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[2005] WASAT 81
State Administrative Tribunal (WA)
2005-05-31
Original judgment source is linked above.
CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and ROBERMAN [2005] WASAT 81
Professions - Medical practitioners - Disciplinary proceedings - Gross carelessness or incompetency - Consultant obstetrician - Patient in premature labor - Adequacy of treatment
DEPUTY PRESIDENT CHANEY, BRIG A G WARNER (SENIOR SESSIONAL MEMBER), DR K MCKENNA (SENIOR SESSIONAL MEMBER), DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
1 Dr Brian Roberman is a consultant obstetrician and gynaecologist. For 24 years until June 2002 he was employed by the Health Department of Western Australia at King Edward Memorial Hospital for Women ("KEMH") as a full time consultant obstetrician and gynaecologist. In 1997 he was the Director of obstetrics at KEMH. He also maintained a private practice.
2 In September 1996, Dr Roberman first saw TEV, ("the patient") in his capacity as a consultant obstetrician at KEMH. That consultation arose following the delivery of the patient's premature baby at KEMH on 11 August 1996, and the subsequent death of that baby in the early postnatal period. The patient had not been under Dr Roberman's care at the time of that delivery, but it was, at that time, standard practice at KEMH that if a public patient suffered an adverse outcome, arrangements would be made for a consultation with a staff obstetrician at the hospital to discuss the delivery, the adverse outcome, and any plans which the patient might have to have children in the future. Following that initial consultation, the patient was referred to Dr Roberman as a private patient by her general practitioner in June 1997. At that stage she was eight weeks pregnant. The patient saw Dr Roberman again in late July and early September 1997 and on both occasions the pregnancy appeared to be progressing satisfactory. A further appointment was arranged for 13 October 1997.
3 Two days before that consultation was due, the patient presented at KEMH. It was a Saturday. At that stage the patient was approximately 25 weeks pregnant. She was complaining of fluid loss and contractions. Dr Roberman was called, and attended the patient later that morning. At about 11.30 am, after notifying the resident doctor on duty as to the patient's condition, Dr Roberman left the hospital and, after first going home, drove to Guilderton, approximately a 1 hour drive from the hospital, where he had a property. During the afternoon, the midwives at KEMH contacted Dr Roberman on two occasions in relation to the patient's condition. The respondent left Guilderton at approximately 4.35 pm and drove to KEMH, where he arrived at approximately 5.45 pm or 5.50 pm. Dr Roberman delivered the patient's baby by means of a caesarean section at 6.53 pm that evening. The child was diagnosed as suffering cerebral palsy.
4 The Medical Board of Western Australia has brought a complaint before this Tribunal that, in two respects, Dr Roberman's management of the patient on 11 October 1997 amounted to gross carelessness or incompetency. It is not alleged by the Medical Board that Dr Roberman's management was a cause of the child's cerebral palsy, or that anything he may have done would have altered that outcome. That is an issue that was not explored in the evidence, and thus does not fall to us for any consideration or determination. The manner in which the Board categorises the conduct as grossly careless or incompetent is identified in the amended notice of inquiry which was the subject of the hearing in this matter. Dr Roberman denies any gross carelessness or incompetency in the manner of his treatment of the patient.
5 The allegations of gross carelessness or incompetency in a professional respect in relation to the care the patient are set out in the amended notice of inquiry as follows:
"1. That you did not attend the patient after you had examined her at between approximately 11 am and 11.30 am ('first attendance'), until between approximately 5.50 pm and 6.10 pm on 11 October 1997, when you should have attended the patient within approximately 4 hours of the first attendance.
(a) you did not attend the patient to deliver the child, alternatively to assess whether the child should be delivered by caesarean section, until approximately 5.50 pm and 6.10 pm on 11 October 1997; alternatively
(b) you did not arrange for another consultant obstetrician, or a senior registrar, to attend the patient to deliver the child urgently, alternatively for another consultant obstetrician, senior registrar or registrar to attend the patient urgently to assess whether the child should be delivered urgently by caesarean section if you were unable do so.
6 At the hearing, there was little factual dispute. In many cases, witnesses who were called had little independent recollection of events, and relied upon the hospital records to identify what had occurred. The accuracy of the records was not challenged. In the circumstances, the best that most witnesses could do was to say what, in accordance with their normal practice, they would have done given the contents of the notes and records, rather than being in a position to say with confidence precisely what occurred on the day in question. That position is hardly surprising given the fact that the events took place over seven years before the hearing and it is likely that most witnesses had no particular reason to recall what, in many cases, were routine events until asked to do so some years after the events in question. Notwithstanding that limitation, the sequence of events is reasonably clear.
7 As indicated above, Dr Roberman had seen the patient on 20 June 1997 when he confirmed that she was then 8 weeks pregnant. He saw her again on 28 July 1997 and 1 September 1997 when the pregnancy was found to be proceeding uneventfully.
8 On 11 October 1997 at approximately 9.45 am, the patient presented at KEMH. She was attended by Sr Della. She gave a history of having had contractions since approximately eight o'clock that morning, and was found on examination to have irregular contractions every 15 minutes and to be discharging clear fluid from her vagina. Sr Della suspected premature rupture of the membranes. A later note made by Sr Beer suggests the patient may have had some small amount of fluid loss over the previous three days. At 10 am Sr Della recorded a fetal heart rate of 205 beats per minute with the patient's heart rate recorded as 104 beats per minute. At 10.15 am, the fetal heart rate was recorded at 160 beats per minute, which is the upper end of the normal range of fetal heartbeat.
9 Sr Della paged Dr Roberman at approximately 10.00 am and spoke to him by telephone by 10.20 am. She told him of the patient's admission to hospital, and her observations, although Dr Roberman's recollection was that he was told that "the fetal heart rate was elevated" rather than the specific rate that Sr Della had recorded. Given that Dr Roberman came to the hospital shortly after that conversation to see the patient, little turns on precisely what he was told in that initial conversation.
10 During the telephone conversation, the respondent instructed Sr Della to administer the patient 250 mg of terbutaline and 11.5 mg of Celestone Chronodose. The purpose of that treatment, which we find was appropriate in the circumstances, was to attempt, by the administration of terbutaline, to prevent the patient going into labour, and by the administration of Celestone Chronodose, a corticosteroid, to attempt to strengthen and mature the internal organs of the fetus. Those instructions were duly carried out by Sr Della.
11 Between 10.15 am and 10.30 am, Sr Della used a speculum to test the patient's vaginal loss, and took a low vaginal swab which was sent to the hospital's pathology department for testing. Sr Della believed that when using the speculum, she did not observe any dilatation of the cervix because, she said, otherwise she would have recorded that in the notes.
12 At 11 o'clock the fetal heart rate was recorded as being 198 beats per minute, and the patient was noted as being very anxious, although by that stage it was noted that her contractions had ceased. At 11.15 am, the fetal heart rate was 194 beats per minute, but a recording that there were no contractions was again made.
