Health Care Complaints Commission v Von Marburg

COMPLAINT TWO: PARTICULAR TWO The Practitioner created a document purporting to record the results of audiological testing carried out on 12 December 2012 by the Practitioner on Patient A, which was false in that: (a) the document purports to record that the audiological testing was carried out at his practice at 572 Kiewa Street, Albury in New South Wales, when he did not carry out audiological testing on Patient A at his practice on that day; (b) the document records results which were not obtained from any audiological testing performed by the Practitioner on Patient A.

COMPLAINT TWO, PARTICULAR TWO: FINDING

1. Proven: see finding in relation to particular 1 (a) and (b).
2. The patient and her husband confirm that no testing was undertaken by the practitioner on 12 December 2012, and that all testing was undertaken by Mr Jacobs.

COMPLAINT TWO: PARTICULAR THREE The Practitioner produced a document purporting to be a letter from the Practitioner to Patient A's general practitioner dated 11 October 2012, which was false in that: (a) it states that the Practitioner had discussed possible surgery to repair an ossicular problem with Patient A, when he had not done so; (b) the document purports to have been created on or about 11 October 2012, when in fact it was created after 11 October 2012.

COMPLAINT TWO, PARTICULAR TWO: FINDING

1. Proven: the practitioner admits each allegation.
2. The Tribunal finds that the conduct referred to in each particular of complaint two constitutes unsatisfactory professional conduct.

COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 (the Regulation).

BACKGROUND TO COMPLAINT THREE As for Complaint One.

COMPLAINT THREE: PARTICULAR ONE TO THREE Particulars1 to 3 of Complaint Two are repeated and relied on, individually and cumulatively, in so far as they are not accurate statements of fact or clinical judgment, in contravention of s 2(3) of Schedule 2, clause 1 of the Regulation.

COMPLAINT THREE, PARTICULAR ONE TO THREE: FINDINGS

1. Proven: the practitioner does not challenge such complaint.
2. The Tribunal finds that the conduct referred to in each particular of complaint three constitutes unsatisfactory professional conduct.

COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) 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. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct.

BACKGROUND TO COMPLAINT FOUR The practitioner is an Ear, Nose and Throat surgeon. Complaint Four concerns the care and treatment the Practitioner provided to Patient B between 20 April 2011 and 15 May 2012.

COMPLAINT FOUR: PARTICULAR ONE On 14 June 2011 the Practitioner performed a left-sided mastoidectomy on Patient B, which was not clinically indicated, in that: (a) the CT scan dated 28 April 2011 showed: (i) no evidence of significant left sided mastoiditis; (ii) evidence of a reasonable amount of air; (iii) some scattered opacification; (iv) no erosive process or tumour. (b) his examination and assessment of Patient B revealed a left sided middle ear effusion and associated audiogram changes, indicating an intact tympanic membrane.

COMPLAINT FOUR, PARTICULAR ONE: FINDING

1. Proven: As to particular 1 (a): the practitioner admits the allegations.
2. Proven: As to particular 1 (b): as the tympanic membrane was intact prior to surgery, there should have been no indication to perform a myringoplasty.

COMPLAINT FOUR: PARTICULAR TWO On 14 June 2011 the Practitioner performed a left sided canal wall up mastoidectomy, with left gelfoam myringoplasty and a left middle ear ventilation tube insertion, in circumstances in which: (a) the Practitioner performed a myringoplasty to repair a perforation at the same time as insertion of a ventilation tube without clinical justification; (b) the Practitioner damaged Patient B's lateral semicircular canal during the procedure; (c) the Practitioner used bone wax inappropriately to repair the damage to Patient B's lateral semicircular canal and vestibule.

