The doctor got it wrong -Part3

The judge who heard the appeal of Dr Zhen Qing Wang against the decision of the Health Practitioners Council of Zambia in 2012 to de-register him and cancel his practising certificate observed that the law and the medical profession recognise medical standards by which health care professionals should adhere when providing care for patients.

The case arose when Dr Wang diagnosed as cancer a case of a swollen testicle without sufficient medical evidence. The patient’s testicle was removed as a result of this diagnosis. In considering the appeal the Judge thought it prudent for Court to consider whether a reasonable doctor in similar circumstances, with the same competence and skills as Dr. Wang, would have acted in a similar manner.

The patient’s rights
The judge pointed out that patients have a right to expect to receive appropriate care when being treated and if the standard of care is violated, this may amount to medical negligence. But for negligence to be proved there must exist a legal duty on the part of the doctor to provide care or treatment to the patient. Where a doctor provides service to the patient, the doctor is said to owe a duty of reasonable professional care to the patient.

This duty is breached by a failure of the treating doctor or hospital to adhere to the expected standards of the profession. And the standard of care refers to that care which a reasonable, similarly situated professional would have provided the patient.

And this breach must have resulted in an injury, which injury must have damaging consequences or resulted in considerable damage (physical, emotional or pecuniary) such as suffering, enduring hardship, living in constant pain, loss of income, and injury that disabled the patient. The judge stated that if a patient is not happy with an outcome that in itself is not malpractice.

The judge, while reviewing the minutes of the Disciplinary Committee, found that Dr Wang admitted that he did something wrong and when the doctor was asked as to who made the decision that the operation should go ahead, he remained silent.

It was also in the minutes that Dr Wang was the person who pronounced the cancer and also admitted that he did not carry out any tests or take any samples to the laboratory to establish why the right testicle was swollen.

Examination gaps
The doctor did not even order for a basic test like the full blood count of the patient. The Committee noted that this was the doctor’s first patient. The judge was left in no doubt that Dr Wang did not properly examine the patient and hastily concluded that the swelling of the right testicle was cancerous.

The doctor acted with incompetence by wrongly diagnosing the swelling as cancer and it was clear that he lacked the requisite skill and experience to handle such a medical problem. The doctor even made the patient pay for the surgery before the patient was even seen by the surgeon.

The Judge looked up from the Wikipedia, the free encyclopedia, the drug cyclophosphamide that was prescribed for the patient. The Judge found that the drug is used to kill cancer cells but that it also affects the growth of normal body cells and that the drug may have severe and life threatening adverse effects.

It was clear to the judge that before one begins treatment with this drug, the patient and the doctor must talk about the benefits of this medicine and the risks of using it and regular blood tests during treatment.

It was on record that the patient notified the doctor of the side effects of the drug on him but the doctor did nothing except to insist that the drug was okay.

The Health Practitioners Act of Zambia provides that three members of the Disciplinary Committee shall form a quorum and the chairperson of the Council shall be one of the members of the Disciplinary Committee.

One of the issues that came up during the appeal was that the chairperson was not present at the meeting of the Disciplinary Committee; he was represented by another doctor. The Judge accepted the argument that the Act does not give express authority to the chairperson to delegate his obligation to attend a disciplinary hearing. But the Judge also reasoned that the Act does not stop the chairperson from delegating that responsibility.

The judge therefore agreed with lawyers acting for the Council that a quorum was duly formed as required by the Act and further agreed with the Council that the decision of the Disciplinary Committee in regard of Dr Wang was unanimous and that there was no need for voting and that no substantial miscarriage of justice was occasioned.

The judge was further convinced that Dr. Wang was afforded a chance to be heard of the charge of which he had prior notice and that he had sufficient time within which to prepare his defense.

Dr Wang was fully aware of the charges as he was the attending doctor and he was the person who responded to the summons of the Council that was issued. The Judge concluded that there were no pre-trial irregularities or breach of the rules of natural justice.

The judge was satisfied that Dr Wang fully understood why and how the Council found him guilty of professional misconduct and made the unanimous decision to deregister him.

To the judge, Dr Wang was guilty of professional misconduct and that this brought sufficient discredit to the medical profession to damage its reputation and to reduce the trust the trust the public places in the medical profession.

In this case, the Judge added, Dr Wang fell far below the professional standards expected of him as a medical practitioner and should not be allowed to continue to practice medicine in the face of clear evidence of professional misconduct. The High Court has a duty to protect the public, concluded the Judge, as he upheld the decision of the Disciplinary Committee and the penalty imposed.

Fact
Act (2009) of Zambia. The Act states that a health practitioner commits professional misconduct if the health practitioner;
a) Contravenes the provisions of the Act.
b) Unlawfully discloses or uses to the health practitioners advantage any information acquired in the health practitioners practice.
c) Engages in conduct that is dishonest, fraudulent or deceitful.
d)Commits an offence under any other law.
e) Engages in any conduct that is prejudicial to the health profession or is likely to bring it into disrepute. Or
f) Breaches the Code of Ethics or encourages another health practitioner to breach or disregard the principles of the Code of Ethics.

The writer is a consultant forensic pathologist