CITATION: Veterinary Surgeons Investigating Committee -v- Gelderman [2000] NSWADT 117 DIVISION: General Division APPLICANT Veterinary Surgeons Investigating Committee PARTIES: RESPONDENT Diederik Gelderman FILE NUMBER: 993089 HEARING DATES: 09/08/2000 SUBMISSIONS CLOSED: 08/09/2000 DATE OF DECISION: 08/31/2000 BEFORE: O'Connor K - DCJ (President); McGilvray G - Member; Clark F - Member APPLICATION: Veterinary surgeon - misconduct or serious misconduct in a professional respect - Veterinary Surgeons Act - veterinary surgeon - misconduct or serious misconduct in a professional respect MATTER FOR DECISION: Penalty LEGISLATION CITED : Veterinary Surgeons Act 1986 Veterinary Surgeons Disciplinary Tribunal in Re Lloyd, unreported, 16 December 1994 CASES CITED: Qidwai -v- Brown (1984) 1 NSWLR 100 Court of Appeal in Burton -v- Anderson, unreported, 28 October 1994 APPLICANT REPRESENTATION: M Money, solicitor RESPONDENT P Baker, solicitor ORDERS: 1. That the Respondent be suspended for 3 months from practice ; 2. That the Respondent be suspended for a further 3 months from practice as hospital superintendent; 3. That the Respondent attend 20 hours continuing education in clinical procedures related to diagnosis and treatment as approved by the Veterinary Surgeons Board; 4. For next 6 months the respondent is to ensure that the new superintendent of the respondent's veterinary hospital is to comply with any arrangement for monitoring the performance of the hospital required by the Veterinary Surgeons Board; 5. That the Respondent pay the Applicant's costs of $12,000 within 28 days. Revised Reasons for Decision 1 These are revised written reasons for a decision of a Veterinary Disciplinary Panel of the General Division of the Tribunal constituted pursuant to cl 7 of Schedule 2 of the Administrative Decisions Tribunal Act 1997. These reasons are given in elaboration of oral reasons for a penalty imposed on the respondent Dr Diederik Gelderman, a registered veterinary surgeon, in relation to complaints referred to the Panel by the nominal complainant, Michael Harcombe, the committee secretary, on behalf of the Veterinary Surgeons Investigating Committee (VSIC). The penalty order was made on 9 August 2000. 2 The VSIC by notice of inquiry dated 14 May 1999 called upon Dr Gelderman to show cause as to why he should not be found guilty of misconduct in a professional respect within the meaning of s 22 of the Veterinary Surgeons Act 1986 (the Act) in that he breached rule 5(2) of the Veterinary Surgeons Code of Professional Conduct established under s 23 of the Act and prescribed for the purposes of s 22(c) of the Act. The notice of inquiry laid charges in relation to the treatment of each of two dogs, being treatment that took place in February and March 1997; and in the case of the second dog there was an additional charge relating to record-keeping practices. Dr Gelderman is the owner and superintendent of an A class veterinary hospital, Greenhills Veterinary Hospital at East Maitland. 3 Section 22 of the Act provides: ' 22. Misconduct in a professional respect Without limiting the meaning of the expression "misconduct in a professional respect", a registered veterinary surgeon shall be deemed to be guilty of misconduct in a professional respect if the veterinary surgeon: (a) permits or requires an unregistered person employed by the veterinary surgeon to practise veterinary science except where that person acts in accordance with this or any other Act, (b) allows the use of the veterinary surgeon's name in connection with a purported practice of veterinary science at premises at which the veterinary surgeon or a partner does not actually carry on the practice of veterinary science, or (c) breaches any provision, prescribed for the purposes of this paragraph, of the veterinary surgeons' code of professional conduct established under section 23.' 4 Section 23 deals provides for enactment of a code of professional conduct, as follows: ' 23. Veterinary surgeons' code of professional conduct (1) The regulations may establish a veterinary surgeons' code of professional conduct setting out the rules of conduct which should be observed by a registered veterinary surgeon in carrying on the practice of veterinary science. (2) The Board may make recommendations to the Minister with respect to the code.' 5 The code of professional conduct is set out in Schedule 1 of the Veterinary Surgeons Regulation 1995. Rules 5(2) and 5(12) were relied upon in this case. They provide: ' 5. Professional practice … (2) Professional procedures should always be carried out in accordance with current standards of veterinary science. … (12) When, or as soon as practicable after, treating an animal or consulting with a client, a veterinary surgeon should ensure that a detailed record of the treatment or consultation is made. The record should include any x-ray film, radiograph or ultrasound image relating to the treatment of an animal. The veterinary surgeon should ensure that the record is kept in safe custody for at least 2 years after the relevant treatment or consultation.' 6 Section 22 supplements the common law meaning of misconduct in a professional respect. A useful summary of the common law meaning given within the context of a veterinary discipline proceeding is found in the reasons for decision of the Veterinary Surgeons Disciplinary Tribunal (constituted by the Deputy Chairman, His Honour Judge Wall, Professor C Bellinger and Dr W Howey) in Re Lloyd, unreported, 16 December 1994 at 4-5: 'It is not possible to lay down a standard of professional conduct in other than general terms. Whether a departure from professional standards in a particular case constitutes misconduct in a professional respect is basically determined by peer judgment, i.e. the judgment of practitioners of good repute and competence and standing in the profession. The leading case in relation to the formulation of the test as to whether the conduct in question is such a departure from proper professional standards of conduct as to be professional misconduct is the decision of the Court of Appeal in Qidwai v Brown (1984) 1 NSWLR 100. In that case the Court of Appeal re-affirmed the meaning of the concept of misconduct in a professional respect (the same formulation enacted in the Medical Practitioners Act 1938). The Court formulated the criteria of misconduct in a professional respect to be conduct 'which, being sufficiently related to be the pursuit of the profession is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence. It is a well established principle of the general law that a registered veterinary surgeon has a duty to animal patients, to his profession and to the community at large and in particular to the owners of animals who place their animals in his care to practise his profession with competence and diligence. A veterinary surgeon's failure to care for and treat his animal patients with competence and diligence may amount to misconduct in a professional respect. Further, negligent conduct i.e. failing to take reasonable care to prevent injury or harm from foreseeable risk of injury or harm, on the part of the veterinary surgeon in the course of his professional practice may be misconduct n a professional respect if it is inexcusable and is such as is regarded with strong reprobation by his fellows of good repute and competence in the profession.' 