COMPLAINT FOUR, PARTICULAR TWO: FINDINGS

1. Proven: As to a), b) and c).
2. With respect to 2 (a) the tympanic membrane was intact and there was no need to perform a myringoplasty nor to insert a ventilation tube.
3. With respect to 2 (b), the practitioner damaged the lateral semicircular canal, the tegmen tympani and the external auditory canal wall at surgery. The Tribunal adopts the observations of Professor Briggs who stated: "It should be noted that the preoperative CT scan demonstrated these regions of anatomy to be intact and so there is no doubt that these injuries were surgically induced and the presence of bone wax indicated an attempt had been made to repair the damage which presumably had clearly been recognised. It should also be noted that plugging with bone wax is not the appropriate method of repair and it had resulted in the chronic inflammation and infection and prolonged [patient B's] symptoms."
4. The Tribunal notes that this patient underwent an unnecessary operation during which damage was done to the lateral semicircular canal, the tegmen tympani and the posterior wall of the auditory canal. Such findings demonstrate a significant deficiency of surgical technique.
5. The Tribunal accepts the opinion of Dr Fogarty (who provided a second opinion to the patient), Dr Curotta and Professor Briggs that the conduct of the practitioner in this instance falls significantly below the standard of what would be expected of a trained otologist. Such conduct constitutes unsatisfactory professional conduct and the Tribunal finds it to be egregious conduct.

COMPLAINT FIVE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: (i) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each Particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding.

BACKGROUND TO COMPLAINT FIVE As for Complaint Four.

COMPLAINT FIVE: PARTICULAR ONE The Practitioner created a document, which he included in his records for Patient B, purporting to be handwritten notes of his consultation with Patient B on 20 April 2011, which was false in that the Practitioner recorded that Patient B reported she was having problems with her balance, when Patient B did not report this to the Practitioner.

COMPLAINT FIVE, PARTICULAR ONE: FINDING

1. Proven: The patient presented with symptoms of ear pain and an abnormal sound in her ear at the consultation on 20 April 2011, but did not report any problems with balance. The contemporaneous letter written to the general practitioner at the date of this consultation does not report any problems with balance. The practitioner's notes allegedly of the same day claims that the patient was suffering from balance issues. The Tribunal is satisfied that the practitioner's notes were not written at the time of the consultation and concludes that they were written subsequently to justify the surgery performed.

COMPLAINT FIVE: PARTICULAR TWO On or about 14 June 2011, the Practitioner created an operation report in relation to the procedure he performed on Patient B on 14 June 2011, which report was false or misleading in that: (a) he failed to record that he had damaged Patient B's ear, and specifically the lateral semicircular canal; (b) he failed to record that he had used bone wax to repair the damage to the lateral semicircular canal; (c) he recorded that he encountered a 1 cm dehiscence in the tegmen tympani, when there was no dehiscence of this size in the tegmen tympani prior to the surgery on 14 June 2011.

COMPLAINT FIVE, PARTICULAR TWO: FINDING

1. Proven: As to (a) and (c), the documentary evidence tendered shows that the operation report was manifestly false as alleged.
2. Proven: As to (b), the practitioner admits the particular.

COMPLAINT FIVE: PARTICULAR THREE In letters to Patient B's general practitioner dated 20 June 2011, 20 July 2011 and 3 August 2011, the Practitioner provided advice which was false or misleading in that he: (a) failed to advise of the damage to Patient B's ear caused during the surgery of 14 June 2011; (b) failed to advise that the damage to Patient B's ear caused during the surgery of 14 June 2011 was the likely cause of her post-operative nausea, vomiting, tinnitus and vestibular symptoms; (c) stated that Patient B's condition was improving, when that was not an accurate summation of Patient B's condition on those dates.

COMPLAINT FIVE, PARTICULAR THREE: FINDING

1. Proven: As to (a) to (c), the letters written by the practitioner failed to contain any of the information as alleged, and wrongly stated that the patient's condition was improving when this was not true.

COMPLAINT FIVE: PARTICULAR FOUR On 15 May 2012 the Practitioner administered intratympanic dexamethasone to Patient B in circumstances in which intratympanic dexamethasone was not an appropriate treatment for her symptoms, including dizziness and tinnitus, which had been caused by the damage to her ear during the mastoidectomy he performed on 14 June 2011.

COMPLAINT FIVE, PARTICULAR FOUR: FINDING

1. Proven: the Tribunal finds that there was no indication for administering intra-tympanic dexamethasone in the circumstances.
2. It was unlikely to improve the patient's symptoms of dizziness and tinnitus which had been caused by surgical damage to the mastoid.
3. The Tribunal finds that the conduct referred to in each particular of complaint five constitutes unsatisfactory professional conduct.

