The Director of Proceedings laid charges amounting, separately or cumulatively to professional misconduct. Those charges (as amended) were:
- Failure to carrry out appropriate planning for the placement of implants.
- Failure to obtain informed consent in that Dr D Failed to advise the patient of the:
- risks of inserting 3 unsplinted implants in her maxilla;
- other risks associated with implant
a. Dr D embarked on implant surgery for which he was not adedequately experienced or qualified instead of referring the patient to a specialist.
b. Upon discovering that one implant had failed Dr D failed to refer the patient to an oral maxilliofacial surgeon.
5. Failure to keep adequate records.
The Tribunal found two particulars of the charge proven as professional misconduct. The Tribunal found the charges 2(a) and 5 proven and the balance of the charges unproven.
Onus of Proof
The Tribunal believes that New Zealand case law currently requires the Tribunal to assess culpability on the basis of the civil standard of proof, bearing in mind that serious allegations require a high standard of proof.
In this particular case, while the disciplinary charge was viewed very seriously by D, in reality the charge he faced contained allegations at the lower end of the spectrum. Notwithstanding this, where the Tribunal has made adverse findings against D, it has done so because it is very satisfied that the charge has been established.
The Tribunal believes that the test as to what constitutes professional misconduct continues to involve a two step process:
- An objective analysis of whether or not the health practitioner's acts or omissions in relation to their practice can reasonably be regarded by the tribunal as constituting:
- malpractice; or
- negligence; or
- otherwise meets the standard of brining or likely to bring discredit to the practitioner's profession.
- The Tribunal must be satisfied that the practitioner's acts or omissions require a disciplinary sanction for the purpose of protecting the public and/or maintaining professional standards and/or punishing the practitioner.
Finding For Each Particular
1. Failure to carry out appropriate planning for the placement of implants.
This particular of the charge alleges Dr D failed to undertake an appropriate evaluation of his patient, and that specifically he failed to prepare mounted models, and appropriate radiographs to determine the relationship of Mrs H’s jaws and available bone volume and form.
This particular of the charge has not been proven to the requisite standard. The Tribunal agrees that the evidence establishes that Dr D did take apical x-rays and a panorex x-ray and whilst not ideal they would have allowed Dr D an opportunity to assess the adequacy of the bone density in Mrs H’s maxilla. This in conjuction with some evidence that Dr D did prepare models and a stent is enough for the Tribunal to be satisfied that the first particular of the charge has not been proven to the requisite standard.
2. Failure to obtain informed consent in that Dr D failed to advise the patient of the:
(a) risks of inserting 3 unsplinted implants into her maxilla;
The Tribunal has found the first part of Particular 2 proven. That is to say the Tribunal is satisfied to the requisite standard that Dr D did not warn Mrs H of the risks. The Tribunal is also satisfied that Dr D’s failure to warn Mrs H of these risks was a failure to adhere to the standards expected of a dentist in his position and, that his shortcomings constituted a serious failure on his part. Dr D’s errors justify a disciplinary finding for the purposes of maintaining professional standards and protecting the public.
The Tribunal is very satisfied from Mrs H’s evidence that Dr D did not explain to her the risks of the 3 unsplinted implants in her maxilla, on the contrary, the Tribunal is very satisfied Dr D told Mrs H that the proposed 3 unsplinted implants would work.
(b) other risks associated with implant
The Tribunal has concluded that the Director of Proceedings has not proven to the requisite standard that Dr D failed to warn Mrs H of other risks associated with implant surgery. This part of the charge specifically alleges Dr D failed to warn about incorrect placement of implants or failure of implants to integrate.
The consent form signed by Mrs H on 23 May 2002 specifically records her acknowledgement that she was:
“… aware that there is a risk that the implant surgery may fail, and that further surgery may be necessary, including removal of the implant.”
4(a) D embarked on implant surgery for which he was not adequately experienced or qualified instead of referring the patient to a specialist.
The Tribunal has found in Dr D’s favour in relation to this particular of the charge, albeit by a narrow margin.