7 The complaints referred to the Panel related to Dr Gelderman's treatment of two female Irish wolfhounds, 'Tara' and 'Roonagh', belonging to the same owner, Mrs Rea. 'Tara' was the daughter of 'Roonagh'. 8 Between 14 May 1999, the date when the notice of inquiry was issued, and the date for hearing, 9 August 2000, there were exchanges of formal documents between the parties as well as consultations between the parties and with the Veterinary Surgeons Investigating Committee. Proposed Consent Order as to Penalty 9 At the commencement of the hearing on 9 August 2000 a statement of agreed facts in relation to the charges and their particulars was tendered, and the parties made an agreed recommendation to the Panel as to the appropriate penalty. Also tendered was the documentary material that would have been relied on had the hearing proceeded. 10 More significantly, the Registrar of the Veterinary Surgeons Board, the body responsible for the registration of practitioners, tendered a disciplinary history in respect of Dr Gelderman referring to two previous matters, one giving rise to a caution, the other giving rise to a reprimand, both relating to events that had occurred in 1996. 11 The penalty recommended to the Panel by the parties was that Dr Gelderman be fined $5000 and ordered to pay the VSIC's costs of $12000. Both parties and in particular Dr Gelderman's legal representative, Mr Baker, acknowledged that it was for the Panel to assess whether the penalty proposed was consistent with the public interest. 12 Mr Baker gave an outline of steps that Dr Gelderman had taken to improve the operation of his practice and to strengthen his own professional education since these complaints had been made. He made general submissions in support of the proposed order. 13 The Panel retired to consider the submissions and the material tendered, in particular the statement of agreed facts and the disciplinary history. It also took into account two documents tendered on behalf of Dr Gelderman which referred to steps he had taken since the VSIC had commenced its investigation of the complaints given rise to the present proceedings to improve the conduct of his practice and to obtain additional professional training. 14 The Panel resumed, and advised the parties that it was not presently satisfied that the proposed penalty was adequate. It invited further submissions and gave Dr Gelderman the opportunity to give evidence on oath, and to answer questions from the Panel, an opportunity which he took. 15 The Panel retired once again and on resumption made an order suspending Dr Gelderman from practice for 3 months, a further preventing him from being a hospital superintendent for a further 3 months, requiring him to undertake an education program, requiring the new supervisor at his hospital to enter into any practice monitoring arrangement required by the Veterinary Surgeons Board and ordering him to pay the VSIC's costs in the amount of $12,000. The order did not include a fine. 16 The Panel gave short oral reasons, indicating that it would provide fuller written reasons for its decision. These are now provided. 17 There were three complaints, each with several particulars. The first complaint related to the treatment of the dog 'Tara', the second related to the treatment of the dog 'Roonagh' and third related to the keeping of records relating to the dog 'Roonagh.' 18 The Panel sets out separately below each complaint, the particulars alleged (the foregoing in italics) and the part of the statement of agreed facts bearing on that complaint. Complaint 1 relating to Treatment of the dog, 'Tara' 1. That between 24 February 1997 and 3 March 1997 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science in your treatment of the dog "Tara". Particulars (a) Tara was a large Irish wolf hound of about 10 years of age. That age is considered old for a giant breed of dog. When first presented to you, the dog had atrial fibrillation and pyometron. These facts were all known to you before you administered any anaesthetic to the dog and commenced any surgery upon her. (b) Prior to undertaking any such surgery, with the knowledge of major cardiac disease and ascites as well as a pyometron, you should have advised the dog's owner that euthanasia of the dog was an option she should consider but you gave her no such advice. (c) Prior to undertaking surgery, in your letter to Dr Sillence dated April 25 1997, you stated you discussed and thus acknowledged the effects of pyometron on renal function. In spite of this, with cardiac and probable renal compromise no pre-operative bloodwork was recommended to assess surgical risk and implications in increasing Digoxin dose. (d) Prior to commencing surgery on the dog, on 25 February 1997, you increased the dose rate of the drug Digoxin which Tara had been on, to a supposed mid range dose as calculated on a per kilo dose basis, rather than on the accepted per metre square basis. This would have given a lower dose. Digoxin is a drug known to have a narrow therapeutic index and toxicity is increased by decreased renal clearance. A known side effect of Digoxin is anorexia and vomiting. On 25 February 1997 you also started a course of Gentamicin, a nephrotoxic antibiotic. There was no reason evident for you to administer the increased dose of Digoxin in combination with Gentamicin. Given their potential for harm, you should have chosen a safer antibiotic, such as Clavulox. (e) Post operatively on 26 February 1997 you established that Tara's blood urea nitrogen was higher than normal but failed to take this into account when selecting Gentamicin and introducing Frusemide. You did not consider a reduction in Digoxin. You then administered a third potentially toxic drug, namely Ketoprofen for pain relief. You also supplied Ketoprofen to the dog's owner for her to administer to the dog after it had left your care. Ketoprofen has the potential to cause gastrointestinal upset, in any dog, unless given with food, let alone in a dog already demonstrating gastrointestinal upset. This drug is contraindicated in a patient on diuretics (Frusemide). In addition to using the drugs previously mentioned, you used the antibiotics Rilexine and Excenel, but there was no rationale for this sequence of drugs nor did you continue the course such that you might see an effect. (f) On 28 February 1997 Tara was represented to you. You failed to consider that her primary presenting condition combined with the drugs you had already administered or supplied to her could be the cause