COMPLAINT SIX The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 (the Regulation).

BACKGROUND TO COMPLAINT SIX As for Complaint Four.

COMPLAINT SIX: PARTICULARS Particulars 1, 2(c) and 3(c) of Complaint Five are repeated and relied on, individually and cumulatively, in so far as they are not accurate statements of either fact or clinical judgment, in contravention of s 2(3) of Schedule 2, clause 1 of the Regulation.

COMPLAINT SIX, PARTICULARS: FINDING

1. Proven: The conduct referred to above demonstrates unsatisfactory professional conduct as alleged.

COMPLAINT SEVEN The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) 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.

BACKGROUND TO COMPLAINT SEVEN Complaint Seven concerns the care and treatment the Practitioner provided to Patient C.

COMPLAINT SEVEN: PARTICULARS On 26 September 2013, the Practitioner failed to perform sinus surgery on Patient C to an adequate standard, in that in which he failed to adequately clear the desiccated mucus or fungal material in Patient C's paranasal sinuses which had been identified in the report of the CT scan performed on 2 November 2012.

COMPLAINT SEVEN, PARTICULARS: FINDING

1. Proven: The practitioner has paid no regard to the radiological findings of fungus infection in the sinuses. To eradicate a fungal infection in the sinuses, a much longer procedure is required than the 22 minutes to which this patient was allocated. Additionally, the practitioner's operative findings do not mention any fungal infection.
2. The Tribunal finds that the conduct referred to in complaint seven constitutes unsatisfactory professional conduct.

COMPLAINT EIGHT The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) 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. Each Particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding.

BACKGROUND TO COMPLAINT EIGHT The practitioner is an Ear, Nose and Throat surgeon. Complaint Eight concerns the care and treatment the Practitioner provided to Patient D.

COMPLAINT EIGHT: PARTICULAR ONE On 18 July 2013 the Practitioner performed a bilateral intratympanic dexamethasone insertion procedure on Patient D, inappropriately and without informed consent, in circumstances where: (a) Patient D was unlikely to benefit from the procedure, due to the length of time between the onset of Patient D's hearing loss and the time at which the procedure was performed; (b) before undertaking the procedure the Practitioner failed to consider alternative forms of treatment, including dietary measures or a trialling a hearing aid, which were appropriate because of the risks of surgery for Patient D; (c) the Practitioner failed to advise Patent D of the alternative forms of treatment and the risks of the procedure.

COMPLAINT EIGHT, PARTICULAR ONE: FINDINGS

1. Proven: As to particular (a), the practitioner admits the particular.
2. Proven: As to particular (b) and (c), there is no evidence that the practitioner advised the patient of alternative forms of treatment including a hearing aid. The Tribunal notes that the practitioner has provided no sworn evidence to refute the allegations.

COMPLAINT EIGHT: PARTICULAR TWO On 18 July 2013 the Practitioner performed a bilateral intratympanic dexamethasone insertion procedure on Patient D, and did so under general anaesthetic which was inappropriate in circumstances where: (a) there was a significant risk to Patient D because of his co-morbidities, including coronary problems; (b) the Practitioner failed to consider doing the procedure under local anaesthetic; (c) the Practitioner failed to advise Patient D of the option of having the procedure under local anaesthetic.

COMPLAINT EIGHT, PARTICULAR TWO: FINDINGS

1. Proven: As to (a), this procedure was unnecessary, particularly in view of the patient's age, other medical problems and the fact that he had a longstanding hearing loss. If the surgery was thought to be necessary it could easily have been performed under local anaesthetic.
2. Proven: As to (b), see finding referred to in 2 (a) above.
3. Proven: As to (c), the practitioner has provided no evidence or statement to verify that such matter was discussed with the patient. The Tribunal considers that had the option of local anaesthesia been discussed, it would have been most unlikely that the patient would have opted for a general anaesthetic. In these circumstances the Tribunal finds the particular proved.
4. The Tribunal finds that the conduct referred to in each particular of complaint eight constitutes unsatisfactory professional conduct.

