The complaint in respect of each patient was separated into two issues:

  1. the medical treatment provided to the patient; and
  2. the failure to maintain adequate medical records for that patient.

The matters that were the subject of each complaint which related to the doctor’s professional competence raised matters of some complexity relevant to the specialist medical discipline of ophthalmology. The majority of the complaints involved serious errors of judgement, some of which included multiple attempts by the doctor to reattach the retina of the respective patients after initial attempts had failed. The repeated procedures were undertaken without referring the patient for a second opinion before doing so, resulting in serious outcomes for these patients.

The HCCC argued that the treatment received by each of the 13 patients constituted unsatisfactory professional conduct. The 14th complaint asserted that by reason of the number of instances of unsatisfactory professional conduct and the serious nature of that conduct, those instances, when considered together, amounted to professional misconduct, justifying the suspension or cancellation of his registration. The HCCC sought an order that the doctor pay its costs of the proceedings in the order of approximately $190,000.

The doctor admitted 12 of the 13 complaints directed to the inadequacy of his surgical records for the nominated patients. However, he denied all but one of the 13 complaints directed to patient treatment and said that in pursuing the repeated procedures in each case, he was motivated by a desire to provide the patient with a better surgical outcome than had initially been achieved, even where such a result was unlikely to be achieved.

The Tribunal found the doctor guilty of unsatisfactory professional conduct in respect of 10 of the 13 complaints directed to his professional competence in performing surgical procedures and that, when considered together, his conduct amounted to professional misconduct. However, the Tribunal was not persuaded that the doctor’s conduct would justify suspension of his registration and was satisfied that the health and safety of the public would be appropriately protected if he was permitted to retain his registration, subject to appropriate conditions.

In determining the issue of costs, the Tribunal acknowledged that the HCCC was not successful in establishing three of its complaints as well as some of the separate particulars that were given for the complaints that were otherwise found to be established. The Tribunal made an allowance for these matters and ordered that the doctor pay 70% of the HCCC’s legal costs as agreed or assessed.

To read the full decision in Healthcare Complaints Commission v Hollenbach [2019] NSWCATOD 118, click here.