New South Wales Medical Tribunal CITATION : DR BALASUNDERAM BALAKRISHNAN [2001] NSWMT 3 TRIBUNAL : Medical Tribunal PARTIES : DR BALASUNDERAM BALAKRISHNAN FILE NUMBER(S) : 40006 of 2000 CORAM: McGuire DCJ - Harding Burns, Dr, F - Keldoulis, Dr, T - Brophy, Ms, M CATCHWORDS: LEGISLATION CITED: THE MEDICAL PRACTICE ACT 1992 Richter v Walton, an unreported decision of the 15th July, 1993; CASES CITED: Rejfek v McElroy (1065) 112 CLR 517 @ 521; Bannister v Walton (1993) 30 NSWLR 699; Briginshaw v Briginshaw (1938( 60 CLR 336 @ 360-363 DATES OF HEARING: 30 April, 2001 DATE OF JUDGMENT: 30 April 2001 JUDGMENT: Nature of Complaint Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal is enquiring into a complaint of the Commissioner, Health Care Complaints Commission into professional conduct of Dr Balasunderam Balakrishnan. The Commissioner complains that Dr Balasunderam Balakrishnan (the practitioner), being a medical practitioner registered under the Act has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of Section 36 and Section 37 of the Act in that he: (1) Has demonstrated a lack of adequate skill, judgment or care in the practice of medicine; and (2) Has been guilty of improper or unethical conduct related to the practice of medicine. At all relevant times the practitioner was an ophthalmic surgeon and a Visiting Medical Officer at Camden District Hospital. Complaint One On 5 December 1996 Patient A underwent cataract extraction with lens implant to his right eye at Camden District Hospital. Particulars of complaint: 1. The practitioner failed to treat Patient A appropriately in that he: a) failed to recognise the retention of a large fragment of the lens nucleus; b) failed to place the anterior chamber intra ocular lens correctly; c) failed to refer Patient A to a vitreo-retinal surgeon when it was indicated on 16 December 1996. Complaint Two on 12 March 198 Patient B underwent cataract extraction with lens implant to her right eye at Camden District Hospital. Particulars of Complaint: 1. The practitioner failed to appropriately treat Patient B in that he: a) failed to recognise the presence of vitreous in the anterior chamber; b) failed to recognise a distorted pupil; c) failed to recognise lens remnant material in the posterior chamber; d) failed to recognise a posterior capsule tear. Complaint Three on 9 March 1995 Patient C underwent cataract extraction with lens implant to her right eye at Camden District Hospital. Particulars of Complaint: The practitioner failed to treat Patient C appropriately in that he: a) failed to detect during the operation that the lens haptic had positioned in the anterior chamber; b) failed to reposition the lens haptic; c) failed to detect retained lens material during the operation; d) failed to advise the patient that she required a further operative procedure to remove retained lens material and reposition the haptic. Orders Sought The Commissioner seeks, pursuant to Section 64 of the Act, a finding that the practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct in relation to his dealings with each of the patients and an order that he be deregistered. Unsatisfactory Professional Conduct Section 36 of the Act sets out the matters which constitute unsatisfactory professional conduct. It relevantly provides: " unsatisfactory professional conduct of a registered medical practitioner includes each of the following: a) Lack of skill, etc. Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine." Professional Misconduct Section 37 of the Act set out the meaning of professional misconduct as being: "Conduct of a sufficiently serious nature to justify suspension of the practitioner from practicing medicine or the removal of the practitioner's name from the Register." The obligations of medical practitioners is encapsulated by Priestly J A in Richter v Walton , an unreported decision of the 15th July, 1993. "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters, the trust a patient places in a doctor is considerable. In some cases, of which the present seems to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in the abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor for some patients and for limited period, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain high standards; all this being very much in the public interest." Onus and Standard of Proof The standard of proof to be applied by the Tribunal is that referred to in Rejfek v McElroy (1065) 112 CLR 517 @ 521. That standard was applied in Bannister v Walton (1993) 30 NSWLR 699 where it was held that the requirement is that the Tribunal be "comfortably satisfied on the balance of probabilities." The Tribunal must have regard to the gravity and importance of the matters which it is deciding in accordance with the principles stated in Briginshaw v Briginshaw (1938( 60 CLR 336 @ 360-363. At pages 361 and 362 Sir Owen Dixon stated: "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 sate of mind that is obtained or established independently of the nature or 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 