13 Sometime between 11 am and 11.30 am, Dr Roberman arrived at the labour ward and attended the patient. In his evidence, he was uncertain as to precisely when he arrived. Sr Della's note, in the inpatient case notes, records that, at 11.30 am, a real time scan was performed by Dr Roberman. Immediately below that notation, Dr Roberman made a note which commences with the date and time of 11.30 am. Dr Roberman said that was the time which he would have written the note, not the time that he carried out the examination to which the note refers. The significance of that is whether, at the time that Dr Roberman attended the patient, the readings of fetal heart rate taken at 11.00 am and 11.15 am, had been either taken or recorded, and thus whether the respondent was aware of them. We think that, on balance, it is likely, and accordingly we find, that at least the 11.00 am reading of fetal heart rate would have been recorded before Dr Roberman examined the patient and probably the 11.15 am reading as well. There is no suggestion that Dr Roberman did anything other than attend the patient while at the hospital that morning, and the likelihood is that his examination of the patient, took place between 11.15 am when a nurse took the fetal heart rate and 11.30 am when he made his note of his findings. It is likely that he did know of the fetal heart rate findings.
14 Dr Roberman's evidence, which we accept, was that had he known of the level of fetal heart rate, it would not have caused him any particular concern. That is because an elevated fetal heart rate is a common side effect of the administration of terbutaline, and may also be explained to some degree by anxiety of the patient. In the circumstances, the level of the fetal heart rate was not, by itself, a cause for any particular concern.
15 Dr Yeap was the registrar on duty in the hospital that day. Dr Yeap was in her second year as a registrar at KEMH, having commenced her training in January 1996. Prior to that she had worked as a "service registrar" in obstetrics and gynaecology at Modbury Hospital in South Australia. Prior to that she had worked as a resident at the Queen Victoria Hospital in South Australia for six months, and in 1993 she worked as a resident at KEMH. By October 1997 she estimates that she would have performed between 50 and 70 caesarean operations under supervision, but had not delivered by caesarean section a patient at 25 weeks gestation.
16 While at the hospital Dr Roberman spoke to Dr Yeap and the notes record that he did so "in case something happens". They spoke by telephone. He told her that he intended leaving KEMH for a few hours, and wanted her to be aware of the situation with the patient in case she was asked to attend during his absence. Dr Roberman gave Dr Yeap the clinical picture and told her about the management plan that he had arranged.
17 By the time Dr Roberman attended the patient between 11.15 am and 11.30 am, the contractions had ceased, presumably as a result of the terbutaline taking effect. He undertook an ultrasound examination and recorded that the fetus was in an unstable lie, and drew a diagram indicating that the head lay in the right iliac fossa. He instructed Sr Della to continue to administer terbutaline to the patient subcutaneously provided there was no good evidence of infection. Dr Roberman said, and we accept, that it seemed at that time that he may have been successful in preventing the patient from going into labour. As a result, the steroids had been given an opportunity to work, thus giving the fetus a much better chance of survival if it was to be delivered in the short term.
18 Dr Roberman also made a note that he would be on a particular telephone number (which was his Guilderton house phone number) "if not at home or on mobile". He then left the hospital, went home briefly, and then travelled to Guilderton.
19 At midday, the patient observation notes record that the fetal heart rate was measured at 194 beats per minute, at 12.30 pm the rate was 210 beats per minute, and at 1 pm the rate was 220 beats per minute. By 1 pm, the observation chart also records that the patient was experiencing contractions every seven minutes.
20 At 1 pm, Sr Della administered the patient a further dose of 250 mg of terbutaline. At 1.20 pm she telephoned the respondent at Guilderton and reported that the contractions had commenced again and were occurring every seven minutes, and that she had given the patient another dose of terbutaline.
21 Sr Della's note of that conversation reads, "Dr Roberman contacted re FHR, maternal tachycardia and contractions". In her evidence to the Tribunal, Sr Della construed that note as indicating that she told Dr Roberman that the fetal heat rate was 220 beats per minute, and the patient's heart rate was 100 beats per minute. In cross-examination she agreed that she had no particular recollection of the telephone call, but her normal practice would be to cite the specific observations. However, she said that she would not disagree with Dr Roberman if his recollection was that she simply told him that the fetal heart rate was elevated. Dr Roberman's evidence was that the midwife told him that both the patient's heart rate and the fetal heart rate were elevated, but he could not recall being told that the fetus was experiencing persistent tachycardia and that the fetal heart rate was last observed to be 220 beats per minute as alleged in the particulars to the notice of inquiry. We are satisfied that the likelihood is that Sr Della followed her normal practice and, in reporting to Dr Roberman, told him of the actual heart rates of each of the patient and the fetus. Not only is that consistent with what Sr Della said was her normal practice, but it is also consistent with the logic that, if told that a heart rate is elevated, the likelihood is that Dr Roberman, or any other competent practitioner, would want to know the extent of the elevation. It is also consistent with the fact that Dr Roberman, in that conversation, gave orders for the administration of antibiotics. Although the respondent suggested that that precautionary step was taken because resumption of contractions may be a sign of infection, maternal and fetal tachycardia may similarly suggest infection. The likelihood is, and we find, that Dr Roberman was given the detailed observations during the course of that telephone conversation.
22 At the conclusion of the conversation at 1.20 pm, Dr Roberman instructed Sr Della to notify him if "something happened" which Sr Della took to mean if contractions increased or if labour developed.
23 In accordance with the respondent's instructions, Sr Della administered the antibiotics Amoxyl at 1.50 pm and Flagyl at 2.10 pm.
24 At 2.30 pm, the patient's heart rate was recorded at 108 beats per minute, and the fetal heart rate at 191 beats per minute. At 3 pm, the patient's heart rate was 110 beats per minute, and the fetal heart rate 200 beats per minute, and the patient was recorded as having irregular contractions once every 9 to 20 minutes.
25 At 3.30 pm, Sr Della went off shift, and Sr Beer took over the management of the patient. At 3.45 pm, the patient's heart rate was recorded at 100 beats per minute, and the fetal heart rate at 200 beats per minute, and the patient was recorded as being very anxious and having contractions lasting 60 seconds every three minutes. At 4.10 pm, Sr Beer telephoned or paged Dr Roberman, noting in the inpatient case notes that the patient was very anxious, was contracting every three minutes and was requesting analgesia. She noted that the patient was very concerned about the fetal tachycardia.
26 Dr Roberman responded to the page at 4.25 pm. He was given the results of the vaginal swab that had been taken earlier in the day. Dr Roberman instructed Sr Beer to perform a vaginal examination and to ring him with the results.
27 As instructed, Sr Beer performed a gentle vaginal examination in which she determined that the cervix was 100 per cent effaced. She observed a thin anterior lip around the cervix and determined that the membranes were bulging. On vaginal examination she could not determine the position of the fetus, and was unable to feel any presenting part. She also performed an abdominal examination from which she believed that she could determine that the head of the fetus was positioned in the right iliac fossa. In cross-examination, Sr Beer acknowledged that it is difficult to palpate a 25 week fetus although she was quite experienced at the time. Having carried out those examinations, Sr Beer telephoned Dr Roberman again. Her note reads: "16.35. Dr Roberman notified of V/e findings 11/10/97 as requested (see over). He will be in at 5.45 to see (the patient). I have notified Dr Graug [sic] who wants to be called for delivery. Registrar Paed notified - s/n ✓. Dr Yeap is aware of finding in case she is needed. Dr Roberman would like [the patient] to have an epidural in case there are complications. Dr Pavy has been paged - he's on his way. All this has been discussed with [the patient] and her husband".
