Director of Proceedings v Vatsyayann [2012] NZHC 2588 (5 October 2012)

Last Updated: 2 November 2012

ORDER SUPPRESSING PUBLICATION OF THE NAME OF THE PATIENT OR ANY DETAILS THAT COULD LEAD TO HER IDENTIFICATION.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-000090 [2012] NZHC 2588

BETWEEN THE DIRECTOR OF PROCEEDINGS Appellant and Cross-Appeal Respondent

AND SURESH VATSYAYANN Respondent and Cross-Appellant

Hearing: 13 August 2012

Appearances: A L Martin and H M Cook for the Appellant and Cross-Appeal

Respondent

J A Hope for the Respondent and Cross-Appellant

Judgment: 5 October 2012

_{RESERVED JUDGMENT OF GILBERT J}

This judgment was delivered by me on 5 October 2012 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

Counsel: J A Hope, Hamilton: [e-mail]

Solicitors: Health & Disability Commissioner, Wellington: [e-mail]

THE DIRECTOR OF PROCEEDINGS V SURESH VATSYAYANN HC HAM CIV-2012-419-000090 [5

October 2012]

[1] Dr Vatsyayann is in his early sixties. He practised medicine for over 35 years until he was suspended in August 2010.[1] Prior to being suspended he had an excessive workload. He claimed that he had between 5000 and 7000 patients and worked 16 hour days, seeing up to 125 patients per day.

[2] One of Dr Vatsyayann’s patients, Ms L, consulted him on numerous occasions in the 12 month period to 14 November 2008. Her symptoms became progressively worse to the point where she was unable to carry out normal tasks such as shopping and driving without assistance. Her family became increasingly aware of how unwell she was. Her brother, Mr E, insisted on accompanying Ms L to her last consultation with Dr Vatsyayann on 14 November 2008. By that stage she was totally exhausted and was experiencing pain all over her torso.

[3] Periodic blood tests over the preceding 12 month period showed that Ms L’s iron levels had become progressively lower and that her haemoglobin level had also dropped markedly. Dr Vatsyayann prescribed iron tablets but did not determine the cause of these symptoms. Blood tests in July 2008 showed that Ms L’s haemoglobin levels had decreased further; her iron level was very low; and she had markedly elevated CRP(C – reactive protein), indicating that she was suffering from a non infective or inflammatory disease. Dr Vatsyayann did not carry out any physical examination of Ms L’s abdomen at any stage.

[4] Ms L consulted another medical practitioner on 15 November 2008. This doctor carried out a full consultation on 20 November 2008. He noted that she had an epigastric mass. Blood tests showed that she was anaemic, her CRP remained elevated, and liver function tests were also elevated. He referred Ms L to Waikato Hospital for further investigations. A colonoscopy revealed a caecal mass and a histology test showed that she had adenocarcinoma. A CT scan of Ms L’s abdomen revealed widespread metastatic cancer of the liver. Despite treatment with

_{chemotherapy, Ms L died in October 2010.}

[5] The Director of Proceedings does not allege that Dr Vatsyayann ought to have diagnosed Ms L’s condition. It seems to be accepted that cancer of this kind in its first or second stage is difficult to diagnose, especially in patients like Ms L who present with multiple co-morbidities. However, the Director criticised a number of aspects of Dr Vatsyayann’s care of Ms L. In particular, he alleged that Dr Vatsyayann negligently failed to diagnose, monitor and manage Ms L’s iron deficiency anaemia and did not adequately follow up Ms L’s pathology. The Director also alleged that Dr Vatsyayann diagnosed gastritis on 14 July and

14 November 2008 without performing an abdominal examination or auscultating[2]

her. Finally, the Director alleged that Dr Vatsyayann failed to document his care of Ms L adequately. These criticisms formed the basis of a charge of professional misconduct which the Director initiated against Dr Vatsyayann in December 2010. The Director alleged that Dr Vatsyayann’s failings, separately or cumulatively, amounted to professional misconduct warranting disciplinary sanction.

