the defect would have been approximately 7 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(4) and/or 3 of the Regulation.
12. In respect of services provided on 12 April 2021 relating to the excision referred to in Complaint 1, particular 0, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the dose of local anaesthetic used;
ii. the reasons why Patient B was "unkeen" on Efudix; or
iii. in the alternative to Complaint 1, particular 21 - that the practitioner discussed with Patient B any alternative treatments other than Efudix or the comparative risks of excision; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 16 millimetres when the diameter of the defect would have been approximately 12 to 13 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
13. In respect of services provided on 26 April 2021 relating to the excision referred to in Complaint 1, particular 22, the practitioner:
a. failed to document in Patient B's clinical record any of:
i. the size of the lesion;
ii. the dose of local anaesthetic used;
iii. the reasons why Patient B was "unkeen" on Efudix; or
iv. in the alternative to complaint 1, particular 23 - that the practitioner discussed with Patient B any alternative treatments other than Efudix or the comparative risks of excision; and
b. did not accurately document in Patient B's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 16 millimetres when the diameter of the defect would have been approximately 11 to 12 millimetres,
contrary to:
c. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
14. In respect of services provided on 17 May 2021 relating to the excision referred to in Complaint 1, particular 24, the practitioner failed to document in Patient B's clinical record any of:
a. objective descriptors of the lesion such as changes in size, shape, signs of inflammation, scale or tenderness;
b. the dose of local anaesthetic used; or
c. in the alternative to Complaint 1, particular 25 - that the practitioner discussed with Patient B any alternative treatments or the comparative risks of excision,
contrary to:
d. clause 6 and Schedule 4, clauses 1(3), (4) and/or 3 of the Regulation.
Patient C
15. In respect of services provided on 11 September 2017 relating to the excision of a lesion from Patient C's left breast, the practitioner did not accurately document in Patient C's clinical record the surgical defect dimensions in that the practitioner recorded a diameter of 16 millimetres when the diameter of the defect would have been approximately 11 to 12 millimetres, contrary to clause 6 and Schedule 4, clauses 1(4) and/or 3 of the Regulation.
COMPLAINT THREE
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) or (l) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge 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; or
ii. engaged in other improper or unethical conduct relating to the practice or purported practice of medicine.
PARTICULARS OF COMPLAINT THREE
Patient A
1. In respect of services provided on 8 January 2021, the practitioner made a Medicare claim for MBS item number 30071 (diagnostic biopsy of skin), when he should not have made that claim in circumstances where:
a. the practitioner performed a shave biopsy on a warty lesion on Patient A's right lateral rib cage chest to rule out seborrheic keratosis;
b. subsequent pathology confirmed the lesion as a seborrheic keratosis; and
c. treatment of seborrheic keratoses by any means attracted MBS benefits on an attendance basis only.
2. In respect of services provided on 18 January 2021, the practitioner made a Medicare claim relating to the excision referred to in Complaint 1, particular 0 - for MBS item number 31361 (excision and repair of a malignant lesion from specified areas with a necessary excision diameter of less than 14 mm), when he should instead have claimed MBS item number 31362 (as for item 31361 except for a non-malignant lesion) in circumstances where the pathology results did not show malignancy.
3. In respect of services provided on 1 March 2021, the practitioner made a Medicare claim:
a. relating to the excision referred to in Complaint 1, particular 4 - for MBS item number 31363 (excision and repair of a malignant lesion from specified areas with a necessary excision diameter of 14 mm or more), when he should not have made that claim in circumstances where the excision was not clinically indicated for the reasons in Complaint 1, particular 0; and
b. relating to the flap repair referred to in Complaint 1, particular 6 - for MBS item number 45201 (skin flap where clinically indicated), when he should not have made that claim in circumstances where a flap closure was not clinically indicated for the reasons in complaint 1, particular 0.
4. In respect of services provided on each of the following dates, the practitioner made a Medicare claim for MBS item number 23 ("Level B" consultation with a general practitioner), when he should not have made that claim in circumstances where he did not conduct any, or any significant, consultation within that item descriptor going beyond performing a procedure and/or providing procedural aftercare for a procedure for which he had otherwise made a Medicare claim:
a. 18 January 2021;
b. 25 January 2021; and
c. 1 March 2021.
Patient B
5. In respect of services provided on 31 January 2020, the practitioner made a Medicare claim:
a. relating to the excision referred to in Complaint 1, particular 10 - for MBS item number 31369 (excision of a malignant lesion from specified areas with a necessary excision diameter of more than 30 mm), when he should instead have claimed MBS item number 31365 (as for item number 31369 except with a necessary excision diameter of less than 15 mm) in circumstances where the maximum necessary excision diameter for the defect was approximately 12 to 14 millimetres; and
b. relating to the flap repair referred to in complaint 1, particular 10 - for MBS item number 45201 (skin flap where clinically indicated), when he should not have made that claim in circumstances where a flap closure was not clinically indicated for the reasons in complaint 1, particular 0.
6. In respect of services provided on 30 March 2020, the practitioner made a Medicare claim relating to the excision referred to in Complaint 1, particular 11 - for MBS item number 31367 (excision of a malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31366 (as for item number 31367 except for a non-malignant lesion and with a necessary excision diameter of less than 15 mm) in circumstances where:
a. the pathology results did not show malignancy; and
b. the maximum necessary excision diameter for the defect was less than 15 millimetres.
7. In respect of services provided on 4 May 2020, the practitioner made a Medicare claim relating to the excision referred to in Complaint 2, particular 0 - for MBS item number 31367 (excision of a malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31365 (as for item number 31367 except with a necessary excision diameter of less than 15 mm) in circumstances where the maximum necessary excision diameter for the defect was less than 15 millimetres.
8. In respect of services provided on 18 May 2020, the practitioner made a Medicare claim:
a. relating to the excision referred to in Complaint 1, particular 13 - for MBS item number 31369 (excision of a malignant lesion from specified areas with a necessary excision diameter of more than 30 mm), when he should instead have claimed MBS item number 31367 (as for item number 31369 except with a necessary excision diameter of 15 to 30 mm) in circumstances where the maximum necessary excision diameter for the defect was approximately 18 to 19 millimetres; and
b. relating to the flap repair referred to in Complaint 1, particular 14 - for MBS item number 45201 (skin flap where clinically indicated), when he should not have made that claim in circumstances where a flap closure was not clinically indicated.
9. In respect of services provided on 28 September 2020, the practitioner made a Medicare claim relating to the excision referred to in Complaint 1, particular 18 - for MBS item number 31367 (excision of a malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31366 (as for item number 31367 except for a non-malignant lesion and with a necessary excision diameter of less than 15 mm) in circumstances where:
a. the pathology results did not show malignancy; and
b. the maximum necessary excision diameter for the defect was less than 15 millimetres.
10. In respect of services provided on 12 April 2021, the practitioner made a Medicare claim relating to the excision referred to in Complaint 1, particular 20 - for MBS item number 31367 (excision of a malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31365 (as for item number 31367 except with a necessary excision diameter of less than 15 mm) in circumstances where the maximum necessary excision diameter for the defect was less than 15 millimetres.
11. In respect of services provided on 26 April 2021, the practitioner made a Medicare claim relating to the excision referred to in Complaint 1, particular 22 - for MBS item number 31367 (excision of a malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31365 (as for item number 31367 except with a necessary excision diameter of less than 15 mm) in circumstances where the maximum necessary excision diameter for the defect was less than 15 millimetres.
12. In respect of services provided on 17 May 2021, the practitioner made a Medicare claim relating to the excision referred to in Complaint 1, particular 24 - for MBS item number 31367 (excision of a malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31368 (as for item number 31367 except for a non-malignant lesion) in circumstances where the pathology results did not show malignancy.
13. In respect of services provided on each of the following dates, the practitioner made a Medicare claim for MBS item number 23 ("Level B" consultation with a general practitioner), when he should not have made that claim in circumstances where he did not conduct any, or any significant, consultation within that item descriptor going beyond performing a procedure and/or providing procedural aftercare for a procedure for which he had otherwise made a Medicare claim:
a. 3 February 2020;
b. 4 May 2020;
c. 29 May 2020;
d. 5 June 2020;
e. 15 June 2020;
f. 1 July 2020;
g. 12 September 2020;
h. 16 September 2020;
i. 23 September 2020;
j. 14 October 2020;
k. 6 November 2020;
l. 22 January 2021;
m. 12 February 2021;
n. 12 March 2021;
o. 19 March 2021; and
p. 5 May 2021.