of the dog's vomiting. On the dog being represented to you, you administered the drug Finadyne to it. Finadyne is a drug known to easily cause vomiting and gastrointestinal upset. You medicated this dog while it was anorectic and passing tarry stools and bloody vomitus. You then put the dog back on to a course of Gentamicin although there was no reason evident for putting it on that potentially dangerous drug and for not administering a less potentially toxic antibiotic such as Clavulox to it. You did not re-check renal and electrolyte values before making this decision in spite of the dog's obvious illness. Instead of using Ketoprofen and Finadyne for pain relief, both being non steroidal anti inflammatory drugs, you could have used another safe analgesic, such as Temgesic. Agreed Facts in Relation to Complaint 1 '1. Between 24 February 1997 and 3 March 1997 (both dates inclusive) Dr Gelderman treated the Irish Wolfhound dog known as "Tara" owned by Ms Rea. Tara is about 10 years of age which is considered old for this giant breed of dog. 2. When first presented to Dr Gelderman on 24 February 1997, the dog had atrial fibrillation of the heart and pyometron (an infected uterus). These conditions were known to Dr Gelderman before he administered an anaesthetic to Tara and before he commenced any surgery upon her. 3. Particular 1 (b) of the complaint, is that Dr Gelderman did not, but should have advised the dogs owner that in light of the serious condition suffered by Tara, euthanasia was an option. Dr Gelderman says this option was discussed with the owner, Mrs Rea. Mrs Rea disputes that discussion occurred. 4. Mrs Rea accepted Dr Gelderman's recommendation to perform a hysterectomy in an attempt to save Tara's life. Prior to undertaking the surgery Dr Gelderman acknowledged the effects of Pyometron on renal function. In this regard it is recognised that E-Coli bacteria is a common cause of Pyometron which results in the release of toxins which can impact on the heart muscle and compromise circulation and kidney function. 5. In spite of the presence of the condition pyometron Dr Gelderman did not recommend pre operative blood work to assess the surgical risk. Dr Gelderman acknowledges it would have been prudent, given Tara's underlying condition and diagnosis for that to occur. 6. Prior to commencing surgery on Tara on 25 February 1997, Dr Gelderman increased the dose rate of the drug digoxin to a supposed mid range dose as calculated on a per kilo dose basis rather than the accepted per metre square basis, which would have given a lower dose. It is accepted that the dose of digoxin administered to Tara was high and that Dr Gelderman miscalculated the dose. It is also accepted that Dr Gelderman should have more readily considered the potential for digoxin toxicity to result (ie: given the animals' decreased renal function this potential was greater). 7. On 25 February 1997, Dr Gelderman started administering a course of gentamicin which is an antibiotic and has the potential to exacerbate toxicity. It is suggested there was no reason supporting that decision and that Dr Gelderman should have again chosen a non nephrotoxic antibiotic such as clavulox which he had previously prescribed in the treatment on the animal. Dr Gelderman accepts that an antibiotic such as clavulox should again have been prescribed in those circumstances. Dr Gelderman also says he chose gentamicin because it has a broad spectrum of activity. Dr Gelderman also says that it was intended to be prescribed for a short period of time, although accepts that another veterinarian employee re prescribed the medication at a later stage in the animals treatment. 8. On 26 February 1997, after the surgery was completed, Dr Gelderman established that Tara's blood urea nitrogen was higher than normal, suggesting pre - renal changes and/or circulatory compromise. It is contended that Dr Gelderman should not have allowed gentamicin to continue to be administered (noting the medication was prescribed by another employee veterinarian). It is also contended that Dr Gelderman as the principal veterinarian, monitoring the animals treatment at that time should not have allowed frusemide or ketoprofen to continue to be administered to the animal. This is due to the fact that those medications when used in combination with gentamicin have the potential to exacerbate the risk and toxicity particularly in an animal with a decreased renal clearance. Dr Gelderman concedes that the combined administration of those medications was a poor choice. 9. On 28 February 1997 Tara was again presented to Dr Gelderman. He accepts he failed to consider that Tara's primary presenting condition (combined with the drugs he had already administered to her) could be the cause of the dog's vomiting. 10. When the dog was presented to Dr Gelderman, he administered the drug Finadyne to it. Finadyne is a drug known to easily cause vomiting and gastrointestinal upset. He also medicated this dog while it was anorectic and passing tarry stools and bloody vomitus. 11. Dr Gelderman then put the dog back on a course of Gentamicin although he could have administered a less potentially toxic antibiotic such as Clavulox to it. Dr Gelderman did not re-check renal and electrolyte values before making this decision in spite of the dog's condition. 12. Dr Gelderman was absent from the practice from approximately 12 noon on 1 March 1997 until the morning of 3 March 1997. 13. Instead of using Ketoprofen and Finadyne for pain relief, both being non-steroidal and anti-inflammatory drugs, the attending veterinarian could have used another safe analgesic, such as Temgesic. 14. Tara died on 3 March 1997. It is considered that the animal's death was the result of renal and cardiac failure. 15. Dr Gelderman concedes that the treatment provided by him and other veterinarians at his practice contributed to the renal failure. He also accepts the primary responsibility was his as principal of the practice. 