proved by inexact proofs, indefinite testimony, or indirect inferences." The Tribunal received into evidence a folder containing statutory declarations from the three complainants, the reports from the various doctors who treated them after surgery performed by the practitioner and three reports from Dr Ralph Higgins, a peer reviewer. Dr Higgins gave evidence in explanation and in furtherance of his reports. I will return to this aspect of the matter. The practitioner's curriculum vitae disclosed that he obtained his medical degree at the University of Colombo in Sri Lanka in 1965. He received a diploma in ophthalmology in London in 1973 and in 1975 he attained his FRCS in ophthalmology from London University. In 1993 he was elected a Fellow of the Royal Australasian College of Ophthalmologists. The practitioner is a member of a number of professional associations concerned with glaucoma and various diseases and problems concerning the eye. During his career he has held various appointments in Sri Lanka, the UK, at Concord Repatriation General Hospital in Sydney and is a visiting medical officer in ophthalmology at Campbelltown and Camden Hospitals. The Tribunal had regard to a number of references which commented favourably upon his competency and efficiency as a surgeon and in particular it was noted that he was a caring practitioner who always had his patients' interests at heart. Paul Beaumont, an ophthalmic surgeon stated that he had discussed a complaint with him and that he was impressed by the practitioner's insight into the complaint and his willingness to change in order to avoid further problems. Dr Kellermen was his regular anaesthetist for many years and considered him to be most diligent and careful in his approach to his work. This doctor, his wife and children had been patients of the practitioner and he expressed his satisfaction at the treatment. It is to the practitioner's credit that after receiving documentation as to complaints he wrote to the Medical Board indicating his realisation of the seriousness of the complaints against him "On the basis and because I am 60 years old, I believe that it is appropriate that I no longer perform ophthalmic micro surgery". As a result of the practitioner's actions a condition was placed on his registration that he cease ophthalmic micro surgery forthwith and that he submit to the Medical Board every 3 months a list of the surgical procedures he had performed. It was further to his credit that he admitted the particulars in relation to complaints one and two. His concessions in that regard were not an admission that he had been guilty of unsatisfactory professional conduct or professional misconduct. Tendered on behalf of the practitioner were a number of medical reports including reports from Dr Chow, a cardiologist; Professor Lance, neurologist; and Dr Grunstein, endocrinologist. Complaint One The conduct complained of involved a right cataract extraction and intra ocular lens implant upon a Dr M on 5th December, 1996. This procedure was apparently complicated by a posterior capsule rupture, a large amount of soft lens material had escaped into the anterior chamber with some vitreous loss of the posterior chamber. The practitioner examined the patient post operatively on 4 occasions. The patient was advised of the lens and capsule rupture and medication was prescribed. Three days later on the 9th December, the doctor noted "lens matter present in the anterior chamber and advised conservative treatment". He noted this again on the 11th December and prescribed medication. There was a further review on the 16th December, 1996. Further reviews were carried out in January. When Dr Saareste examined Dr M on 31st January, 1997 he considered that there had been obviously a massive vitreous loss during the surgery and that he required referral to an experienced cataract surgeon. When Dr Hunyor, an ophthalmic surgeon, examined Dr M he considered that a large nuclear fragment in the right eye needed to be removed and that the intra ocular implant should also be removed as it was not in a satisfactory position. Upon examining Dr M, Dr Silverton, ophthalmic surgeon, commented "I cannot remember seeing such a sad case after eye surgery for a long time. The surgeon responsible obviously requires counselling." As stated, Dr Higgins, an ophthalmic surgeon, was qualified to express opinions in his role as a peer reviewer. It was Dr Higgins' opinion that when the practitioner noticed that the patient's vision was reduced, as he did in early post operative examinations, a retinal examination would have been indicated and at that time the retained fragment of the nucleus should have been noted. He was aware that there was a ruptured posterior capsule and that should also make one consider that there may have been retained lens material that may have got into the posterior setting. The lens installed was completely misplaced. There was a failure to observe that the large nucleus fragment had been displaced and was retained in the eye. Dr Higgins believed that the