COMPLAINT NINE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: (i) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each Particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding.

BACKGROUND TO COMPLAINT NINE Complaint Nine concerns the care and treatment the Practitioner provided to Patients C to M.

COMPLAINT NINE: PARTICULARS ONE TO THIRTEEN 1. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient C on 30 November 2012, including the declaration in the form affirming that he had provided information to Patient C about the proposed procedure, which was false in that he had not consulted with or provided Patient C with information about the proposed procedure. 2. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient D on 23 October 2012, including the declaration in the form affirming that he had provided information to Patient D about the proposed procedure on 30 October 2012, which was false in that he had not consulted with or provided Patient D with information about the proposed procedure. 3. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient E on 25 October 2012, including the declaration in the form affirming that he had provided information to Patient E's parent, guardian or power of attorney about the proposed procedure, which was false in that he had not consulted with or provided Patient E's mother with information about the proposed procedure. 4. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient F on 23 May 2013, including the declaration in the form affirming that he had provided information to Patient F about the proposed procedure, despite Patient F being a minor at the time, which was false in that he had not consulted with or provided Patient F's mother with information about the proposed procedure. 5. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient G on 27 May 2013, including the declaration in the form affirming that he had provided information to Patient G's parent, guardian or power of attorney about the proposed procedure, which was false in that he had not consulted with or provided Patient G's mother with information about the proposed procedure. 6. On or about 16 October 2013 the Practitioner sent a letter to Patient G's treating practitioner stating that Patient G's "progress to date has been unremarkable to date", which was false or misleading in that the Practitioner did not conduct any post-operative consultation with Patient G. 7. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient H on 23 May 2013, including the declaration in the form affirming that he had provided information to Patient H's parent, guardian or power of attorney about the proposed procedure, which was false in that he had not consulted with or provided Patient H's mother with information about the proposed procedure. 8. On or about 10 October 2013 the Practitioner sent a letter to Patient H's referring general practitioner stating that her "post-operative course has been unremarkable to date", which was false or misleading in that immediately after the procedure on 30 July 2013 Patient H suffered from hypoxaemia and hypertension in recovery and then spent the night in intensive care. 9. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient I on 22 October 2012, including the declaration in the form affirming that he had provided information to Patient I's parent, guardian or power of attorney about the proposed procedure, which was false in that he had not consulted with or provided Patient I's mother with information about the proposed procedure. 10. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient J on 29 October 2012, including the declaration in the form affirming that he had provided information to Patient J about the proposed procedure, which was false in that he had not consulted with or provided Patient J with information about the proposed procedure. 11. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient K on 29 October 2012, including the declaration in the form affirming that he had provided information to Patient K's parent, guardian or power of attorney about the proposed procedure, which was false in that he had not consulted with or provided Patient K's mother with information about the proposed procedure. 12. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission" form for Patient L on 12 February 2013, including the declaration in the form affirming that he had provided information to Patient L about the proposed procedure, which was false in that he had not consulted with or provided Patient L with information about the proposed procedure. 13. The Practitioner completed and signed an "Albury Wodonga Health Request for Admission form" for Patient M on 28 March 2012, including the declaration in the form affirming that he had provided information to Patient M's parent, guardian or power of attorney about the proposed procedure, which was false in that he had not consulted with or provided Patient M's mother with information about the proposed procedure.

COMPLAINT NINE, PARTICULARS ONE TO THIRTEEN: FINDINGS

1. Proven: As to particulars 1 to 5 inclusive, 7, 9 to 13 inclusive: The practitioner signed a request for admission form which declared that he has discussed with each patient the options available for and the likely outcomes and possible complications of the proposed surgery. In fact the practitioner did not have such discussions at the time that he placed the patient on the waiting list of the hospital for surgery, and in some cases did not see the patient for many months until a day or two before surgery.
2. The practitioner asserted that the Albury-Wodonga Health Service was governed by Victorian legislation which do not have the same regulatory procedures as prevailing in New South Wales. Irrespective, the practitioner signed a false declaration.
3. Proven: As to particular 6, this patient did not attend any post-operative appointment with the practitioner and none was claimed against Medicare, but on 10 October 2013 the respondent sent a letter to the patient's general practitioner falsely stating that the patient's post-operative course had been unremarkable to date, that he would continue to follow the patient up until she had fully recovered.
4. Proven: As to particular 8, the practitioner sent a letter to the patient's general practitioner stating that his post-operative course had been unremarkable to date, which was false and misleading in that immediately after the procedure on 30 July 2013 the patient suffered from hypoxaemia and hypertension in recovery and then spent the night in intensive care.
5. The Tribunal finds that the conduct referred to in each particular of complaint nine constitutes unsatisfactory professional conduct.