14. In respect of services provided on each of the following dates, the practitioner made a Medicare claim for MBS item number 5020 ("Level B" consultation with a general practitioner after-hours), when he should not have made that claim in circumstances where he did not conduct any, or any significant, consultation within that item descriptor going beyond performing a procedure and/or providing procedural aftercare for a procedure for which he had otherwise made a Medicare claim:
a. 18 May 2020;
b. 6 July 2020; and
c. 28 September 2020.
Patient C
15. In respect of services provided on 11 September 2017, the practitioner made a Medicare claim relating to the excision referred to in Complaint 2, particular 0 - for MBS item number 31368 (excision of a non-malignant lesion from specified areas with a necessary excision diameter of 15 to 30 mm), when he should instead have claimed MBS item number 31366 (as for item number 31368 except for a necessary excision diameter of less than 15 mm) in circumstances where the maximum necessary excision diameter for the defect was 11 to 12 millimetres.
16. In respect of services provided on the following dates, the practitioner made a Medicare claim for MBS item numbers 30071, 31362 or 31366 when he should not have made those claims in circumstances where treatment of seborrheic keratoses by any means attracted MBS benefits on an attendance basis only:
i. 14 August 2017 (item number 30071);
ii. 20 September 2017 (item number 30071);
iii. 30 November 2018 (item number 31362);
iv. 21 December 2018 (item number 31366);
v. 17 July 2019 (item number 30071);
vi. 24 July 2019 (item number 31366); and
vii. 7 October 2020 (item number 31362).
17. In respect of services provided on each of the following dates, the practitioner made a Medicare claim for MBS item number 23 ("Level B" consultation with a general practitioner), when he should not have made that claim in circumstances where he did not conduct any, or any significant, consultation within that item descriptor going beyond performing a procedure and/or providing procedural aftercare for a procedure for which he had otherwise made a Medicare claim:
a. 14 August 2017;
b. 28 March 2018;
c. 11 April 2018;
d. 28 May 2018;
e. 13 June 2018;
f. 11 July 2018;
g. 30 November 2018;
h. 21 December 2018;
i. 17 July 2019;
j. 24 July 2019;
k. 7 August 2019;
l. 20 September 2019;
m. 2 October 2019;
n. 16 October 2019;
o. 2 March 2020;
p. 11 March 2020; and
q. 15 July 2020.
18. In respect of services provided on each of the following dates, the practitioner made a Medicare claim for MBS item number 36 ("Level C" consultation with a general practitioner), when he should not have made that claim in circumstances where he did not conduct any, or any significant, consultation within that item descriptor going beyond performing a procedure and/or providing procedural aftercare for a procedure for which he had otherwise made a Medicare claim:
a. 11 September 2017;
b. 20 September 2017; and
c. 27 June 2018.
COMPLAINT FOUR
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
BACKGROUND TO COMPLAINT FOUR
On 27 August 2021, Patient C lodged a complaint about the practitioner with the Health Care Complaints Commission ("Patient C's complaint").
On 15 March 2022, Patient C provided a signed witness statement to the Health Care Complaints Commission in relation to his complaint about the practitioner.
PARTICULARS OF COMPLAINT FOUR
On or around 10 September 2022, the practitioner:
a. by inducement, attempted to persuade Patient C not to continue with Patient C's complaint by:
i. saying to Patient C words to the effect that if he withdrew the complaint, "I'll be your best friend forever" and "in the future if you get sick, I can give you medication or whatever you need to help you out"; and
ii. offering Patient C $1,000 to withdraw the complaint;
b. by reason of subparagraph 0, acted contrary to section 98(1) of the Health Care Complaints Act 1993.
COMPLAINT FIVE
The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or
ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
PARTICULARS OF COMPLAINT FIVE
1. Complaints 1, 3 and 4 are relied upon individually or in any combination.
2. Complaint 2 is relied upon in combination with any, or any combination, of complaints 1, 3 and 4.
Notwithstanding that the Respondent has made many admissions as to his guilt in relation to the Complaints listed above, it is still a requirement that the Tribunal is satisfied the HCCC has made out its case irrespective of the admissions. Clearly where the Respondent is represented by solicitors and Senior Counsel in this hearing, the extent of the consideration of the evidence will not be as extensive as where there is a denial and therefore an issue to be determined by the Tribunal.
[2]
The Evidence of the Patients Subject of the Complaint.
The only evidence from the subject patients, presented to the Tribunal was from Patient C. The reason that has been necessary is that the Respondent has denied some of the facts alleged against him by Patient C and consequently Complaints Four and Five.
[3]
Evidence of Patient C
The statement signed by Patient C on 15 March 2022 forms part of Exhibit A1. Addressing the aspects of that statement which are not otherwise conceded by the Respondent or necessary to address the seriousness the HCCC alleges arises from the Respondent's conduct, we note the following.
1. Patient C is now 61 years of age.
2. He attended the SunDoctors Skin Cancer Clinic on over 40 occasions between 26 July 2017 and 10 February 2021.
3. On 10 February 2021 the Respondent told Patient C he was going on a trip to India. On 13 August 2021 when Patient C attended the clinic to see the Respondent he was surprised to be told that the Respondent was not there and he would be seeing Dr Kumar. During his consultation with Dr Kumar, Patient C was told that the Respondent had removed skin lesions from his body which did not need to be removed. Dr Kumar suggested Patient C make a complaint to the HCCC. Patient C did lodge a complaint.
4. Prior to seeing the Respondent at the SunDoctors Skin Cancer Clinic, Patient C had attended the Clinic regularly since December 2011 for skin checks. He has no recollection of having to have any lesion removed.
5. Patient C first saw the Respondent on 26 July 2017. At that time and thereafter Patient C had lesions removed on each visit. On either the second or third visit where he had lesions removed, Patient C asked why he now had so many lesions which required removal. The Respondent told Patient C: "The last doctor who saw you misdiagnosed you. He did not pick up any of these. He doesn't work here anymore. He has done the wrong thing by you."
6. Thereafter as Patient C saw the Respondent for skin lesion removal the Respondent had made statements to him such as: "Your lucky I got this out, if it wasn't for me you would be dead by now." He also said: "Your riddled with them. I'd give you six months to live if they are not removed, I'm saving your life." Patient C assumed the Respondent was referring to skin cancers.
7. Over the time Patient C was attending upon the Respondent and hearing statements from him, similar to those set out above, Patient C said he would worry about having skin cancer. He said it was always on his mind. It made him "so stressed". He said he was convinced that he required to have skin lesions removed on a fortnightly basis otherwise he could die. He was so concerned about the possibility of lesions he had becoming cancerous, that he asked the Respondent to remove 2 on each occasion.
8. Following his last appointment with the Respondent, Patient C did not see him again until he received a phone call from him in late August or early September 2021. The Respondent requested a meeting with Patient C to discuss the case Patient C had against him (i.e. the complaint Patient C had made to the HCCC). The Respondent asked if Patient C could attend at his practice now in North Rocks, Sydney. Patient C said he would not travel to North Rocks. The phone call ended there. However, the next day the Respondent rang again and asked Patient C if there was "anywhere near you where we can have a coffee". The Respondent agreed to meet Patient C, at the place Patient C nominated, at 11am on 10 September 2021.
9. Patient C met the Respondent as arranged. They shook hands and entered the coffee shop which Patient C had selected. They ordered coffee which the Respondent paid for. He offered to buy Patient C a vanilla slice however Patient C declined. The Respondent then asked if there was a place they could talk in private. Patient C nominated the public park nearby. They both drove their vehicles to that place.
10. At the park the Respondent and Patient C had a conversation. The Respondent said: "We should talk about why you have put a complaint in about me." Patient C told the Respondent: "Well mate, the thing is the doctor told me there was no need to cut out the skin tissue." The Respondent told Patient C: "You know I wanted to take them out, so you didn't get melanomas in the future." The Respondent said: "I wish you would drop the case". Patient C said: "I can't because of the things you have done to me". The Respondent said: "This will cause me a lot of stress and I'll have to go to court over it."
