Update, 24 June 2008: the Herald Sun today revealed the doctor’s attempt to sell his Toorak home until the sale was restrained by police, and that Slater & Gordon are suing the Medical Board for damages on behalf of the doctor’s victims. Should be interesting. People will be suing the Law Institute next for not rubbing out with sufficient vigor dodgy solicitors who then go on to rip them off.
The dermatologist does not necessarily spring to mind as the specialist with the opportunity to rape patients after getting them starkers and photographing them without their consent with his mobile phone, while ‘panting’ with excitement. This one managed it, and sexually assaulted or digitally raped his patients, 14 of them. He survived 2 complaints to the Medical Board by deliberately deceiving it, but continued to offend. The Board has apologised to his victims, is reviewing other cases, and has revealed that the relationship between the police and the Board broke down so badly that the police turned up with a search warrant. There are suggestions of mental health issues by his relatives. He hired a female QC to defend him against the female prosecutrix, and his own counsel described him to the court as a nerd: Continue reading “Bad bad dermatologist”
I am always astounded how many professionals make public comments about their clients. I cannot really understand why society allows lawyers to publish their memoirs. I read John Marsden’s memoirs, and was not impressed by his comments about Ivan Milat. If I remember correctly, they suggested, or rekindled the suggestion in the public mind, that Mr Milat got away with rapes long before he started knocking backpackers off, that it was Marsden’s brilliance which had achieved that, and that Marsden, cancer-stricken, wanted to tell the world that he rather regretted it now. Marsden also named, to the media, a woman whom he said was Mr Milat’s accomplice in the murders. Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be. All this assumes, of course, one thing which I do not know, namely that Mr Marsden did not have Mr Milat’s permission to make these statements.
Here’s an article about Britney Spears’s doctor, Dr Phil McGraw. Continue reading “Britney Spears’s ‘doctor’ criticised for public comments”
I have a certain fondness for dentists behaving badly. The illustration, stolen from Barista (a beautiful blog from Melbourne), is of a dental oxygen enema. I understand that a Melbourne dentist was given a holiday for the rest of his life after losing his quixotic battle with the dentists’ Bureau de Spank (see its recent decisions here) to have his anal oxygen therapy recognised. Apparently he was a lovely man. I didn’t know that his quix had a one-time respectable historical pedigree.
Then there was the recent boar tusk incident which turned into a relatively interesting indemnity dispute with Dr Woo’s professional indemnity insurers. His assistant cared for pot-bellied pigs, including her pet, Walter. Dr Woo told her, as part of what he described as a ‘friendly working environment’ how much he would like to roast Walter, brought back photos of slaughtered boars from his hunting trip, and then, while she was sedated for a procedure he was to do on her, slipped some boars’ tusks into her mouth, took photos, and distributed them around the consulting rooms. He paid her a quarter of a million greenbacks in a settlement, but after a fight with the insurer, got indemnified, and collected a cool three quarters of a million bucks in damages.
And most recently comes the story of the Californian dentist who is seeking to avoid a very long holiday from dentistry by arguing for the legitimacy of pectoral massage for temporo-mandibular joint disorder. Especially of female patients: one 31 year old woman, massaged 6 times in 3 years, took to wearing tight shirts with high necklines, “and Anderson would still get in under her shirt and bra,” according to a police report. Also here, where the smiling dentist’s photograph is featured.
I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.
It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.
Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.
Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.
Continue reading “2nd edition of Professional Liability in Australia reviewed”
My friend Jason Pizer had the launch of the third edition of his book this week, and I went along and enjoyed the company of VCAT’s Acting President John Bowman, Deputy President Marilyn Harbison, and Justice Chris Maxwell, President of the Court of Appeal. It’s the VCAT equivalent of Williams, the looseleaf ‘Bible’ of civil procedure in the state courts. Compared with Williams, it is a joy to use. It has the same in-court handling as the ‘Cook Book’. It has serious traction with the members over there. It’s full of intellectual grunt. And it’s about one-tenth of the price of Williams at $130. Continue reading “Pizer’s Annotated VCAT Act comes into third edition”
The Austin Hospital’s library has put up a list of Australian blogs by and about doctors, and other medical new media resources. The only doctor blog featured here has been, from memory, that of “Flea”, though he took his blog down hastily when the plaintiff worked out that he was the anonymous blogger of his own medical negligence trial. There’s a very prolific doctor blogger who publishes each year’s posts as a book, downloadable as a .pdf — neat trick. There’s a serious blog about anaesthesia which sounds like it would be really interesting if I could understand it. And boy are there a lot of nurses blogging.
In a landmark decision with profound implications for VCAT’s Fair Trading Act, 1958 jurisdiction over lawyer-client disputes about professional negligence and fees, a Deputy President of VCAT has recognised that it did not have jurisdiction to hear a former client’s misleading and deceptive conduct claim brought against ‘a professional’ in the traditional sense of the word, in relation to professional advice. The claim was brought under s. 9 of the Fair Trading Act, 1958 (the state analogue of s. 52 of the Trade Practices Act, 1974), which says:
“(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.