lack of recognition of the large retained intra ocular nuclear fragment was not adequate and the improper insertion of the anterior chamber intra ocular lens was also inadequate. That procedure appeared to have been performed without due care of knowledge. There was evidence of a lack of skill, judgment and knowledge with regard to the handling of these complications. The post operative management was inadequate and inappropriate. He was firmly of the opinion that the patient should have been referred to a vitro retinal surgeon as early as 16/12/96. The practitioner himself acknowledged that as at the 16th December, there were indications for a referral for a second opinion. At that time he didn't suspect that the lens was misplaced however he had installed the lens knowing that he was unable to judge whether it was in the correct or incorrect position. The Tribunal finds it difficult to understand why he wouldn't have given consideration to this as explaining the inflammation of the eye. Clearly the patient was subjected to unnecessary discomfort and stress as a result of the practitioner's carelessness or incompetence. As stated, the practitioner admitted the particulars of complaint one. COMPLAINT TWO The practitioner performed a right extra capsule cataract extraction with an intra ocular lens implant upon Mrs W on 12/3/98. As a result of difficulties she was experiencing the patient attended Mr Tracey, an optometrist who found that the pupil was distorted, there was damage to the iris and material in the posterior chamber. Her sight was substantially affected. The patient came under the care of Dr Yip, Ophthalmologist, having been referred by Mr Tracey. Dr Yip found that right cataract surgery appeared to have been complicated by a posterior capsular tear and vitreous loss with the formation of inflammatory membrane anterior to the intra ocular lens. The practitioner described the operation as being uneventful however such description was at odds with what was observed by both Mr Tracey and Dr Yip. Dr Higgins also reported on this case and observed that "it would appear that there had been more significant post operative inflammation than he describes". He went on to say "if he describes it as not unlike any other case" then I am afraid that I feel that there may be a significant number of his cases that have had this sort of complication. He obviously disagreed with the practitioner's reports that he had performed an operation on Mrs H with the utmost care and she did not recover satisfactorily. In Dr Higgins' view the practitioner had not performed the cataract surgery with an acceptable standard of care as it appeared that he was unable to recognise the complications and problems associated the with surgery. Dr Higgins further observed that the practitioner obviously didn't recognise the intra operative complications of the post operative problems adequately and that the standard of surgical care was inadequate. He was unable to recognise or adequately treat such complications. It was Dr Higgins' opinion that the vitreous material would normally be observed during the course of the procedure and that the problem would be address by an anterior vitcrectomy. On the practitioner's account there was no vitreous in the anterior chamber when he performed the surgery however he subsequently conceded that there must have been some leakage albeit that he didn't observe it. He further conceded that despite having reported to the HCCC that there had been an uneventful cataract operation that this report was not true. Dr Higgins believed that the departure of standards would invite disapproval from the general body of colleagues. He went on to say "Based on the documentation I have reviewed my degree of disapproval would be moderately severe because of the lack of recognition of the problems, the inadequate treatment and the lack of referral to a vitro retinal surgeon". Complaint Three This complaint arises out of the practitioner's performance of a left extra capsular cataract extraction with an intra ocular lens implant on Mrs M on 9th March, 1995. The patient was an elderly lady aged 85 or thereabouts. Following the operation she experienced extreme discomfort and lack of vision. There was weeping in her eye for a considerable period. The practitioner claimed that the posterior chamber lens was inserted properly into the posterior chamber and that post operatively the left eye was satisfactory and she was discharged from hospital. She continued to attend upon the practitioner and he claims that he dealt with her complaints of a watery weepy eye and a mild inflamed left eye with appropriate drops. In his letter to the HCCC of 8th June, 1999 the practitioner stated: "At no time had Mrs M complained to me about her eyesight. She was experiencing some irritation for which I feel she was treated properly." In the course of his evidence the practitioner dealt with the allegation that he had failed to detect a lens haptic in the anterior chamber during the procedure. He maintained that there had been no misplacement, that