11. The Respondent said words to the effect of: "I'd really like you not to take action, I'll be your best friend forever. In the future if you get sick, I can give you medication whatever you need to help you out." Patient C said: "You have put me through so much stress over the last few years. I told you I've had a stroke and you just wound up my stress and made it 100 times worse. I thought I was going to die." The Respondent then said: "I'd really like you to drop the case. Is there anything I can do, can I give you $1000"? Patient C replied: "No, you've put me through so much stress what's $1000, my god, I don't want your money" the Respondent then apologised for offering money. He told Patient C that he was trying to finish his career and retire and live peacefully.
12. Patient C told his brother about the conversation he had with the Respondent as outlined above.
13. Patient C told Dr Kumar about the conversation he had with the Respondent as set out above.
The conversation which Patient C recited in his statement, as set out above, together with the detail of the meeting between Patient C and the Respondent is largely uncontroversial as the oral evidence of the Respondent will attest. However, what is denied emphatically by the Respondent is that he offered Patient C $1,000 to drop the complaint he had made about the Respondent.
The Respondent has pointed to the complaint made by Patient C to the HCCC as is contained in exhibit A1 at page 33 and following. That complaint is dated 27 August 2021 and includes a statement that Patient C would like compensation.
[4]
Oral Evidence of Patient C
Patient C was required for cross-examination in the hearing.
Patient C confirmed that the contents of his statement were true and correct.
Patient C was cross-examined by the Respondent's Senior Counsel. We have noted the following from that cross-examination which is directly relevant to the issue surrounding the meeting between Patient C and the Respondent at Windsor in September 2021.
Patient C agreed that when he first saw the Respondent in about 2017, he was concerned he might get cancer. He had anxiety about his skin.
Patient C denied he said to the Respondent "Even if there is a 1% risk of cancer take it out". He said he had told the Respondent: "If you think it needs to be taken out then take it out. He scared me." He agreed he did encourage the Respondent to "take it out" if there was a small risk of cancer. He did so because he was told there are more there which need to be taken out otherwise they will turn to cancer. Patient C said he told the Respondent to go ahead.
Patient C described the Respondent in positive terms describing him as "a good bloke".
Patient C agreed that when he was told by Dr Kumar that there was no need to remove the lesions, the Respondent had removed, he felt angry with the Respondent and also himself. He remained upset right up to the time he met with the Respondent in Richmond in September 2021.
In relation to the meeting with the Respondent in September 2021, Patient C agreed the Respondent had said on the phone that he wanted to meet with Patient C to explain what happened. He denied the Respondent had told him "This is what I believed and why I did that". He denied he was very upset when he met with the Respondent at the park. He agreed he was upset at the end of the conversation. Patient C denied he had raised with the Respondent or asked the Respondent for compensation. He agreed the Respondent had explained why he did the procedures on Patient C. He denied he had raised the topic of obtaining compensation or asked for some money from the Respondent. It was put that the Respondent said to Patient C "You need to talk to your lawyer about compensation there might be a couple of thousand dollars." Patient C denied that was said to him. It was put that the Respondent did not offer Patient C $1,000 to drop the complaint. Patient C said: "He did".
The HCCC relied upon evidence from Dr Kumar the practitioner Patient C had attended upon following the Respondent departing the SunDoctors Skin Clinic. We have set out later in these reasons the evidence the HCCC has relied upon from Dr Kumar. Dr Kumar was not required for cross-examination.
[5]
Evidence of Dr Jeffrey Keir
The HCCC relies on the expert evidence of Dr Jeffrey Keir. There is no issue as to the qualification of Dr Keir to be an expert witness in this matter. Dr Keir's curriculum vitae is included in exhibit A1. That demonstrates extensive qualification as a medical practitioner with a special interest in the practice of skin care and detection and removal of skin cancer diagnosis and treatment.
The request for an expert report made by the HCCC is contained in exhibit A1 commencing at page 218. The relevant history in relation to the treatment of Patient A, Patient B and Patient C is set out in the request. All the documents relevant to providing the report were supplied to Dr Keir and are itemised in exhibit A1.
[6]
Respondent's Reply
In relation to Complaint One the Respondent, in his Amended Reply, admitted the complaint and each of the Particulars "save to note he denied he did not discuss alternate treatments with each of the patients as alleged in Particulars 2, 12, 15, 17, 19, 21 23 and 25.
The evidence of Dr Keir in relation to the complaint relating to Patient A, we are satisfied supports the complaint detailed in Complaint One "Patient A" (Particulars 1, 3, 4, 6, and 7.) In relation to Particular 2 the Respondent denies that Particular only to the extent of not discussing alternate treatments with Patient A other than the use of Efudix. In relation to Particular 5, he again denies he did not discuss alternative treatments and otherwise admits the Particular. Both Particulars 2 and 5 address a failure to obtain informed consent to excision of tissue from Patient A's forehead and mid-calf.
The evidence of Dr Keir in relation to the complaint relating to Patient B, we are satisfied supports the complaint detailed in Complaint One "Patient B" (Particulars 8 to 25). In relation to the Particulars supporting Patient B's complaint, the Respondent admits Particulars 8 to 11 inclusive, 13,14, 16, 18, 20, 22 and 24. He denies only that part of the Particulars numbered 12, 15, 17, 19, 21, 23 and 25, which allege he failed to discuss alternative treatments with Patient B on each occasion where he excised tissue from Patient B's body.
The evidence of Dr Keir in relation to the complaint relating to Patient C, we are satisfied supports the complaint detailed in Complaint One "Patient C" Particulars 26, 27, 29. The Respondent denies the Particular 28 which alleges the Respondent made statements containing specific words to Patient C as to the reason it was necessary to remove lesions from his body. He does not deny he was aware that Patient C had previously been diagnosed with anxiety and depression and had a fear of developing cancer.
The Respondent admits Particular 30, namely that in his management of Patient A, Patient B and Patient C he failed to consult relevant guidelines including the Cancer Council of Australia "Clinical practice guidelines for keratinocyte cancer".
Complaint Two alleges the Respondent is guilty of unsatisfactory professional conduct pursuant to s.139B(1)(a) and/or (b) of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (National Law). In particular it alleges the Respondent contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). The Particulars which support this Complaint (numbered 1 to 15) largely address the failure of the Respondent to document events in the medical records for each of the relevant patients.
Particular 1 is said to be in the alternative to Complaint One, Particulars 2 and 3. As can be seen, Particular 3 of Complaint One is admitted by the Respondent. Particular 2 is denied only to the extent that it alleges the Respondent failed to discuss with Patient A any alternative treatments other than Efudix.
The Respondent in his Amended Reply admits the Complaint Two and each of the 15 Particulars.
All of the medical records made by the Respondent for each of the subject patients are included in Exhibit A1. We are satisfied from an inspection of those records that the HCCC has established Complaint Two.
Complaint Three alleges the Respondent is guilty of unsatisfactory professional conduct as set out in s.139B(1)(a) or (l) of the National Law. That Complaint was amended in the hearing with the HCCC informing the Tribunal that it did not press its action in relation to s.139B(1)(l) in this complaint. That sub-section recites the offence of "engaging in other improper or unethical conduct relating to the practice or purported practice of medicine".
There are 18 Particulars in Complaint Three. They address claims made by the Respondent to Medicare for Medicare Benefits Schedule (MBS) items which should not have been claimed. The Respondent has admitted the Complaint and all of the Particulars with the exception of Particulars 3(b), 5(b) and 8(b). Each of those Particulars allege actions which were not clinically indicated.
Complaint Four alleges the Respondent is guilty of unsatisfactory professional conduct as defined by s.139B(1)(l). That allegation is that the Respondent engaged in improper or unethical conduct relating to the practice of medicine. The Complaint Four addresses the circumstance of the Respondent arranging to meet Patient C on or around 10 September 2021 with the intent to induce or persuade him to not continue with the complaint Patient C had lodged with the HCCC.
The Respondent denies the Complaint. He does not deny the meeting with Patient C occurred. He does not deny requesting the meeting. He denies that he offered Patient C $1,000 or any money to withdraw his complaint.
In the submission given by the Respondent at the hearing before us, he admitted that on the basis of the evidence that the Respondent himself gave such a meeting in the manner the Respondent described would be improper and thereby unsatisfactory professional conduct as described in s 139B(1)(l) of the National Law.
