Medical Board of Australia v Cooke (No 1)
[2015] QCAT 103
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- Medical Board of Australia v Cooke (No 1)[2015] QCAT 103
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Medical Board of Australia v Cooke (No 1)[2015] QCAT 103
Medical Board of Australia v Cooke (No 1)[2015] QCAT 103
CITATION: | Medical Board of Australia v Cooke [2015] QCAT 103 [No.1] |
PARTIES: | Medical Board of Australia (Applicant) |
v | |
Dr Robert John Cooke (Respondent) |
APPLICATION NUMBER: | OCR009-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 25 and 26 March 2014, 18 June 2014, 17 November 2014 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Dick SC Assisted by: Dr Harpreat Mougdil Dr Sandra Congdon Mr Paul Murdoch |
DELIVERED ON: | 27 March 2015 |
DELIVERED AT: | Southport |
ORDERS MADE: |
|
CATCHWORDS: | HEALTH PRACTITIONER – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – post-operative care – appropriate treatment for infection Health Practitioners (Professional Standards) Act 1999 (Qld) |
APPEARANCES and Representation (if any):
APPLICANT: | Ms Bowskill QC and Mr Chowdhury of counsel, instructed by McInnes Wilson |
RESPONDENT: | Mr Ashton of counsel, instructed by K&L Gates |
REASONS FOR DECISION[1]
- [1]The Board, having given notice of intention to conduct disciplinary proceedings before a professional conduct review panel, the respondent by letter dated 19 August 2011 has elected to have the matter referred to this Tribunal.
- [2]The grounds for disciplinary action against the respondent are pursuant to s 124(1) of the Health Practitioners (Professional Standards) Act 1999 (Qld) Health Practitioners (Disciplinary Proceedings) Act 1999 (hereinafter called “the Act”). It is alleged that the registrant has:
- behaved in a way that constitutes unsatisfactory professional conduct in that the registrant has engaged in:
- professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers;
- professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of the registrant’s profession.
Facts and circumstances
- [3]The facts and circumstances forming the basis for the grounds are:
- (a)On or about 26 September 2005, the registrant performed a left hip resurfacing procedure on the complainant.
- (b)On or about 1 October 2005, the complainant suffered a fracture of the femoral neck of her left femur. She was readmitted to hospital, and on or about 4 October 2005 the registrant performed a procedure upon the complainant involving a revision of the surface replacement to a formal total hip arthroplasty, with replacement of the femoral head with a stemmed femoral component.
- (c)On or about 14 October 2005, the registrant reviewed and treated the complainant in respect of a readmission to hospital in respect of a draining wound haematoma.
- (d)The registrant subsequently reviewed the complainant in or about December 2005 and further again in or about January 2006.
- (e)At least from, on or about 14 October 2005, the complainant had a deep wound infection involving staphylococcus epidermidis (“the infection”).
- (f)The treatment of the complainant by the registrant in respect of the resulting infection was inappropriate such as to amount to unsatisfactory professional conduct.
Particulars
- (i)At all material times, the registrant was registered as a medical practitioner and a specialist orthopaedic surgeon.
- (ii)The registrant failed to diagnose infection in the complainant on and from 14 October 2005 in circumstances where the patient represented with pain and discharge following the revision procedure. A CT scan demonstrated that the complainant had a collection in the hip.
- (iii)The registrant failed to have done an aspirate of the collection in the complainant’s hip under ultrasound or further or alternatively order a blood test for erythrocyte sedimentation rate (ESR) or further or alternatively order a blood test for a c reactive protein (CRP) which would have ascertained or ruled out possible infection.
- (iv)The registrant commenced the complainant on antibiotics without confirming whether or not an infection was present.
- (v)The registrant failed to treat the site with a wound washout.