28 Sr Beer had no independent recollection of the events of 11 October 1997. She was cross-examined as to precisely what she was able to say she told Dr Roberman in the telephone conversation at 4.35 pm. She thought that she "would have told him most of my vaginal findings". She could not remember whether she would have told him that the liquor was pink, but she would have told him of the bulging membranes. She could not remember whether she would have told him about the fetal heart rate being 200 beats per minuted but that she would probably have told him that the fetus's head was in the right iliac fossa although she could not specifically recall. She accepted that she could not disagree if Dr Roberman's evidence was that she did not tell him about the lie of the fetus in that conversation.
29 As recorded in her note, she did notify Dr Grauaug, a consultant paediatrician and she also notified a paediatric registrar. The entry in the notes "s/n ✓" she said meant that she had notified the special nursery.
30 As to contacting Dr Yeap, as recorded in the notes, she thought that was probably because Dr Roberman asked her to do so, although she said that she would probably have notified her anyway "because she was the registrar on duty, and just keeping her informed". She accepted that she knew from the notes that Dr Roberman had spoken to Dr Yeap about this particular patient and that was of a reason to keep Dr Yeap informed of what was happening. She was not able to say whether she would have told Dr Yeap of her findings on examination and the frequency of contractions.
31 The notes also record that Dr Pavy was contacted. Dr Pavy was the consultant anaesthetist and was called to administer an epidural as requested by Dr Roberman in the telephone call at 4.35 pm. Dr Pavy did attend the patient and administered an epidural some time not long after 5 pm.
32 As to her conversation with Dr Yeap, Sr Beer could not remember what was said. She indicated that she could not tell from her notes whether Dr Yeap attended the patient after Sr Beer spoke to her. She said that "she probably wouldn't have attended, unless I specifically asked her to, and I can't tell from my notes either". She did not accept that merely notifying Dr Yeap was the same as asking her to attend. When that was put to her, her response was "no it might just mean 'be aware in case you're needed' ". That possibility is supported by the notes which use that expression. Sr Beer did not think that she would have contacted Dr Yeap again because, by the time the anaesthetist had been there to administer the epidural, the paediatricians had been notified, and things were progressing, she thought she would probably not have involved Dr Yeap.
33 After Dr Pavy had given the patient the epidural, Sr Beer said that the patient was then feeling comfortable.
34 In relation to the 4.35 pm telephone conversation, Dr Roberman recalled that the midwife had told him that she had found the cervix was fully effaced, she had felt a thin anterior lip, and she had felt the forewaters bulging. He also recalled that the midwife told him that she had not felt any presenting part of the fetus and had not been able to determine its position, its lie or its level in the pelvis. From the information given to him, and information that had been conveyed to him earlier in the 4.25 pm telephone conversation concerning contractions, he formed a view that it was clear that the patient was in labour. He confirmed that he told the midwife that he would leave Guilderton immediately and expected that he would arrive at KEMH at about 5.45 pm.
35 In his witness statement dated 30 September 2004 (exhibit 10), Dr Roberman said "I also told the midwife to notify Dr Yeap of the situation immediately in case either she or Dr Brett was required to attend the patient before I arrive". That statement was prepared for the purpose of a hearing in relation to the notice of inquiry as it stood prior to its amendment. That hearing did not proceed because of the amendment to the notice of inquiry sought at the end of counsel's opening on that occasion. The amendments added the alternative complaint of a failure to arrange for a consultant obstetrician, senior registrar or registrar to attend the patient for the purpose of assessing whether or not an urgent caesarean section might be required. At the hearing before this Tribunal of the amended notice, Dr Roberman altered that paragraph of his original witness statement by deleting everything after the words "Dr Yeap". A supplementary witness statement was tendered. In that statement, Dr Roberman said that, after the 4.35 pm telephone call, "I did not have information then to know whether the child would have to be delivered by caesarean section or whether it could be delivered vaginally". He did realise, however, that it was possible that the patient could deliver before he reached KEMH "or that some complication could occur which might make it necessary for the child to be delivered by caesarean section".
36 His statement continues "therefore, I knew it was desirable for the patient to be medically assessed immediately to see whether other arrangements needed to be made for the delivery or if it could wait until I arrived. It was for that reason I told the midwife to notify Dr Yeap. I expected Dr Yeap, when told of the situation and the midwife's findings upon the digital vaginal examination which she had conducted at 4.30 pm, to attend the patient and assess her by abdominal examination and ultrasound scan to ascertain the position and lie of the fetus, to assess when delivery was likely and to assess whether there were any complications which might require surgical intervention. I expected that if Dr Yeap considered that delivery would occur before I arrived or that surgical intervention was required, she would contact me, Dr Brett or the senior registrar on call at KEMH to enlist assistance for the delivery."
37 We will return to other evidence in relation to this issue in the context of consideration of the second matter of complaint in the notice of inquiry.
38 At 5.40 pm, Dr Roberman telephoned the hospital from his car. He was by this time a short distance from the hospital. Sr Beer told Dr Roberman that the patient was comfortable with the epidural. In cross-examination, Dr Roberman said that not having heard anything since the telephone call at 4.35 pm, he actually thought that the patient had probably delivered naturally by the time he rang at 5.40 pm.
39 Dr Roberman arrived at the labour ward between 5.45 pm and 5.50 pm on 11 October 1997. He conducted an abdominal examination and a real time ultrasound scan. As a result of the scan, he confirmed that the fetus was in a transverse lie. Accordingly, arrangements were made to take the patient to theatre for delivery by caesarean section, and the baby was delivered in that manner at 6.53 pm.
40 Against that background, it is necessary to consider whether, by reason of the matters alleged in the notice of inquiry, Dr Roberman's conduct amounts to gross carelessness or incompetency.
41 The parties were in agreement as to what constitutes gross carelessness or incompetency as those expressions are used in s 13(1)(c) of the Medical Act 1894. Gross carelessness is a significantly higher degree of carelessness and want of due care than that which will satisfy the description of negligence for the purposes of civil liability: Callaghan v The Queen (1952) [1952] HCA 55; 87 CLR 115 at 119-124. In the context of s 13, it is necessary that the carelessness or incompetency should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached a scale that such other practitioners regard as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public: Jemielita v Medical Board of Western Australia, unreported SCT of WA (Full Court); Library No 920584, 13 November 1992. Owen J, in Jemielita, also accepted that the concept of gross carelessness involves unacceptable conduct without any intentional wrongdoing on the part of the practitioner and suggests that the practitioner is unable to give the care required or is indifferent to the need for such care notwithstanding that he may have the intellectual and technical ability to supply the care that is required.
42 The concept of incompetency on the other hand involves an unfitness to practise in the particular field of medicine under examination or an inability to perform the techniques or reach the judgments needed for the proper practice of medicine in that field. Incompetency is usually suggestive of a generalised deficiency in the way in which a practitioner handles his or her affairs rather than individual or sporadic shortcomings: Jemielita, (supra).
43 In this case, at the conclusion of the evidence, the respondent, in our view quite properly, accepted that the true nature of the allegations made against Dr Roberman are allegations which could not satisfy the test of incompetency, and thus the issue for the Tribunal is whether the matters complained of amount to gross carelessness.