There remains an issue as to whether the Respondent offered Patient C $1,000 or any money/compensation in the meeting arranged by the Respondent with Patient C and convened on about 10 September 2021.
Complaint Five alleges the Respondent is guilty of professional misconduct as described in s.139E of the National Law. The HCCC relies upon Complaints 1,3 and 4 both individually or in any combination to establish this Complaint Four. It also relies upon Complaint Two in combination with any, or a combination of any of Complaints 1,3 and 4.
The Respondent denies Complaint Five.
[7]
The evidence of Dr Kumar
The HCCC relies upon the evidence of Dr Kumar who is the medical practitioner Patient C saw at the SunDoctors' Skin Cancer Clinic in Windsor upon the Respondent departing that practice.
Dr Kumar wrote a wide ranging and generalist complaint about the Respondents practise of medicine. He concluded the complaint with specific examples of what he described as departures from acceptable professional standards. Patients A and B were detailed in that complaint. In response to questions raised by the HCCC, Dr Kumar provided further information.
In an email dated 16 October 2024, (exhibit A4) Dr Kumar confirmed a conversation he had with a HCCC officer in which he said Patient C had told him of "the offer to bribe" made by the Respondent. He believed he had made a note of that conversation with Patient C on the medical notes kept by SunDoctors' Skin Cancer Clinic practice at Windsor.
Exhibit A5 is a HCCC file note dated 25 February 2022 which notes a phone call from Dr Kumar. It states: Call from Dr Kumar (phone number) to advise that his patient (Patient C) also a complainant, was approached by Dr Suri who tried to convince him not to complain and offered him $1,000 to desist."
[8]
Statement by Patient C's Brother
In the statement Patient C's brother states he is aware that Patient C made a complaint against Dr Suri. He stated Patient C:
"confided in me from time to time about what was going on when he was seeing Dr Suri. I was aware through my conversations with him that for a number of years he had lesions cut out of his body by Dr Suri. At some point he told me he wasn't sleeping because Dr Suri had told him during the extraction of the lesions, that they could be cancerous".
Patient C's brother said Patient C had told him he had made a complaint against Dr Suri about the time he made that complaint.
Patient C's brother stated:
"At some point after he told me about making his complaint to the Complaints Commission, he told me Dr Suri contacted him and asked him to meet him somewhere, I believe he mentioned it was in a park. He said Dr Suri bought him a takeaway coffee and offered him some money. I think it was $1000 to withdraw the complaint. This all happened a long while ago but it stuck in my mind because it seemed so corrupt."
[9]
Supplementary Expert Report Dr Keir 15 October 2024.
This report answered questions raised by the HCCC following Dr Keir's original Report, as contained in exhibit A1. The HCCC sought to ascertain if Dr Keir's opinion that the conduct of the Respondent was significantly below the standard expected of the Respondent, prior to removing lesions with the named patients, he had told them of alternate treatments. This addressed matters in Complaint One. Dr Keir's response was "No". The specific examples of removal of lesions were such that Dr Keir opined it was clinically unnecessary.
Dr Keir was asked further questions about matters arising in Complaint Three. Here the expert was asked if his opinion would change if the patient expressed a preference for excision and if that was a matter the Respondent took into account. Dr Keir's opinion was that named procedures were clinically not indicated. Again, specific examples were provided. Dr Keir said that none of those examples changed his opinion.
Dr Keir was then asked to consider the content of the statement the Respondent had made for this hearing and advise whether any part therein changed his opinion. Dr Keir's reply we have read. Rather than giving ground on his opinion, a reasonable summation of what he said is that it was confirming of his earlier report. He also addressed the suggestion which the Respondent raised in relation to Dr Keir's qualification as an expert witness. The Respondent had suggested Dr Keir was no longer in practice. That statement could only have been made to undermine the confidence the Tribunal might have in the evidence of Dr Keir. In his reply, Dr Keir was probably more condemning of the Respondents conduct, in some areas of his practice, than he had been in his original report.
In relation to the suggestion that Dr Keir's evidence as an expert should be discounted because he is no longer in practice, we reject any such suggestion and accept the further explanation Dr Keir has given about his ongoing role in the subject area of medicine. We also note no submission was made by the Respondent in closing that we should reduce the weight we might give to Dr Keir's reports.
[10]
Exhibit A7 Good Medical Practice: A Code of Conduct for Doctors in Australia dated March 2014.
This document was tendered by the HCCC as it set out the Code of Conduct which was applicable at the time of the conduct of the Respondent now under consideration. The current Code of Conduct document forms part of Exhibit A1.
[11]
Evidence of the Respondent
The Respondent relied upon a statement contained in Exhibit R2. The statement is dated 3 October 2024. We noted the following in particular in that document.
The Respondent graduated in medicine from a university in India in 1984. In 1985 he immigrated to Australia and in 1988 sat and passed examinations of the Australian Medical Council. Thereafter he commenced practice as a Visiting Medical Practitioner (VMO) in South Australia.
Between 1991 and 2016 the Respondent practised as a sole medical practitioner in coastal NSW. Between 2017 and March 2021 the Respondent practised at SunDoctors Skin Cancer Clinic at Windsor NSW.
In April 2021 the Respondent completed a course titled "DMH Skin Cancer Seminar Part 1". It was an 8-hour course. In August 2021 the Respondent obtained a Certificate of Dermoscopy from the Skin Cancer College of Australasia (SCCA). In November 2022 the Respondent obtained a Certificate of Skin Cancer Medicine offered by the SCCA.
In June 2021 the Respondent appeared before delegates of the Medical Council in a National Law s.150 hearing. He said that during that hearing he came to realise that his knowledge of certain skin conditions was lacking. He also accepted that his understanding of lesions diagnosis and the principles of "chaos and clues" was lacking and incomplete. The Respondent has since undertaken further education in relation to skin treatment and now believes he is able to diagnose and treat patients with skin complaints in an appropriate manner.
The Respondent says that in relation to the criticism of his care of the three patients subject to this Complaint, he accepts that criticism.
The Respondent rejects any suggestion that he conducted his practice and the excision of lesions from patients motivated by monetary gain. He also rejects any suggestion he made incorrect claims against Medicare intentionally to gain greater remuneration for the lesions he removed from the subject patients. We note the HCCC does not allege fraud in this case, that is, that the claims made to Medicare were knowingly incorrect and motivated to obtain a payment the Respondent was otherwise not entitled to.
The Respondent accepts his record keeping for the subject patients was inadequate. The Respondent said he had changed his practice in relation to record keeping and now complies with all necessary requirements.
In relation to the meeting with Patient C in September 2021 the Respondent stated:
"In relation to the suggestion that I offered Patient C money to withdraw his complaint, I reject that. I do, however, accept that I met with Patient C over a cup of coffee and tried to explain my genuine attempts to care for and treat him especially given his concerns about developing melanoma. I accept that I should have asked Patient C to meet with me at the practice and not in a social setting to have that discussion and that meeting, as I did, was inappropriate."
[12]
Oral Evidence of the Respondent
The Respondent said the content of his statement dated 3 October 2024 was true and correct.
The Respondent now works at a medical centre in North Rocks, NSW.
The Respondent said he accepts that his knowledge in respect to treating skin cancers was deficient at the time when he treated Patient A, Patient B and Patient C.
The Respondent was cross-examined by the HCCC counsel. We here note those parts which are most relevant to the issues remaining between the parties.
The Respondent agreed that in August 2021 he became aware that Patient C had lodged a complaint with the HCCC. At that time the Respondent agreed he had been before the Medical Council (June 2021) for a National Law s.150 hearing arising from the complaint made by Dr Kumar. He had received a copy of the Medical Council decision probably in about July 2021. The Medical Council imposed conditions on his registration restricting his practice. The Respondent agreed he was very worried when he found out about the complaint raised by Patient C.
The Respondent agreed he had removed many (48) lesions from Patient C's body over a four-year period. That every single lesion he removed from Patient C was benign. The Respondent agreed the complaint of Patient C raised the same issues in relation to the Respondents knowledge and skill as had been considered by the Medical Council in the June 2021 s.150 hearing. He agreed he was concerned for his career if the HCCC investigated Patient C's complaint.
The Respondent had, before September 2021 been before the Tribunal in relation to an earlier complaint. However, the Respondent said he did not think the HCCC would prosecute him just because of the complaint made by Patient C. He did not think it was "that serious complaint" by Patient C.