In reaching this conclusion the Tribunal agrees that technically speaking, any general dentist can embark on the treatment undertaken by Dr D on this occasion, even though it may not be wise to do so.
There was evidence Dr D had undertaking 400 implant cases, and that he may have had a very high success rate.
In the absence of clearer professional guidelines on referral to a specialist in cases such as this, and more compelling evidence about Dr D’s experience the Tribunal believes it not appropriate to impose an adverse
disciplinary finding against Dr D because he elected to provide treatment which should have been provided by specialists.
4(b) Upon discovering that one implant had failed Dr D failed to refer the patient to an oral maxilliofacial surgeon.
Although it is marginal, the Tribunal believes there is some evidence Dr D may have tried to refer Mrs H to Dr Clarke on or about 21 January 2003, and that in these circumstances particular 4(b) of the charge has not been proven to the requisite standard.
5. Failure to keep adequate records.
In this case Dr D’s records were so grossly inadequate a disciplinary sanction is required in order to maintain professional standards. It is unusual for a health practitioner to be sanctioned in a disciplinary forum because of the inadequacy of their records. However in this case, Dr D has fallen so far below accepted standards the Tribunal believes it must record a disciplinary finding on Dr D. Part of the reason for taking this step is to reinforce to the profession the need for adequate records to be kept by all dentists.
Dr D's failures include:
- Inadequate documentation of conslutations and in some cases complete lack of documentation.
- What pre-operative drugs were used and their dosages;
- The amount and type of local anaesthetic administer;
- Details of the surgery undertaken;
- The types and size of implants inserted;
- Whether or not sutures were placed;
- What post operative drugs were prescribed and the dosage
The Tribunal has found two particulars of the charge proven as professional misconduct. It is accordingly not necessary to consider the cumulative charge. The Tribunal records however that if it were required to consider the cumulative charge the Tribunal would have had no hesitation in holding that when viewed cumulatively, the two adverse findings made against Dr D constituted professional misconduct.
Dr D should be censured. This order is made pursuant to s.101(d) of the Act;
Dr D should pay costs comprising:
- 30% of the costs incurred by the Director of Proceedings ($13,061.63)
- 30% of the costs incurred by the Tribunal ($8,841.99)
- Total $21,903.62
This order is made pursuant to s100(1)(f)(iii) and (iv) of the Act.
The Tribunal has recorded Dr D’s undertaking to restrict his practice in relation to implant surgery. If that undertaking had not been given the Tribunal would have placed conditions on Dr D’s ability to practice which would have reflected the terms of his undertaking to the Tribunal.
The Executive Officer will publish a summary of this decision in the Dental Council newsletter. This order is made pursuant to s.157(2) of the Act.
The public interest factors substantially outweigh the interests of Dr D and his immediate family. In particular the majority of the Tribunal have determined:
- The need for openness and transparency in the disciplinary process;
- The need for the disciplinary process to be seen as accountable;
- The public interest in knowing the identity of a health practitioner found guilty of professional misconduct outweigh the interests of Dr D as set out in his counsel’s written submissions.
Dr D has been found guilty of professional misconduct. Declining Dr D’s application for permanent name suppression is viewed by the majority of the Tribunal as part of the broader penalties Dr D should accept in this case.
The Chairman and Dr Hawke have both been influenced by the following points:
Dr D’s offending was at the lower end of the scale of culpability. Adverse publicity would, in these circumstances, be a form of punishment that is disproportionate to Dr D’s level of offending;
The Tribunal has unanimously accepted Dr D’s undertaking not to perform complex implant work in the future. Having accepted this undertaking, the minority reason there is no ongoing risk to members of the public being exposed to the possibility of Dr D undertaking work that he is not qualified to perform.
Conclusion on Application for Permanent Name Suppression
Doctor D’s application for permanent name suppression is declined.
The Practitioner appealed the Tribunal's decision to decline permanent name suppression. The High Court dismissed the practitioner's appeal (X v Director of Proceedings, (HC Wellington, CIV-2006-485-761, Justice Clifford, 29/5/07).