Oncoplastic breast surgeon Dr M is investigated after a late diagnosis of breast cancer. By Lisa Jones, Legal Adviser at Medical Protection.
Dr M, a consultant oncoplastic breast surgeon, was referred to his regulator by a patient following a late diagnosis of breast cancer.
Dr M had seen this patient on a private basis following an urgent referral made by the patient’s GP after the identification of a lump in her right breast. The patient was later diagnosed with breast cancer.
It was alleged that there was a failure to carry out appropriate investigations of the patient’s right breast, and examinations and investigations of the patient’s left breast, and a failure to ensure the support of the breast cancer nurse during or after the consultations had taken place. It was also alleged that there was a failure to provisionally diagnose the patient’s left breast cancer following the finding of an alleged abnormality in the CT scan, which led to a delay in diagnosis. There were also allegations concerning record keeping and failure to provide appropriate information to the patient’s GP.
The clinical allegations were supported by an expert report obtained by the regulator that was extremely critical of Dr M.
The discrepancies between Dr M’s recollection of the appointments in comparison to the patient’s recollection were dealt with by their respective witness evidence and also with reference to the clinical notes.
How did Medical Protection assist?
Dr M requested assistance from Medical Protection in respect of the regulator’s investigation, which culminated in a fitness to practise hearing.
Throughout the investigation and hearing process we assisted and supported Dr M by explaining the relevant processes, understanding key terminology and principles and the importance of reflection and remediation.
One of the most important steps taken in this case was the instruction of our own independent expert to challenge the regulator’s expert witness report, as we had concerns about the validity of the opinion provided by their expert. The defence expert was wholly supportive of Dr M’s position and a joint expert meeting took place in advance of the hearing; unfortunately, the regulator’s expert did not rescind their opinions.
Both experts were required to give evidence at the hearing.
Outcome
A number of facts were admitted at the first stage of the hearing and the panel subsequently found some of the outstanding allegations proved. In respect of the expert evidence the panel preferred the evidence of the defence expert in all areas of dispute between the two experts and, as a result, a number of allegations were found not proved.
The panel then went on to consider misconduct and impairment, and determined that there was no evidence of serious misconduct in this case. In the circumstances, it was not necessary to then consider impairment and the case concluded with no action being taken against Dr M’s registration. The panel did not consider the issue of a warning either as no misconduct had been found.
Learning points
This case highlights the importance of doctors having the benefit of considered and informed advice during a regulatory investigation and hearing. It also highlighted the importance of having a defence expert to challenge expert evidence.
Instruction of an independent expert is something that an unrepresented registrant would be unlikely to be able to do. Without the benefit of an expert report in this case it is likely that more of the unadmitted allegations would have been found proved and this could have potentially had more serious consequences for Dr M, which may have included a potential finding of misconduct and impairment – and a sanction imposed on his registration, including the possibility of a warning.
The New Zealand perspective
This case is of general interest and demonstrates medicolegal practices in another jurisdiction. The article uses language that would not be used for a similar case in New Zealand, and the regulator processes differ significantly.
In New Zealand, the Health and Disability Commission (HDC), acting as an independent reviewer, receives the patient complaint and initially asks the medical practitioner to respond to the concerns raised. After receiving the response, the HDC may close the complaint or open an investigation, seek an expert report, and ask the member to provide a further response to this report, any further specific HDC questions and complainant feedback.
On completion of the investigation, the HDC may find that there was a breach (minor, moderate or severe) of Right 4 and 5, the right to services of an appropriate standard and the right to appropriate communication. In our experience, it may take 18 months to 3 years for this process to be completed currently. In the case of a breach the HDC may advise further training and remedial action including apology, communication training or audit etc.
The HDC will also notify the Medical Council (MCNZ) when opening an investigation and subsequent findings. MCNZ will then make general inquiry about the doctor’s practice, continuing professional development, training, current role and any health concerns, either at the time of HDC opening the investigation or after the finding. The MCNZ may decide that the doctor does not present a “risk of harm to the public” or that further clinical review, supervision or retraining is required.
The patient may also be assisted to complete an ACC treatment Injury claim and the doctor may be asked for further information by ACC.
Medical Protection would assist the doctor with advice and reviewing draft responses throughout all the processes mentioned. We would consider providing the services of an independent expert if required, and with the support of our legal team challenge the accuracy or inadequacies of expert reports, if appropriate.