Failure to disclose surgical error: Professional misconduct finding after mediation

In Tasmanian Board of the Medical Board of Australia v David Edis [2014] TASHPT 1, the Board asserted professional misconduct following surgical treatment of a patient in 2010. Pre-operative letters and the operation note showed an intention to perform procedures at the C3/C4 level. Post operative imaging suggested that the surgery had been carried out at a different level, C2/C3.

There then followed a number of occasions on which the respondent met the patient and also provided advice to other treating doctors in which he failed to disclose that he had undertaken surgery at the wrong level of the patient’s cervical spine: see [2] & [4].

Interestingly, the parties were then offered an opportunity to participate in mediation, which took place and resulted in a joint proposal to the Tribunal; see [3]. At [6] the Tribunal focused on the distinction between the primary error and the later failure to disclose, commenting:

Although the mistake in operating at the incorrect level of the patient’s cervical spine is unfortunate and could well have a detrimental effect upon the patient’s health and no doubt, I infer, prolonged his ongoing pain and discomfort from the identified deficit in his cervical spine, such adverse events are always possible in a surgical environment. This is clearly not the first occasion that a mistake has been made in these circumstances. However, the Tribunal is more concerned as to the professional misconduct aspect being the practitioner’s failure to disclose the error that had been made. Not only does the failure of the respondent to disclose the error that he had made in a timely manner place the patient’s physical and psychological health at risk but it also fell below the basic tenant required of the medical profession to be forthright, open and honest in relation to the performance of professional duties. The Tribunal gave significant consideration as to the need, not only for a deterrent to the respondent for his failure to meet this basic tenant required of the medical profession, but also the need to ensure the professional reputation of medical practice by imposing a sanction that operated as a general deterrent within the medical profession.

The orders made included a requirement that the surgeon refer any significant adverse event occurring whilst he is operating on or performing medical services to a patient in a private hospital to certain medical practitioners and to the Board: see [10].


Source: The weekly health law newsletter published by DLA Piper.

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