Director of Proceedings v Dr Stephen Johns

Health Practitioners Disciplinary Tribunal, 809/Med15/318D; 850/Med15/318D, (16 May 2016 and 27 September 2016)

The Director of Proceedings filed a charge against Dr Johns (a consultant obstetrician and gynaecologist) in the Health Practitioners Disciplinary Tribunal ("the Tribunal") concerning the care he provided to a high risk pregnant woman (“Ms T”) and her unborn baby.

The charge against Dr Johns related to a failure to respond appropriately to a cardiotocograph (“CTG”) trace of the fetal heart rate (“FHR”) which was abnormal then progressively pathological, indicating severe fetal compromise was very likely. In particular, Dr Johns failed to promptly perform an emergency caesarean section; he further delayed appropriate action by awaiting the arrival of the night registrar before collecting a fetal blood sample (“lactate”); he failed to respond twice to the registrar’s concerns and he insisted on a lactate when it was contraindicated. The charge also concerned a failure to communicate adequately with Ms T and her husband, specifically to discuss a management plan for the progress of her labour (including having the registrar perform a lactate), failure to discuss options including a caesarean section, and failure to ascertain Ms T’s wishes. Dr Johns accepted his failures but defended the charge on the basis that the failures did not meet the threshold for a disciplinary finding due to environmental factors, including his level of exhaustion at the time, the failure of midwifery staff to respond appropriately to an abnormal CTG, and that this was an isolated event and not deliberate.

Dr Johns was both the consultant obstetrician on call and performing registrar duties on the day in question. Ms T had been in hospital for two days when she was commenced on syntocinon at 10.45am on the third day due to lack of progress. Dr Johns visited her at 2.15pm and reviewed the CTG trace of the FHR which was reactive but with fleeting decelerations. He did not visit her again until the charge midwife called him at 9.12pm. Ms T’s labour made little progress during the day and there had been some shows of blood. There were further fleeting decelerations throughout the afternoon and evening and there was discussion between the midwives as to whether these drops in the FHR were a concern or just due to loss of contact, or whether the CTG was recording the maternal heart rate. At 8.12pm an epidural was administered. Over the next 28 minutes there were further losses of contact on the CTG and FHR decelerations recorded. Each time the midwives changed Ms T’s position the FHR returned to normal. At 9.05pm the charge midwife attached a fetal scalp electrode to the baby’s head which recorded the FHR dropping significantly and not recovering to normal baseline. The charge midwife called Dr Johns at about 9.12pm who attended immediately. Dr Johns reviewed the CTG at 9.15pm which recorded the FHR as bradycardic (abnormally low heart rate). He conducted a vaginal examination and noted the cervix as 3-4cm dilated with fetal head at station +1. Despite this presentation, Dr Johns decided to monitor the situation with the expectation that vaginal delivery was still possible and traded off this hope against the evidence of significant fetal compromise. He did not discuss the FHR with Ms T and the implications of prolonged bradycardia. He did not discuss delivery options available, their risks, his recommendation, or Ms T’s preferences. He did not discuss his plan with the midwifery team. Dr Johns failed to assess the need for an urgent caesarean section and decided to wait for the night registrar to come on shift at 9.30pm, by which time the bradycardia had persisted for some 20 minutes. The registrar told Dr Johns that an urgent c-section was needed. Dr Johns declined to do one and instructed her to do a lactate instead (which was contraindicated). When the registrar challenged his decision he insisted on the lactate. Dr Johns gave evidence that he had become “dogmatic” and “blinkered”. The lactate confirmed severe acidosis of the baby’s blood and at 9.43pm a code red c-section was called. Sadly, the baby was delivered stillborn. His death was found to be due to a concealed placental abruption causing oxygen deprivation.

The Tribunal was satisfied that all particulars of the charge (separately and cumulatively) were established both as serious negligence and bringing discredit to the medical profession. In considering whether Dr Johns’ conduct reached threshold, the Tribunal accepted the expert evidence that the charge midwife should have called Dr Johns to assess Ms T earlier that evening. However, the Tribunal also acknowledged that it would remain unresolved whether calling Dr Johns earlier would have made any difference to his decision to await vaginal delivery. The Tribunal also accepted the expert evidence that Dr Johns should have paid more attention to Ms T as a high risk patient, at least from 2.15pm that day. Irrespective of these earlier deficiencies, the Tribunal was satisfied that Dr Johns’ errors were basic decision-making errors and his continuing failures were serious acts of negligence. From 9.15pm Dr Johns “had an unimpeded opportunity to make an obvious clinical decision.” The misconduct “was so seriously negligent that, while not deliberate, it does unfortunately portray an indifference and abuse of the privileges that accompany registration as a medical practitioner.” The Tribunal was not satisfied that the external factors raised by Dr Johns (late call to an urgent situation, tiredness, understaffing) were not out of the expected range experienced from time to time by consultants and were not sufficient to avoid a finding of professional misconduct. They are all matters that a senior consultant is expected to overcome when making such basic and obvious clinical decisions.

The Tribunal censured Dr Johns, fined him $7,000, ordered him to undertake a full cognitive function assessment should he seek to return to acute obstetric practice, and to pay 30% of the total hearing costs. The Tribunal also made a permanent order suppressing his name on the basis that: there was some evidence of a serious risk to his mother’s health; the Tribunal considered it safe for Dr Johns to continue in practice; and there was some real risk that he may lose his employment resulting in a disproportionately punitive outcome.

The Director successfully appealed to the High Court the Tribunal’s decision to permanently suppress Dr Johns’ name. Dr Johns unsuccessfully appealed the professional misconduct finding. In dismissing Dr Johns’ appeal of liability, the High Court confirmed that while the interval under scrutiny was narrow, this was not a case of a single isolated error of clinical judgement. Dr Johns’ conduct involved serial clinical errors made in the context of a high risk patient. When the misconduct was viewed in the context of the purposes of the Act and the emphasis which is placed on the protection of the health and safety of members of the public, disciplinary sanction was necessary.

The Tribunal’s decisions can be found at: https://www.hpdt.org.nz/Charge-Details?file=Med15/318D


The High Court decision can be found at:
http://www.nzlii.org/nz/cases/NZHC/2017/2843.html


Last reviewed February 2019