the anterior chamber lens was inserted properly. When he subsequently reviewed the patient on the 13th March, 1995 and found that the posterior chamber lens arm was lying anterior to the iris in the anterior chamber limb, he decided not to subject the patient to further surgery, having regard to her age and the condition of her cornea. He further maintained that there was no lens material left in the eye after the operation. It was his evidence that he looked for lens material but it was not present at the time. It was the effect of his evidence that the lens in the superior part of the eye behind the iris is sometimes not visible if the pupil is not fully dilated and that it can gravitate once the patient becomes ambulatory, into the front part of the anterior chamber. In his opinion that is what happened in this case. The practitioner applied homatropine and neosafrin drops for three days post operatively. Homatropine does cause the pupil to dilate however the Tribunal was not persuaded that it caused the pupil to dilate to such an extent that the haptic or arm of the lens would slip from the posterior to the anterior chamber. He gave a further explanation as to how the haptic could come out and enter the anterior chamber. He proffered as a further explanation that if there is a knock on the eyeball it could push it out. That sometimes even an accident can cause subluxation of the lens too. It appears to the Tribunal that such a knock would have to be so forceful as to cause the patient quite severe pain and this would obviously be complained about. There is no suggestion from the practitioner that she made such a complaint and he agreed that this explanation was mere speculation on his part. The patient eventually came under the care of Dr Paul Beaumont and he commented "She had her left cataract removed. It looked as if it had been a complicated procedure. The haptic was anterior to the iris and there was a considerable amount of soft lens material blocking the pupillary aperture. This is in sharp contrast to the patient's assessment when he stated "I was unaware of any complications occurring during surgery". The Tribunal considers that it was highly likely that the haptic was incorrectly positioned in the course of the operation and does not believe that it moved or was re-positioned as postulated by the practitioner. It was the Tribunal's opinion that the practitioner simply failed to detect that it had not been correctly positioned and that he should have done so. We do not accept the proposition put to Dr Higgins: "If the practitioner had checked carefully that is during the procedure and did not detect the lens haptic being out of position, that would incline you towards the explanation that it happened after the procedure, would it not?" to which Dr Higgins answered "Yes". The Tribunal simply doesn't believe that there was the careful check suggested nor the implication that the lens haptic was in position. He is at odds with the patient as to what advice he tendered to he. He maintains that she was told of the post operative complications which he says he detected on the fourth day after surgery. She was, in effect, advised with regard to further surgery however she accepted his explanation that this would create more complications and accepted his decision at that time not to proceed to further surgery. It was the practitioner's claim that she was advised "that the upper limb of the posterior chamber lens had slipped into the anterior chamber" It is highly unlikely that he informed her of any problems in those words however assuming that he did inform her in layman's terms that problems had occurred and could be addressed, we believe that she would have undertaken the option involving further surgery. This lady had already allowed herself to be subjected to surgical procedures and we believe that it is highly likely that she would have undertaken further surgery having regard to the distressing symptoms and disabilities which she was experiencing post operatively. We are fortified in this view by the fact that she did undergo the treatment recommended and performed by Dr Paul Beaumont. As to the retained lens material, even if it had not been detected as the Tribunal believes it should have been, the practitioner should have been well aware of it when he noticed the inflammation. He claims that he had informed the patient of the presence of lens fragments in the eye as at the 13th March, however, he made no mention of this matter in his letter to the HCCC. We find it difficult to understand why he would fail to mention such an important matter when providing an explanation to the HCCC. The explanation that he proffered as to why he didn't recommend further intervention to remove the lens material is not convincing. When it was apparent that the fluid used in the cataract operation would be substantially more than would be used to irrigate and aspirate some lens material from behind the lens. The Tribunal prefers the account of the patient that she was not informed of the problem that arose with regard