Relevant principles
- [4]The definition of “unsatisfactory professional conduct” references reasonable expectations of the public and the doctor’s peers. That calls for an objective consideration in light of the particular circumstances that apply in an individual case.[2] The test is not whether another medical practitioner might have acted in another way nor whether, with the wisdom of hindsight, something different might have been done.[3] Where the allegation is one of “acting carelessly”, the conduct complained of must be of a scale of gravity sufficient to warrant, in the eyes of professional colleagues of good repute and confidence, punishment and disciplinary action for the protection of the public.[4] The requisite standard of proof which applies is a civil standard, on the balance of probabilities, bearing in mind what Dixon J explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 362:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Background and history
- [5]The evidence shows that the complainant was admitted to the North West Private Hospital on three occasions from September to October 2005.
- [6]She was first admitted to hospital on 25 September 2005 and the registrant performed the operation on her left hip on 26 September 2005. She remained in hospital until 1 October 2005. During her stay in hospital, Dr Hewson was her physician. She was discharged on 1 October 2005. She says the same day she was making her way back to her bed with the aid of a walker when:
My hip gave way, I felt a sharp pain in my hip and I was unable to put any weight on it.
- [7]Nursing notes at the hospital record a telephone call with the complainant on that date which records that the complainant:
Explained she had walked from the dining room to the bed and heard a click in her hip and could no longer move.
- [8]She was readmitted to hospital on the evening of 1 October 2005 with a suspected ‘dislodged prosthesis post (l) THR’. This was subsequently confirmed as a subfracture of her left hip. The complainant then spent three days in traction and on 4 October 2005 the registrant performed a revision low friction arthroplasty of her left hip, converting the surface replacement into a formal arthroplasty.
- [9]On 8 October 2005 the registrant requested a microbiological examination of the drain tip which showed ‘no growth after 48 hours incubation’. Various blood tests were requested by the registrant and by Dr Hewson. None of those blood tests included Erythrocyte Sedimentation Rate (ESR) nor C-reactive protein (CRP) tests. The hospital records note that the complainant was in pain and that there was ‘ooze’ coming from her wound. A note dated 10 October 2005 recorded that the registrant is ‘aware of ooze from wound. Swab please aim for D/C Wed’. On 11 October the registrant advised that the complainant start antibiotics i.e. tetracycline. Dr Hewson made a note in the medical records that the complainant was ‘commenced on tetracycline for wound infection’. The complainant remained in hospital until 14 October 2005.
- [10]She was readmitted on 18 October 2005. The provisional diagnosis on her admission form was ‘? infected hip’.
- [11]The complainant says that on that day she had felt pressure in her wound. She felt as though something was coming to a head so she moved towards the shower. As she got to the bathroom her wound burst and she said:
Oozed a horrible substance that I believe to be pus. It was black and green in colour and there was a substantial amount that oozed from my hip. It was very, very painful but there was a slight relief when the oozing happened.
- [12]On her admission she was given an intramuscular injection of pethidine and a Dr Williamson, the duty medical officer, prescribed intravenous antibiotics. On the same day the registrant requested an x-ray of her left hip and a CT scan of her left hip as well as a microbiological examination of a wound swab.
- [13]The CT scan revealed a ‘collection’ lateral to the left hip replacement approximately 5cm in its largest diameter. It appears that Dr Hewson ordered blood tests on 21 and 24 October 2005. Those blood tests did not include ESR or CRP. Nursing and physiotherapy records during that time referred to ‘infected hip’. The medical records also show that the complainant continued to experience pain. On her discharge Dr Hewson prescribed oral Amoxil for one week and the complainant continued on antibiotics until at least the end of December 2005. The registrant saw the complainant for post-operative check-ups on 23 November 2005; on 3 February 2006 and on 17 March 2006. He records that she was making slow progress and continuing to complain of pain.
- [14]On 22 March 2006 the complainant consulted Dr Nutting for a ‘second opinion’. He referred her to Dr Crawford. Pathology tests undertaken by Dr Crawford indicated infection and he performed further hip surgery, during which it was confirmed that the complainant had septic loosening of the hip. She was then in hospital for 6 weeks being treated by Dr Allworth for the infection.