The case is Stagliano v Duke  VCAT 1070. The applicant was injured at work, and made a Workcover claim. His employer’s Workcover insurers had him examined. The doctor wrote a report and sent it to the insurer. That professional opinion was not given in trade or commerce, even though it was given pursuant to a contract with the insurer, and for a fee, Deputy President Steel held, for the following reasons: Continue reading “Doctor’s opinion not given in trade or commerce so VCAT had no jurisdiction”
11 June 2007 Update: the blog was his undoing. Under the moniker “Flea”, an American doctor is blogging the medical negligence case against him. He explains the results of his google searches on the plaintiff’s angular-faced and humourless attorney, and this:
‘Flea spent most of the day in his attorney’s office. A well-known jury preparation expert had been brought into town to teach Flea how to be examined by a hostile plaintiff’s attorney.’
H v Medical Practitioners Board of Victoria  VCAT 526 was a rehearing of a case before the Medical Practitioners Board (the decision of which is here). VCAT, constituted by Vice President Harbison and Associate Professor Davis, reduced the severity of the outcome of an unprofessional conduct prosecution for an intimate relationship with a former patient, which continued after the psychiatrist had paid her $100,000 conditional on her not suing him or lodging a disciplinary complaint. VCAT suspended him for 18 months in lieu of the deregistration imposed on him by the Board, the majority of which had concluded that:
‘Dr [H] is unlikely to engage in unprofessional conduct of the nature of a sexual relationship with a patient or former patient again. … However we note that some of factors in Dr [H’s] personal background that formed the context within which this relationship developed remain unresolved. … on balance, … there is likely to be a benefit to the public in Dr [H] continuing to practise his profession. However, through our knowledge as members of this Board, we are aware that the predictive capacity of bodies such as ours in relation to repetition of sexual misconduct is poor. Therefore it is incumbent upon us to be cautious.’
That conclusion was recounted in VCAT’s judgment as a finding ‘that it was unlikely that Dr Honey would be likely to engage in unprofessional conduct of the nature of a sexual relationship with a patient again [sic.]’.
The Board’s decision is notable for containing a dissenting opinion. Disciplinary tribunals are often constituted by panels of lawyers and non-laywers, but I do not recall ever seeing a legal disciplinary tribunal publish majority and minority reasons. Continue reading “Affair over 6 years and a $100,000 payment earn psychiatrist an 18 month holiday”
Re: Richard George Y  MPBV is a decision of the Medical Board of Victoria about a GP and former model, a one-time member of Cleo’s 50 most eligible bachelors who came to grief a second time for inappropriate comments while his hands were in his patient’s genital area. “Holy Mackerel, you’re small, which is good for …” he said before the poor patient cut him off. According to Socialized Medicine blog, Dr Y “had his licence suspended for 15 months in 2001 after engaging in sexual relationships with two … female patients. His licence was renewed on the condition a chaperone be present when he examined female patients.”
This time around, he was an “unreliable witness”. He gave evidence which the Board simply did not believe. The Board was at pains to point out that there was no allegation of sexual impropriety, but there was a finding of unnecessary double-digital penetration with thrusting followed by unsatifactory evidence as to why it had been necessary. He got reprimanded, cautioned, and ordered to undergo some counselling by senior doctors, the Board making no comment in assessing sentence on the unsatisfactoriness of his evidence despite the fact that one obvious possible explanation for its unsatisfactoriness was that he had lied to his professional regulator. On the characterisation of the conduct, the Board said: Continue reading ““Holy mackerel, you’re small, which is good for …” earns repeat offender GP re-education”
Here is what the then Chief Justice of South Australia, Doyle CJ, had to say in Craig v Medical Board of South Australia (2001) 79 SASR 545 at  to  about the purpose of disciplinary proceedings, referred to with approval by the Full Court of the Supreme Court of South Australia in Papps v Medical Board of South Australia  SASC 234 (the subject of the last two posts):
“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of
proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. Continue reading “The South Australian take on the purpose of disciplinary proceedings”
The following handy passage is from the case referred to in the previous post, Papps v Medical Board of South Australia  SASC 234, per Gray J: Continue reading “Differences between appeals proper, rehearings and rehearings de novo explained”
This is another salutary lesson against professionals representing themselves. An argument that the disciplinary tribunal had not accorded procedural fairness by failing to warn in advance of the possibility of a suspension was given short shrift.
And the courts’ reticence to disturb the findings of specialist professional tribunals, even when exercising appellate jurisdiction under a statute providing for appeals from such tribunals, was expressly articulated in Papps v Medical Board of South Australia  SASC 234. That was an unsuccessful appeal by the doctor to the Full Court of the Supreme Court of South Australian from an unsuccessful appeal by him to a single Supreme Court judge from the decision of the Medical Practitioners Professional Conduct Tribunal suspending his right to practice for 12 months as a result of a miscellany of allegations, including a breach of practice management undertakings he had made to the Medical Board of South Australia. Another of the allegations was overenthusiasm as a medico-legal consultant: Continue reading “Breach of undertakings leads to 12 month suspension for doctor”
Tsigounis v Medical Board of Qld  QCA 295 is a warning of the dangers of self-representation by professionals. A medical student at Monash University took more than 11 years to complete her medical degree 20 years ago. She could not find work in Victoria, and travelled to Townsville to do her internship following a period of limited practice in Greece. It was not a happy internship. After extensions of the internship (involving a requirement of psychiatric counselling) and various ‘show cause’ notices, the Medical Board bit the bullet and refused to register her as a doctor, two years after the first application for registration, satisfied that the intern was incapable of satisfactorily completing an internship. Continue reading “A sad story of a failure to qualify as a doctor after 20 years’ effort”