The Respondent agreed he had excised 48 lesions from Patient C over four years. Even though the Medical Council had been concerned about the Respondent's excessive excising in June 2021. The Respondent did not think his actions with Patient C would warrant suspension or cancellation. He did think he may be subjected to additional conditions on his registration. The Respondent was planning to continue working. He was not proposing to retire at that time or at the date of the hearing.
The Respondent agreed with the following facts:
1. Shortly after he found out about Patient C's complaint, the Respondent phoned him.
2. He told Patient C he was ringing about the complaint Patient C had made about him. He asked Patient C to meet with him to explain things. He asked Patient C to come to North Rocks surgery however Patient C declined however agreed to meet the Respondent near Patient C's home.
3. He asked Patient C if there was anywhere they could meet near where Patient C was. Patient C suggested a Coffee shop in Lenox Street, Richmond.
4. They met at 11am on 10 September 2021.
5. Although the Respondent denied he had wanted to persuade Patient C to withdraw the complaint, said he wanted to explain to him what had happened and that it was his deficit in knowledge made him do it and he thought Patient C would accept that and not proceed with the complaint. (He agreed his intention in wanting to meet with Patient C was to have him withdraw his complaint. Later in the cross-examination the Respondent said that he had wished Patient C would drop the case.)
6. He travelled quite a distance out of his way (a 45-minute drive) to meet with Patient C.
7. He was concerned about the complaint because there would be a "big investigation".
8. He paid for the coffee for Patient C and himself. He offered to buy Patient C a vanilla slice. He denied in buying coffee for Patient C and offering to buy a vanilla slice was part of his attempt to build rapport with Patient C so that he would withdraw the complaint.
9. He asked to go to a place where they could talk privately.
10. He followed Patient C to a park. They sat at a table and engaged in "small talk". He said to Patient C we should talk about the complaint. Patient C said he had visited the surgery, found that the Respondent was not there and saw another doctor.
11. He told Patient C he had "all these dysplastic moles and I offered to remove them. At the time I thought they were progressive lesions. I offered to remove some of them and check them out.".
12. He agreed that when he used the term progressive lesions, he was in fact referring to melanoma.
13. He told Patient C he wished Patient C would drop the case.
14. Patient C had said he could not drop the case "because of the things you have done to me."
15. The Respondent said it will cause him a lot of stress. He told Patient C he would have to write a lot of letters and there would be an enquiry.
16. The Respondent said he really wanted Patient C to not make the complaint. He said he told Patient C "I could do telehealth for you." "If you withdraw the complaint we can part as friends." The Respondent agreed that Telehealth consults are free to the patient and the doctor is remunerated by Medicare.
17. The only reason to offer to provide telehealth consults was to help to have him to withdraw the complaint.
18. Patient C had said at the park that he had suffered from fear of getting skin cancer.
19. During the conversation he realised that Patient C was going to continue with the complaint.
20. At the time of treating Patient C he told him that the lesions he was removing could turn into melanoma. He had many moles on his back. The Respondent said he had more than 100 dysplastic nevi on his back. He agreed he told Patient C they could be fatal. He had said Patient C was riddled with dysplastic nevi.
21. He told Patient C other doctors had not picked up the moles.
The Respondent denied he had offered Patient C some money to have him drop the complaint. He denied he had offered $1,000. He said Patient C had told him he was keen on compensation. The Respondent denied he had put that he could assist Patient C by offering telehealth consults only if he withdrew the complaint. "I wanted to let him know how I could help him in the future." He said that Patient C had raised the issue of compensation. He said he had spoken to his solicitor and the solicitor had told him he won't get much because the Respondent had not scarred his face.
In his oral evidence the Respondent also said Patient C told him he was wanting compensation. When it was put that there was nothing in his statement about that and that he must have known it was important evidence, the Respondent said he had told his solicitor about those matters and that his solicitor had told him not to put it in the statement. That evidence gave rise to an affidavit being filed by his solicitor Mr Andrew Davey.
The Respondent told the Tribunal that during the time he was consulting with Patient C he had been told that Patient C had made a claim for compensation against another doctor. The Respondent said that during the conversation with Patient C in the park there had been a conversation about compensation and the Respondent told Patient C his claim was "small" and he would only get a few thousand dollars.
In consultation with Patient C the Respondent said he told Patient C the dysplastic nevi on his back were benign. Patient C had told him he would rather have them removed than have to keep returning to have them checked. He agreed he had told Patient C they could become melanoma and that could be fatal.
The Respondent was cross-examined about other issues arising from the Particulars in the Complaints. He was asked about his disputing the allegation that he had not informed patients of alternate treatments. The Respondent said he had done that however he had not included it in his notes. He said he had made reference to advising patients about Efudix in their notes however, where the patient elected to have an excision, he did not mention it with later excisions. The Respondent agreed that where there was reference to Efudix in the medical notes it showed he had discussed that with that patient or another alternate to excision.
Following the production of the affidavit by Mr Davey, the HCCC further cross-examined the Respondent. It was put that the alleged conversation (referred to in the affidavit by Mr Davey and said to have taken place between the Respondent and Patient C) did not take place. The Respondent denied that. The Respondent denied he tried to bribe the patient. He denied saying anything to Patient C about paying him any money at all.
In re-examination the Respondent told the Tribunal that there was a conversation with Patient C in the park about compensation. He said to Patient C "if you are seeking compensation your solicitor will have to contact mine and it will be a few thousand dollars, nothing further."
[13]
The Affidavit of Andrew Davey
In the affidavit of Mr Davey, he confirmed he had received instructions from the Respondent in writing which included the following:
"When he brought up the subject of compensation, I told him that making a complaint will not help him in getting compensation. His solicitor will have to contact my medical insurer and they will work out something. I did not offer him $1000 to withdraw the complaint. In his first complaint to the HCCC he states that he would like to receive compensation as a result of the complaint. He told me he had tried twice before to sue doctors. First time was a neurosurgeon and the second time a Hospital RMO. Both times he had been unsuccessful. He was quite focused on getting a good amount of money as compensation. He did not seem ready to accept my apology."
[14]
Submission of the HCCC
The HCCC provided a written submission at the commencement of the hearing. That document was marked as MFI 1. Counsel for the HCCC then provided further submission at the conclusion of the hearing.
In the written submission we noted the following.
The submission provided an overview of the proceeding and addressed the background to the complaints being made. It provided submission on the standard and method of proof in the hearing. We accept the submission in that regard.
The submission then addresses the admitted complaints. Complaint one, which sets out detail of the treatment by the Respondent of patients A, B and C, is addressed. First it submitted the Respondent excised skin lesions unnecessarily, and in circumstances where they could have been treated (at least in the first instance) by non-surgical procedures. Second, in relation to Patients A and B the Respondent used "flap repairs" to close wounds caused by his excision in circumstances where that form of closure was not necessary or appropriate. Third, the Respondent failed to obtain the patients informed consent to those procedures in circumstances where he did not discuss with them the risks of those procedures and/or alternative treatments. Fourth, the Respondent failed to properly diagnose and manage the patients' skin lesions. He failed to offer specialist referral. He failed to take thorough patient history, perform a thorough baseline examination, and develop a plan for managing the patients chronically sun damaged skin. In relation to Patient C he diagnosed the patient with dysplastic naevus syndrome in circumstances where that diagnosis was not supported by the patient's history or clinical or histopathological evidence. Fifth, he failed to consult guidelines relevant to his practice as a primary skin cancer practitioner.
The HCCC relied on the expert evidence of Dr Keir who was not required for cross examination.
The HCCC pointed to the admissions by the respondent in relation to Complaint One. It submitted that he admits each of the particulars with the exception of those that alleged he did not discuss alternate treatments with the subject patients. He also denied Particular 28. In relation to the Respondent's discussion of alternative treatments, there are no notes of those discussions, notwithstanding that, the Respondent did on some occasions document a discussion about one alternative treatment (Efudix). Nonetheless, the HCCC points out that the Respondent had admitted the overarching complaint that he failed to obtain his patients informed consent.
The HCCC submitted that in relation to Patient C the Tribunal should accept the evidence of that patient in relation to the conversation which he says occurred in September 2021 with the Respondent and in particular that the Respondent offered Patient C $1000 if he withdrew his complaint against the Respondent. Further submission was made by the HCCC on that matter following the hearing where the Respondent and Patient C were cross-examined.