44 There was also no issue between the parties that the gravity of the allegations made, and their potential impact on the standing, reputation and livelihood of a medical practitioner, require that the Tribunal, whilst deciding the issues on the balance of probabilities, should "feel an actual persuasion of the occurrence of events or existence of facts which are in issue" Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 - 363.
45 The essence of the first allegation against Dr Roberman is that, having examined the patient between 11 am and 11.30 am, he should have attended her again within approximately four hours of that attendance. That imperative is said to arise from the fact that she presented with suspected premature rupture of membranes at 25 weeks gestation, an abnormal fetal heart rate had been observed, the child was in an unstable oblique lie, and Dr Roberman received advice at 1.20 pm that the child was experiencing persistent tachycardia.
46 There is no dispute that the respondent did not attend the patient between 11.30 am and 5.45 pm on 11 October 1997. That is a period of a little over six hours. The question for the Tribunal is whether, in the circumstances, he should have attended the patient within four hours, and if so, whether a failure to do so amounts to gross carelessness for the purposes of s 13 of the Medical Act.
47 A number of experts were called to give evidence at the hearing. Dr Robert Ronald Adam and Professor David Ellwood were called by the applicant. Professor Alastair MacLennan was called by the respondent.
48 Dr Adam expressed the opinion that the patient should have been medically examined much earlier than in fact occurred, and should have been reviewed by Dr Roberman at the latest four hours after the 11.30 am examination. He elaborated on that observation in cross-examination. He said: "well she was a very high risk patient who had possibly ruptured her membranes, who was on the verge of labour, who had a fetal tachycardia and a maternal tachycardia. She had lost a baby in the past. Her husband had had a vasectomy and a reversal so that this was an important baby - not that all babies aren't important - so to my mind if you have a patient like this in hospital she warrants careful observation and I believe she should have been seen at shorter intervals". It was then put to Dr Adam that there is no need to attend a patient if there is nothing happening, even if she is a high-risk patient. He replied: "well I believe you do. I believe for the patient's sake that you should be there, even if you go in and hold her hand and talk to her about what's going on. I mean, I think it is an important part of the management and I think it is just part of the conscious emotional and clinical management of the labour, of the patient and the situation".
49 In his written statement of evidence, Professor Ellwood also expressed the view that Dr Roberman should have seen the patient at the latest four hours after his review at 11.30 am. He qualified that evidence during cross-examination at the hearing. In his oral evidence, he made it clear that his principal concern was the time interval between the discovery of the advanced cervical dilatation, which occurred at 4.30 pm, and the next assessment by the respondent. In relation to the four hour period mentioned in his written statement he said "it's a fairly arbitrary time to assess somebody who may or may not have been progressing in labour and I would not want to draw a significant distinction between four hours or ... five hours. I don't think that is particularly material. It is really the time interval between finding the advanced cervical dilatation and being able to then assess the patient and perform the caesarean section that concerns me".
50 He agreed that the time period between the first review at 11.30 am and a subsequent examination is a matter which would depend on Dr Roberman's assessment as to the urgency of the situation and how likely it is that progression was being made with the labour. He accepted that, with a fetus at 25 weeks gestation, the appropriate approach is to delay delivery as long as possible without jeopardising fetal condition. He thought that a review after four hours would be a reasonable measure of best practice for review.
51 Professor MacLennan expressed the view that in the circumstances as they existed during the early afternoon of 11 October 1997, there was no essential reason to visit the patient. He did not think that that position changed by reason of the observations made prior to the 1.30 pm telephone conversation between Sr Della and Dr Roberman. He expressed the view that fetal tachycardia alone was a very weak sign of infection, and was a fairly normal expectation following the administration of terbutaline. Professor MacLennan was of the view that, having alerted the registrar to the situation, and given that at 1.30 pm there were no indications that the patient was in labour, it was not essential for Dr Roberman to attend at that point. Professor Ellwood and Dr Adam both accepted under cross-examination that the presence of tachycardia did not necessarily indicate infection or fetal compromise and could be a side affect of the administration of terbutaline, potentially aggravated by the mothers anxiety and increased heart rate.
52 The first allegation in the notice of inquiry places considerable emphasis on the fetal tachycardia as an indication of the need for Dr Roberman to attend the patient earlier than he did. Dr Roberman's position is that he was not specifically told of the level of fetal heartbeat, but rather only that it was elevated. As we have indicated we think it was likely he was aware of the level of tachycardia both when he saw the patient around 11.30 am and after the telephone conversation at 1.30 pm. Dr Roberman says, however, that even if those observations were conveyed to him, that would not have caused him any particular concern by reason of the administration of terbutaline which would make such observations not unexpected. That clinical assessment is supported at least to some degree by each of the experts called. Apart from the fetal heart rate, the other factor that the applicant contends should have prompted the respondent to visit the patient within four hours of the first attendance was the observation made at 11.30 am that the fetus was in an unstable transverse lie. No further assessment of the position of the baby was made until just before the 4.35 pm telephone call. At 1.30 pm the patient was not in labour. The management plan was to delay the onset of labour if possible, terbutaline had been administered shortly before, and Dr Roberman had left instructions that he be contacted if labour developed. While the patient was not in labour, the unstable oblique lie that had been observed at 11.30 am did not call for any particular action on Dr Roberman's part.
53 In our view, even if it might be said that an earlier attendance on the patient may have been desirable, or best practice, the failure by Dr Roberman to attend the patient in the absence of any advice that labour had commenced could not be said to amount to gross carelessness. The first allegation is not established to the required standard.
54 The second allegation involves a number of alternative assertions. The first is that, after the 4.35 pm telephone call, the respondent should have known that an urgent delivery by caesarean section was required and that he should have attended the patient to deliver the child by caesarean section.
55 Dr Roberman, in his evidence in chief, said that he did not know at 4.35 pm that the child should be delivered urgently by caesarean section, because at that stage he did not know the lie of the baby. The lie of the baby is crucial to the decision as to the mode of delivery. Professor MacLennan in his evidence identified four circumstances in which caesarean section was necessary with a very premature child. One of those was a persistent transverse lie. He said that, in this case, the lie detected by Sr Beer was an oblique lie. He agreed with Dr Roberman that, with a small fetus, the progression of labour may result in the fetus turning so that a normal vaginal birth could proceed. Professor Ellwood agreed that, at 4.35 pm, in the circumstances as known, and given that the lie was abnormal at first presentation at 11.30 am and appeared to be abnormal at 4.35 pm, it was possible that the lie could stabilise and vaginal delivery could have followed. He did not think that a decision to do a caesarean section could necessarily have been made at 4.35 pm, and that telling a midwife to inform the obstetric registrar of duty was an appropriate first step to take. He added that "another step that could have been taken would have been to have notified someone more senior to come to the labour ward and be present if the membranes ruptured and a caesarean section became more urgent". He added that, without knowing how quickly other levels of cover could have been activated, he could not comment on whether that was necessary or not at the time.
56 It is apparent from the evidence of Professor MacLennan, and to some extent the evidence of Professor Ellwood, that there exists a reasonable body of opinion, being an opinion shared by Dr Roberman, that in the light of the facts known at 4.35 pm on 11 October 1997, delivery of the child by caesarean section was not then necessary. The allegation, therefore, that at that time, Dr Roberman did not attend the patient to deliver the child by caesarean section, or arrange for another consultant to attend to deliver the child urgently, cannot be said to amount to gross carelessness. We are satisfied that, at that stage, insufficient was known as to the lie of the child, or more particularly the course that that lie may take, to make an immediate decision to deliver the child by caesarean section. It follows that the first part of the second allegation is not made out, a matter conceded by counsel for the applicant in closing submissions.
