The applicant practitioner is a medical practitioner registered under the National Law. He commenced training in aesthetic medicine in 2013 and started working at "The Cosmetic Institute" ("TCI") in January 2014.
On 30 January 2015 Patient A attended TCI on 30 January 2015 to have a bilateral breast augmentation procedure be performed on her by the practitioner. There was an anaesthetist present participating in the procedures.
The practitioner made an approximately 4 cm incision under the right breast fold and then used a diathermy to free the muscle from the chest wall, creating a pocket for the implant. He then placed the implant inside the pocket. The incision on the right side was left open as it was the practitioner's usual practice to close both incisions at the end of the procedure to enable him to come back to address any bleeding issues that may occur prior to closure.
The practitioner then made an approximately 4 cm incision in the left side under the breast fold and used the diathermy to free the muscle to create the pocket for the implant.
Patient A suffered a cardiac arrest.
That occurred at 10:10 am. CPR was commenced immediately and the patient was intubated. She was treated with DC cardioversion and she reverted back to sinus rhythm after one shock. Dr Tang, a cosmetic surgeon, and Dr Elalingam, a specialist anaesthetist, had been operating in the adjacent theatre and were between cases at the time. Both immediately came into the applicant's operating theatre to assist.
An ambulance was telephoned for at 10:12 am and at 10:14 am a general duties ambulance and an intensive care ambulance were assigned. The general duties ambulance arrived at 10:18 am.
Dr Riley made a presumptive diagnosis of anaesthetic toxicity and at 10:20 am administered a 450 ml Intralipid Infusion to the patient over the next 30 minutes, with a view to capturing the anaesthetic and effectively flushing out any toxicity from the patient's system.
Once this was done there was a discussion between the medical practitioners present, primarily between the applicant and Dr Riley, though Dr Elalingam and Dr Tang were also consulted, as to whether to complete the surgery before patient A went by ambulance to a public hospital. They agreed to leave the patient's two incisions open and to continue and complete the surgery.
The intensive care ambulance arrived at TCI with intensive care paramedics onboard and requested another ambulance fitted with capnography equipment (Life Pak) to deliver the Life Pak to the intensive care ambulance paramedics. This ambulance was assigned at 10:27 am.
At approximately 10:30 am the surgery was re-commenced. The implant for the left side was placed in the left side by the applicant while the right side was being sutured by Dr Tang. The applicant sutured the left side. The Life Pak arrived in a mental health ambulance at 10:43 am and was brought inside TCI. At 10:45 am a muscle relaxant was administered to the patient by Dr Riley in preparation for transport to hospital. At 11:06 am the intensive care ambulance departed TCI with the patient and with Dr Riley on board. The patient arrived at Westmead Hospital at 11:13 am.
The patient made a complete recovery.
The Health Care Complaints Commission commenced disciplinary proceedings against the practitioner alleging unsatisfactory professional conduct in relation to his conduct regarding Patient A that morning.
Those proceedings were heard in the Professional Standards Committee and its decision of 5 July 2017 includes a finding of unsatisfactory professional conduct by the applicant and imposed a reprimand and conditions on his registration.
The applicant lodged his administrative review application on 21 August 2017. The appeal is made pursuant to s 158 of the Health Practitioner Regulation National Law.
The issue that arose in the proceedings was whether delaying the patient's movement to an acute care facility by completing the cosmetic surgery before the patient was moved was unsatisfactory professional conduct. The allegation against the practitioner was that his conduct was within paragraph (a) of the definition of unsatisfactory professional conduct in s 139B(1) of the National Law in that it was:-
"Conduct that demonstrates the knowledge, 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".
The appeal against the decision of the Professional Standards Committee is brought to the Tribunal under s158(1) of the National Law.
Section 158(2) of the National Law provides:-
"The appeal is to be dealt with by way of re-hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the enquiry, may be given".
There was considerable evidence before the Tribunal at the appeal. But the issue was a narrow one.
The practitioner relied upon on a host of expert opinions from Australian and overseas practitioners that the conduct of the practitioner was not below or not significantly below the standard reasonably expected of a practitioner of similar training or experience.
On the other hand, the respondent relied on only two expert opinions, being those of Dr Kim Son Vu and Dr Harvey Stern.
Dr Vu, in his expert report of 27 April 2018, raised some criticisms of the applicant's conduct, but was not of the opinion that the knowledge or judgment possessed or the care exercised by the applicant was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Dr Stern's report of 27 March 2018 also contained some criticisms of the applicant's conduct and was of the opinion that it was below the standard of behaviour of a practitioner undertaking the particular form of surgery. But he was not of the opinion that the conduct was significantly below the relevant standard.
Before the hearing the respondent obtained a second report of Dr Stern dated 30 April 2018. Dr Stern again was not of the opinion that the conduct of the applicant was "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
In light of the evidence as to the issue of whether the applicant's conduct was significantly below the relevant standard, the Health Care Complaints Commission did not oppose a finding that the subject matter of the complaint was not proved and joined with the applicant in proposing orders 1, 2 and 3, although not consenting to the order.
[2]
The Decision
The Tribunal has satisfied itself from the evidence available that there is no evidence that would persuade the Tribunal that the relevant conduct of the applicant was significantly below the standard reasonably expected of a practitioner of similar training or experience. Therefore the subject matter of the complaint was not proved, the appeal was allowed and the complaint was dismissed.
[3]
Costs
The Tribunal's power to award costs is in cl 13 of Sch 5D of the National Law. It provides that generally costs follow the event (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the respondent opposed the application for an order that it pay the whole of the applicant's costs.
One of the matters raised by the respondent as justifying a lesser order was the material that was relied upon by the applicant at this hearing in the review proceedings, was largely expert reports, which had not been available at the original hearing before the Professional Standards Committee. The Professional Standards Committee enquiry was conducted on 15 and 16 June 2007. Of the 32 documents of the applicant's "Brief of Primary Evidence" in this hearing, none of the expert evidence was provided to the Professional Standards Committee at its hearing. Clearly the applicant, by not making any such evidence available at the Professional Standards Committee hearing has unnecessarily inflicted additional costs on the respondent.
In consideration of this factor, the Tribunal concluded that that is a circumstance that displaces the usual rule that an unsuccessful party pays the costs of the successful party. The Tribunal determined that a fair answer is for the respondent to pay only one half of the applicant's costs. An order was made accordingly.
[4]
Privacy and the Patient - Non-Publication Order
It is appropriate that the privacy of the patient be protected and therefore, at the time of these reasons being published a non-publication order has been made to do that.
[5]
Orders
Accordingly the orders of the Tribunal were:-
1. The appeal is allowed.
2. The subject matter of the complaint is not proved.
3. The complaint is dismissed.
4. The Health Care Complaints Commission must pay one half of the applicant's costs of or incidental to the appeal.
5. Broadcast or publication of the name or other identifying information without the leave of the Tribunal of the name or other identifying information in relation to the patient referred to in these reasons is prohibited.
[6]
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
[7]
Amendments
01 August 2018 - Typographical error on coversheet
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: 01 August 2018