Health law update (Melbourne)

19 April 2018

Coroner’s court – Inquest into death of Louis Oliver Tate

13 year old Louis Oliver Tate passed away on 23 October 2015. Louis had a history of asthma and allergies to cow’s milk, raw egg, peanuts, and tree nuts.

On 21 October 2015, he was experiencing an exacerbation of his asthma. As a result he was admitted to the paediatric ward at the Frankston Hospital (Hospital) for observation and oxygen therapy on 22 October 2015. By 7am on 23 October 2015, Louis was reportedly feeling better. Relevantly, a whiteboard in the paediatric ward’s kitchen was used to record patient’s food allergies, and Louis’ food allergies were not recorded on that board or at his bed.

At around 7.15am on 23 October 2015, Louis was provided with breakfast of Weetbix and soy milk. At 7.19am he reported that he had tingling on his lips. The paediatric resident was called and immediately attended. The resident reported Louis looked distressed, had trouble breathing and was wheezing, and made a differential diagnosis of asthma and or anaphylactic reaction. Louis was administered 4 doses of adrenaline within about one hour.  After the fourth dose, Louis underwent intubation with anaesthetic and then adrenaline infusion. Louis’ condition deteriorated and he was diagnosed as suffering from the very rare malignant hyperthermia caused by an anaesthetic agent. Despite appropriate treatment, Louis suffered a cardiac arrest and could not be revived.

The Coroner identified the main issues as the cause of Louis’ anaphylactic reaction; the adequacy of Louis’ medical management before intubation.

The Hospital made numerous concessions regarding the inadequacy of its food handling procedures for patients with allergies. There was no relevant written policy, any policy in place at the time was ad hoc, and a nurse did not check food before it was provided to a patient with allergies. The Hospital did not concede that Louis was provided with food which he was known to be allergic. After Louis passed away, the Hospital made extensive changes to improve its food handling procedures substantially based on a report by the Manager, Nutrition and Food Services at the Royal Children’s Hospital.

The Coroner found that the cause of Louis’ anaphylaxis was an undetermined allergen contained in the breakfast provided by the Hospital. The Coroner made that finding because of the ‘irresistible inference’ being the onset of relevant symptoms almost immediately after eating the breakfast and his improving condition before breakfast.

Numerous experts gave evidence regarding the adequacy of Louis’ medical management before intubation. After considering that evidence, the Coroner found there was no reasonable basis for an adverse finding about the overall medical management of Louis before the intubation.

The Coroner found that the evidence established that except for the intervening event of the very rare condition of malignant hyperthermia which could not have been predicted and broke the chain of causation, Louis would have survived. Accordingly, the Coroner determined that the cause of death was malignant hyperthermia, rather than anaphylaxis caused by the breakfast, which was only concluded to be a contributing factor.

Medical Board – Human growth hormones
Medical Board of Australia v Abi Haila (Review and Regulation)(Determinations) [2018] VCAT 196

In an earlier decision VCAT found the medical practitioner had engaged unprofessional conduct and or professional misconduct by prescribing human growth hormones and testosterone to patients without proper clinical justification.

This decision concerned the consequences for the practitioner from that finding.

VCAT determined the practitioner be reprimanded and imposed conditions requiring the practitioner to complete education and be mentored.  The punishment, particularly severe, was as a result of VCAT’s findings that the practitioner did not demonstrate a genuine understanding and remorse for the relevant conduct.

VCAT said also this decision ‘…will also meet the need to signal to other practitioners who may be minded to engage in similar conduct, whether in ‘fringe’ clinics or elsewhere, that inappropriate prescribing will attract adverse consequences‘.

The issue which arises, however, is whether the Medical Board is treating similar cases in a similarly tough manner, or if this particular practitioner has been unfairly highlighted to send a broader message.

NCAT – Boundary violations
Health Care Complaints Commission v Dowla [2018] NSWCATOD 33

On 8 March 2018, the New South Wales Civil and Administrative Tribunal made disciplinary findings against a male medical practitioner practicing as a specialist in neurology and clinical neurophysiology.

The practitioner was alleged to have violated professional boundaries by: making unnecessary contact of a sexual nature with a female patient during a physical examination; masturbating during the same consultation; and providing the practitioner’s mobile number to the patient without any proper therapeutic need for doing so. The practitioner denied the allegations, except that he provided his mobile number to the patient for the purpose of encouraging her to pursue her stated interest in developing software for mobile phones.

The Tribunal found the allegations substantiated, except that it was not satisfied the practitioner masturbated during the consultation.

In arriving at those findings the Tribunal essentially preferred the patient’s evidence to that of the practitioner. The practitioner provided materially inconsistent evidence at the hearing with that recorded in his notes, his report to the referring GP, in his initial response to the HCC, and in his further response to the HCC. The Tribunal was particularly critical of the limited information the practitioner provided to the HCC in his initial response to the complaint.

The decision is a reminder of the importance of the initial response to a complaint being full and accurate where there is sufficient information to do so, in order to ensure consistency with later responses or evidence and to guard against any adverse inferences being drawn from provision of an initial brief response.

This article was written by Sophie Pennington, Partner and Scott Shelly, Senior Associate.

Sophie Pennington

P: +61 3 8644 3851


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