Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 Hearing dates: 14, 15, 16 May 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Occupational Division Before: D Cowdroy OAM QC ADCJ, Principal Member Dr J D Cronin, Senior Member Dr M Cox, Senior Member P Macneill, General Member Decision: 1. The Tribunal finds that the practitioner's conduct constitutes professional misconduct. 2. Pending the Tribunal's final decision and final orders in these proceedings, the Tribunal orders that publication of the names of any patient be prohibited. 3. The proceedings be adjourned for consideration of any protective orders required in view of the above findings (stage 2). Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings - Practitioner conducting surgery when necessity for such surgery was not indicated - operative care – practitioner failing to supply clinical records – practitioner failing to inform patients of surgery – practitioner failing to obtain patient's informed consent – practitioner forwarding misleading report to general practitioner of patient – practitioner misleading applicant Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 Health Records and Information Privacy Act 2002 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 Dekker v Medical Board of Australia [2014] WASCA 216 FTZK and Minister for Immigration and Border Protection [2014] HCA 26 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 Taupau v HVAC Constructions (Queensland) Pty Ltd and Ors [2012] NSWCA 293 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Roland Von Marburg (Respondent) Representation: Counsel: K Stern SC and S Maybury (Applicant) R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Lawyers (Respondent) File Number(s): 2017/00014882 Publication restriction: Pending the Tribunal's final decision and final orders in these proceedings, the Tribunal orders that publication of the names of any patient be prohibited REASONS FOR DECISION 1. The applicant ("the HCCC") seeks disciplinary findings and orders by its application dated 13 January 2017 against the respondent ("the practitioner" or "the respondent"). Such orders are sought under the Health Practitioner Regulation National Law (NSW), hereafter referred to as "the National Law". The applicant seeks orders under section 149A, namely power to caution, reprimand, impose conditions on registration; under section 149B, namely imposition of a fine; and/or section 149C, namely suspension or cancellation of registration. 2. Specific complaints are made against the respondent who was formerly registered as a medical practitioner under the provisions of the National Law. Each complaint commences with background facts which are not disputed by the respondent. Thereafter, numerous particulars follow in support of each allegation of unsatisfactory professional conduct. 3. The respondent was a practising ear nose and throat surgeon. The respondent was educated in Australian colleges and universities. He commenced his professional appointments in 1989 as an intern and surgical resident. By 1998 the practitioner had qualified as an ear nose and throat surgeon (ENT) and head and neck surgeon consultant. In approximately 2000 the practitioner commenced his work as an ENT and head and neck surgeon consultant in a country town on the New South Wales and Victorian border. The applicant continued to practise until October 2017 when he ceased his registration as a medical practitioner. 4. The hearing of these proceedings commenced on 14 May 2019. The respondent was represented by counsel throughout the hearing. The respondent did not appear at the hearing in person but appeared by telephone for most of the hearing. The respondent stated that he did not wish to give evidence before the Tribunal and did not seek to cross-examine any witness relied upon by the applicant in the hearing. The respondent provided an unsworn statement in reply to the allegations of the applicant. Such statement is dated 22 September 2017. No more recent statement was provided to the Tribunal. 5. Both the respondent's statements and his formal Reply to the complaints denies all allegations made against him and proffers, in some instances, his reasons why the allegations are denied. In a few instances, the applicant has made concessions. 6. The applicant has called expert evidence of Dr John Curotta. Dr Curotta has provided numerous statements in respect of the allegations made of unsatisfactory professional conduct. This expert, for convenience will be referred to as "the expert" during the Tribunal's findings set out hereunder. The complaints relate to the treatment, management and advice provided to 6 patients of the respondent namely patient V, patient W, patient X, patient Y, patient Z, and patient AB. Some of these patients were referred for further treatment by other specialists. They include Dr Eliza Tweddle and Professor Robert Briggs. The respondent did not seek to cross-examine the expert relied upon by the applicant nor to cross-examine Dr Tweddle or Professor Briggs. 7. The respondent did not rely upon any expert evidence to refute the evidence relied upon by the applicant. 8. These reasons for decision consider the allegations made against the practitioner (stage I proceedings). THE HEARING 1. The hearing has proceeded by way of tender of the documentary evidence relied upon by the applicant which was admitted without objection. The respondent's statement was also admitted into evidence. Thereafter both the applicant and the respondent have made extensive submissions. 2. In making its findings in respect of each complaint, the Tribunal will apply the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 – 363. In doing so, the Tribunal is mindful of the observations by Hayne J in FTZK and Minister for Immigration and Border Protection [2014] HCA 26 (27 June 2014). In that decision, his Honour spoke of the misnomer to refer to a "standard of proof" outside the adversarial processes of a court: see para 34. Similar observations are contained in Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 which confirms that a Tribunal must be mindful in reaching its conclusions of the gravity of the allegations and the seriousness of the consequences which may flow from the making of positive findings. 3. The Tribunal considers that the principles established in Briginshaw serve the most appropriate guide in determining whether each allegation of unsatisfactory professional conduct has been established. Such principle requires the Tribunal to be satisfied, to a high degree, where the allegations are especially grave. The Tribunal notes that such a course has been adopted by the Court of Appeal of the Supreme Court of Western Australia in the matter of Dekker v Medical Board of Australia [2014] WASCA 216 at [75] (judgment delivered 21 November 2014). 4. The Tribunal is also mindful that where evidence is unchallenged, it will not necessarily be accepted; however its unchallenged status will provide a cogent reason why it should be accepted: see Taupau v HVAC Constructions (Queensland) Pty Ltd and Ors [2012] NSWCA 293 at [130]. Accordingly the Tribunal will consider the evidence of the applicant and its expert evidence, together with the unsworn statement of the practitioner. However, there is no reason why the practitioner could not have sworn an affidavit or given sworn evidence. 