16. Dr Gelderman concedes that in light of the above circumstances, his conduct is tantamount to misconduct in the professional respect as defined pursuant to the Veterinary Surgeons Act 1986.' Complaint 2 relating to Treatment of the dog, 'Roonagh' 2. That between 6 March 1997 and 15 March 1997 (both dates inclusive) you failed to carry out professional procedures in accordance with the then current standards of veterinary science in your treatment of the dog "Roonagh". Particulars (a) On 6 March 1997 Roonagh was presented to you for treatment of a skin irritation. Although this was the first occasion that you had seen or treated Roonagh, and although you knew that the dog's mother (Tara) was a cardiac patient, you did not carry out a full examination of the dog before diagnosing its condition and giving her an injection of Dexamethasone. (b) On 11 March 1997 Roonagh was again presented to you so that you could perform a hysterectomy on her. At that time you were aware : (i) that Roonagh was a large Irish wolf hound which is a giant breed of dog; (ii) that she was 7 years of age which, for a giant breed, may be considered aged; (iii) that the dog had been suffering from diarrhoea; (iv) of the facts set out in particulars (a). (c) On 12 March 1997 Roonagh was pyrexic. You administered the antibiotic Gentamicin to her, as well as the antibiotic Rilexine and gave her Finadyne. There was no evident need to administer the drugs Gentamicin and Finadyne, the potentially dangerous properties of which have already been particularised. The use of Clavulox, a safer antibiotic, would have covered the same bacterial spectrum as Gentamicin and Rilexine together. There was no indication to try any more potent drugs as she had not been on any antibiotics before this. Although Pilexine was administered, it was not used for long enough to be of effect. You failed to pursue the cause of the fever apparent in Roonagh. The blood count which you undertook indicated that further analysis was required due to hatch marks along side the results indicating unreliable results. This test should have been repeated through an external laboratory, or at very least respun and repeated. You ignored the warning signs of the dog's deteriorating condition recorded in your case notes by another veterinarian including the request for a "second opinion". (d) On 14 March 1997 the dog was returned to your hospital with a cough, diarrhoea, and mouth ulcers. To your knowledge, the dog's owner returned the dog to your hospital on the condition that you were not to be involved with her treatment. Yet, you over-rode the client's instructions and either administered the drugs Gentamicin and Finadyne (another non steroidal anti-flammatory drug) or directed your staff to do so. In doing so you also over-rode the course of treatment being administered by the veterinarian who had the conduct of the dog's treatment and ignored the signs recorded by her indicating the dangers of using the drugs Finadyne and Ketoprofen, and her specific desire to use Clavulox as her antibiotic of choice. The signs noted were : · the dog's dehydration; · the existence of ulcers on the tongue; · the existence of tarry diarrhoea; · moist cough; · the dog's increased heart rate, >150 is fast for a sick giant breed of dog; · weak femoral pulses, indicating circulatory compromise. You noted "consider DIC" and ran a full blood count but the results were again hatched and therefore unreliable. You did not repeat this test through an external laboratory nor did you look for more haematological evidence of DIC (Disseminated Intravascular Coagulation). You failed to consider that the drugs which you had been administering to the dog (in particular, Gentamicin and the non steroidal anti-inflammatories) could be the cause of her malaise or were contributing to it. You failed to explore the reasons for the abnormal clinical signs by : · x-ray of the chest - to explore the possibility of pneumonia in a coughing febrile dog, · further blood analysis, to obtain an accurate white blood cell count, looking at biochemistry's and exploring the possibility of DIC. (e) On 15 March 1997 you again contravened the owner's instructions and became involved in the treatment of the dog. (f) Also on 15 March 1997 you again administered Gentamicin to the dog despite the fact your professional staff had been recording a trend in the dog's deteriorating condition which should have suggested to you that Gentamicin should not have been administered. Agreed Facts in relation to Complaint 2 '17. On 6 March 1997, Ms Rea presented Roonagh, Tara's daughter, for treatment of a skin condition and to discuss whether or not she should be de sexed. Dr Gelderman prescribed dexamethasone despite the fact that he concedes a full examination was not carried out of the dog before diagnosing its condition. Dr Gelderman says he specifically did not conduct a full examination, because Mrs Rea requested him to administer the same treatment that the former veterinarian undertook. Dr Gelderman concedes that his conduct was inappropriate and that he ought to have satisfied himself as to the need for prescribing medication before it was administered. 18. At the examination on 6 March 1997, Dr Gelderman and Mrs Rea discussed the merits of de sexing Roonagh in light of the problems encountered with her mother Tara. Veterinarians routinely recommend the de sexing of non breeding females in an attempt to prevent pyometra and if performed early enough, this procedure can also prevent the occurrence of mammary tumours. Mrs Rea agreed that it was appropriate for Roonagh to undergo a hysterectomy. 19. On 11 March 1997, Roonagh was again presented to Dr Gelderman so he could perform a hysterectomy. The surgery was routine with an ovarian cyst being located on the left ovary. As Roonagh's recovery was slower than anticipated, she was kept at the surgery overnight. 20. On 12 March 1997, Roonagh was pyrexic (feverish). That condition can be indicative of an infection. Dr Gelderman administered the antibiotics, gentamicin and rilexine and also prescribed finadyne. The combined use of gentamycin and finadyne is known to increase the possibility of toxicity and it is suggested that clavulox would have been a safer antibiotic, in the circumstances to have prescribed. (Please refer to paragraph 8 herein [being the Statement of Agreed Facts]). 21. While Dr Gelderman undertook a blood count to investigate the cause of the fever, the results had hatch marks on the side, and consequently the results were unreliable. Accordingly the tests should have been repeated or at least re spun and repeated. Dr Gelderman acknowledges those facts and that he failed to adequately investigate the cause of the fever by undertaking a sufficiently detailed examination. 22. Roonagh's condition improved over the next 24 hours and on 13 March 1997, Roonagh was released from the surgery. 23. On 14 March 1997, Roonagh was returned to Dr Gelderman's surgery with a cough, diarrhoea and mouth ulcers. Mrs Rea was unhappy with the animal's condition and as a result of the concern she expressed, Dr Gelderman says he recommended she obtain a second opinion. Dr Gelderman also says Mrs Rea declined to pursue that suggested course. Mrs Rea disputes a conversation of that nature occurred. It is noted that Dr Gelderman's records contained a notation of the conversation along those lines. 24. There is also a dispute about whether Mrs Rea requested that Dr Gelderman not be involved with the treatment of Roonagh and/or whether there was a general request for another veterinarian at Dr Gelderman's practice to take over the animals care. Dr Gelderman's records indicate that Roonagh was transferred to another veterinarians care. 25. While Dr Gelderman says Mrs Rea expressed dissatisfaction with his veterinary treatment, he did not interpret her request to the extent that he not be involved in any shape, form or manner in the animals treatment. It is accepted that as the principal of the practice, Dr Gelderman had a legal and ethical responsibility to oversee the treatment of animals within his practice. It is contended that Dr Gelderman should have ensured that Mrs Rea understood and was aware of those responsibilities given the dissatisfaction she expressed with Dr Gelderman's treatment. 