57 The second part of the second allegation is that the respondent knew or ought to have known that either he or some other consultant obstetrician, senior registrar or registrar should attend the patient urgently to assess whether the child should be delivered urgently by caesarean section, and that he failed to attend or arrange for some other appropriately qualified person to attend.
58 That Dr Roberman had the requisite knowledge of the need for urgent assessment is not in dispute. In the passage in his supplementary witness statement referred to above, Dr Roberman said that he knew of the desirability for an immediate medical assessment of the patient after the telephone conversation at 4.35 pm. It was for that reason, he said, that he told the midwife to notify Dr Yeap, expecting her to undertake the necessary assessment. That need was confirmed by both Professor MacLennan and Professor Ellwood, and was clearly implicit in Dr Adam's evidence. Given that Dr Roberman knew of the need for urgent medical assessment, the question becomes whether he did make the necessary arrangements, and if not whether the failure to do so constitutes gross carelessness.
59 Dr Roberman's evidence was to the effect that he expected Dr Yeap to undertake the assessment. If that assessment lead to the conclusion that an immediate urgent caesarean section was required, it is clear, and Dr Roberman accepts, that it would not have been appropriate for Dr Yeap to perform that operation. That is because a caesarean section on a patient at 25 weeks gestation is an operation which Dr Yeap had not performed, and would not have been expected to perform with her experience and qualifications. Dr Roberman's position is that he expected Dr Yeap to perform an assessment, and if, presumably by administering an ultrasound examination, she determined that the fetus was in a transverse lie with labour progressing rapidly, she would have been in a position to call upon appropriate expertise to deal with the situation. Dr Roberman contends that he had provided adequately for the prospect of an urgent caesarean becoming necessary. The way in which the respondent asserts that the appropriate medical cover was available for that contingency is as follows:
(i) Dr Roberman had provided to Dr Yeap a full clinical picture prior to leaving the hospital at 11.30 that morning.
(ii) He made a note in the inpatient case notes of that discussion with Dr Yeap.
(iii) There was on call in the labour ward that day a senior registrar and a consultant obstetrician, although they were not present in the hospital throughout the day.
(iv) There was in the labour ward that day a delivery suite instruction card in which the respondent nominated as his usual relievers two senior consultant obstetricians whose contact details were well known to the staff in the labour ward.
(v) At least one of those relievers, Dr L Brett, was, in all probability, in Perth that day and available to be called if needed, and
(vi) During the 4.35 pm telephone call, Dr Roberman had instructed Sr Beer to notify Dr Yeap.
60 There is no evidence that Dr Roberman asked Sr Beer specifically to request Dr Yeap to examine the patient or to perform an ultrasound examination to determine the lie of the fetus. Dr Roberman's evidence was that he expected Dr Yeap to do that on her own initiative upon being notified of the patient's situation.
61 Dr Yeap's evidence was that, while she did not specifically recall this occasion, she would only see one of Dr Roberman's private patients "if I was specifically called on to do so". Dr Yeap was cross-examined at length in relation to that evidence. It was put to her that:
(i) given that Dr Roberman had spoken to her about the patient at 11.30 am;
(ii) she was told that at 4.35 pm the patient was then in labour and eight or nine centimetre dilated; and
(iii) she knew in those circumstances a decision had to be made as to how the child was to be delivered;
the call from the midwife would normally lead her to go and examine the patient. Dr Yeap denied that proposition. She steadfastly maintained that, knowing that the midwife had already contacted Dr Roberman with her findings, she would await further specific instructions before doing anything, including examining the patient.
62 We accept Dr Yeap's evidence as to her approach to such matters at the relevant time. It is clear therefore that, if Dr Roberman expected Dr Yeap to attend the patient on being told of the observations, without a specific request to attend, his understanding, and that of Dr Yeap, were at odds.
63 There was a senior registrar and a consultant obstetrician on call for the labour ward that day. The evidence does not disclose if they were otherwise engaged in the hospital at the relevant time, and no inquiry as to that was ever made.
64 Dr Roberman also produced in evidence a copy of a delivery suite instruction card identifying Dr L Brett and Dr H Cullen as usual relievers. Dr Brett gave evidence at the hearing to the effect that he was the usual reliever for Dr Roberman so that if Dr Roberman was not in Perth or some emergency occurred in relation to one of his private patients, the staff would contact him and, if he was able, he would attend the patient. He remembered one occasion between 1994 and October 1997 when he was called upon to attend one or Dr Roberman's patients because Dr Roberman was unable to get to the hospital quickly enough. Dr Brett was unable to recall whether he was in Perth on 11 October 1997 although his records indicate that it was most likely that he would have been in Perth that day and would have been able to attend KEMH relatively quickly if asked to do so. While Dr Brett may well have been available in Perth on 11 October 1997, Dr Roberman did not ascertain that at any time during that day.
65 In our view, the steps taken by Dr Roberman to fulfil an acknowledged need, namely the need for immediate medical assessment at 4.35 pm, were inadequate. There was a substantial risk at 4.35 pm, given the state of the labour, that the patient's membranes might rupture at any time. If the fetus was in a transverse lie, or an oblique lie which did not correct itself, there was a serious risk of cord prolapse or abnormal presentation calling for an urgent caesarean section to be performed, as Professor Ellwood put it, within minutes. The lie of the baby, which at 4.35 pm, was at best uncertain, could have been ascertained by medical assessment. In our view, to rely upon an assumption that, on being notified of the midwife's findings, a registrar would, assuming she was not otherwise committed somewhere in the labour ward, undertake an assessment and take appropriate steps in the light of that assessment left too much to chance. It would have been simple for Dr Roberman to stipulate that he wanted an examination performed, and to ask that he be contacted on his mobile phone with the results on that examination so that he could, if necessary, give further directions to the registrar as to how to proceed. Those instructions were not given, and instead Dr Roberman made a decision to come to the hospital himself, knowing that would take over an hour.
66 We are not satisfied that, in fact, Dr Roberman did expect Dr Yeap to perform an examination without being specifically asked to do so. The likelihood is that the note made by Sr Beer, that "Dr Yeap is aware of finding in case she is needed" reflected an instruction from Dr Roberman. That was the way Dr Roberman himself put it in his initial statement of evidence before he amended it at the hearing as a result of the notice of inquiry being amended.
67 If Dr Roberman expected Dr Yeap to attend and examine the patient, one might expect that he would have asked the midwife to ring him, or have Dr Yeap ring him, to let him know what was happening, and in particular to report as to the position of the baby. Given that this was Dr Roberman's private patient, it is likely that, if examination revealed a transverse lie, he would have wished to be involved in the decision as to who should be called, or whether, in the circumstances as determined on medical assessment, there was sufficient time for him to attend the patient personally.
68 Dr Roberman, when cross-examined on the point, said that he mentioned to Dr Yeap's supervisor that she had failed to attend the patient, although he did not say when that was or what was actually said. He agreed that he never said anything directly to Dr Yeap about what he described as abrogating her responsibilities, notwithstanding his evidence that he was "really upset" about that fact.