In relation to Complaint Two, the HCCC submitted that this complaint addresses the Respondent's record keeping for the subject patients. Although the Respondent admits all of the Particulars of Complaint Two and the complaint itself, the HCCC points out for the Tribunal that some of the Particulars are set as alternate to Particulars 2,5,7,12,15,17,19, 21, 23 and 25 of Complaint One.
The HCCC refers to the evidence in Exhibit A1 which contains the medical records of the subject patients. It submits it is clear the notes do not meet the requirements of the Regulation. Several details in the notes are inaccurate as identified by Dr Keir.
In relation to Complaint Three, the HCCC explains this complaint addresses Medicare claims made by the Respondent when he used the incorrect Medicare item number for the procedure he conducted. The Respondent now wholly admits Complaint Three. The HCCC points out that given that admission, the HCCC does not press the alternative contention that the Respondent's conduct was otherwise improper or unethical conduct within the meaning of s.139B(1)(l). The evidence is that the amounts overclaimed by the Respondent totalled $4,826.70.
In relation to Complaint Four the HCCC says that complaint is that the Respondent engaged in improper or unethical conduct by attempting by inducement to persuade Patient C not to continue with his complaint to the commission against the Respondent. The detailed facts asserted against the Respondent are set out in the submission. The HCCC points to the corroboration of Patient C's evidence that the Respondent offered Patient C $1000 as an inducement to withdraw his complaint. The statement by Patient C's brother and the evidence of Dr Kumar set out statements made containing that allegation within a relatively short time following the meeting in September 2021. The HCCC noted the Respondent's admission as to the meeting and his denial of the offer of $1,000.
The HCCC pointed to the provision of s.98(1) of the Health Care Complaints Commission Complaints Act 1993 (NSW) (Complaints Act) which makes it an offence to offer an inducement to attempt to persuade another person to not continue with a complaint made to the Commission. We note we are not hearing a claim/prosecution under that Act and section. The HCCC submits that the section set out above, operates to establish a standard of proper or right behaviour, including by health practitioners, such that conduct not to that standard is properly described as improper or unethical. It submits that this Tribunal has held in several cases that conduct is properly characterised as unethical for the purposes of the National Law when it is contrary "to some code of professional conduct". Further, such cases are authority for that conduct being properly characterised as improper for the purposes of the National law. When viewed objectively it would be regarded by reasonable person as falling below the standards of conduct to be expected of a practitioner. See Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [86]; Health Care Complaints Commission v Le [2022] NACATOD 85 at [54]; Health Care Complaints Commission v FLX [2022] NSWCATOD 185 at [89]. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [55] - [56]; Health Care Complaints Commission v Tran [2024] NSWCATOD 1 at [114].
The HCCC submits the Tribunal would find Complaint Four established.
In relation to Complaint Five, the HCCC submits the Respondent will be found guilty of Professional Misconduct under s.139E of the National Law.
The HCCC submits that whether conduct is sufficiently serious as to amount to professional misconduct is an evaluative judgement for the Tribunal. See Chen v Health Care Complaints Commission (2017) 95 NSWLR 334 at 340 [20]. For the purposes of evaluating whether conduct amounts to professional misconduct, the gravity of the conduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. The HCCC relies upon the experts report at pages 264-269 and 273-274 of Exhibit A1.
The HCCC submits:
"The Respondent's conduct as set out in Complaints One to Three, amounts to a substantial shortfall in key aspects of his clinical practice over an extended period of time. They are indicative of a practitioner who lacked a systematic and evidence based approach to his clinical practice. They are also indicative of a practitioner who lacked knowledge that should have been basic for a general practitioner working in a specialised skin cancer practice (for example, his misconception that mildly dysplastic naevi may be pre-malignant for melanoma and warrant removal for that). The Respondent has recognised, his conduct was unnecessary and inappropriate with excision and other clinical procedures, including where he did not have sufficient skill to perform them safely. That caused real risk to his patients. Every unnecessary excision risks complications such as infection, wound dehiscence, scarring and post operative bleeding. In relation to Patient C there is direct evidence that the Respondent's conduct caused him fear and stress that he was going to contract cancer. The Respondent also deprived his patients of the opportunity to make an informed choice about risks and alternative treatments."
The HCCC submits that the Respondent's conduct was contrary to a range of requirements in the Medical Board Code of Conduct. It cited examples which can be found in the Code of Conduct under "Providing good patient care; Maintaining a high level of medical competence and professional conduct; Communicating effectively with patients; Allowing patients to give informed consent; Using healthcare resources wisely; Maintaining clear and accurate medical records."
The HCCC submits that Complaints One to Three are, at least collectively, sufficiently serious to justify the suspension or cancellation of the Respondents registration. It submits that Complaint Four is independently very serious. It is highly unethical behaviour. The seriousness of the conduct is reinforced by the fact that it is capable of constituting an offence under the Complaints Act (earlier set out). It is capable of constituting professional misconduct by itself.
[15]
HCCC oral submission at the conclusion of the hearing.
The HCCC said that it is not submitting in relation to Complaint Three that the Respondent intentionally claimed erroneous Medicare items. It accepts his conduct arose out of his lack of knowledge, judgement or care.
In relation to the complaint which addressed informed consent not having been obtained, Patient C is an example of his being told he needed treatment. This is consistent with Patient C not having been offered alternate treatment options to consider.
In relation to the credit issue which has arisen between Patient C and the Respondent relative to whether Patient C sought compensation from the Respondent and whether the Respondent offered Patient C $1,000, the HCCC submitted the Tribunal would accept the evidence of Patient C to that of the Respondent where their evidence differs. The HCCC submits that even if the Tribunal did not find the Respondent offered Patient C $1,000 to drop the complaint, his conduct is still unethical in arranging the meeting and seeking to have Patient C discontinue a complaint he had already made to the Commission. In the alternative, the conduct is improper and therefore falls within the relevant section. The HCCC referred to the Code of Conduct at page 745 of Exhibit A1. It referred to the section titled Doctor-Patient Partnership and paragraph 4.2.6 which states "Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially." It also drew the Tribunal's attention to Chapter 10 addressing professional behaviour and in particular, professional boundaries.
[16]
The Written Submission of the Respondent
The Respondent provided a written submission which was marked as MFI 2 on the second day of the hearing. We note the following in that document as is relevant to this Stage One hearing.
The submission recites that the Respondent admits he is guilty of unsatisfactory professional conduct under the National Law in relation to complaints One to Three. His admission in relation to Complaint Three is to unsatisfactory professional conduct as defined by s.139B(1)(a).
In relation to Complaint Four, the Respondent denied he offered Patient C $1,000 to withdraw his complaint with the HCCC, however, he admits that it was inappropriate to meet with Patient C privately to discuss the complaint.
In relation to Complaint One the Respondent admits each of the Particulars in Complaint One with the exception of Particulars 2, 5, 12, 15, 17, 19, 21, 23 and 25. There he denies the assertion that he did not discuss alternative treatments with the patients. He also denies Particular 28 which sets out detail of conversations with Patient C whilst in consultation with him.
The Submission notes that:
"It is conceded that the Respondent accepted in cross-examination that if he did discuss alternative treatments, he would have made a note about Efudix. If the patient had already asserted their preference for the type of treatment (they were to receive) and in those circumstances the Respondent did not go over the alternative treatment options again."
The Respondent submitted that his conduct described in Complaint One Particulars stemmed from a deficit in his knowledge.
In relation to Particular 28 of Complaint One, the Respondent concedes that although he does not admit the precise words that have been alleged in the particular, he admits to saying things which are similar and to similar effect. However, the Respondent submits his evidence should be preferred to that of Patient C in relation to those specific statements.
In relation to Complaint Four the Respondent submitted he made reasonable concessions with respect to what he said to Patient C when he met with him privately.
The Respondent submitted the Tribunal should accept the purpose of the requested meeting with Patient C was for the Respondent to apologise to him and explain why he had performed the procedures on Patient C. The Respondent asked the Tribunal to accept that in the meeting Patient C raised the question of compensation with the Respondent.