5. The Tribunal has considered the applicant's evidence, the respondent's statement, and the expert evidence of Dr John Curotta and clinical notes of Dr Eliza Tweddle and Professor Robert Briggs provided to it in reaching its findings which are set out hereunder. Because of the voluminous nature of the complaints, the Tribunal will set out its findings in respect of each particular, seriatim. COMPLAINTS 1. COMPLAINT ONE PATIENT V The Health Care Complaints Commission hereby complains that: Dr Roland Alexander Kocmut Von Marburg of 572 Kiewa Street, Albury in New South Wales, being a practitioner registered under the National Law (the Practitioner). is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: (i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT ONE The practitioner is an Ear, Nose and Throat surgeon. Patient V was diagnosed with meningitis in 2007 at around 15 months of age. As a result of the meningitis, Patient V sustained hearing loss in her right ear. On 7 February 2008 Patient V's general practitioner referred her to the Practitioner for an opinion and management of her right-sided "glue ear". The practitioner provided care and treatment to Patient V between March 2008 and June 2013. COMPLAINT ONE: PARTICULAR ONE Following Patient A's initial presentation in March 2008 the Practitioner failed to adequately consider and/or address the following in his management of Patient V: (a) the audiologist's observations dated 4 February 2008 for tests Patient V underwent on the same date; (b) the probability of sensorineural hearing loss in Patient V's right ear; (c) the difficulties to be expected with unilateral hearing loss; (d) the importance of keeping the left ear safe; (e) the risks of surgery on the left ear, being the only or better hearing ear. FINDING COMPLAINT ONE: PARTICULAR ONE 1. Proven: As to (a), (b), and (c), the practitioner failed to perceive that there was a profound sensorineural hearing loss in the right ear. Had he so realised, it would have been apparent that the course which he proposed would have been unnecessary. 2. Proven: As to (d) and (e), the practitioner failed to convey to the parents the risks associated with surgery on the left ear, and the importance of keeping the left ear safe from potential damage. The Tribunal accepts the expert opinion of Dr Curotta that the insertion of grommets would not prevent further episodes of meningitis. Therefore there was no justification for endangering the only hearing ear. The Tribunal notes the respondent's statement that the insertion of grommets has had no impact on the patient. However, this does not justify potentially endangering the only hearing ear. COMPLAINT ONE: PARTICULAR TWO The practitioner carried out a bilateral middle ear ventilation tube insertion on 18 March 2008 which was not clinically indicated in circumstances where: (a) the audiogram on 4 February 2008, being the only audiogram conducted prior to the 18 March 2008, reported: (i) normal hearing on the left side; (ii) Type A tympanogram on the left side confirming the normal presence of air in the left middle ear. (b) the practitioner's letter to Patient V's general practitioner on 13 March 2008 following his initial consultation with Patient V reported that "The left ear was unremarkable on examination..."; (c) the left ear, being the only or better hearing ear, should not have been unnecessarily interfered with. FINDING COMPLAINT ONE: PARTICULAR TWO 1. Proven: As to (a), (b), and (c), where the left ear was completely normal, both clinically and audiologically, and as the only hearing ear, it should not have been interfered with because such surgery posed an unnecessary risk. COMPLAINT ONE: PARTICULAR THREE The practitioner administered intratympanic dexamethasone injections locally to Patient V's right ear on 15 June, 10 August and 30 November 2010 to treat her sensorineural hearing loss which were not clinically indicated in circumstances where: (a) there was no potential benefit to Patient V's hearing; (b) Patient V was unnecessarily exposed to the risks of a general anaesthetic on each occasion. FINDING COMPLAINT ONE: PARTICULAR THREE 1. Proven: As to (a) and (b), the Tribunal accepts the expert's opinion that there is no evidence to indicate potential benefit to hearing by administering dexamethasone, either systemically or directly to the ear, years after the onset of hearing loss from bacterial meningitis, and exposing the child to 3 unnecessary general anaesthetics. Furthermore, the patient was exposed to the risk of potential damage to the only hearing ear by the intratympanic injections of dexamethasone. COMPLAINT ONE: PARTICULAR FOUR The practitioner incorrectly formed the view that Patient V's hearing had improved in her right ear after the first intratympanic dexamethasone injection on 15 June 2010 on the basis of an audiogram conducted on 19 July 2010 as compared to an earlier audiogram on 24 May 2010 in circumstances: (a) where the audiogram on 19 July 2010 purported to show a possible 10 decibel improvement of the hearing in Patient V's right ear, being an improvement of a magnitude to which no significance could be attached; (b) of the difficulty in obtaining reliable and repeatable hearing results in a child of Patient V's age and presentation (as at 2010). FINDING COMPLAINT ONE: PARTICULAR FOUR 1. Proven: As to (a) and (b), a 10 dB improvement in a pure tone audiogram is not significant, because of the difficulty in obtaining reliable hearing result in a child of that age. The Tribunal notes that the practitioner accepts that no great significance can be attached to the audiogram results. COMPLAINT ONE: PARTICULAR FIVE The practitioner provided incorrect advice to Patient V's general practitioner in his letter of 8 September 2011 by stating: "[Patient V] has had a recent drop off in her hearing due to some eustachian tube dysfunction. This is evident on her test today and is quite noticeable to [Patient V] particularly as it is her worst ear" in circumstances where: (a) the difference in hearing in Patient V's left and right ears on testing on 8 September 2011 was significantly greater than 15 dB, meaning the worse hearing right ear would not be used by the brain for binaural hearing and would likely be ignored ("Belfast Rule of Thumb"). (b) the difference in hearing between the two ears would have made it impossible for Patient V to be aware of such a difference in hearing in the right ear compared with the left. FINDING COMPLAINT ONE: PARTICULAR FIVE 1. Proven: As to (a) and (b), there could have been no further deterioration in the hearing of the patient's right ear. The right ear already had no hearing. COMPLAINT ONE: PARTICULAR SIX The practitioner failed to ensure Patient V's hearing was properly assessed prior to October 2011 in that he did not: (a) ensure that the hearing in her right ear was assessed and reviewed using masking in the left ear; (b) refer Patient V to a specialist audiology unit for testing. FINDING COMPLAINT ONE: PARTICULAR SIX 1. Proven: As to (a) and (b), children up to the age of four years require specialist audiology with adequate masking to obtain accurate pure tone audiometry. SUMMARY: COMPLAINT ONE 1. In respect to particulars 1, 2, 3, and 4, the Tribunal considers that the practitioner engaged in unsatisfactory professional conduct. However, in relation to particulars 5 and 6, the Tribunal accepts the opinion of the expert that whilst the conduct fell below the standard, it was not significantly below the standard expected and therefore does not constitute unsatisfactory professional conduct. 2. The Tribunal observes that whilst the conduct engaged in in respect of this patient did not result in any adverse consequences, the Tribunal finds that the treatment provided was unnecessary and potentially damaging. COMPLAINT TWO A PATIENT W The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: (i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT TWO A When Patient W was in about Year 11 at school he was hit in the ear and the blow perforated his ear drum. He underwent an operation to seal the perforation which was unsuccessful. On 19 May 2008 Patient W's general practitioner referred him to the Practitioner for assessment of his "chronically perforated ear drum". Patient W was 40 years of age at this time. The practitioner provided care and treatment to Patient W from May 2008 to October 2014. COMPLAINT TWO A: PARTICULAR ONE The practitioner provided incorrect and/or misleading advice to Patient W prior to carrying out a left ear myringoplasty on 23 February 2009 in that he advised Patient W he had a high chance of developing cholesteatoma if the existing perforation in his left ear was not repaired by the procedure, in circumstances where the perforation was a clean, central perforation of the tympanic membrane and Patient W had a negligible to nil chance of developing cholesteatoma. FINDING COMPLAINT TWO A: PARTICULAR ONE 1. Proven: the left ear perforation was a clean central perforation of the tympanic membrane, tubo-tympanic in nature, where there is negligible to nil chance of developing cholesteatoma. 