69 Nothing was said by Dr Roberman to Sr Beer in his telephone conversation at 5.40 pm to suggest that he had expected Dr Yeap to have examined the patient before then. Specifically, no enquiry was made as to the findings on ultrasound that Dr Roberman said that he expected Dr Yeap to perform after the 4.35 pm telephone conversation. The absence of such an enquiry is inconsistent with an expectation of Dr Roberman's part that Dr Yeap would have performed an ultrasound by that time.
70 We are mindful that each of the experts called was cross-examined at some length about the adequacy of the "medical cover" of the nature referred to above. It is a fair summary of that evidence to say that all expert witnesses effectively agreed that causing Dr Yeap to make a medical assessment following the 4.35 pm telephone call, with the emergency backup that was available if required, would have been an adequate response to the situation. In our view however, there was no adequate request for Dr Yeap to attend, so the required medical cover was not activated and was not tested. Although both Professor MacLennan and Professor Ellwood suggested that they would expect a registrar who was notified of such findings to attend a patient without being specifically asked, they also accepted that practices vary from hospital to hospital. It is clear that, at KEMH in 1997, neither Dr Yeap nor Sr Beer expected Dr Yeap to attend on this occasion in the absence of a specific request. Professor McLennan said that he would have expected Dr Roberman to have asked specifically for Dr Yeap to attend, and we consider that such a request was called for in the circumstances of this case.
71 Reliance was placed by Dr Roberman on an extract from a document published in 1998 and entitled "Instructions and Administrative Procedures for Resident Medical Officers, Medical Training Registrars and Fellowship Training Registrars" to the effect that resident staff should be involved in the care of private patients. The document was apparently provided to all medical staff at KEMH. Although published in 1998, Dr Roberman said, and we accept, that an earlier version was in use in 1997 and was not relevantly different. That document, which was not put to Dr Yeap in cross-examination, falls short of directing resident medical staff to assume initiative in relation to private patients where, as in this case, the consultant obstetrician has been advised of the position, is on his way to hospital, and has provided direction to a midwife in relation to steps to be taken. Its contents do not provide a basis for an assumption that, in the circumstances of this case, Dr Yeap would treat notification of the patient's condition as a request to attend the patient and perform an ultrasound.
72 It is the case that appropriately senior medical assistance may well have been available if called upon. At no stage did Dr Roberman suggest that any of those senior obstetricians be contacted to make sure that, if urgent action was required, they might be on standby. The risk that required management was the risk that the fetus might be in a transverse lie and that therefore, if the membranes ruptured, there might be a cord prolapse resulting in risk to the fetusfetal and danger to the patient's health. Dr Roberman did not at 4.35 pm know what the lie of the fetus was. He therefore did not know the extent of the risk, and took no steps to find out. Whether or not Sr Beer told him of her assessment on palpation that the head was in the right iliac fossa, all experts and Dr Roberman agree that medical assessment was essential to deal with that risk. Dr Roberman, by telling the midwife to take certain steps, and that he was on his way, was maintaining the role of treating obstetrician. Had the risk manifested itself shortly after 4.35 pm, Dr Roberman was too far away to personally do what was required. No doubt the midwifes would have called Dr Yeap and she in turn would probably have called Dr Roberman who would have instructed her to call the on call senior medical staff member or his relievers. How quickly all of those people could react to the situation is unknown, and was at the time unknown to Dr Roberman, because nothing is known of their other commitments at the time. What is known (although was not known by Dr Roberman at the time) is that Dr Yeap was herself quite busy during the course of that day.
73 The risk of cord prolapse and fetal distress involved serious risks to the patient and the child. How great that risk was at 4.35 pm could only be assessed by a proper medical assessment. Dr Roberman failed to ensure that that assessment was performed, and in that sense failed to provide adequate care of his patient.
74 The question then is, does that failure amount to gross carelessness. In our view it does. Dr Roberman knew of the need, at 4.35 pm for urgent assessment. The potential risk to the patient and the child was serious. It would have been easy for Dr Roberman to arrange the necessary medical assessment and to ensure adequate management of that risk. The failure was, in view of the potential risk, of sufficient gravity to warrant denunciation from professional colleagues of good repute and competence.
75 For the foregoing reasons, the respondent is found guilty of gross carelessness in a professional respect in relation to the care of the patient on 11 October 1997 in that he knew that a consultant obstetrician, senior registrar or registrar should attend the patient urgently to assess whether the child should be delivered urgently by caesarean section and he did not arrange for another consultant obstetrician, senior registrar or registrar to attend for that purpose. The respondent is not guilty of the other allegations in the amended notice of inquiry.
I certify that this and the preceding 24 pages comprise the reasons for decision of the State Administrative Tribunal.
CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and ROBERMAN [2005] WASAT 81 (S)
Professions - Medicine - Disciplinary proceedings - Gross carelessness - Penalty
State Administrative Tribunal Act 2004 (WA) s87(1), s87(2)
Practitioner reprimanded and required to give undertaking to be of good behaviour for 12 months and to comply with condition of practice at obstetrics.
1 On 5 May 2005, we delivered reasons for decisions in this matter, concluding that the respondent was guilty of gross carelessness in relation to the care of a patient on 11 October 1997 in that he knew that another consultant obstetrician, a senior registrar or a registrar should attend the patient urgently to assess whether the patient's child should be delivered urgently by caesarean section but he did not arrange for another consultant obstetrician, a senior registrar or a registrar to attend the patient urgently for that purpose - see Medical Board of Western Australia v Dr Brian Roberman [ 2005] WASAT 81. We also concluded that Dr Roberman was not guilty of gross carelessness in relation to two other allegations made in relation to the same patient on the same day.
2 The notice of inquiry, which formed the basis of the proceedings, was issued by the applicant on 7 July 2004. It originally comprised only two allegations. The first was that the respondent was guilty of gross carelessness in failing to attend the patient within four hours of his first attendance. The second was that he was guilty of gross carelessness or incompetency because he knew or ought to have known that at 4.45 pm on 11 October 1997 the patient's child needed to be delivered by urgent caesarean section but failed to urgently deliver the child by caesarean himself, or alternatively failed to arrange for another consultant obstetrician or a senior registrar to deliver the child by urgent caesarean.
3 The matter was originally listed for hearing before the Medical Board of Western Australia, which was the body responsible for hearing all disciplinary proceedings against medical practitioners prior to 1 January 2005. In opening the inquiry, Counsel assisting the Medical Board sought to amend the basis of the inquiry to include a further alternative to the second allegation. That application was resisted by the respondent on the basis neither he nor his expert witnesses had the opportunity to properly consider the alternative allegation. The Board agreed to allow amendments to the Notice of Inquiry, but adjourned the proceedings so as to provide the respondent with a reasonable opportunity to consider the new allegation.
4 An amended notice of inquiry was provided to the respondent on 9 November 2004. We were told that the terms of the amendment differed from the form of amendment proposed by counsel assisting on 18 October 2004. The amended notice that was submitted to the Board was not in the papers before us. We gather, however, that the substance of the new allegation in the 9 November 2004 notice was not markedly different from that foreshadowed at the 18 October 2004 hearing.