to either the retained lens material nor the necessity to re-position the haptic and rejects the practitioner's version of events. When he belatedly recognised the true position with regard to the haptic and the retained lens material he should have immediately advised the patient that further surgery was necessary to remove the lens material and to re-position the haptic. If he was not to operate, the patient should have been immediately referred to a vitro retinal surgeon. Dr Higgins considered that the haptic being in the anterior position may have been present at the time of surgery but it was most likely to have occurred at surgery and that it should have been replaced into the posterior chamber. If it was not observed at that time and observed post operatively as being anterior to the iris and that retained lens material was observed post operatively, he would recommend re-operation on the patient to remove the retained material and to replace the haptic. He felt that it was unusual for a considerable amount of soft lens material to be left following surgery and that it would be normally visible during the procedure. He did concede in cross examination that it was possible for retained lens material not to be visible. The Tribunal is well satisfied that the retained lens material should have been observed by the practitioner during the course of his operation. Findings It is the firm opinion of the Tribunal that in relation to each of the three patients, the practitioner demonstrated major incompetence and serious negligence. In considering whether his conduct gave rise to such a serious departure from accepted standards of medical practice, the Tribunal had regard to the degree of disapprobation expressed by Dr Higgins. In relation to each of the patients he stated that his degree of disapproval was moderate. A matter of concern to the Tribunal was its belief that the practitioner was not completely frank in his evidence. For example, he told the Tribunal that he had not been performing squint or ocular muscular surgery. Yet in fact he had performed squint surgery albeit there was only one instance of it. As we have previously stated the Tribunal recognises the credit to which the practitioner is entitled by reason of the admissions made in relation to complaints one and two. The practitioner has indicated that he does not wish to perform intra ocular surgery in the future and is prepared to give an undertaking that he will not do so. Further, he is prepared to undertake not to perform squint procedures. Findings of the Tribunal Having regard to what has been placed before this Tribunal, we are firmly of the opinion that the practitioner should not be performing intra ocular surgery, microscopic ophthalmic surgery and indeed squint or oscular muscle surgery. His competence to perform such surgery is seriously in question. Not only has he demonstrated major deficiencies in the manner in which he has performed the procedures and detailed in the complaints. Of equal concern is his apparent inability to recognise his short comings and his dangerous reluctance to take immediate steps to ensure that the patient is referred forthwith to others, to redress the position he has created. A condition will be imposed that he not perform intra ocular surgery and microscopic ophthalmic surgery, however we will refrain from adding a condition that he not perform squint or ocular muscular surgery, as we did not hear evidence with regard to his competence to perform the latter procedures. We believe however that the Medical Board should give serious consideration to this matter. As to the submission that this is not an appropriate case for a reprimand, we believe that the practitioner's conduct in general and in particular in causing undue discomfort, distress and concern to patients A and C by not referring them to competent practitioners who could have relieved their symptoms long before this was done, calls for a severe reprimand. The Tribunal is charged with exercising a protective power for the protection of the community. The principle consideration in the exercise of this power is the maintenance of the standards of the medical profession and maintaining the confidence of the public in the profession. We consider that in the exercise of that power we should register our strong disapproval of the practitioner's repeated incompetence, lack of care for his patients and the easily demonstrable lack of skill. Decision of and Orders of the Tribunal The members of the Tribunal are all comfortably satisfied on the balance of probabilities that the complaints and particulars thereof have been made out. We find that the conduct described in such particulars constitutes unsatisfactory professional conduct in that in relation to each complaint, 1) The practitioner is severely reprimanded; 2) The practitioner's registration be subject to the condition that he not perform intra ocular surgery or microscopic ophthalmic surgery; 3) The practitioner pay the complainant's costs. 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