2. The Tribunal finds no basis for the practitioner's assessment that cholesteatoma development was a possibility. COMPLAINT TWO A: PARTICULAR TWO The practitioner carried out a left ear intact canal wall mastoidectomy on Patient W with myringoplasty on 17 March 2011 which was not clinically indicated, thereby unnecessarily exposing Patient W to the substantially increased risk of mastoid surgery, in circumstances where: (a) CT scans of 2 March 2011, reported on 3 March 2011, showed no change from the initial CT scans of 14 January 2009; (b) CT scans of 2 March 2011, reported on 3 March 2011, did not provide any indication for cortical mastoidectomy. FINDING COMPLAINT TWO A: PARTICULAR TWO 1. Proven: whilst the CT scan report of 2 March 2011 reported chronic mastoiditis, it was incumbent upon the practitioner to examine the CT scan himself to determine if there was any radiological significance to the reported findings and to correlate with clinically evident chronic mastoiditis. Neither the expert, nor Professor Briggs, nor Dr Tweddle (the ENT specialist who was consulted after the practitioner's treatment of the patient) identified any ear disease on the CT scan. Therefore there was never any indication for a cortical mastoidectomy to be performed. COMPLAINT TWO A: PARTICULAR THREE The practitioner failed to obtain adequate consent from Patient W for the procedure performed on 17 March 2011 in circumstances where: (a) Patient W believed he was having a cartilage myringoplasty for which he provided his consent; (b) the Practitioner failed to discuss mastoid surgery with Patient W prior to the procedure adequately or at all. FINDING COMPLAINT TWO A: PARTICULAR THREE 1. Not Proven: the Tribunal does not know the content of the discussion between the practitioner and the patient. The consent form for the operation indicates "+ or -" mastoidectomy thereby indicating that there was a possibility that a mastoidectomy would occur. On the evidence, clinically and radiologically, there appears to have been no necessity for a cortical mastoidectomy to be performed. This procedure carries much more significant risk than a myringoplasty. COMPLAINT TWO A: PARTICULAR FOUR The practitioner failed to provide adequate post-operative care to Patient W following the procedure performed on 17 March 2011 in that: (a) he failed to send the granulation tissue, documented as being removed during the procedure, for microbiology or for histopathology examination; (b) he failed to give and/or make a record of any advice or precautions recommended to Patient W with respect to his planned air travel and/or swimming. FINDING COMPLAINT TWO A: PARTICULAR FOUR 1. Proven: As to (a), despite the practitioner claiming that this was so: there is no CT evidence that any granulation tissue was present. If it were present, there is no evidence that the practitioner referred the tissue for further examination. 2. Proven: As to particular (b), the practitioner admits that he did not record any advice given concerning air travel and swimming. Both travel by air and swimming pose risks to a newly operated ear, and any advice given to the patient should have been recorded. COMPLAINT TWO A: PARTICULAR FIVE The practitioner carried out a left ear modified radical mastoidectomy on Patient W on 4 October 2011 which was not clinically indicated in circumstances where: (a) the clinical symptoms and CT scans of 15 August 2011 did not provide justification for the surgery; (b) the Practitioner incorrectly postulated that a hidden cholesteatoma was present in the absence of symptoms or any suggestion of such presence during surgical explorations of the ear on 23 February and 17 March 2011; (c) even were a cholesteatoma present, such surgery was not appropriate. FINDING COMPLAINT TWO A: PARTICULAR FIVE 1. Proven: As to (a), (b), and (c), there is no evidence whatsoever of cholesteatoma and even if such a cholesteatoma were present, canal wall down mastoidectomy would not have been required. 2. The Tribunal accepts the opinion of the expert that, on the information provided, the practitioner's "understanding of the origin, symptoms, signs and radiological findings associated with cholesteatoma are at substantial variance with orthodox otological teaching". 3. The Tribunal wishes it noted that the patient began with a simple central perforation, after 2 unsuccessful repairs, but ended with a mastoid cavity after unnecessary mastoid surgery, and now requires life-long cavity care. COMPLAINT TWO A: PARTICULAR SIX The practitioner failed to provide adequate post-operative care to Patient W following the left ear modified radical mastoidectomy carried out on 4 October2011 in that he: (a) failed to submit the small "cholesteatoma" (<5mm in diameter) which was purportedly found and removed during surgery, but not recorded in his Operation Report of 4 October 2011, for histopathology; (b) did not report the severe to profound high frequency sensorineural hearing loss in the left ear found on 16 November 2011 to Patient W's general practitioner at Bright Medical Centre in his letters of 16 November 2011, 7 December 2011, 18 January 2012 or 2 May 2012; (c) failed to explain and/or record any explanation of the severe to profound sensorineural hearing loss in the left ear and its implications to Patient W; (d) attributed the cause of Patient W's continuing left ear, mastoid and jaw pain in May 2012 to "a little bit of Eustachian tube dysfunction" in circumstances where he had earlier noted the presence of a "small pin hole perforation in the inferior part of the tympanic membrane" in January 2012, when those two diagnoses cannot co-exist; (e) failed to adequately investigate and address Patient W's continuing left ear, mastoid and jaw pain; (f) failed to plan and/or record annual review of Patient W for a minimum period of five (5) years as is mandatory in the management of cholesteatoma in an adult. FINDING COMPLAINT TWO A: PARTICULAR SIX 1. Not Proven: As to (a) and (f), it is the Tribunal's finding that there never was a cholesteatoma. There is no radiological or clinical evidence pre-operatively, there is no record of it being found at operation and there was no tissue sent for analysis. The only evidence of the existence of a cholesteatoma is a report purportedly prepared by the practitioner on 12 October 2011 to the patient's general practitioner. The veracity of such report is considered in relation to complaint 4. 2. Proven: As to (b), the practitioner concedes this particular and it is proven; 3. Proven: As to (c), the practitioner accepts that he failed to record the discussions or explanation as alleged; 4. Proven: As to (d), the patient's continuing symptoms of ear, mastoid and jaw pain are explained by the practitioner as "a little bit of eustachian tube dysfunction" in circumstances where there was a small pinhole perforation and where the two circumstances cannot coexist. 5. Proven: as to (e), this is self-evident from the findings made above. COMPLAINT TWO A: PARTICULAR SEVEN In each of the three surgeries performed on Patient W on 23 February 2009, 17 March 2011 and 4 October 2011, the Practitioner used Chlorhexidine 0.1% solution as the "skin preparation" which is contraindicated in ear surgery and, in particular, in circumstances where Patient W's ear drum was not intact. FINDING COMPLAINT TWO A: PARTICULAR SEVEN 1. Proven: whilst the practitioner claims he used chlorhexidine with great care, it is known to be ototoxic. This is of particular significance as the patient did not have an intact eardrum. If as the respondent alleges, the solution was not brought into contact with the eardrum or the external auditory canal then he was not operating in a sterile field, thereby exposing the patient to infection. SUMMARY: COMPLAINT TWO A 1. In respect of the particulars in which the Tribunal has made positive findings in respect of the practitioner's conduct, the Tribunal considers that the conduct of the practitioner falls significantly below the level of a practitioner of equivalent standard, and constitutes unsatisfactory professional conduct. COMPLAINT TWO B The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened the Regulations made under the National Law. BACKGROUND TO COMPLAINT TWO B As for Complaint Two A. COMPLAINT TWO B: PARTICULAR ONE The practitioner contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 by failing to make and keep adequate records of his care and treatment of Patient W in that: (a) his handwritten records of his consultations with Patient W are brief and scant; (b) there is no record of his consultations with Patient W on 19 August 2011 and 12 October 2011; (c) there are no contemporaneous