Director of Proceedings vs Dr H

Health Practitioners Disciplinary Tribunal, 946/Med17/378D, (5 February 2018)

The Director of Proceedings filed a charge against Dr H (a general practitioner) in the Health Practitioners Disciplinary Tribunal (“the Tribunal”) alleging failure to refer her patient for endoscopy or to a medical specialist despite her patient’s red flag symptoms, and failure to communicate adequately with her patient to clarify his symptoms. Dr H defended the charge.

The charge related to four consultations over a four and a half month period with a 57-year-old male patient who presented with difficulty swallowing (dysphagia), a sore throat, pain around his chest and stomach (dyspepsia), and unexplained weight loss. At the first consultation, Dr H failed to identify her patient’s presentation as red flag symptoms warranting referral to a specialist, and proceeded on the basis of her working diagnosis of gastritis. Dr H prescribed omeprazole to suppress gastric acid production and discomfort, and Metamide with meals. She referred him for blood tests, which were all normal except for the C-reactive protein (CRP) (an inflammatory marker), which was raised slightly. At his second consultation, the patient still had the same problem with swallowing and was continuing to lose weight unintentionally. Dr H advised him to continue taking omeprazole, but made no referral for further testing. At his third visit, the patient was still having difficulty with swallowing and had associated pain. He was also feeling tired all the time, and was still losing weight. Dr H referred him for a chest X-ray and blood tests, including a test for carcinoembryonic antigen (CEA), which can indicate the presence of cancer. His CEA was slightly raised, but Dr H considered that his blood results were all within normal range. The chest X-ray was reported as normal. Dr H advised her patient to continue taking the omeprazole regularly. He returned nine days later because his condition had deteriorated, and he was still losing weight and having trouble swallowing. It was not until the patient saw his usual GP four and a half months after his last consultation with Dr H that he was finally referred urgently for a gastroscopy and then diagnosed with oesophageal cancer. The patient underwent surgery to remove the cancer, and subsequently was treated with radiation and chemotherapy.

The Tribunal accepted the expert evidence that there were red flag symptoms in the patient’s presentation at each consultation. The expert advice was that pain or discomfort in the upper abdomen may indicate disease of the upper gastrointestinal tract. Further, losing weight without trying is an abnormal symptom that indicates that disease is present, and is a red flag for a GP. The expert advice was that it is a basic clinical competency for a GP to know that dysphagia is a red flag symptom requiring urgent investigation. The reason for food not going down easily into the stomach is always clinically significant. According to the expert, gastritis as a working diagnosis ignored the red flag symptoms. The two diagnoses a GP should be concerned about are cancer causing an obstruction, or acid reflux, which causes scarring in the oesophagus. The expert advised that the blood test and X-ray results did not definitely support a diagnosis of gastritis or rule out possible cancer. The key written guidelines for GPs are clear that these red flags should prompt an immediate referral for an endoscopy or specialist review to exclude cancer. The Tribunal noted the expert’s advice that the seriousness of the departures was such that a fifth-year medical student would fail a clinical competency exam for not knowing what dysphagia is and for not making the appropriate referral.

Dr H accepted in hindsight her failures to refer her patient. She said that she had become blinkered by her initial diagnosis of gastritis. Dr H also submitted that she believed that she had to undertake a basic work-up before a specialist referral would be accepted. However, the Tribunal accepted the expert advice that a basic work-up for referral had been completed on receipt of the blood test results.

The Tribunal was satisfied that, cumulatively, the sub-particulars of particular 1 of the charge (failure to refer) amounted to professional misconduct (both as negligence and bringing discredit to the profession), and that the sub-particular relating to the fourth consultation also amounted separately to professional misconduct. The Tribunal was satisfied that the failure to refer was negligent from the outset at the first consultation and remained so at each successive consultation. However, the Tribunal was not satisfied that the first three departures in isolation were significant enough to warrant disciplinary sanction. The Tribunal was satisfied that by the fourth consultation the persistent failure to refer in these circumstances was grossly negligent and inevitably impacted on the reputation of the profession as a whole. In terms of particular 2 of the charge, the Tribunal was not satisfied that the allegation that Dr H had failed to communicate adequately to clarify her patient’s symptoms was established; rather her failure was in interpreting the symptoms obtained from her patient.

In determining penalty, the Tribunal ordered censure and 30% costs, citing several mitigating factors. The Tribunal did not consider a fine was warranted given that the offending, while serious, was at the lower end of the scale. The Tribunal also ordered suppression of Dr H’s name on the basis that it was one of those relatively unusual cases where name suppression was desirable. The Tribunal accepted evidence on behalf of Dr H of the likely significant impact that adverse publicity would have for the vulnerable patients with complex and high needs who accessed the health services offered at the clinic where Dr H worked. Further, the Tribunal was satisfied that the public safety concerns in this case were not so high that they inevitably warranted publication. However, the Tribunal was not satisfied that there was sufficient evidence of any likely adverse impact on Dr H’s husband to warrant suppression. The Tribunal was also not satisfied that it would be proper to give weight to any adverse consequences of publicity on Dr H herself. The private interests given weight in this case were those that impacted the third-party interests of patients and the clinic where Dr H worked.

The Tribunal’s decision can be found at

Dr H unsuccessfully appealed the Tribunal’s liability decision to the High Court (H v Director of Proceedings [2018] NZHC 2175). The High Court confirmed that a finding of gross negligence constituting professional misconduct is a serious matter and should be reserved for the most serious misconduct, and that the level of conduct required is more than a departure from accepted professional standards or a failure to follow guidelines. The High Court agreed that Dr H’s omissions amounted to negligence of such a degree as to constitute serious misconduct.

The High Court decision can be found at

Last reviewed February 2019