The Board’s case
- [15]The Board relies on the evidence of Mr Dunin, an orthopaedic surgeon, as an expert in the matter. He has over 25 years’ experience as an orthopaedic surgeon. It is Mr Dunin’s opinion that having regard to clinical indicators of infection present at the third admission ‘it would have been appropriate for the surgeon at a minimum to have done an aspirate of the collection’; or alternatively ‘to explore the hip and take multiple cultures’.[5] Mr Dunin’s opinion was that there were clinical features: ‘strongly suggestive that she (the complainant) had developed a low grade infection in her hip replacement’ and that these indicators were present on the third admission. They are as follows:
- That she had undergone revision procedure shortly after the first primary hip resurfacing – placing her at a much higher risk of infection than the first initial procedure.
- That she had ongoing pain requiring strong analgesics and ongoing discharge from her wound that persisted for some weeks.
- A low grade fever during her stay in hospital.
- A CT scan showing a large deep collection – which Mr Dunin says: ‘Would certainly raise some concern that infection was present and that the infection was deep’.
- [16]Dr Allworth was also asked to comment on the following matters in terms of whether they are objective evidence of infection:
- pain;
- ooze from a wound;
- a low grade fever;
- a collection of fluid in the hip; and
- two operations very close to one another.
He answered: ‘None of them are individually a definitive evidence. They are all suggestive and taken together build a picture that is quite suggestive of infection’.
- [17]There is a submission on behalf of the registrant that the mention of low grade fever was not in accord with the hospital records. On the other hand, Dr Hewson’s affidavit records: ‘During her admission from 18 October 2005 to 31 October 2005, (the complainant) remained mostly afebrile with a normal pulse and blood pressure’.
- [18]In addition to his other evidence, Mr Dunin said:
An ESR and CRP would have given supporting or non-supporting evidence as to whether infection was present or not.
He described an ESR as the most commonly used blood test in orthopaedics to rule out an infection and expressed the opinion that it was not appropriate/reasonable not to perform such a test as well as the CRP test. He expressed the view that it was totally inappropriate to place the complainant on antibiotics without undergoing either blood test mentioned and it was his opinion that giving the complainant antibiotics for the length of time involved was not appropriate because it may mask a deep infection. In his letter dated 4 April 2013 he expressed the opinion that the registrant’s post-operative care and treatment of the complainant was a serious departure from the expected medical standard. He based his opinion on the following matters:
- She was readmitted following the first procedure with severe pain and significant discharge from her hip.
- At no stage did the registrant make any effort to ascertain whether the cause of the pain and the discharge were due to deep infection.
- There was no attempt to aspirate the fluid from the collection to see whether there was any infection present.
- If there was a deep collection and discharge at the minimum the wound should have been washed out and deep cultures taken at that time.
- The patient was placed on intravenous antibiotics for a prolonged period of time.
The registrant’s case
- [19]It is the registrant’s case that he was very alert to the possibility of infection. He said:
I was always very conscious of this lady’s medical condition and the possibility she could develop an infection.
He said he was satisfied there was no infection not only from the CT scan but also from the clinical presentation. He does not, however, attempt to explain the fact that the operation in 2006 revealed that the hip was in fact infected. The fact that the complainant was placed on antibiotics on her second and third admission and that the antibiotics on the third admission were intravenous might suggest that the registrant was treating an infection but he maintains he was not.
- [20]The registrant maintains that the reason antibiotics were prescribed on the second admission was that she had an infected site of her IV line. Later in his evidence he said that, at that time, he did not believe there was a need for antibiotics but agreed that he did prescribe antibiotics. He said:
The second admission was when we did the cultures and when there was a wound ooze. I gave her some – some tetracycline as a prophylactic measure not because she was infected but as a prophylactic measure to prevent infection …
- [21]He said the cultures were taken because he was concerned by skin contamination. In his evidence he explained that the complainant was incontinent and he wanted to ensure that there was no bacteria that he needed to be concerned about.
- [22]In his affidavit he said:
On 11 October at 19.20 hours I reviewed the complainant’s wound and noticed a small amount of clear fluid leaking from the wound … it was not serous, blood stained or purulent in nature. No evidence of infection or inflammation.