The Respondent submitted the Tribunal would not be comfortably satisfied the Respondent had offered Patient C $1,000, as is alleged. The Respondent submitted:
"Complaint Four is extremely serious, alleging that the Respondent intended to bribe the patient. As the applicant acknowledged, the level of persuasion the Tribunal must feel to find a matter approved increases with the gravity of the matter. Having heard the evidence of Patient C and the Respondent, the Tribunal could not be comfortably satisfied that the complaint has been proven to the requisite standard."
The submission on Complaint Five included an assertion that the Respondent denies he is guilty of Professional Misconduct. The Respondent submits that as Complaints One and Three arose as a result of a deficit in the Respondent's knowledge, the conceded unsatisfactory professional conduct is not sufficiently serious to warrant a suspension or cancellation of his registration.
The Respondent concedes that if the Tribunal finds that the Respondent did offer $1,000 to Patient C then that would amount to professional misconduct. If that finding is not made, then the Respondent submits the Tribunal would not find professional misconduct.
In relation to Complaint Four the Respondent admits the circumstance of that meeting does raise for consideration the issue of power imbalance between the practitioner and the patient. The Respondent admits he should not have done that. There is however no evidence of the Respondent being overbearing or threatening. The Tribunal would not find the Respondent was seeking to hinder an HCCC investigation. The Tribunal would accept the key motivation in the Respondent was to apologise.
[17]
Oral Submission of the Respondent
In the submission, the Respondent said there is an admission in relation to Complaint One. It is further conceded that in relation to any alternate treatment options he only spoke to the patients about that during their initial consultation. He thereafter took note of the patient's preference for excision and removal of the lesion. At page 125 of Exhibit A1 is a copy of a document under the Respondent's hand which sets out his view at the time he was undertaking procedures on Patient A, Patient B and Patient C. He said that having undertaken further education he is "able to see that my previous knowledge fell short and most likely, that was because I understood that this dysplastic naevi can progress to a melanoma." He said that he believed it was safer for the patient to exercise the lesions if they appeared to be suspicious clinically which is what he did in Patient C's case. He said in relation to Patient C:
"Specifically, I formed the view that he was at a high risk of melanoma and moreover, he certainly exhibited a heightened and exaggerated fear of missing a melanoma which led to him adopting a preference for prompt removal rather than adopting a wait and watch approach."
In relation to Particular 28 the Respondent does admit saying similar statements to that alleged by Patient C. The Respondent accepts that the alleged statements reasonably led to the impression Patient C was left with. The Respondent submitted however, that there is room in this case for genuine misunderstanding about what was said in the meeting.
The Tribunal having raised a number of matters with the Respondent's Senior Counsel, following an adjournment, the Respondent conceded that on the basis of the evidence the Respondent gave in relation to the meeting with Patient C and the manner in which the meeting occurred, it would be improper conduct on the part of the Respondent and that would satisfy the provisions of s.139B(1)(l) and make the Respondent guilty of unsatisfactory professional conduct as alleged in Complaint Four.
We note that concession was properly made by the Respondent through his Senior Counsel.
[18]
Complaint One Particulars 1, 3, 4, 6, 7, 8, 9, 10, 11, 13, 14, 16, 18, 20, 22, 24, 26, 27, 29 and 30. AND Particulars 2, 5, 12, 15, 17, 19, 21, 23 and 25 in relation to all matters set out therein with the exception of the Respondent failing to discuss with the patient any alternate treatments other than Efudix.
Each of the Particulars set out has been the subject of admission by the Respondent. Even though the Respondent denied in relation to Particulars 2, 5, 12, 15, 17, 19, 21, 23 and 25 that he failed to discuss any alternate treatments with the patients other than Efudix, he did admit he otherwise did not obtain informed consent from his patients for the procedures/treatments he provided to them, as set out in the evidence in this hearing.
We have read the supporting evidence for Complaint One and we are comfortably satisfied the HCCC has established that complaint.
[19]
Complaint One Particulars (Particulars 2, 12, 15, 17, 19, 21, 23 and 25). Did the Respondent fail to discuss alternate treatments with each of the patients.
The extent of the Respondent's denials is the provision of information to his patients about alternate treatments to the treatment they received, during the first consultation. His evidence is that once the patient had decided to proceed with excision of lesions, he did not revisit the question of alternate treatments in subsequent visits where further excisions were undertaken. Further, although the Respondent said he did discuss other alternate treatments other than excision of lesions, he made no notes of those discussions other than to write the word Efudix. The Respondent admits his record making for his patients was significantly below the standard applicable to him. The Respondent did not give evidence as to what he did say to each patient on their first consultation other than to say he spoke about Efudix. Perhaps that lack of evidence is understandable given the length of time since each relevant consultation and the fact that the Respondent did not make a proper note of such discussion. Consequently, even when the Respondent did, on the first consultation with the subject patients, discuss the possible use of Efudix, there is insufficient evidence to satisfy us that such provision of information was sufficient to meet the requirement for obtaining informed consent.
In relation to Particulars 5, 12, 15, 17, 19, 21, 23, 25, which were not relating to the first excision procedures for a patient, we find, on the balance of probabilities, that the Respondent did not discuss with the patient any other alternate treatments as the patient had elected initially to have excision of lesions rather than attempt a less invasive and available treatment.
Overall, we are satisfied the Respondent is guilty of unsatisfactory professional conduct as alleged in Complaint One.
[20]
Finding on Complaint One Particular 28.
This Particular addresses statements made by the Respondent to Patient C in consultation. The Respondent denies using the precise words attributed to him, however, he concedes the words do convey the general meaning that Patient C would have received from the words the Respondent actually used. We are satisfied the Particular is established on the basis that the Respondent may not have used the precise words attributed however the meaning of the words he did use was to the effect set out in the Particular.
[21]
Complaint Two Particulars 1 to 15.
Subject to the following paragraph of this judgment, we are comfortably satisfied the HCCC has established Complaint Two and we find the Respondent is guilty of unsatisfactory professional conduct as alleged.
Particulars 1(a) and (b) of Complaint Two are in the alternative to Complaint One Particulars 2 and 3. In relation to those Particulars we have found them established so we make no finding here in Complaint Two which is stated to be in the alternative to Particulars 2 and 3 of Complaint One. The same approach is taken by us in relation to Complaint Two Particular 7(a)(iii); Particular 8(a)(v); Particular 10(a)(iv), Particular 12(a)(iii); Particular 13(a)(iv), and Particular 14(c).
[22]
Complaint Three.
The original Reply document filed by the Respondent denied Particulars 3, 5(b) and 8(b). That denial was withdrawn in the amended Reply document. By that time the HCCC had informed the Tribunal it was not pressing that part of Complaint Three which alleged the Respondent was guilty of unsatisfactory professional conduct as specified in s.139B(1)(l) of the National Law (i.e. conduct which is improper or unethical). The withdrawal of that part of Complaint Three followed the HCCC advising the Tribunal that it does not allege any aspect of intentional fraud in the claims made by the Respondent against Medicare item numbers which were incorrectly used by the Respondent.
The detail in the Particulars for this complaint arises from the expert evidence relied upon by the HCCC in this hearing. The allegations in the Particulars are admitted. We are satisfied the complaint is established and we find the Respondent guilty of unsatisfactory professional conduct as alleged in the complaint.
[23]
Did the Respondent offer Patient C $1,000 or any compensation or inducement to not continue with the complaint Patient C had made to the HCCC when they met on 10 September 2021?
The evidence given by Patient C in relation to this issue is compelling. The evidence of corroborating witnesses in this hearing clearly demonstrates that Patient C was convinced such an offer had been made and rejected by Patient C. He seemed genuinely affronted by the offer. Apart from being angry about the treatment he received from the Respondent, he was also angry about the anxiety he went through thinking that he would die if the lesions which the Respondent clearly convinced him were dangerous, if not lethal, were not excised.
The offer of $1,000 by the Respondent seems to us to be a probability given the circumstance the Respondent found himself in professionally when he received the complaint made by Patient C to the HCCC and subsequently met with Patient C the following month. The Respondent had been before the delegates of the Medical Council in a s.150 hearing in June 2021 following the complaint made by Dr Kumar. He must have understood the potential action which could follow the investigation of Patient C's complaint. The evidence establishes to our satisfaction that the Respondent thought a potential claim by Patient C would only give rise to a few thousand dollars in damages. As such the offer of $1,000 immediately rather than having to deal with solicitors and insurance companies could be attractive to Patient C. The Respondent knew that Patient C had failed in an earlier attempt to sue a medical practitioner. We do not accept the submission by the Respondent that we should accept that the Respondent's purpose in requesting the meeting with Patient C was to apologise and explain why he performed the procedures he did. We do find that the main purpose the Respondent had in arranging the meeting was to convince Patient C not to proceed with the complaint he had made to the HCCC about the Respondent.