notes of his consultations with Patient W after 2 March 2011, despite his having continued to treat Patient W up until October 2014 and performing two mastoid surgeries in that period; (d) there is no record of any discussion with Patient W prior to surgery concerning the risks of surgery, nor of Patient W's concerns or expectations; there is no record in the Operation Report of 4 October 2011 of the small "cholesteatoma" (<5mm in diameter) which was purportedly found and removed during surgery; (e) there is no record of the adverse event of the permanent left ear high frequency severe hearing loss anywhere in the consultation notes or the letters to Patient W's general practitioner or in any other record, outside of the audiograms of 15 November 2011 and 25 July 2012. (f) there is no record of the adverse event of the permanent left ear high frequency severe hearing loss anywhere in the consultation notes or the letters to Patient W's general practitioner or in any other record, outside of the audiograms of 15 November 2011 and 25 July 2012. FINDING COMPLAINT TWO B: PARTICULAR ONE 1. Proven: in respect of each of the allegations contained in (a) to (f). The practitioner accepts that his records are brief, and that there is no record of the consultations with the patient on the dates referred to in the particulars, except for his letters to the general practitioner (which will be considered in complaint 4, where the veracity of the letters is challenged). SUMMARY: COMPLAINT TWO B 1. The Tribunal accepts the expert opinion that the practitioner's record keeping fell significantly below the standard expected, and constitutes unsatisfactory professional conduct. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: (i) engaged in conduct that demonstrates the judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT THREE As for Complaint Two A. COMPLAINT THREE: PARTICULAR ONE The practitioner failed to provide Patient W with access to his medical records or otherwise respond to his request made in writing on 15 June 2015 in a timely way, despite being aware of the request from the end of June or early July 2015, until November 2015 following a request from Patient W's solicitor in circumstances where the failure to do so earlier was: (a) unprofessional and discourteous; (b) contrary to section 27 of the Health Records and Information Privacy Act 2002; (c) disruptive of Patient W's care in that Patient W did not have his medical records when he consulted with another Ear, Nose and Throat surgeon on 11 August 2015. FINDING COMPLAINT THREE 1. Proven: The practitioner accepts the allegations contained in complaint three (a) to (c). Whilst the practitioner responded to the request for documents by providing a one-page summary, such letter clearly did not constitute the clinical records for the patient. The summary was misleading in that it suggested that the patient had developed a "recurrent cholesteatoma", which was not supported by the evidence. As to production of the clinical records, such records were not provided until six months after the request. Pursuant to section 27(1)(a) of the Health Records and Information Privacy Act 2002, such records should have been voluntarily provided within 45 days of a request being made for production of such records. The production of records only resulted from the receipt by the practitioner of a solicitor's letter. Such conduct by the practitioner constitutes unsatisfactory professional conduct. COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: (i) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each Particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding. BACKGROUND TO COMPLAINT FOUR As for Complaint Two A. COMPLAINT FOUR: PARTICULARS ONE TO SEVEN 1. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 17 December 2008, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 17 December 2008, when it was in fact never sent; (b) the document purports to have been created on or about 17 December 2008, when it was in fact created sometime after December 2014. 2. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 1 April 2009, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 1 April 2009, when it was in fact never sent; (b) the document purports to have been created on or about 1 April 2009, when it was in fact created sometime after December 2014. 3. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 20 May 2009, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 20 May 2009, when it was in fact never sent; (b) the document purports to have been created on or about 20 May 2009, when it was in fact created sometime after December 2014. 4. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 14 October 2009, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 14 October 2009, when it was in fact never sent; (b) the document purports to have been created on or about 14 October 2009, when it was in fact created sometime after 2014. 5. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 19 August 2011, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 19 August 2011, when it was in fact never sent; (b) the document purports to have been created on or about 19 August 2011, when it was in fact created sometime after 2014. 6. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 12 October 2011, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 12 October 2011, when it was in fact never sent; (b) the document purports to have been created on or about 12 October 2011, when it was in fact created sometime after 2014. 7. In engaging in the conduct set out at each of particulars 1, 2, 3, 4, 5 and 6, the Practitioner acted in contravention of section 99 of the Health Care Complaints Act 1993. FINDINGS TO COMPLAINT FOUR: PARTICULARS ONE TO SEVEN 1. Proven: in respect of the letters purportedly written by the practitioner referred to in particulars 1, 2, 3, 4, 5, and 6, the particulars are proved. Such letters were purportedly written between December 2008 and October 2011. The patient did not commence residing at that address until 2014 and had previously resided at a different address. Accordingly, the Tribunal finds that such letters were false and misleading, and designed to obfuscate his lack of correspondence and recordkeeping. 2. Proven: Regarding particular 7. 3. The Tribunal finds that the conduct as described in this complaint is improper and unethical and consequently constitutes unsatisfactory professional conduct. Further, the Tribunal considers out of all the complaints made against the practitioner in these proceedings, this complaint constitutes egregious conduct. COMPLAINT FIVE A PATIENT X The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: (i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT FIVE A Patient X suffered from Eustachian tube dysfunction and otitis externa in 2004 and otitis media (recurrent) in 2005 when she was aged in her mid-fifties. She received specialist care on each occasion, from another otologist in 2004 and then from the Practitioner in 2005. She continued under the care of her general practitioner. Patient X underwent audiology testing in February 2013 at the request of her general practitioner. This showed a deterioration in her hearing since previous testing in 2005. As a result, her general practitioner referred her to the Practitioner in February 2013 for specialist care. Patient X was 64 years of age at this time. COMPLAINT FIVE A: PARTICULAR ONE 1. On 4 July 2013 the Practitioner carried out a right-sided stapedectomy on Patient X which was not clinically indicated in circumstances where: (a) he failed to conduct speech discrimination tests prior to confirming the decision to perform surgery; (b) he failed to investigate the worse sensorineural hearing loss on the left side; (c) he failed to carry out repeat audiology testing prior to confirming the decision to perform the surgery; (d) he diagnosed a 'Carhart's Notch' which was not present; (e) he failed to appreciate that Patient X's right-side hearing could have easily benefited from a hearing aid. FINDING COMPLAINT FIVE A: PARTICULAR ONE 1. Proven. As to (a), the Tribunal rejects the respondent's opinion that such tests are not necessarily a mandatory part of the pre-operative work up of a patient. Speech discrimination tests are a mandatory part of the preoperative workup of a patient prior to stapedectomy. Pure tone audiograms are subjective whereas speech discrimination scores are objective. 