26. In particular 2(d) of the complaint, it is suggested the records show that Dr Gelderman overrode Mrs Rea's instructions and either administered the drugs, gentamicin or finadine or directed his employee to do so. Dr Gelderman cannot recall the specifics of why these drugs were administered, however he recalls that the animal's condition was discussed with other veterinarians during the course of 14 March 1997, which included discussion on treatment. 27. Dr Gelderman concedes that he failed to sufficiently consider the signs and symptoms displayed by Roonagh as at 14 March 1997 or sufficiently consider the records and treatment notes written by the treating veterinarian Kylie Kavanagh when he proceeded to administer gentamicin and finadyne or alternatively in advising his staff to do so. Dr Gelderman concedes that as such he failed to consider that the medications may be a cause of her malaise or may be contributing to that condition. 28. It is contended that the results of a full blood count were again hatched and unreliable and the test in those circumstances ought to have been repeated. Dr Gelderman asserts that he requested this occur and arrangements were made for the test to be done in an external laboratory as soon as a courier could be organised. 29. While Dr Gelderman noted "consider DIC" meaning disseminated intravascular coagulation he did not take expedient steps to arrange for further haematological tests. Dr Gelderman's records show that these tests had been arranged for the morning of 15 March 1997 although this did not eventuate as Roonagh died. 30. It is noted that on 15 March 1997, Getamicin was again administered to Roonagh. 31. On 15 March 1997, Roonagh died. An autopsy was performed and a histopathology report concluded that the dog suffered from acute pneumonia and acute heart failure secondary to myocardial degeneration. The report also indicated that there were liver changes suggesting more long standing heart disease. These conditions had not been diagnosed by Dr Gelderman or any of the other attending veterinarians.' Complaint 3 relating to Record-Keeping in respect of the dog, 'Roonagh' 3. That you are in breach of rule 5(12) of the Code in that you did not after treating the dog Roonagh between 6 March 1997 and 15 March 1997 (both dates inclusive) ensure that a detailed record of the treatment of Roonagh was made. Particulars (a) On 6 March 1997 you have not recorded conducting a physical examination on a patient that you were seeing for the first time. You have not recorded Roonagh's : (i) heart rate, chest auscultation; (ii) temperature; (iii) mucous membrane colour or refill: (iv) abdominal palpation; (v) any comments regarding her general appearance. (b) On 11 March 1997, before you commenced operating on her you have not recorded : (i) Roonagh's heart rate; (ii) the result of Roonagh's chest auscultation; (iii) the result of any abdominal palpation of Roonagh; (iv) history of diarrhoea; (v) the time for capillary refill of mucous membranes; (vi) Roonagh's general demeanour, (vii) Temperature. (c) You have not made any record of : (i) Roonagh's heart rate; (ii) her respiratory rate; (iii) the result of any chest auscultation; (iv) whether she was urinating and defecating; (v) whether she was eating; (vi) whether she was ambulatory; nor (vii) her demeanour when you allegedly examined her on 12 March 1997 and nor did you make any record regarding your ultrasound examination and findings on this date. (d) You have not made any record of : (i) Roonagh's heart rate; (ii) her respiratory rate; (iii) the result of any chest auscultation; (iv) whether she was urinating and defecating; (v) whether she was eating; nor (vi) her demeanour when you allegedly examined her early in the morning on 15 March 1997. The only numbers you recorded were with respect to temperature. You only made the comments BAR (bright alert and responsive) and a few lines later, RIP. Agreed Facts in relation to Complaint 3 '32. Dr Gelderman acknowledges the failure to fully record attendances, observations and examinations and concedes that his records were not sufficiently detailed and that he ensure his employed veterinarians also complied with the necessary recordkeeping as required under the code as particularised in the complaint. 33. Dr Gelderman admits that his conduct in so far as the treatment of Roonagh and failure to comply with the Code in relation to his records is tantamount to misconduct in a professional respect as defined by the Veterinary Surgeons Act 1986.' General Findings 19 It will be seen that Dr Gelderman concedes in relation to Complaint 1 that the treatment provided by him and other veterinarians at his practice contributed to the renal failure of 'Tara', which gave rise to her death. He also accepted that the 'primary responsibility' was his as principal of the practice. He conceded that his conduct was tantamount to misconduct in a professional respect. 20 In relation to Complaints 2 and 3 both relating to the dog 'Roonagh', Dr Gelderman admitted that his conduct in relation to the dog's treatment and failure to comply with the Code in relation to his records is tantamount to misconduct in a professional respect. 21 The Panel is comfortably satisfied in light of the agreed facts that Dr Gelderman has been guilty of misconduct in a professional respect in his diagnosis and treatment of both dogs and in respect of his omissions in respect of record-keeping in the case of the second dog. Current Standards of Veterinary Science 22 The Panel's assessment of the seriousness of the admitted matters follows. Diagnosis and Treatment of the dog, 'Tara' 23 In relation to the case of the dog, 'Tara', the failure to recommend pre-operative blood work to assess the surgical risk before proceeding with surgery in a case as ill as presented shows a serious lack of diligence in Dr Gelderman's approach when compared to the normal approach taken by registered veterinary surgeons in New South Wales. 24 Getamicin is a drug that has been available for over 30 years. The dangerous toxic effects are well known to registered veterinary surgeons in New South Wales as is the increased risk of side effects when used in combination with drugs and clinical situations that lead to decreased renal perfusion. Digoxin is a drug that has been widely used in veterinary medicine for over forty years and the high risk of Digoxin toxicity occurring within a narrow dose range is very well known. In addition, the warnings against the use of Ketofen in combination with the diuretic frusemide are very well known. The action of Dr Gelderman to administer and direct the administration of the medications in combination, such as occurred in this case, shows a level of competence in therapeutics that is well below that of a registered veterinary surgeon in New South Wales. 