Corbally -v- The Medical Council & Ors, [2013] IEHC 500 (2013)

Docket Number:2012 1028 JR
Party Name:Corbally, The Medical Council & Ors
Judge:Kearns P.

THE HIGH COURTJUDICIAL REVIEW[2012 No. 1028 JR]BETWEENMARTIN CORBALLYAPPLICANTANDTHE MEDICAL COUNCIL, IRELAND AND THE ATTORNEY GENERALRESPONDENTSANDTHE HUMAN RIGHTS COMMISSIONNOTICE PARTYJUDGMENT of Kearns P. delivered on the 14h day of November, 2013.The applicant is a professor of medicine and a consultant paediatric surgeon who was working in Crumlin Children’s Hospital in 2012 but who is now working in Bahrain. The application is brought by way of judicial review to quash the decision of the first named respondent made on the 26th October, 2012, whereby the sanction of admonishment was imposed on the applicant in relation to his professional performance in the context of a frenulum release procedure carried out in Our Lady’s Children’s Hospital, Crumlin, on the 30th April, 2010. The applicant also seeks an order of certiorari quashing the finding of the first named respondent’s Fitness to Practise Committee (hereinafter “FPC”) set out in its report dated the 6th October, 2012, and notified to the applicant by letter dated the 26th October, 2012, whereby the FPC purported to make three findings of poor professional performance on the part of the applicant.Other claims for relief are detailed in the statement grounding the application for judicial review, including, in particular, claims that Part 8 of the Medical Practitioners Act 2007, insofar as it fails to provide the applicant with an appeal from the first named respondent’s decision and/or the FPC findings, breaches certain constitutional rights of the applicant and is for that reason unconstitutional. A declaration is also sought pursuant to s. 5 of the European Convention on Human Rights Act 2003 that Part 8 of the Medical Practitioners Act 2007, insofar as it fails to provide the applicant with an appeal from the first named respondent’s decision and/or the FPC findings is incompatible with the State’s obligations pursuant to Article 6 (1) of the Convention itself.By agreement between the parties, these claims of unconstitutionality and failure to comply with the requirements of the Convention were not proceeded with, pending resolution by this Court of the matters first outlined above.THE FACTSIn early 2010, patient X, then two and a half years of age, was referred to the applicant’s private clinic in Our Lady’s Children’s Hospital in Crumlin by her G.P. with a history that the frenulum under her top lip was catching, causing an ulcer under that lip and contributing to a gap in her front teeth.There are three frenula (congenital folds of tissue) in the mouth: an upper frenulum (a fold of tissue between the inner aspect of the upper lip and the anterior gum margin), a lower frenulum (between the lower lip and the anterior lower gum margin) and a tongue or lingual frenulum (under the anterior surface of the tongue). All three are small folds of tissue found in the midline.Having examined patient X on the 25th February, 2010, the applicant recommended division of her upper frenulum, a straightforward and minor surgical procedure which normally takes less than one minute to complete. In writing up his notes of the examination, the applicant, who had correctly diagnosed patient X’s condition, described the required procedure as excision of “upper lingual frenulum”. There is no upper lingual frenulum and it is perhaps more accurately described as an ‘upper labial frenulum’.On the 11th March, 2010, the applicant booked the patient in for her procedure and correctly completed an admissions form for the patient, listing her for a “tongue tie (upper frenulum)”. The procedure was to be performed as a day case on the 30th April, 2010. This form was sent to the admissions department where the patient’s details and the proposed procedure were entered into the patient administration system. Unfortunately the reference to the upper frenulum, through no fault of the applicant, was not inputted into the hospital system.Difficult as it is to believe, the system as it then operated in Crumlin had one code only for all frenula dissection – all three types being described as “tongue tie”. That being so the operation was inputted in the system as “tongue tie release” without the addition of the words “upper frenulum”.Following her admission on the 30th April, 2010, the patient’s family provided and furnished a consent to the procedure to the applicant’s senior house officer, Dr. A.J. Orafi, for a “tongue tie – upper frenulum release”. It is interesting to note that in the account of the consent process furnished by the mother of patient X, she maintains that when the doctor started to describe her daughter’s case as a “tongue tie procedure” she corrected the doctor by saying that it was her upper lip that needed a release and not her tongue. The junior doctor apparently stated that the procedure would still be called tongue tie. However, on the consent form also the procedure was clearly described as “tongue tie (upper