We have to accept that memories change with time. The events the subject of the evidence in relation to the alleged $1,000 offer took place three years before the trial. Patient C had informed his brother and Dr Kumar of the offer of $1,000 reasonably proximate to the actual conversation.
We do not accept Patient C was being dishonest in his evidence. We accept he honestly believed he had received the offer of payment in exchange for his not proceeding with his complaint to the HCCC. He was firm in his evidence the offer was of $1,000. He made himself available to give evidence in the hearing before us and he was adamant he had received that offer from the Respondent. It was not suggested Patient C had any motive to misrepresent the truth about the offer.
On the other hand, the Respondent was equally strong in his denial of making any such offer of payment. He said there was discussion about compensation. He did not say Patient C was seeking a payment then and there in the discussion. He clearly understood Patient C had a case for compensation because he offered an opinion that his claim would only bring him a few thousand dollars. Ultimately the submission made on his behalf was that Patient C was mistaken about what the Respondent had said during their conversation about compensation.
If we accept the evidence of Patient C then it clearly will escalate the seriousness of the Respondent's conduct and may, if we accept the HCCC submission, give rise to a finding of professional misconduct on that ground alone.
Having considered all the above and taking into account the seriousness of the allegation that the Respondent sought to offer money to Patient C to have him withdraw his complaint, we do find that we accept on the balance of probabilities that the Respondent did offer to pay Patient C $1,000 if he agreed to withdraw his complaint against the Respondent. We consider there is a strong case to conclude the Respondent panicked when he was told of the complaint made by Patient C to the HCCC. He knew there would be an investigation by the HCCC. He knew he had just been before the Medical Council in a s.150 hearing considering the complaint made by Dr Kumar. It is reasonable to conclude the Respondent would have held a concern that any further complaints could lead to serious consequences for him if he was required to appear before the Medical Council again in such close proximity to the last event of that nature.
Flowing from the above finding we also find the Respondent guilty of unsatisfactory professional conduct as specified in s.139B(1) (l) of the National Law as alleged by the HCCC.
[24]
Complaint Five Professional Misconduct
Section 139E requires the following to establish professional misconduct:
Either that the Respondent engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or that the Respondent engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
In support of the Complaint the HCCC relies upon Complaints One, Three and Four individually or in any combination. Further, Complaint Two is relied upon in combination with any, or any combination, of Complaints One, Three and Four.
The key words of s.139E are "of a sufficiently serious nature to justify suspension or cancellation." As stated in Chen the determination of whether conduct is sufficiently serious is an evaluative judgment for the Tribunal. In Litchfield the Court of Appeal said that in evaluating whether conduct amounts to professional misconduct, the gravity of the conduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards.
We have considered the gravity of the conduct of the Respondent in this case and conclude it was conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. We here set out our reasons.
1. The Respondent failed to obtain informed consent from each of the three patients the subject of the complaints. Apart from the possibility he spoke to his patients in their first consultation with him about an alternate treatment to excision of skin lesions, at subsequent consultations during which further lesions were removed, he did not discuss that further.
2. In the case of Patient A, he removed an actinic keratosis from the patient's forehead which was unnecessary to remove by excision. He did not discuss the comparative risk of excision against an alternate treatment. He also failed to offer referral to a specialist given the excision site was in a cosmetically sensitive area. This failure to provide information about alternate therapy was repeated on the second procedure for Patient A.
3. The Respondent did not have the training to perform the type of advanced flap he performed on 1 March 2021. The flap closure he did attempt was not necessary. He did not seek guidance from a mentor before performing it. He performed an unrecognised purported modification of a keystone flap. This evidenced a serious deficit in the Respondent's judgment and a failure to realise he did not have the skill or experience to undertake the procedure.
4. With Patient B there were seven occasions where the Respondent did not discuss alternate treatments (other than the possibility of referring to Efudix).
5. With Patient C there were 48 lesions removed by the Respondent. Each lesion removed was benign. The majority of lesions removed were done so unnecessarily.
6. Of all the lesions removed nearly all measured two millimetres or less in diameter such that they did not qualify for a diagnosis of dysplastic nevus syndrome or atypical mole syndrome.
7. During the consultations which occurred for Patient C the Respondent by his language informed Patient C that the existence of the numerous dysplastic naevi on his body was a serious risk to his life if they were not removed. The expert evidence establishes that was not a correct medical diagnosis which the Respondent himself now accepts.
8. In relation to Complaint Three, the Respondent made approximately 59 incorrect Medicare payment claims which were incorrectly made either because he had not undertaken the work necessary to make the claim or because he used the incorrect item number when making the claim. Those 59 incorrect claims related to the subject three patients only. Although the incorrect claims resulted in a relatively small overpayment, it was a serious misuse of public funding.
9. The seriousness of the conduct set out in Complaint One and Three is seen through the public eye. The three patients the subject of the complaints attended at a specialist GP run clinic which titled itself SunDoctors Skin Cancer Clinic at Windsor NSW. The title of the clinic reasonably suggested to the public at large that it had practitioners with specialist knowledge and skill in relation to examining skin, detecting skin irregularities and cancer or potential cancerous lesions, then where necessary apply that specialist skill to diagnosis and treatment. In the case of Patient C we know he had a generalist GP who he attended upon for all of his other medical needs. What the three patients the subject of this complaint received by attending upon the Respondent was misdiagnosis by a practitioner who did not have the requisite knowledge and skill to properly diagnose any of their skin lesions. Thereafter, having failed to obtain informed consent from those patients he performed procedures upon those patients which were unnecessary, at least in the first place. Compounding that circumstance, the Respondent then seemed to take comfort in the fact that the patients had opted for excision of lesions rather than any alternate less invasive treatments, and thereafter in subsequent visits to have further lesions removed, he did not discuss alternate therapies.
10. Further adding to the seriousness of the Respondent's conduct, when he excised lesions he used inappropriate techniques to close the defect. His application of appropriate surgical technique was incorrect or unrecognised by skilled and knowledgeable practitioners who perform this surgery regularly.
11. Given our finding in relation to Complaint Four, we note in that complaint the Respondent sought to actively interfere in an investigation which the HCCC was to undertake in relation to the complaint lodged by Patient C. He contacted Patient C by phone and asked to meet him. He agreed to meet Patient C at a café in Windsor. He did meet him there at the agreed time. At the Respondent's request, Patient C agreed to speak to the Respondent in a public park. In the conversation which took place there the Respondent asked Patient C to withdraw or not proceed with the complaint he had lodged. We accept he offered to assist Patient C in the future by servicing his medical needs via telehealth (charged at Medicare rates) if he withdrew the complaint. All the above satisfies us that the Respondent engaged in improper conduct as specified in s.139B(1)(l) of the National Law. We have accepted the Respondent offered to pay Patient C $1,000 to withdraw the complaint he had made to the HCCC. That conduct is, we find, unethical as described in s.139B(1)(l) of the National Law.
12. Patient C alleged that the Respondent offered him $1,000 to withdraw his complaint. We have found that he did that.
The above recited failings in the Respondent's knowledge, skill, judgment, and care for the subject patients demonstrated a serious deficit in those requirements for a registered medical practitioner. Those failings were in our view sufficiently serious to justify a suspension or cancellation of the Respondent's registration. In our view each of Complaint One and Four were sufficiently serious to warrant a finding of Professional Misconduct on their own and clearly so in combination.
Having considered all those matters we are satisfied that the HCCC has established that the Respondent's conduct does amount to professional misconduct as alleged in Complaint Five.
The orders of the Tribunal are as follows:
1. The Respondent is guilty of both unsatisfactory professional conduct and professional misconduct.
2. The matter is listed for the Stage 2 hearing on 12 March 2025.
[25]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 December 2024
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Suri
Legislation Cited (4)
Health Care Complaints Commission Complaints Act 1993(NSW)
(National Law) Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)
Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)