2. Proven: As to (b), there is significant asymmetry between the two ears with a significant left sensorineural hearing loss on the left side. This should have been investigated with an MRI scan to exclude a tumour on this side. 3. Proven: As to (c), there is no evidence that any such tests were performed and the practitioner acknowledges that he did not undertake such tests. 4. Proven: As to (d), the Tribunal concurs with the expert's opinion that there is no Carhart's notch present. 5. Proven: As to (e), if the practitioner appreciated that the patient's right-sided hearing could have benefited from a hearing aid, he should not have proceeded to stapedectomy. He should have considered that the patient's hearing on the right side would have been adequately helped by a hearing aid. COMPLAINT FIVE A: PARTICULAR TWO Prior to performing the right-sided stapedectomy on 4 July 2013 the Practitioner failed to provide appropriate advice or information to Patient X in that: (a) he did not advise Patient X as to any alternative course including that her right-side hearing could easily benefit from a hearing aid; (b) he did not inform Patient X that the hearing loss in her left ear was unlikely to be reversed by surgery; (c) he did not adequately explain the type of surgery and the risks associated to Patient X in order to obtain her informed consent. FINDING COMPLAINT FIVE A: PARTICULAR TWO 1. Not Proven: As to (a), the evidence does not justify finding that the advice was not provided. 2. Not Proven: As to (b), the Tribunal is unable to make any finding. 3. Not Proven: As to (c), the evidence does not justify a positive finding. COMPLAINT FIVE A: PARTICULAR THREE The practitioner failed to provide adequate post-operative care to Patient X following the right-sided stapedectomy on 4 July 2013 in that: (a) he failed to carry out tuning fork testing after 10 July 2013 to confirm the changes in hearing on audiology; (b) he failed to appreciate the significant change in Patient X's hearing pre and post-surgery; (c) he failed to appraise Patient X of the implications of the changes in her hearing post-operatively as demonstrated by the audiograms from 30 July 2014 onwards. FINDING COMPLAINT FIVE A: PARTICULAR THREE 1. Proven: As to (a), the respondent admits the allegation. 2. Not Proven: As to (b), the evidence is inconclusive. 3. Not Proven: As to (c), the evidence is inconclusive. COMPLAINT FIVE A: PARTICULAR FOUR On 1 October 2013 the Practitioner carried out a right-sided myringotomy and a ventilation tube insertion on Patient X which was not clinically indicated in circumstances where: (a) insertion of a ventilation tube in an ear with a stapes prosthesis in situ involves an unacceptable risk of suppurative labyrinthitis; (b) he failed to consider the variance from sensorineural to conductive hearing loss between audiology tests and tympanograms performed on 14 August 2013, 28 August 2013 and 28 September 2013; (c) he failed to consider the possibility that the fluid in the middle ear may have been leaked fluid (perilymph) from the inner ear; (d) counselling Patient X to delay flying until the middle ear was aerated and tympanometry indicated good Eustachian tube function would have been a more appropriate course. FINDING COMPLAINT FIVE A: PARTICULAR FOUR 1. Proven: As to (a), the Tribunal agrees with the expert's opinion that it is unacceptable to insert a ventilation tube into an ear which contains a stapes prosthesis. 2. Not Proven: As to (b), the evidence is inconclusive 3. Proven: As to (c), there is no evidence that the practitioner considered the possibility that the fluid in the middle ear may have been leakage of perilymph. 4. Proven: As to (d), there is no evidence that the patient was so advised. 5. SUMMARY: COMPLAINT FIVE A 6. The Tribunal notes that the expert considered that the conduct of the practitioner fell below, but not significantly below, the appropriate standard in relation to particular 1, (b), (c), and (d). With respect to all other particulars, the expert considered that the conduct of the practitioner fell significantly below the appropriate standard. The Tribunal concurs, and finds that the conduct engaged in constitutes unsatisfactory professional conduct in relation to those matters which have been proved. COMPLAINT FIVE B The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened the Regulations made under the National Law. BACKGROUND TO COMPLAINT FIVE B As for Complaint Five A. PARTICULARS OF COMPLAINT FIVE B 1. The practitioner contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 by failing to make and keep adequate records of his care and treatment of Patient X in that: (a) his hand-written notes are scant and do not adequately record his consultations with Patient X; (b) his recording of Patient X's symptoms and the results of his otological clinical assessments of Patient X are deficient; (c) he has not adequately recorded his audiology interpretations; (d) there is no record of any discussion with Patient X prior to surgery concerning the risks of surgery, nor of Patient X's concerns or expectations; (e) there is no record of alternative management strategies and potential outcomes have been explained to Patient X; (f) his recording of post-operative findings is deficient. FINDING COMPLAINT FIVE B 1. Proven: As to (a) to (f), the Tribunal finds that the record-keeping of the applicant was inadequate and constitutes a contravention of the above Regulation. The Tribunal adopts the observations of the expert who stated that the respondent's "otological clinical assessments, audiology interpretations, explanation of the nature of the condition and the implications of planned management, alternative management strategies and explanation of the potential outcomes, on the documentation provided, show significant deficiencies." SUMMARY: COMPLAINT FIVE B 1. The Tribunal considers the conduct in relation to this complaint as constituting unsatisfactory professional conduct. COMPLAINT SIX PATIENT Y The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT SIX In around June 2006, Patient Y was aged 43 years and was referred to the Practitioner for specialist care in relation to new onset hearing loss. Patient Y continued under the Practitioner's care from June 2006 to April 2014. COMPLAINT SIX: PARTICULAR ONE The practitioner conducted a right-sided stapedectomy on Patient Y on 20 November 2006 which was not clinically indicated in circumstances where: (a) the Practitioner had conducted a left sided stapedectomy on Patient Y on 18 September 2006; (b) orthodox practice is to wait at least 6 months before carrying out stapedectomy on the opposite ear; (c) there was insufficient time between surgeries for adverse outcomes of the first stapedectomy to appear; (d) performing the two stapedectomies close together compromised the subsequent diagnosis and management of Patient Y. FINDING COMPLAINT SIX: PARTICULAR ONE 1. Proven: As to (a), (b), (c), and (d), the Tribunal finds each particular proved. Accepted otological practice is to wait 6 to 12 months after the first stapedectomy before proceeding to a second procedure, to allow any complication from the first procedure to become manifest. COMPLAINT SIX: PARTICULAR TWO The practitioner performed revision endoscopic sinus surgery and a bilateral middle ear ventilation tube insertion on Patient Y on 3 December 2013 which was contraindicated and otherwise inappropriate in circumstances where: (a) stapes prostheses were present; (b) the Practitioner should have considered that one or both of the prostheses could be unstable causing potential leakage of fluid from the inner ear/s; (c) creation of a non-intact tympanic membrane in the context of prior stapedectomy unnecessarily exposed the inner ear to further and irreversible damage including suppurative labyrinthitis; (d) Patient Y had not consented to the insertion of grommets. FINDING COMPLAINT SIX: PARTICULAR TWO 1. Proven. As to (a) to (c). 