25 The continued use, and addition of other drugs to the mixture despite clinical and laboratory signs of toxicity indicates a reckless approach to the dangers of using these drugs in sick animals. Diagnosis and Treatment of the dog, 'Roonagh' 26 Dr Gelderman admits, in relation to the dog 'Roonagh' which he had never seen before, to not carrying out a full examination before prescribing Dexamethasone. A competent diligent practitioner veterinary surgeon would not prescribe Dexamethasone without a full examination because of the significant impact that the drug has on many functions of the body (especially the possible impact on cardiac function when the animal is an Irish Wolfhound). 27 The admitted failure to conduct a cardiac examination of a patient, being seen for the first time, which is the daughter of a bitch recently treated by the same practitioner for cardiac disease (see para 2 of the Statement of Agreed Facts) and owned by the same person, before the prescription of Dexamethasone is an omission that would not be made by a competent diligent veterinary surgeon. 28 The combined use of Gentamicin and Finadyne can be harmful to the kidneys and is not used by diligent veterinary surgeons without thorough investigation and testing to confirm normal renal function. 29 When the results of blood tests include hatch marks a competent veterinary surgeon will immediately redo the tests with a fresh sample and by dilution of the serum attempt to obtain relevant results. 30 The continued use of the drugs Gentamicin and Finadyne, despite the noting of the dangers of their use by another veterinary surgeon in the practice and in the face of deteriorating clinical signs, shows a failure to give active consideration to the therapeutic effects of the drugs and the condition of the patient. Recordkeeping in respect of Procedures relating to the dog, 'Roonagh' 31 The failure to record the cardinal signs of an examination on 6 March 1997 are a consequence of the admitted failure to conduct a physical examination (see para 17 of the Statement of Agreed Facts). 32 On 11 March 1997, the failure to record the results of any clinical examination, prior to or during anaesthesia and surgery is contrary to the standard procedures of registered veterinary surgeons in NSW. It is an essential part of the professional care of a patient to make a record of the clinical findings and cardinal signs. These signs are normally monitored and recorded at frequent intervals during anaesthesia and surgery. 33 The failure to record results of alleged examinations on 12 March 1997 of a patient that had an unusual recovery from anaesthesia and surgery and on 15 March 1997 of a patient who died a short time later is an omission that shows Dr Gelderman's recordkeeping is below the standard of recordkeeping of registered veterinary surgeons in NSW. 34 The Panel wishes to emphasise the fundamental importance of good recordkeeping. The proper recording of observations allows a scientific analysis of the progress of a patient. 35 Moreover, within the veterinary profession the appropriate level of recordkeeping is seen as that which would allow another veterinarian to take over the case. This is a very important consideration in multi-practitioner practices where several veterinarians may treat a case while it is in hospital or over the course of a disease process. Penalty 36 Section 32 sets out the Panel's powers with respect to penalty as follows: ' 32. Tribunal's powers when complaint proved (1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders: (a) an order reprimanding or cautioning the veterinary surgeon, (b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months, (c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists, (d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000, (e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science, (f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing. (2) Even though the matter of a complaint against a registered veterinary surgeon may have been proved to the satisfaction of the Tribunal, the Tribunal must not make an order of the kind referred to in subsection (1) (b) or (c) if the Tribunal is of the opinion that: (a) because the matter of the complaint is of a trivial nature, or (b) because of the circumstances in which that matter occurred, or (c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science. (3) If the Tribunal considers that the matter of a complaint against a registered veterinary surgeon has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary surgeon was sufficiently unacceptable to warrant the making of the complaint, the Tribunal may make an order against the veterinary surgeon under subsection (1) (a) or (f), or both. (4) On directing the name of a person to be removed from a register, the Tribunal may fix a time after which the person may apply for restoration of the person's name to the register. (5) While an order under this section suspending a person from practice remains in force, the person is taken not to be a registered veterinary surgeon. (6) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary surgeon by the Registrar, subject to any decision of an Appeal Panel of the Tribunal on appeal under section 34.' Decision on Penalty 37 In reaching the conclusion that the penalty order proposed to the Panel was not sufficient in the public interest it weighed a range of factors. (i) The gravity of the conduct admitted by Dr Gelderman 38 In the case of both wolfhounds Dr Gelderman made admissions as to failures in relation to the diagnosis and the prescription of appropriate drugs and treatment. In both cases he made admissions that the steps that he took contributed to the occurrence of conditions in each case which contributed to the death of the animals. 39 In both cases he admitted that he had failed to undertake usual checks in relation to the problem presented which would have given rise to information relevant to his decision as to the appropriate form of treatment. In both cases had those steps been taken a prudent practitioner would have received information warning him not to embark on the course of treatment that Dr Gelderman chose. In both cases he prescribed amounts and combinations of drugs which were inappropriate. 40 These significant failures in diagnosis and treatment are likely to have contributed to the deaths of the animals. 41 In both cases the notice of inquiry contained particulars in support of the charges of professional misconduct which referred to alleged failures in communication with the dog's owner. The facts relating to those communications were agreed by the parties to be in dispute, and accordingly no account is taken of those matters in these reasons. 