The key issues
Whether the NSW Tribunal:
- applied the correct statutory test; and
- misinterpreted the expert evidence
in finding that a cardiologist had engaged in unsatisfactory professional conduct in relation to 2 complaints made against him arising from his treatment of Patient A.
The background
A cardiologist (the Practitioner) appealed against a Tribunal finding that he had engaged in unsatisfactory professional conduct in relation to two (2) complaints made against him, being:
- That he inserted a permanent pacemaker in Patient A without sufficient clinical indication; and
- He approved Patient A’s transfer between hospitals following the procedure with no definite arrangement for another appropriately qualified specialist to review her prior to discharge.
The Practitioner had reviewed 92 year’ old Patient A and considered that a permanent pacemaker was appropriate on the basis that she had demonstrated intermittent complete heart block. He then performed the procedure prior to leaving the country the following day to attend a conference. Whilst he had contacted a specialist colleague to review his patients whilst he was away, the colleague had indicated that he would not be able to review Patient A.
In concluding that the Practitioner had inserted the pacemaker without sufficient clinical indication, the Tribunal referred to the fact that all experts agreed that they would not have inserted a pacemaker in Patient A based on her clinical presentation at the time. It was agreed before the Tribunal that the ECG traces before it did not show complete heart block, intermittent or otherwise.
The Court of Appeal found that whilst relevant, this was not decisive of whether the insertion of the pacemaker was within the range of reasonable responses that a practitioner of the Practitioner’s training and expertise could have had to the situation with which he was presented.
A review of the expert evidence found that four of the five experts put the Practitioner’s conduct within a range of reasonable conduct using expressions such as ‘could justify’, ‘not unreasonable’ and ‘a value judgment’.
The Tribunal’s finding that the experts themselves would not have implanted the pacemaker, implied that the experts considered the conduct unreasonable and significantly below the relevant standard, when this was not their evidence. This finding could therefore not be sustained on the evidence.
In relation to Complaint 2, that the Practitioner had not organised adequate review arrangements when transferring Patient A, the Court noted that before the Tribunal the Practitioner had admitted that he did not have definite arrangements in place and that he had departed from normal practice. It also noted that all experts were critical of his conduct in relation to this issue.
In the circumstances, the Court found that the conditions imposed on the Practitioner’s registration should be removed as they related solely to the finding on Complaint 1 which could not be sustained.
In relation to Complaint 2, the reprimand which had been imposed was set aside and a caution given on the grounds that the Practitioner had not completely neglected to arrange review of Patient A, but rather had made inadequate arrangements.
The outcome
- The conditions imposed by the Tribunal were removed from the Practitioner’s registration
- The reprimand was set aside and a caution issued
- The Board was ordered to pay 75% of the Practitioner’s costs of the appeal with a corresponding costs order made with respect to payment of the Board’s costs in the Tribunal proceedings by the Practitioner
Implications
The requesting of expert opinion is an integral part of most disciplinary and civil litigation involving health practitioners and it is important that a degree of precision is used when considering the issues that the expert is required to address. In most cases, it will be necessary for the expert opinion to clearly identify the standard to be met by practitioners and to comment on whether or not they consider the conduct in question was in keeping with this standard. Addressing these issues with the expert at the time of seeking their opinion can assist in reducing the risk of misinterpretation of their evidence at the time of hearing.
The full decision in Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 can be read here.