2. Proven. As to (d): the patient consent form contains no reference to the insertion of grommets: the patient denies ever having been informed that grommets would be inserted. The practitioner relies upon a typed note in his clinical record dated 12 August 2013. The Tribunal is not satisfied that such note was made on the date alleged and considers that the consent form signed by the patient is of paramount significance. COMPLAINT SIX: PARTICULAR THREE The practitioner failed to provide adequate care to Patient Y in circumstances where Patient Y consistently reported experiencing disabling episodes of vertigo and dizziness dating from the stapedectomies performed in 2006, particularly the second stapedectomy performed on 20 November 2006, in that the Practitioner: (a) failed to consider that the vertigo and dizziness were complications arising from the stapedectomy surgery; (b) did not attempt to identify which ear was contributing the greater symptomology and explore that ear early; (c) failed to recommend an exploration of Patient Y's left ear prior to January 2014; (d) failed to refer Patient Y to a more experienced otological practitioner prior to April 2014. FINDING COMPLAINT SIX: PARTICULAR THREE 1. Proven: As to (a) to (d), the practitioner has failed to consider the implications of the post-operative vertigo and dizziness and consider them post-operative sequalae. SUMMARY: COMPLAINT SIX 1. The Tribunal agrees with the expert opinion that the treatment of this patient is significantly below the standard expected and amounts to unsatisfactory professional conduct. COMPLAINT SEVEN The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates the judgment possessed by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each Particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding. BACKGROUND TO COMPLAINT SEVEN As for Complaint Six. COMPLAINT SEVEN: PARTICULARS 1. On or about April 2014 the Practitioner made unprofessional and inappropriate comments about a senior otologist in a letter he addressed to Patient Y and copied to Patient Y's general practitioner, including expressing "grave concern" that Patient Y had been referred on to the senior otologist by another practitioner and that the senior otologist "has a very significant character flaw in making vexatious complaints". FINDING COMPLAINT SEVEN 1. Proven: The conduct engaged in was unacceptable for a medical practitioner and constitutes unsatisfactory professional conduct. COMPLAINT EIGHT The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: (i) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding. BACKGROUND TO COMPLAINT EIGHT As for Complaint Six. COMPLAINT EIGHT: PARTICULARS ONE TO FOUR 1. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 9 January 2008, which was false and misleading in that: (c) the document purports to have been sent to Gardens Medical Centre on or about 9 January 2008, when it was in fact never sent; (d) the document purports to have been created on or about 9 January 2008, when it was in fact created sometime after June 2015. 2. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 19 August 2009, which was false and misleading in that: (e) the document purports to have been sent to Gardens Medical Centre on or about 19 August 2009, when it was in fact never sent; (f) the document purports to have been created on or about 19 August 2009, when it was in fact created sometime after June 2015. 3. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 25 September 2009, which was false and misleading in that: (g) the document purports to have been sent to Gardens Medical Centre on or about 25 September 2009, when it was in fact never sent; (h) the document purports to have been created on or about 25 September 2009, when it was in fact created sometime after June 2015. 4. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 8 August 2012, which was false and misleading in that: (i) the document purports to have been sent to Gardens Medical Centre on or about 8 August 2012, when it was in fact never sent; (j) the document purports to have been created on or about 8 August 2012, when it was in fact created sometime after June 2015. 5. In engaging in the conduct set out at each of particulars 1, 2, 3, and 4 the Practitioner acted in contravention of section 99 of the Health Care Complaints Act 1993. FINDING COMPLAINT EIGHT: PARTICULARS ONE TO FOUR 1. Proven. As to particulars 1 to 4. There is no evidence that the letters were sent to the general practitioners and the Tribunal finds that the letters were in fact never sent. Based upon the earlier Complaint (Complaint Four), the Tribunal is satisfied that the letters were fabrications. 2. Proven. As to particular 5. SUMMARY: COMPLAINT EIGHT 1. The Tribunal finds that the conduct of the practitioner as alleged in Particular eight constitutes unsatisfactory professional conduct. COMPLAINT NINE A PATIENT Z The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT NINE A In around July 2013, Patient Z was aged 46 years and was referred to the Practitioner for specialist opinion and management of chronic headaches at her occipital area. Patient Z continued under the Practitioner's care from July 2013 to July 2015. COMPLAINT NINE A: PARTICULAR ONE 1. The practitioner incorrectly diagnosed Patient Z as suffering from right-sided mastoiditis following his initial consultation with her on 25 July 2013 in circumstances where: (a) CT scans performed on 24 July 2013 indicated that both mastoid air cell systems were aerated with no fluid or other disease evident; (b) there was no historical, clinical, audiological or radiological evidence of clinical disease resembling mastoiditis; (c) the practitioner placed undue reliance on the radiologist's comments reported on 24 July 2013 that "the right mastoid sinus appears to be sclerosed and possibly representing chronic mastoid disease" in the absence of further corroborative evidence of mastoid disease. FINDING COMPLAINT NINE A: PARTICULAR ONE 1. Proven: As to Particular One (a) to (c), the Tribunal agrees with the expert's opinion that there was no attempt by the practitioner to integrate all the findings with the patient's symptoms. The Tribunal concurs with the expert opinion that there was no historical, clinical, audiological or radiological evidence of clinical disease resembling mastoiditis. COMPLAINT NINE A: PARTICULAR TWO 2. The practitioner performed a right-sided intact canal wall mastoidectomy and myringoplasty and right middle ear ventilation tube insertion on Patient Z on 26 November 2013 which was not clinically indicated in circumstances where: (a) there was no evidence of right-sided mastoiditis; (b) Patient Z's ear drum was intact; (c) there was no evidence of Eustachian tube dysfunction. FINDING COMPLAINT NINE A: PARTICULAR TWO 1. Proven: It is incongruous and defies logic to perform a myringoplasty (to repair the drum) when the drum is already intact and then to insert a ventilation tube into the grafted drum. Such conduct falls significantly below the standard expected. COMPLAINT NINE A: PARTICULAR THREE The practitioner used chlorhexidine 0.1% solution as the 'skin preparation' for the surgery performed on Patient Z on 26 November 2013 in circumstances where chlorhexidine is ototoxic and contraindicated in otological surgery. FINDING COMPLAINT NINE A: PARTICULAR THREE 1. Proven: The operation record shows that Chlorhexidine 0.1% was used as sterilising solution. However the practitioner has elsewhere claimed that he is careful not to instil the solution into the external auditory canal and onto the drum. The Tribunal considers that, in view of the fact that sterility for a mastoidectomy requires a widespread sterile field, including the pinna, front and back, adjacent areas of scalp and facial skin, and the external auditory canal, such a claim is wholly untenable. Non-sterility of the external auditory canal and drum, in this instance, flies in the face of basic surgical principles. COMPLAINT NINE A: PARTICULAR FOUR The practitioner failed to obtain adequate and informed consent from Patient Z prior to performing the surgery on 26 November 2013 in that he: (a) recommended surgery that was not indicated; (b) did not explain to Patient Z that the risks associated with the surgery outweighed any potential benefit of the surgery; (c) failed to adequately advise Patient Z of alternative conservative treatment options; (d) failed to obtain any verbal or written consent from Patient Z to perform the myringoplasty. FINDING COMPLAINT NINE A: PARTICULAR FOUR 1. Proven: As to (a) to (d), the consent form only refers to a mastoidectomy. It does not mention myringoplasty or ventilation tube insertion. The Tribunal observes that, quite apart from such surgery not being indicated, it was quite inappropriate. The patient therefore could not possibly have given an informed consent to the procedure. COMPLAINT NINE A: PARTICULAR FIVE The practitioner failed to provide adequate post-operative care to Patient Z following the surgery conducted on 26 November 2013 in circumstances where audiograms conducted on 9 January 2014, 3 April 2014 and 4 June 2014 revealed that Patient Z's hearing in her operated ear (right ear) was worse than before surgery, in that: (a) he did not document any consultations with Patient Z between the initial post-operative visit (2 December 2013) and 4 June 2015 despite the deterioration in Patient Z's hearing; (b) he did not adequately address the hearing loss or discuss its implications with Patient Z. FINDING COMPLAINT NINE A: PARTICULAR FIVE 1. Proven: As to (a), no documentation exists between the respective dates as set out in the complaint. 