42 The Panel views the number and degree of Dr Gelderman's failure to observe satisfactory standards of veterinary care most seriously. (ii) The disciplinary history 43 Dr Gelderman had been dealt with by VSIC in relation to two complaints during 1996, which will be referred to by the names of the complainant owners, Skillen and Stockhausen. The disciplinary history tendered to the Panel recorded the short findings of the VSIC. The case of Skillen related to the diagnosis and treatment of a cat. The adverse findings bear a close similarity to the matters admitted as defaults by Dr Gelderman in the present case. 44 In the Skillen case the adverse findings were made in October 1996. The events giving rise to that complaint occurred between 16 February 1996 and 27 April 1996. The Stockhausen case also related to events in 1996 (in this instance 13 February 1996 to 26 February 1996), and Dr Gelderman was the subject of complaint in that matter at the time of the events giving rise to this case. In the Stockhausen case Dr Gelderman was not the subject of adverse findings until December 1998. 45 This pattern of three incidents of concern in a relatively short period of time was a matter of concern to the Panel. The Panel was concerned that the type of failures identified in the Skillen case recurred so soon after the present case, and that at that time Dr Gelderman was the subject of another disciplinary investigation which was resolved adversely to him some time later. (iii) Dr Gelderman's experience and status 46 Dr Gelderman is a registered practitioner of 22 years standing; 19 years standing at the time of the events in issue. He is the licensee of a 'A class' hospital, a licence he has held since 1991. He is the superintendent of the hospital. He runs a substantial practice. At hearing he informed the Panel that the practice has its principal location at East Maitland and a branch at Kurri Kurri. He employs 4 veterinary surgeons and 15 nurses. 47 These factors militate against leniency being shown to Dr Gelderman. He is not in the situation of, say, a new, inexperienced practitioner entering on a professional career. The procedures which gave rise to the notice of inquiry fell within the mainstream of the kind of work a veterinary surgeon is called on to perform in a large regional practice dealing with big dogs. He is also the owner/licensee and superintendent of the hospital, a status which carries a special responsibility for the maintenance of standards. As the head of the practice, he will be looked to, understandably, by animal owners as likely to possess high skills, possibly higher than those of his employed staff. 48 Our reservations in this area were compounded by Dr Gelderman's personal testimony. Asked to give an explanation for the occurrence of the adverse events in the 1996-97 he spoke of having been 'de-motivated' and needing to be 're-enthused'. While he did not elaborate on this account, he conveyed the impression that at least at that time he had become unconcerned about the need constantly to maintain adequate professional standards. (iv) Improvements that have been pursued by Dr Gelderman since 1997 49 In the submissions made on his behalf, in documents tendered and in his personal testimony, Dr Gelderman referred to the impact the disciplinary inquiries relating to the events of 1996 and 1997 had had on him personally, and the steps that he had taken to improve the general standards of his practice and his personal professional knowledge. The VSIC was clearly impressed by these steps, and the solicitor for the VSIC, Ms Money placed on record the VSIC's satisfaction with Dr Gelderman's steps in these regards. 50 In his personal testimony Dr Gelderman referred to these steps. He had implemented regular meetings in his practice where all the veterinary surgeons review their management of cases. Records are checked to ensure that they are in order. Owners are provided with the ability to remain in the vicinity of animals who are being held for treatment and observation. The holding area is open from 7 am to 9 pm each day. 51 The Panel regards these as positive practice initiatives. Dr Gelderman's preparedness to allow owners to remain near their animals shows a confidence in the quality of his practice and an openness with owners which is commendable. 52 Dr Gelderman referred to personal professional education in which he had engaged. In his submissions, Dr Gelderman's solicitor referred to the further education undertaken by Dr Gelderman by way of study for a Master's degree. The Panel had understood that this course was recently completed, and represented a form of response by Dr Gelderman to the problems identified by the succession of complaints in 1996 and 1997. However our subsequent examination of the material filed in these proceedings indicates that Dr Gelderman completed the degree in mid 1997, after starting it in 1993. In these circumstances it is not appropriate to give any significant weight to these further studies in assessing penalty. He also referred to a constructive professional relationship he had formed with one of the tutors in that course, Dr Lubac, who is located in Melbourne. 53 The Panel was not satisfied from this material that Dr Gelderman had demonstrated that he had taken any specific steps in relation to his own understanding in relation to medical treatments, in particular the harmful effects of certain drugs. We note that in one of the letters tendered by Dr Gelderman there is reference to investigations being conducted by Dr Lubac that identified errors. But there was no explanation by Dr Gelderman as to what personal steps he had taken to address these problems. When asked by Dr McGilvray what specific measures he had taken to address the difficulties highlighted by the complaints, Dr Gelderman's answer was vague and uninformative. 54 The Panel was not satisfied that the further education which Dr Gelderman has undertaken had dealt specifically with the kind of diagnosis and treatment issues raised in these proceedings. 55 In light of these reservations and its inability to be confident that similar errors would not occur in future led the Panel to conclude that it was appropriate for Dr Gelderman to work under supervision for a period after his return to practice. We would encourage Dr Gelderman to use the period of suspension and the further period of supervised re-entry to practice as an opportunity to study the treatments, diagnoses and procedures of leading veterinary hospitals dealing in similar cases to the ones that have given rise to the present proceedings. Conclusions 56 The Panel was firmly of the view that a fine of $5000 did not provide an adequate sanction having regard to the factors recited above. While this is a mid-range penalty within the penalty range (the maximum penalty is $10000) it does not, we consider, address directly the problems of professional performance revealed by this case. 57 A penalty should serve the ends of personal deterrence and general deterrence. The penalty should also take account of the co-operation Dr Gelderman has shown in relation to the resolution of these proceedings. His admission of many of the key allegations has led to the avoidance of potentially long and costly proceedings. The steps he has taken to improve his practice and his commitment to undertaking further professional education reveal a preparedness to acknowledge his failures. 