5 The allegation which we have found proved against Dr Roberman was the new allegation first foreshadowed on 18 October 2004 and set out in the amended notice 9 November 2004. We have found that the allegations originally brought against Dr Roberman were not established.
6 On a finding of gross carelessness against a practitioner, the Tribunal may, under s 13(3) of the Medical Act 1894 (WA), do any one or more of the following:
(a) remove the practitioner's name from the register;
(b) suspend the practitioner's registration for a period of up to 12 months;
7 In addition, pursuant to s 13(4), the Tribunal may, instead of deregistering or suspending a practitioner, require the practitioner to give a written undertaking to the Medical Board to be of good behaviour for such period or the Tribunal thinks fit and to comply during that period, with such restrictions and conditions relating to practice and training as the Tribunal thinks fit.
8 The function of the Tribunal in imposing the sanctions provided for s 13 of the Act is to protect the public interest, and not to punish the practitioner - see NSW Bar Association v Evatt [1968] HCA 20; [1968] 117 CLR 177 at 183 - 184. The general principle applicable in determining the appropriate penalty were identified by Owen J in Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library number 920584, 13 November 1992 at 146 - 147 when he said;
"The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements. See Pillai v Messiter (No 2 ) (1989) 16 NSWLR 197 at 201.
There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community see Zidermann v Genesal Dental Council (1976) 1 WLR 330 at 333. A further consideration is the need to deter others who may be of a like mind to transgress in the future see Giordino v Medical Board (1883-84) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of UK [1957] 2 QB 550 at 563.
'There is something more important than the standing of a profession about which the counsel is naturally and properly concerned there is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.'
There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalties. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly."
9 Dr Roberman is 61 years old. He has enjoyed an impressive career. He graduated from the University of Western Australia in 1966. From 1968 to 1971 he worked as a registrar in obstetrics and gynaecology at the King Edward Memorial Hospital (KEMH). He worked and studied in England and became a member of the Royal College of Obstetricians and Gynaecologists at the end of 1973.
10 Dr Roberman worked as senior clinical lecturer in obstetrics and gynaecology in Papua New Guinea between 1974 and 1976. He then returned to KEMH in 1977 and was appointed Acting Deputy Medical Director for a period of 12 months. In 1978 he was appointed as the first full time obstetrician and gynaecologist at KEMH.
11 In 1979, Dr Roberman became a foundation fellow of the Royal Australian College of Obstetrician's and Gynaecologist's. In 1981 he completed a perinatal fellowship the Harbor Medical Centre at the University of California and Los Angeles. He became a fellow of the Royal College of Obstetricians and Gynaecologists in 1988. He was appointed the director of obstetrics at KEMH in 1996 and held that post until June 2002.
12 It is apparent from many of the references and letters of support tendered to us that Dr Roberman took a particular interest in the treatment of diabetic patients during pregnancy.
13 From June 2002 till 18 March 2004, the respondent was the director of post-graduate education at KEMH.
14 During his career, Dr Roberman has taken an active role in professional organisations and training. He is a member of the Australian Society for the Study of Hypertension in Pregnancy, the Australian Diabetes in Pregnancy Study Group, the Australian Menopause Society, the Australian Perinatal Society and the Australian Medical Association. In addition, he has in the past been a training supervisor for the Royal Australian College, an examiner for the Royal Australian College for the specialist examination of membership of the College, Chairman of the KEMH clinical Association, Chairman of the Medical Advisory Committee of KEMH, a member of the combined Boards of KEMH and Princess Margaret Hospital for Children, the Western Australian representative on the Council of Obstetricians and Gynaecologists at the Royal Australian College, and Chairman of the Health Care Committee of the Royal Australian College.
15 We have been provided with a total of 72 letters or references supporting Dr Roberman. Slightly over half of those come from patients or friends and the balance is from medical colleagues who have known or who have dealt with Dr Roberman for varying lengths of time. Of those, approximately 10 are from other obstetricians or specialists who have worked with Dr Roberman at KEMH or elsewhere. All speak very highly of him. Although many testimonials were written before the present proceedings commenced, it is clear that all authors maintained their comments in the knowledge of the finding subject to these proceedings, and also of an earlier finding of gross carelessness made against Dr Roberman in relation to an incident in 1994. It is clear that many of those who have provided letters of support have great difficulty in accepting the correctness of the Tribunal's decision. That may be simply an indication of the strength of the regard in which they hold Dr Roberman and their own experience as to the level of care and attention that he has provided to them, or in the case other medical practitioners, to their patients.
16 What emerges from the many letters of support is that Dr Roberman is admired by many for the level of commitment and devotion to his work that he has displayed over his long career. Many comment upon his dedication to service in the public hospital system at the cost of financial gains which could be made in private practice. Many patients note their experience of finding Dr Roberman readily accessible and speak of his care and compassion as well as his professional and clinical skill in his dealings with them. Many speak of Dr Roberman's expertise in the area of diabetes in pregnancy, some from the perspective of patients in that condition, and others as professional colleagues who referred diabetic patients to Dr Roberman, or worked with him in relation to such patients.
17 The sentiments of many of those who wrote letters can be summarised in a paragraph of a letter written by Dr Barry Walters, a Clinical Associate Professor in obstetric and general medicine at Royal Perth Hospital who said of Dr Roberman;
"Dr Roberman is a practitioner of many years experience. His clinical ability is beyond reproach. As I provide medical input to the care of complicated pregnancies, I have seen many of his patients. I have always found his approach to be kind and caring in dealing with them, and many have spontaneously reported the same observations to me. He takes considerable time and care in his consultations. He has always given deep consideration to every clinical problem that arises in our complicated practice. He demonstrated exceptional knowledge of the world's research literature as it relates to diabetes in pregnancy, and all related obstetric problems. There is no other obstetrician in Western Australia, and few any where else, with his practical experience in the care of women with diabetes in pregnancy, his knowledge, insight or judgment in that area"
18 In 2000, the State Government established the inquiry into obstetric and gynaecological services at the KEMH, which became known as the "Douglas Inquiry". It is notorious that, during the course of that inquiry KEMH received a considerable amount of adverse publicity. The respondent was the Director of Obstetrics at the hospital at that time, and also received adverse publicity, which ultimately resulted in him resigning as Director of Obstetrics in June 2002. He has not practiced obstetrics since.