[6] The Health Practitioners Disciplinary Tribunal, which is a specialist tribunal chaired by a lawyer but also including medical experts, heard evidence relating to the allegations over nine sitting days from May to November 2011. On

21 December 2011, the Tribunal gave detailed reasons for its conclusion that only one of the Director’s allegations of professional misconduct was established, namely that Dr Vatsyayann did not follow up on the signs of Ms L’s pathology adequately. It censured Dr Vatsyayann and ordered him to pay costs. It imposed the following conditions should Dr Vatsyayann seek to recommence practice as a medical practitioner:

(a) Undertake at his cost a psychological assessment as directed and approved by the Medical Council before commencing practice.

(b) Undergo such ongoing clinical psychologist treatment and assistance and other rehabilitation steps as required by the Medical Council for a

_{period of three years from the commencement of practice.}

(c) Practise in a group practice approved by the Medical Council, which practice must include a vocationally registered medical practitioner for a period of three years from the commencement of practice.

(d) Practise in accordance with a supervision plan and be supervised as approved by the Medical Council for a period of three years from the commencement of practice.

[7] The Tribunal also found that Dr Vatsyayann did not diagnose the cause of iron deficiency anaemia suffered by Ms L and did not adequately document his care of her. However, it did not consider that these failures justified disciplinary sanction and accordingly found that those aspects of the charge were not made out.

[8] The Tribunal dismissed the other three allegations of misconduct as not proved. These were the Director’s allegations that Dr Vatsyayann did not adequately monitor or manage Ms L’s treatment for iron deficiency anaemia and the allegations relating to the diagnosis of gastritis without conducting appropriate examinations.

[9] The Director appeals against two aspects of the Tribunal’s decision. First, the Director challenges the Tribunal’s conclusion that Dr Vatsyayann did not diagnose Ms L as suffering from gastritis on 14 July 2008 and 14 November 2008. Accordingly, the Director argues that the Tribunal ought to have found that Dr Vatsyayann diagnosed gastritis without performing an abdominal examination or auscultating Ms L. Secondly, the Director argues that the Tribunal was wrong to conclude that Dr Vatsyayann’s failure to document his care of Ms L adequately did not warrant disciplinary sanction especially when considered cumulatively with Dr Vatsyayann’s failure to follow up Ms L’s signs of pathology. The Director seeks an order quashing these parts of the Tribunal’s decision and an order increasing the penalty imposed.

[10] Dr Vatsyayann cross-appeals the Tribunal’s decision. However, at the hearing, he abandoned his appeal other than in respect of the conditions imposed should he wish to recommence medical practice. He argues that the following conditions ought to have been imposed instead:

(a) That he undergo such ongoing training, assistance and other rehabilitation steps as required by the Medical Council.

(b) That he practise under a supervision plan approved by the Medical Council in consultation with Dr Vatsyayann and his proposed supervisor, with the cost of such supervision to be met by Dr Vatsyayann.

[11] The questions I have to decide are therefore:

(a) Was the Tribunal wrong to find that Dr Vatsyayann did not diagnose gastritis?

(b) Was the Tribunal wrong to find that Dr Vatsyayann’s failure to document his care of Ms L adequately did not justify disciplinary sanction on its own, or when considered with other proven failures?

(c) Was the Tribunal’s decision on penalty wrong?

[12] Dr Vatsyayann also appeals against the costs award made by the Tribunal. I

deal with this at the end of this judgment.

Was the Tribunal wrong to find that Dr Vatsyayann did not diagnose gastritis?