frenulum) release”. It is worth noting that this pre-operative conversation took place in the presence of one of the nursing staff, Nurse Pollard, but it appears that this particular detail, for whatever reason, was not passed on to the surgical team in accordance with the “Correct Site Surgery Policy”.While the applicant had intended to perform the surgery himself, he was called as a matter of urgency to attend to another patient in the intensive care unit. His account of events makes clear he was working under considerable pressure at the time. His specialist registrar, Dr. Farhan Tareen was thus delegated by him to perform the procedure. There is no issue but that the procedure was well within Dr. Tareen’s capability.On the occasion in question the applicant accepts that he asked Dr. Tareen in the hospital corridor what was happening with the theatre list, reviewed it and asked Dr. Tareen to perform the tongue tie. The applicant asserted that he delegated the procedure by referring to the description on the theatre list. The hospital at the time had a protocol for a “surgical pause/time out” procedure in advance of the commencement of surgery. Both Dr. Tareen, the anaesthetist and nursing staff were present at the surgical pause. The purpose of the surgical pause is to undertake and complete a check to ensure that the correct patient is listed for the correct procedure at the correct site.No evidence was given to the inquiry before the FPC that anyone during the surgical pause ever looked at the applicant’s notes. However, confusing as the original entry might have been, any confusion, had it arisen for that reason, would have been quickly eliminated by reference to the consent form, the admissions card, or to the pre-operative discussion between the parents of patient X and the SHO and/or Nurse Pollard, wherein the patient’s mother drew express attention to the site of difficulty.Unfortunately, Dr. Tareen, in respect of whom charges were not pursued at the hearing before the FPC, carried out a lingual frenulectomy, which was an unnecessary procedure and one which, having been carried out, left the patient still requiring the upper frenulum release which was undertaken when the child was brought back to theatre that same day.It is perhaps important to stress that this second procedure was uneventful and the child made a full recovery after a short period of pain and discomfort from the lingual frenulectomy and is suffering no ongoing disability as a result of the unnecessary operation which was performed.Nevertheless, her parents were understandably upset and annoyed that the particular incident occurred and lodged a complaint with the first named respondent on the 4th September, 2010, alleging poor professional performance against Professor Corbally and his colleague Dr. Tareen.From the outset, the applicant admitted that his wording of the procedure in his original notes was inaccurate and made a full and comprehensive apology to the parents of patient X. In fairness, everyone involved in what had occurred quickly realised that a series of errors and poor communication had brought about the particular mishap which at least had the fortunate consequence that a completely new protocol for such procedures was devised and put into place at the hospital so as to ensure that no such confusion or mistake could ever again occur.Following receipt of the complaint the Preliminary Proceedings Committee of the Medical Council formed the opinion that there was a prima facie case to warrant further action being taken in relation to the complaint and referred same to the FPC. The FPC decided to hold an inquiry at which some eight allegations of poor professional performance were advanced. At the hearing, the majority of these allegations were withdrawn, but nonetheless the FPC made three specific findings against the applicant as follows:-“Allegation number 1:That on or around 25th February, 2010 Mr. Corbally incorrectly described the procedure required for patient X in her medical records as excision of ‘upper lingual frenulum’.Having regard to the evidence adduced, the Committee found that:Allegation 1 was proven as to fact.Reason:The Committee is satisfied, beyond reasonable doubt, on the basis of Prof. Corbally’s admission and the documentary evidence adduced that the facts are proven.Allegation 1 did amount to poor professional performance.By a majority the Committee is satisfied beyond reasonable doubt that this constitutes poor professional performance, on the basis of the expert evidence given by Mr. Grant and notwithstanding the expert evidence to the contrary given by Mr. O’Driscoll. The wrong diagnosis was recorded in circumstances where Prof. Corbally had a responsibility to accurately document the problem and planned surgical procedure. A minority view is that this entry did not influence the booked hospital procedure and therefore did not constitute poor professional performance.Allegation number 6:That on or around 30th April, 2010, Mr. Corbally...

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