2. Not Proven: As to (b), the evidence is inconclusive. COMPLAINT NINE A: PARTICULAR SIX The practitioner failed to provide adequate post-operative care to Patient Z following the removal of the right-ear grommet on 4 June 2015 in that he: (a) failed to acknowledge the extreme pain experienced by Patient Z upon removal of the grommet; (b) failed to carry out any audiology or typmpanometry after the removal of the grommet; (c) failed to advise Patient Z's treating practitioners of the extreme pain experienced by Patient Z upon removal of the grommet in his letters dated 9 June 2015, 17 June 2015 and 23 June 2015; (d) failed to conduct adequate follow up of Patient Z after 17 June 2015 despite Patient Z's continuing post-operative symptoms, pain and distress. FINDING COMPLAINT NINE A: PARTICULAR SIX 1. Proven: As to (a) to (d), there is no indication that local anaesthetic was provided for the removal of the grommet thus severe pain was experienced by the patient. There is no evidence that any audiology was carried out after the removal of the grommet. Further, there is no evidence that the practitioner advised the patient's treating practitioners of the extreme pain which she experienced on removal of the grommet. The practitioner should have followed up the patient's condition after her episode of extreme pain on removal of the grommet. SUMMARY: COMPLAINT NINE A 1. The Tribunal finds that the conduct of the practitioner in relation to this complaint fell significantly below the expected standard and constitutes unsatisfactory professional conduct. COMPLAINT NINE B The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has contravened the Regulations made under the National Law. BACKGROUND TO COMPLAINT NINE B As for Complaint Nine A. COMPLAINT NINE B: PARTICULARS The practitioner contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 by failing to make and keep adequate records of his care and treatment of Patient Z in that: (a) there are no contemporaneous records of his consultations with Patient Z; (b) there is no record at all of his consultations with Patient Z on 9 January 2014 and 3 April 2014. FINDING COMPLAINT NINE B 1. Proven: there is no record maintained by the practitioner although the patient said she did attend on both occasions. SUMMARY: COMPLAINT NINE B 1. The Tribunal considers that in respect of the above, the practitioner has fallen significantly below the expected standard and his conduct constitutes unsatisfactory professional conduct. COMPLAINT TEN A PATIENT AB The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the Practitioner has: (i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the Practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT TEN A In around February 2014, Patient AB was 71 years of age when he was referred to the Practitioner for investigation of differential hearing loss. Patient AB continued under the Practitioner's care until December 2014. COMPLAINT TEN A: PARTICULAR ONE The practitioner failed to make an adequate diagnosis and treatment plan for Patient AB following initial consultation on 17 March 2014 was inadequate in that he: (a) did not give adequate consideration to the acute attack of vertigo suffered by Patient AB in July 2013, including its cause, and what role it might have in diagnosis, management and post-surgical outcomes for Patient AB; (b) relied on the Brain CT scan performed on 5 July 2013 which does not highlight ear pathology, while failing to obtain a CT scan of the Petrous Temporal bones; (c) did not give adequate consideration to the discrepancy between the results of audiology testing performed on 31 July 2013 which indicated a significant conductive component to the hearing loss in Patient AB's right ear and the results of audiology testing performed on 6 November 2013 which indicated a significant sensorineural hearing loss; (d) did not obtain further audiology to resolve the discrepancy between the results of audiology performed on 31 July 2013 and 6 November 2013; (e) did not carry out tuning fork tests to confirm the nature of Patient AB's hearing loss to confirm or contradict the findings of tuning fork testing conducted by another practitioner on 6 November 2013; (f) reached a diagnosis of otosclerosis without giving adequate consideration to more likely causes of rapid onset unilateral hearing loss in a person of Patient AB's age; (g) did not give adequate consideration to Patient AB's age and comorbidities in assessing the potential complications and adverse outcomes of elective surgery; including that Patient AB: i. was 71 years of age; ii. had undergone a total right hip replacement; iii. suffered from type 2 diabetes; iv. suffered from polymyalgia rheumatica. FINDING COMPLAINT TEN A: PARTICULAR ONE 1. Proven: As to (a) to (g), the symptoms and presentation of the patient suggested sudden hearing loss in the patient's right ear. The patient was treated at Wagga Wagga by Dr Bal Krishnan who diagnosed sensorineural hearing loss. One audiogram suggested a conductive hearing loss in spite of all the other tests suggesting sensorineural hearing loss. On this basis alone, the practitioner has proceeded to surgery. Such procedure was precipitous in view of the conflicting audiological results. 2. The Tribunal concurs with the opinion of the expert that there is no discussion of the discrepancy between the two audiograms; the first suggesting significant conductive component for which surgery has potential benefit and the second indicating a significant sensorineural loss for which surgery was useless. COMPLAINT TEN A: PARTICULAR TWO The practitioner proceeded to perform a right-sided stapedectomy on Patient AB on 31 March 2014 which was not clinically indicated in circumstances where: (a) he had not conducted sufficient investigations to confirm the diagnosis of otosclerosis; (b) he failed to adequately consider the potential implications of surgical complications. FINDING COMPLAINT TEN A: PARTICULAR TWO 1. Proven: The Tribunal concurs with the expert opinion that until the diagnosis had been confirmed, the stapedectomy should not have been performed. This is especially so in view of the age and comorbidities of the patient. COMPLAINT TEN A: PARTICULAR THREE Prior to performing the right-sided stapedectomy on Patient AB on 31 March 2014, the Practitioner failed to explain to Patient AB the potential implications of surgical complications and/or an unsuccessful outcome. FINDING COMPLAINT TEN A: PARTICULAR THREE 1. Not Proven: the evidence does not establish this particular. COMPLAINT TEN A: PARTICULAR FOUR The practitioner failed to provide adequate post-operative care for Patient AB following the surgery performed on 31 March 2014 in that he: (a) did not conduct tuning fork tests or record a description of the loudness at which Patient AB was able to "hear voice" at the consultation of 7 April 2014; (b) did not conduct pneumatic otoscopy at the consultation of 14 May 2014, despite postulating 'eustachian tube dysfunction' resulting in hearing loss; (c) did not conduct tuning fork tests or tympanometry at the consultation of 14 May 2014; (d) did not conduct an audiogram until the consultation of 28 May 2014; (e) dismissed the findings of the audiogram of 28 May 2014, which demonstrated sensorineural hearing loss, as being inconsistent with his purported examination of Patient AB on the same date without providing any explanation to Patient AB or his treating general practitioner for this conclusion; (f) incorrectly concluded on 19 June 2014 that patient AB had some improvement in the low and mid frequencies of his hearing post-operatively, despite the post-operative audiogram results of 28 May 2014 failing to demonstrate such an improvement; (g) incorrectly concluded on 19 June 2014 that a hearing aid was available as an option to assist AB's hearing in circumstances where the only post-operative audiogram of 28 May 2014 demonstrated a profound right sensorineural hearing loss; (h) gave incorrect advice to patient AB's treating general practitioner in his letter of 19 June 2014 about the potential benefit of a hearing aid to Patient AB's hearing. FINDING COMPLAINT TEN A: PARTICULAR FOUR 1. Proven: As to (a) to (h). 