- [23]On the third admission to hospital the complainant was commenced on intravenous Vancomycin. There is some debate about whether Dr Williamson commenced that on his own accord or whether that would necessarily have been with the authority of the registrant. This will be discussed later. In any event, the registrant maintains that Vancomycin was given as a prophylactic.
- [24]In addition, on the third admission the registrant ordered an x-ray and a CT scan to be carried out. The CT scan demonstrated a collection of fluid. The registrant attributes the collection of excess fluid to a faulty Painbuster.
- [25]The registrant agreed that on 18 October there was still a collection but says his experience was that the particular problem with the Painbuster can mean that the fluid can take up to 12 weeks to reabsorb.
- [26]In relation to the complainant’s version that she was suffering pain particularly on the 18th when she returned to hospital, the registrant said that in his opinion she was suffering from adducted tendonitis and he was satisfied she did not have an infection. The registrant accepted that on her third admission to hospital she was admitted intramuscular pethidine, although he was somewhat dismissive saying:
The doctor that was reviewing her may have formed an opinion that she was requiring some pain relief.
- [27]In relation to the question of whether an ESR and CRP blood test should have been administered the registrant said:
She has been started with Vancomycin and if you do tests when there’s subclinical events going on, they are masked by the Vancomycin so it’s a waste of time.
Discussion
The first discharge
- [28]In respect of the first admission, the registrant said in his affidavit that he did not consider the complainant ready for discharge and that if she went home that day it would be against his advice. During his evidence he was shown in a nursing note which recorded that he and Dr Hewson had been contacted and were happy for the discharge to occur that day. He claimed he was misquoted but this is difficult to accept.
The Painbuster
- [29]The registrant agreed that there was nothing in the medical records concerning any fault with the Painbuster on either the second or third admission.
- [30]He agreed that in a letter written by him to the Health Quality and Complaints Commission in April of 2007 contained the following paragraph:
she was readmitted on 14 October (probably the 18th) at her request to care for a draining wound hematoma seroma, a complication resulting from prophylactic anticoagulant therapy.
He agreed there was no reference to the Painbuster in that paragraph. He accepted she was not on anticoagulant therapy. He said he had no answer to his reference to the anticoagulant therapy in his letter.
- [31]Mr Dunin was of the opinion that if you use a Painbuster the fluid is reabsorbed into the body within 12 to 24 hours. He thought it was more likely that the deep collection was communicating with the wound discharge and that such a discharge, even if it was clear, would be suggestive of an infection after surgery. He had not used a Painbuster himself.
- [32]Dr Allan Cook, who was called by the registrant, agreed that while the location of the Painbuster catheter matched extremely well with the fluid collection, the fact that the drain was removed on 11 October and the collection was identified on 18 October ‘is rather too long a period of time’. He agreed that the hospital records did not indicate that there was any malfunction of the Painbuster and agreed he had not used the Painbuster infusion system himself.
- [33]The evidence of Mr Dunin and Dr Cook together with the fact that there are no notes of a malfunction and the delay in the registrant’s explanation cast considerable doubt on his evidence in this respect. The explanation must also be seen in the context of the infection which was later confirmed.
The antibiotics
- [34]In his affidavit Dr Hewson said that on 11 October a small amount of wound ooze was observed, following which the registrant commenced the complainant on tetracycline prophylactically. His notes however said simply ‘commenced on tetracycline for wound infection’. In evidence, he agreed that: ‘Prophylactically is not a good word at all and that the best word would have been ‘on suspicion of…’.
- [35]He agreed that the PICC line was for the intravenous access for long term antibiotics and agreed again that the word “prophylactic” was incorrect.
- [36]He agreed that the fact that the complainant was in hospital for two weeks on intravenous antibiotics strongly suggested she was being treated for an infection as opposed to not.
- [37]Dr Nutting said:
I still have trouble coming to grips with why you’d keep antibiotics going if you didn’t think there was something wrong --- I wouldn’t call it prophylactic I would have called it therapeutic by that stage.