19 We were told that, as a result of the Douglas Inquiry, a number of matters were referred to the Medical Board and in January 2003, the Board embarked upon an inquiry in relation to an allegation as to a matter occurring in 1994. The Board's decision in that matter was delivered on 17 March 2004. Dr Roberman was found guilty of gross carelessness and his registration was suspended for nine months. That finding, and the penalty imposed, were the subject of an appeal to the Supreme Court of Western Australia heard in October 2004. The decision of the Supreme Court was delivered on 24 March2005 (see Roberman v The Medical Board of Western Australia [2005] WASC 45. The Board's finding of gross carelessness was upheld by the Court, but the appeal against the penalty was successful. In lieu of the suspension ordered by the Board, the Court concluded that a fine of $10 000.00 would have been the appropriate penalty in conjunction with a reprimand and a requirement that Dr Roberman not practice obstetrics for a period of 12 months as a condition of a written undertaken to be of good behaviour during that period. In view of the fact that Dr Roberman had already served two and a half months of his suspension prior to a stay being obtained pending appeal, the fine was reduced from $10 000.00 to $7500.00. In reaching that conclusion, Jenkins J said at [168];
"In my view, the respondent erred in concluding that only suspension could meet the objective of the protection of the public. The respondent accepted that a personally deterrent penalty was not required and that public protection in this case did not mean that the penalty should prevent the appellant from practising; the appellant having no intention to practice obstetrics in any event. Thus there were only two aspects of the protection of the public left for consideration. The first was general deterrence of like-minded practitioners and the second was restoration of the public's confidence in the high standards of the profession. I do not suggest that these are not important matters to be considered in the process of fixing a penalty but they must be placed in the factual context. The context was that the misconduct occurred approximately 10 years earlier. [F's] allegations had been known to the appellant's employer and others in that period and no complaint had been made to the respondent about the appellant's conduct in regard to this matter. However, since the Douglas Inquiry the appellant had received a great deal of adverse publicity and had been dismissed from his position because of the respondent's finding. His career, at the age of 61, was effectively over. These consequences to the appellant would be a very effective deterrent to any like-minded practitioner, especially when the respondent was able to impose a significant monetary penalty and to reprimand the appellant."
20 The essence of the finding against Dr Roberman is he failed to arrange for medical assessment to be undertaken. The delay in the necessary assessment taking place left the patient and her unborn child at significant risk. His failure to do what could have easily been done was, given the attendant risk, grossly careless. What occurred was a serious error of judgment amounting to gross carelessness. The conduct in this case can be contrasted to some extent with the finding in the earlier case, which was that Dr Roberman failed to attend hospital to review a patient despite a specific request from a junior doctor to do so. By comparison, this case may be thought to be a less serious case of gross carelessness. To the extent that the two matters have a common thread, it is that both reflect a problem of responding inadequately to the needs of patients when he was outside the hospital and consulted by telephone.
21 The conduct should also be seen in the context of the many, probably thousands of patients in respect of whom his treatment has been unquestioned, and in the cases of those who letters are before the, Tribunal, has earned high praise.
22 The applicant submits that, in light of the fact that this is a second finding of misconduct against Dr Roberman, a fine would be inadequate to preserve public confidence in the profession, even if it were coupled with an undertaking not to practice obstetrics. The Board argues that suspension is the appropriate disposition.
23 As mentioned above, Dr Roberman has not practiced obstetrics since June 2002 when he resigned as Director of Obstetrics at KEMH. He has not practiced medicine at all since his dismissal by the Health Department in March 2004. He has now apparently been offered work as a gynaecologist, but has not accepted that position pending the outcome of this matter. He received only his accumulated leave entitlements on his dismissal by the Health Department. His inability to work and the burden of the fine already imposed has, we were told, resulted in a financial strain that means that any fine would be a severe penalty. The respondent's submission is that no fine is necessary to meet the public interest, and the matter can be adequately disposed of by a reprimand coupled with a requirement for Dr Roberman to be of good behaviour and not to practice obstetrics for an extended period.
24 The applicant accepts that, if Dr Roberman ceases the practice of obstetrics, any needs for measures to protect the public is satisfied. Its submission is not that there should be a period of suspension because practice by the respondent generally puts the public at risk. Rather, the applicant observes that both findings against him arose in relation to obstetrics patients, and therefore if he is not engaged in obstetrics there is no prospect of repetition. By his suggestion of an undertaking not to practice obstetrics, Dr Roberman is implicitly accepting that reasoning. It should be observed however that neither our finding in this matter nor the earlier finding suggests any deficiency in the respondent's level of knowledge or skill in the area of obstetrics. Rather the problem in both cases is related to his decisions as to management of patients when remote from the hospital. It is not the practice of obstetrics itself, in the sense of knowledge or skill that has given rise to the problems. No doubt the issue of remote consultation is more likely to arise more frequently in the practice of obstetrics than it will in the practice of gynaecology, since unexpected presentations to hospitals and the unpredictability of treatment requirements are more likely with obstetrics patients. The potential for problems arising from remote management are therefore likely to be reduced if Dr Roberman is not practising obstetrics.
25 In the circumstances, no question of removal from the register arises. The Board urges suspension as an appropriate penalty to deter other practitioners from such conduct, and to maintain public confidence in the medical profession by demonstrating the seriousness with which such transgressions against are treated. In our view, suspension is not required to achieve either objective. The finding in this case, the attendant publicity, appropriate restrictions on his practice in future and a reprimand, when considered in the context of the consequences to Dr Roberman of the Douglas Inquiry and the previous finding against him, are a sufficient demonstration of the seriousness in which these matters are dealt with to provide the necessary deterrence and maintain public confidence.
26 We have considered whether a fine is also appropriate. In our view a fine, on top of the other matters just referred to, would do no more than punish Dr Roberman beyond the level necessary to achieve the proper purposes of penalties in the context of disciplinary proceedings.
27 Many of the letters of support indicate, and we accept, that Dr Roberman has a high level of competence in the field of obstetrics, and has done and is capable of doing much valuable work in the area of pregnancy of diabetic patients. It is apparent that his present inclination is not to work in the field of obstetrics and he is content to give an undertaking to that effect. If he were to wish to resume obstetrics, it would be desirable for there to be some level of monitoring, or supervision, of his practices in relation to management of hospitalised patients when he was away from the hospital. In that way, the value of his expertise might be utilised and at the same time the risk of similar conduct as has led to the two findings against him could be minimised. Just how a condition to that effect might be expressed or might operate would depend on the particular circumstances in which he proposed to work. That is a matter best left to the Medical Board to determine in the light of any proposal to work in the field of obstetrics that Dr Roberman may make in the future.
(a) Dr Roberman is required to give a written undertaking to the Medical Board to be of good behaviour for a period of 12 months and during that period not to practice obstetrics without first obtaining the approval of the Medical Board and on such restrictions and conditions as the Medical Board may impose, and
29 The applicant seeks an order that Dr Roberman pay 50 percent of the Board's costs of the proceedings on the basis that the applicant has been successful on one of the alternatives in the second allegation, and has failed in the first allegation. The respondent opposes any order for costs on the basis that s 87(1) of the State Administrative Tribunal Act 2004 provides that the parties bear their own costs in a proceeding before the Tribunal in the absence of an order of the Tribunal to the contrary.
30 Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
31 In this case the Board was unsuccessful in relation to the first allegation. It was unsuccessful in relation to that part of the second allegation that formed the whole of the second allegation prior to the amendment foreshadowed at the initial listing of the matter before the Board on 18 October 2004. That part of the second allegation involved quite discrete issues and evidence. In the circumstances it is appropriate that the respondent pay one third of the applicant's costs.
32 The applicant prepared a bill of costs based upon the Supreme Court scale. It was submitted that the total of the applicant's costs in fact exceed the $61 618.00 total of that draft bill of costs. That is an appropriate starting point for the determination of the amount to be paid. Rounded off, one third of the amount that Dr Roberman would be required to pay would be $20 000.00. The respondent did not accept the total of the bill as representing the proper costs and sought the opportunity to be heard on the question of quantum if costs were to be ordered. We will hear the parties further in relation to the fixing of the amount of the costs to be paid.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1938) 60 CLR 336
(1989) 16 NSWLR 197