58 On the other hand an owner has lost two dogs in circumstances where there were significant failures in diagnosis and treatment. The Panel is not called upon to make a finding as to whether there was a causal link between these failures and the death, and does not do so. But Dr Gelderman effectively acknowledges the connection in his admission in the case of 'Tara' that his treatment contributed to the renal failure. Dr Gelderman admits that some of the combination of drugs he gave are nephrotoxic and others increase this nephrotoxicity. Therefore the kidneys of 'Tara' would have been further adversely affected especially as Dr Gelderman already had evidence from blood tests that they were damaged. 59 An owner has suffered the distress of losing two pets in close succession, a loss likely to have been compounded by the suspicion any owner would form in these circumstances that her choice of practitioner and his conduct may have contributed to those deaths. 60 Moreover and possibly most importantly, the primary duty of a veterinary surgeon for the welfare of animals was breached. The dogs are sentient beings who suffered at the hands of Dr Gelderman. 61 In our view a fine is not an appropriate sanction in cases involving experienced practitioners with a prior adverse record where the misconduct is as serious as that admitted in this case. Sanctions should be used which focus, if practicable, on the conduct that has given rise to the proceedings. While they should not be punitive, they should take a form which is likely to operate as a deterrent to other practitioners, and reflect broader community values in relation to the importance of the welfare of animals and the need to uphold the confidence of the community in standards of veterinary practice. 62 Accordingly, the Panel was firmly of the view that a period of suspension from practice was warranted, being 3 months. Consequently it will be necessary for Dr Gelderman to have a new superintendent appointed to run his hospital. The Panel considered that it would be appropriate for there to be a restriction on Dr Gelderman's return to practice, preventing from resuming as superintendent immediately. Accordingly the Panel ordered that Dr Gelderman not be permitted to be a superintendent for a further 3 months. 63 The Panel has also ordered that Dr Gelderman undertake 20 hours continuing professional education focussed on clinical procedures in relation to diagnosis and treatment in a form approved by the Veterinary Surgeons Board. As previously noted, the Panel was not satisfied from the material placed before it that there had been a sufficient focus on this area in the further education that he had undertaken. 64 In reaching this conclusion, the Panel was mindful of the approach to penalty adopted by the Court of Appeal in Burton v Anderson (Kirby P, Priestley, Handley JJA), unreported, CA 40030/92, 28 October 1994, where the period between the original stayed order of the disciplinary tribunal and the disposal of an appeal against penalty by the Court of Appeal - a period of almost 3 years - led the Court to set aside an order of suspension for 3 months. The Court had regard to the practitioner's record of competent performance in the meantime. The other orders made by the tribunal (relating to supervision, mentoring, education and the like) were left in place. The judges of the Court of Appeal were at pains to stress that had the appeal reached them in a timely fashion the Court would not have moved to vary the penalty. It was the passage of time and the positive material placed before them in relation to the veterinary surgeon's conduct during that period that caused them to reconsider the suspension element of the penalty. 65 In this instance there is a similarity with Burton in that there has been a similar passage of time between the making of complaints to the disciplinary bodies and the disposal of the matter. However, in this instance we regard the much greater seniority of Dr Gelderman as compared to Dr Burton, his position as head of a busy practice, the number of complaints in issue in these proceedings and his prior adverse history as significant differentiating factors. In the case mentioned, the practitioner was a locum of 8 years' standing at the time of the complaint giving rise to the adverse finding and had no prior history. 66 We also acknowledge the submission on behalf of Dr Gelderman by Mr Baker that the Panel must before ordering suspension have regard to whether he is unfit to practise as at the time of the penalty, a point which is well illustrated by the approach taken by the Court of Appeal in Burton's case. The Panel, whose members include a veterinary surgeon of standing, and a member of the community appointed so as to represent the interests of users of veterinary services, gave careful consideration to this submission. The Panel would have been minded to impose a more severe penalty had it not been for the efforts that have been made since 1997 by Dr Gelderman to respond to some of the problems identified by the complaints against him. 67 In the order as issued on 9 August 2000 we used language which might be read as seeking to place on the new superintendent required to be engaged by Dr Gelderman for the next 6 months a personal obligation to enter into any performance monitoring arrangement required by the VSB. For the avoidance of any doubt, we wish to make it clear that the obligation for ensuring that any such arrangement be observed lies on Dr Gelderman. 68 In conclusion, the Panel notes that s 32(6) of the Act, cited at para 36 above, is applicable in relation to the coming into effect of order. As agreed, formal notice of this order will be given to the Registrar of the Veterinary Surgeons Board upon publication of these revised written reasons. Order s 1. That the Respondent be suspended for 3 months from practice. 2. That the Respondent be suspended for a further 3 months from practice as hospital superintendent. 3. That the Respondent attend 20 hours continuing education in clinical procedures related to diagnosis and treatment as approved by the Veterinary Surgeons Board. 4. For next 6 months the respondent is to ensure that the new superintendent of the respondent's veterinary hospital is to comply with any arrangement for monitoring the performance of the hospital required by the Veterinary Surgeons Board. 5. That the Respondent pay the Applicant's costs of $12,000 within 28 days. 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.