2. The Tribunal accepts the expert's opinion in respect of the matters referred to in this complaint that the patient's post-operative care was inadequate. COMPLAINT TEN A: PARTICULAR FIVE The practitioner performed an exploration of Patient AB's right middle ear, revision right stapedectomy, removal of adhesions and administration of intratympanic dexamethasone on 19 August 2014 which was not clinically indicated in circumstances where: (a) the CT scan results of 14 May 2014 indicated that the prosthesis was in good position and no other mechanical problem or reason was identified by that Practitioner prior to surgery to justify exploration of the ear; (b) intratympanic dexamethasone is used for sudden sensorineural hearing loss and the Practitioner had not made this diagnosis in Patient AB prior to surgery; (c) there is no recognised benefit of intratympanic dexamethasone after a six-month delay, even when sudden sensorineural hearing loss has been diagnosed. FINDING COMPLAINT TEN A: PARTICULAR FIVE 1. Proven: The Tribunal finds that particulars five (a) to (c) are established. 2. The Tribunal accepts the opinion of the expert that there was no evidence to support a further exploration of the patient's right ear or the use of dexamethasone. COMPLAINT TEN A: PARTICULAR SIX The practitioner failed to provide adequate post-operative care for Patient AB following the surgery performed on 19 August 2014 in that he: (a) advised Patient AB at a consultation on or around 29 October 2014 that a hearing aid may still assist his hearing in circumstances where this was not so; (b) provided unclear advice to Patient AB's treating general practitioner in his letter of 29 October 2014 by stating that audiology results indicated that Patient AB's conductive hearing had improved yet he still had a "profound hearing loss"; (c) failed to recognise the "mixed" right-sided hearing loss reported in the audiology results of 14 October 2014 and 16 December 2014 as being a misinterpretation of the limits of "masking" and continued to view Patient AB's hearing loss as being conductive; (d) incorrectly described audiology results of 14 October 2014 and 16 December 2014 as demonstrating an improvement in Patient AB's right-sided sensorineural thresholds with a "large persistent conductive hearing loss" as at 29 January 2016 when providing a history of his care and treatment of Patient AB to another otological practitioner; (e) failed to adequately consider and interpret the pre and post-operative audiograms and his surgical findings which should have led him to consider that the most likely diagnosis was sensorineural hearing loss and that the likelihood of further improvement to Patient AB's right-sided hearing was remote or non-existent; (f) unreasonably delayed a correct diagnosis of Patient AB's hearing loss. FINDING COMPLAINT TEN A: PARTICULAR SIX 1. Proven: As to (a) to (f). 2. The Tribunal finds that the practitioner relied upon the audiological result showing conductive hearing loss in spite of the fact that all other audiograms and all other opinions (namely the opinion of the medical practitioner at John Flynn Hospital and Dr Bal Krishnan at Wagga Wagga) pointed to a profound sensorineural hearing loss. The Tribunal accepts the opinion of the expert that the practitioner's management gave false hope of improvement to the patient and delayed correct diagnosis. The practitioner's description of an audiogram which is not comprehensible and not documented seems deliberately misleading. SUMMARY: COMPLAINT TEN A 1. The conduct of the practitioner in relation to this complaint constitutes unsatisfactory professional conduct. COMPLAINT TEN B The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the Practitioner has contravened the Regulations made under the National Law. BACKGROUND TO COMPLAINT TEN B As for Complaint Ten A. COMPLAINT TEN B PARTICULARS The practitioner contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 by failing to make and keep adequate records of his care and treatment of Patient AB in that: (a) there is no record of his initial consultation with Patient AB on 17 March 2014; (b) there is no record of any history obtained, physical examination, assessment, diagnosis, treatment rationale, nor discussion of treatment options, treatment plan or risks of surgery with Patient AB at any time prior to the surgery performed on 31 March 2014. FINDING COMPLAINT TEN B 1. Proven: There are no records available for an initial consultation or history and rationale for treatment prior to the surgery. 2. SUMMARY: COMPLAINT TEN B 3. The failure to keep records constitutes unsatisfactory professional conduct. COMPLAINT ELEVEN The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each Particular in itself justifies a finding that the Practitioner engaged in improper or unethical conduct relating to the practice or purported practice of medicine. In the alternative, two or more of the Particulars taken together justify such a finding. BACKGROUND TO COMPLAINT ELEVEN As for Complaint Eleven. COMPLAINT ELEVEN: PARTICULARS By letter dated 18 April 2016, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient AB's general practitioner at Coolamon Shire Medical & Dental Clinic dated 17 March 2014, which was false and misleading in that: the document purports to have been sent to Coolamon Shire Medical & Dental Centre on or about 17 March 2014, when it was in fact never sent; the document purports to have been created on or about 17 March 2014, when it was in fact created sometime after 14 March 2016. In engaging in the conduct set out at each of particular 1, the Practitioner acted in contravention of section 99 of the Health Care Complaints Act 1993. FINDING COMPLAINT ELEVEN 1. Not Proven: The evidence relied upon showed that the general practitioner claimed to have a system of recording receipt of correspondence. However, when examined during the hearing it became apparent that there were discrepancies in the maintenance of such records. Accordingly, the Tribunal cannot conclude that the letters claimed by the practitioner to have been sent to the general practitioner were not in fact sent. COMPLAINT TWELVE The practitioner is guilty of professional misconduct under s 139E of the National Law in that the Practitioner has: (i) engaged in unsatisfactory conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration; or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT TWELVE As for Complaints One, Two, Five, Six, Nine and Ten. COMPLAINT TWELVE PARTICULARS Complaints One, Two A, Two B, Three, Four, Five A, Five B, Six, Seven, Eight, Nine A, Nine B, Ten A, Ten B and Eleven and the particulars thereof are repeated and relied upon, both individually and cumulatively. FINDING COMPLAINT TWELVE 1. Proven: In respect of the six patients the subject of these proceedings, where the Tribunal has found that the allegations have been established, the Tribunal considers that the conduct cumulatively constitutes professional misconduct. In all cases the surgery does not appear to have been indicated. In certain instances, the conduct is egregious and has caused permanent hearing deficiencies and other complications in each patient other than Patient V. Tribunal decision 1. The Tribunal finds that the conduct of the practitioner constitutes professional misconduct. 2. Pending the Tribunal's final decision and final orders in these proceedings, the Tribunal orders that publication of the names of any patient be prohibited. 3. The proceedings be adjourned for consideration of any protective orders required in view of the findings referred to above (stage 2 proceedings). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 13 June 2019