COMPLAINT TEN The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: (i) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the Particulars in themselves justifies a finding of unsatisfactory professional conduct. In the alternative, when two more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified.

BACKGROUND TO COMPLAINT TEN Complaint Ten concerns the care and treatment the Practitioner provided to Patients N to U.

COMPLAINT TEN: PARTICULARS ONE TO THREE 1. The Practitioner billed Albury Wodonga Health for a myringoplasty, Medicare item number 41527, which he had not performed, in circumstances where he had instead performed a gelfoam myringoplasty, Medicare item number 41644, which did not involve elevation of a tympanomeatal flap using a Rosen incision and attracted a lower Medicare scale payment, in relation to each of the following patients on the particularised dates: (a) Patient N, on 5 June 2012; (b) Patient O, on 5 June 2012; (c) Patient P, on 19 June 2012; (d) Patient Q, on 21 June 212; (e) Patient R, on 21 June 2012; (f) Patient S, on 13 September 2012. 2. On 27 July 2012 the Practitioner billed the Albury Base Hospital under Medicare item 104 in circumstances where he had not met the criteria in relation to that item, in that the Practitioner did not personally attend the hospital to consult with Patient T and only spoke to a registrar by telephone. 3. On 20 August 2012 the Practitioner billed under item Medicare 104 in circumstances where he had not met the criteria in relation to that item, in that the Practitioner did not personally attend the hospital to consult with Patient U and only spoke to the treating medical practitioner at the hospital by telephone.

COMPLAINT TEN, PARTICULARS ONE TO THREE: FINDINGS

1. Proven: As to particular 1 (a) to (f).
2. In response to questioning, the respondent stated that he did not use antiseptic solution in the auditory canal or on the tympanic membrane, but that he did elevate a tympanomeatal flap for these patients. In this scenario the practitioner has violated basic surgical principles in operating in a non-sterile field and potentially introduced bacteria into the middle ear.
3. The Tribunal considers that the practitioner has in fact not performed trans-canal myringoplasty using a tympanomeatal flap, in that no vasoconstrictor was used in the external auditory canal, no preparation of the external auditory canal was made to sterilise the area, and the timeframe, as documented in the operation notes, is far too short for such procedures to have been completed.
4. Proven: As to particular 2 and 3.
5. The practitioner has claimed Medicare item is 104 in circumstances where he has not met the required criteria for that item in that he only spoke to a registrar by telephone and did not attend in person. This does not satisfy the required criteria in order to justify the practitioner's claim for Medicare benefits.
6. The Tribunal finds that the conduct referred to in each particular of complaint ten constitutes unsatisfactory professional conduct.

COMPLAINT ELEVEN The practitioner is guilty of professional misconduct under s 139E of the National Law in that the Practitioner has: (i) engaged in unsatisfactory conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration; or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

BACKGROUND TO COMPLAINT ELEVEN As for Complaints One to Ten.

COMPLAINT ELEVEN: PARTICULARS Complaints One, Two, Three, Four, Five, Six, Seven, Eight, Nine and Ten and the particulars thereof are repeated and relied upon, individually and cumulatively.

COMPLAINT ELEVEN, PARTICULARS: FINDINGS

1. Proven: The Tribunal finds that the instances of unsatisfactory professional conduct referred to in each complaint are established.
2. Finding: 1. Cumulatively, the unsatisfactory professional conduct of the respondent constitutes professional misconduct. 2. The proceedings are adjourned for consideration of the required protective measures in view of the Tribunal's findings (stage 2)

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 13 June 2019