- [38]Dr Allworth also said the word prophylaxis referred to antibiotics given prior to a procedure and for up to 24 hours after the procedure to prevent the development of infection and that more prolonged antibiotic therapy is not prophylactic.
- [39]Significantly, in relation to the swab taken on 10 October 2005, the registrant said in his affidavit that the swab was taken because he was concerned by the skin contamination. He referred to the complainant’s difficulty with incontinence. There is no evidence in the records to support the assertion that she was incontinent during her hospital admission. He also says he prescribed tetracycline because she had an infected site of her IV line. However, he accepted the assertion from counsel for the Board that there was no record to support there was such an infection and ultimately conceded that the antibiotics would not have been prescribed unless he considered it necessary.
- [40]In relation to the prescription of Vancomycin of the third admission, the prescription was written by a Dr Williamson. The registrant was unable to remember if Dr Williamson consulted him before the antibiotics were started but he allowed that Dr Williamson would have consulted either him or Dr Hewson. He accepted he was the responsible doctor. The Tribunal is of the view that Dr Williamson would not have commenced intravenous Vancomycin without the authority of the responsible doctor.
- [41]Despite the administration of intravenous antibiotics for two weeks during the third admission, the registrant maintains there was no infection and he was not treating an infection.
ESR and CRP
- [42]Dr Cook, in giving evidence, said that ESR and CRP tests, if administered while antibiotics were being used, were essentially a waste of time. Under cross-examination he agreed that on the third admission with the complaint of pain, the complaint of oozing or discharge, he would have ordered the ESR and CRP tests because for him that would have been prudent medical practice. He said he would not have immediately ordered intravenous antibiotics because he would be trying to find out what the person’s temperature was doing. He would be considering the possibility there might be a bacteraemia:
And you certainly don’t start antibiotics until you have taken blood for blood cultures or swabs of the wound or around the wound because once the antibiotics have been given then it’s going to significantly affect the results of any swabs or cultures.
Importantly he said that intravenous antibiotics from 18 October for two weeks followed by months of oral antibiotics should not have been prescribed without identifying a specific cause for them.
- [43]Mr Dunin said taking ESR’s and CRP’s whilst the patient was on antibiotics may have led to masking of the results of those tests.
The pain
- [44]As said earlier, the registrant was somewhat dismissive of the complainant’s pain on the third admission. She says she was in pain. She was given pethidine. Dr Hewson agreed that during that admission she was given Panadeine and Panadeine Forte and he agreed that pain and wound ooze a week after revision surgery are indicators of an infection saying ‘this certainly flags yes’. He agreed that another note in his handwriting made on 18 October said as follows: ‘readmitted with left hip/thigh pain CT shows some probable collection’ and ‘continue with IV vancomycin’. He agreed that taking into account that the complainant experienced pain; the wound discharge; the timing after the revision surgery; the collection shown on the CT scan; and the presence of a low grade fever was suggestive of an infection.
The registrant’s notes
- [45]The registrant claimed in evidence that he prepared his affidavits from notes he had made at the time but which had not been produced to the Tribunal. Some notes were subsequently produced. He later said that the notes which had been produced were not the ones he used when preparing his affidavit. In respect of the notes that were produced to the Tribunal, it was apparent that there was a change to the dates on some of the notes, in particular, the year 2006 had been changed to 2005. This is despite the fact that he said that the notes would have been made around the time of seeing the complainant. It is highly unlikely that he would make a mistake about the year on more than one occasion if the notes were remotely contemporaneous with the attendances.
- [46]His evidence and the production of the notes cause the Tribunal to be circumspect about accepting his evidence in this respect or generally.
Aspiration
- [47]The evidence in respect of the need to aspirate is contradictory. Mr Dunin suggested it was prudent medical practice. Dr Cook said that, at that time he would lean over backwards to avoid any intervention with needle and scalpel. The Tribunal makes no finding in respect of this particular.
