Health Practitioners Disciplinary Tribunal, 760/Med15/323D (5 February 2016)
The Director of Proceedings filed a charge against Dr Seidenfaden (an anaesthetist) in the Health Practitioners Disciplinary Tribunal (“the Tribunal”) for failing to ensure adequate anaesthesia was provided to a woman (“Ms S”) during her Caesarean section (“C-section”) and for failing to appropriately observe and communicate with Ms S during her C-section to ascertain her level of discomfort and pain.
On 15 February 2013 Ms S attended hospital for what was planned to be a vaginal delivery of her baby. Her labour did not progress and, subsequently, the decision was made to proceed to a C-section. Ms S met Dr Seidenfaden in surgery where he administered anaesthesia by way of a top up to an epidural she had received for pain relief. Approximately two minutes into the surgery Ms S complained of pain, and the surgeon stopped the surgery and brought this to the attention of Dr Seidenfaden but Dr Seidenfaden reassured the surgeon that she could proceed with the surgery. Ms S told Dr Seidenfaden that it was hurting and he assured her she was not feeling pain but that it was pressure. Multiple witnesses observed Ms S moving her legs, including raising her knees and kicking the surgeon. Subsequently, Ms S’s legs were held down so that the baby could be delivered. The surgeon also gave evidence that Ms S’s abdominal muscles were unyielding and very tight. Ms S’s leg movement and tight muscles were both indicators that the anaesthesia was wearing off. Shortly thereafter Ms S’s baby was delivered safely and the surgeon commenced suturing Ms S’s incision during which Ms S continued to experience pain. Multiple people present in the surgery asked Dr Seidenfaden if Ms S could have more pain relief and in their evidence described Dr Seidenfaden’s response as dismissive and disinterested in Ms S’s situation. Dr Seidenfaden did not administer any further pain relief during the procedure.
The Tribunal dismissed the charge, concluding that there was insufficient evidence that any of the other persons present during the surgery conveyed Ms S’s complaint of pain to Dr Seidenfaden in a sufficiently compelling way for him to have considered conferring with Ms S about pain relief. In addition, the Tribunal deferred to Dr Seidenfaden’s clinical “judgment call” about the management of Ms S’s pain, noting that such a judgment call (had it been made) would not have been negligence or malpractice or conduct bringing discredit to the profession.
The Director appealed the Tribunal decision to the High Court. The High Court agreed with the Director that the Tribunal’s focus on what others did to bring Ms S’s pain to the attention of Dr Seidenfaden was misdirected. The High Court agreed with the Director that the appropriate focus was, first, on the matters brought to Dr S’s attention by the other people and the way in which Dr Seidenfaden reacted to them and, secondly, whether Dr Seidenfaden was at fault for being unaware of the signs of Ms S’s pain, regardless of whether someone else could or should have told him.
The High Court concluded that Dr Seidenfaden displayed a lack of interest in or concern about his patient and a seemingly blind insistence that his assessment that it was not pain was correct. The High Court noted that Dr Seidenfaden’s failure to explore with Ms S exactly what she was feeling, and to react to concerns raised by professional colleagues was particularly culpable and that Dr Seidenfaden’s lack of attention was sustained through at least a 30 minute period.
The High Court expressed concerns regarding the level of deference shown in the Tribunal’s decision to the idea of a clinical judgment call and noted that the Tribunal’s approach suggested that it viewed the fact that a decision was a clinical judgment call as something that made it immune to review. The High Court commented that if that was what was meant, it was incorrect, and negated the very purpose of the ability to review and charge, and is the reason expert evidence is called. The High Court concluded that pain relief should have been given, that there were options for pain relief available and that Dr Seidenfaden was at fault in not providing that pain relief.
The High Court found Dr Seidenfaden guilty of professional misconduct and noted that Dr Seidenfaden had fallen severely below the appropriate standard of care, and that the misconduct was without doubt within the higher boundaries for disciplinary sanction. The High Court fined Dr Seidenfaden $9,000 and, in light of the factual findings made by the court, referred its decisions to the Medical Council for consideration of whether any action was required by way of conditions or monitoring.
Dr Seidenfaden applied to the Court of Appeal for leave to appeal the High Court’s decisions finding professional misconduct made out and imposing penalty. In denying the application, the Court of Appeal agreed with the High Court that the Tribunal had erred in asking itself the wrong question. The Court of Appeal noted that the proper question for the Tribunal was an objective question: whether Dr Seidenfaden ought to have been aware of Ms S’s pain and discomfort during the operation (not whether or how much of Ms S’s pain was communicated to or understood by Dr Seidenfaden). The Court of Appeal found that the proper question was open to only one answer once the evidence of the Director’s witnesses was accepted: Dr Seidenfaden ought to have been aware of Ms S’s pain.
High Court: The Director of Proceedings v A  NZHC 2299 and The Director of Proceedings v Uwe Seidenfaden  NZHC 390.
Court of Appeal: http://www.nzlii.org/nz/cases/NZCA/2017/267.html
Last reviewed February 2019