Washout
- [48]Mr Dunin says that the treatment on the third occasion should have included a wound washout on at least one occasion. Professor Crawford said that he would have washed the wound out on the third admission. He later said he probably would not even have washed it out, he would probably have gone in almost expecting to do a revision. He said ‘I would have gone in, taken multiple biopsies, extensive lavage at a minimum’. “Lavage” is a washout. He said that there is evidence that if you go in early with the wound problem and are very aggressive in your treatment you can save a number of joints from needing revision for infection, so aggressive early washout is something that he would use. The registrant argues that Professor Crawford did not explain why he and his unit were very aggressive in washing out wounds. That is not correct. The explanation is in his evidence.
- [49]He said:
… a lady who’s had two operations in short span, has ongoing pain –the pain’s a very important component to that. If it’s ooze, absolutely no pain, really functioning well, you’d be less likely to do (a washout). If there was pain and a CT scan showing a collection with inflammatory changes and bone changes and ooze, they’re – the patient’s been admitted for multiple courses of antibiotics, when you sum that, to me, that is an infected hip with a washout or revision.
- [50]The registrant submits that that Professor Crawford allowed for differences of opinion and the practice environment in 2014 is not the one in which the registrant’s conduct is to be judged. The Tribunal is of the view that the submission is based on a misinterpretation of the evidence. Professor Crawford was answering questions based on a symptom of wound ooze only and did not concede that there would be a difference of opinion when the other matters were taken into account.
- [51]Dr Cook said that at present most of his colleagues would do a washout now but it was unlikely that was the general practice in 2005-6.
- [52]Mr Dunin pointed out that the indicators of possible infection were that the complainant was admitted with significant pain, she had a wound discharge, she had a deep collection on a CT and she had two operations within a reasonably short period. He said in his opinion if there was even a suggestion that there is an infection one should have a low threshold for washing the hip out. He said it is not a difficult operation to do and he said that is what the majority of his colleagues would do in the circumstances. He said he thought that if there was a discharging wound going beyond five to seven days then you would have to assume that there was an infection until proven otherwise because there was a significant risk by not treating it. He said he would regard an argument that the increased risk of deep venous thrombosis and pulmonary embolism as a result of an operation, to be a rationalisation.
- [53]The Tribunal accepts the evidence of Mr Dunin and Professor Crawford in this matter. In light of the signs of infection present and following two recent surgeries the Tribunal finds that although these events occurred in 2005 the registrant should have performed a wash out.
Findings
- [54]It is the judgment of the Tribunal that particulars (i), (iv) and (v) have been made out.
- [55]It is the finding of the Tribunal that the antibiotics administered to the complainant on her third admission to North West Hospital were not administered prophylactically. The registrant was either treating an infection or authorised the commencement of the antibiotics whether or not an infection was present.
- [56]It is the finding of the Tribunal that the registrant failed to order blood tests for ESR or CRP or, further or alternatively, order a blood test for ESR or CRP before commencing, or authorising the commencement of, antibiotics.
- [57]In light of the complainant’s symptoms on and during the third admission, the registrant failed to treat the site with a wound washout.
- [58]It is the judgment of the Tribunal that in respect of the nominated particulars and in respect of the registrant’s professional conduct, a ground for disciplinary action has been established and the registrant’s behaviour falls far short of the standards of medical practice expected by the public and the profession itself and amounts to unsatisfactory professional conduct in all of the ways discussed.
- [59]The Medical Board of Australia has provided submissions in respect of costs and sanction. The Tribunal will receive similar submissions from the registrant by close of business on 7 April 2015.
Footnotes
[1] Reasons amended, see Medical Board of Australia v. Cooke (No 2) [2015] QCAT 132.
[2] Medical Board of Queensland v Whitaker [2010] QCAT 312 at [21] per Deputy President Kingham.
[3] Medical Board v Hyner [2007] QHPT 009 at [42].
[4] Medical Board of Western Australia v Richards [2010] WASAT 94 at 26 – 28 and Medical Board of Australia v Bernadt [2012] WASAT 108 at 38.
[5] Mr Dunin’s letter dated 29 October 2012 at AB p 103.