[13] The appeal is by way of rehearing. The Court is not required to defer to the Tribunal’s judgment. The Court must come to its own view on the merits and may come to a different reasoned result if persuaded that the Tribunal was wrong.[3] The Court may confirm, reverse or modify the Tribunal’s decision.[4]

[14] Dr Vatsyayann made the following notations in Ms L’s medical records on

14 July 2008 and 14 November 2008: “Dx: Non-infective gastritis NOS (J4z0.00)”.

In a letter dated 23 April 2010 to the Health and Disability Commissioner, Dr Vatsyayann stated that he had “diagnosed and treated her for gastritis/reflux” on

14 July 2008. Despite this, Dr Vatsyayann claimed in evidence before the Tribunal that this was not his true diagnosis. He said that he was part of a drug monitoring programme and that he was required to enter a diagnosis for each drug he prescribed. He said that when he prescribed a particular drug he would choose from a pre-set list of diagnoses, whether or not the chosen diagnosis coincided with his actual diagnosis. He claimed that he chose “non-infective gastritis NOS” from the pre-set list when he prescribed Omeprazole on 14 July 2008 and Losec on

14 November 2008 for Ms L. The Tribunal accepted this explanation and found that Dr Vatsyayann did not in fact diagnose gastritis despite the entries he made in Ms L’s medical records on 14 July and 14 November 2008.

[15] The Director argues that the Tribunal did not give sufficient reasons for reaching this conclusion; wrongly relied on the questions put by Dr Vatsyayann to Dr Young rather than the evidence; and did not deal adequately with Dr Vatsyayann’s explanations as they evolved during the hearing. The Director challenges the finding on the grounds that it is inconsistent with the documentary evidence, being the written diagnoses appearing in the medical records and Dr Vatsyayann’s explanation in his letter of 23 April 2010. He also argues that Dr Vatsyayann’s evidence that he did not in fact diagnose gastritis ought not to have been accepted. The Director invites the Court to conclude that Dr Vatsyayann did diagnose gastritis despite Dr Vatsyayann’s evidence to the contrary and the Tribunal’s decision accepting this.

[16] Dr Vatsyayann represented himself at the hearing in the Tribunal. He did not provide a brief of his evidence prior to the hearing. During the course of his cross-examination of Dr Young, the expert medical practitioner called by the Director, Dr Vatsyayann suggested that his computer system for recording medical records “automatically put gastritis there for the drug companies to know that Omeprazole was used for gastritis”. Dr Young used the same computer system but said he was unaware that it could automatically record a diagnosis. The suggestion that the computer would automatically record a diagnosis without any command from Dr Vatsyayann seems implausible. In any event, as the Director submitted, Dr Vatsyayann’s suggestion was not accepted by Dr Young and was therefore not evidence.

[17] Dr Vatsyayann also suggested to Dr Young that every time he repeated a medication a diagnosis would automatically appear in the medical record. This proposition, which also seems implausible, was also rejected by Dr Young and was therefore not evidence.

[18] However, Dr Vatsyayann gave evidence himself. He said that “every medicine has a diagnosis attached to it in his computer system”. He said that he and other general practitioners were being monitored by Best Practice Advocacy Centre and Pharmac as part of a research programme into the use of medicines. He said that he was therefore conscious of the need to record a diagnosis that would enable him to justify prescribing drugs such as Omeprazole and Losec. He explained that he could not record that these drugs had been prescribed as a preventative measure for heart disease, which is why he initially claimed to have prescribed them for Ms L, because heart disease was not on the pre-set list for these

drugs.[5]

[19] Dr Vatsyayann acknowledged that there were other prescriptions in his medical records for which no diagnoses had been recorded. He explained that this was because he was sometimes careless but this explanation is not consistent with Dr Vatsyayann’s claim that these diagnoses appeared automatically.

[20] Dr Vatsyayann was also asked why the diagnosis was sometimes recorded in Ms L’s records before the prescription, as was the case on 14 November 2008, and sometimes after the prescription, as on 14 July 2008. Dr Vatsyayann responded that an initial prescription would be recorded after the diagnosis but a repeat prescription would be recorded before the diagnosis. The difficulty with this explanation is that Omeprazole was prescribed on 14 July 2008 whereas Losec was prescribed on

14 November 2008. Dr Vatsyayann acknowledged that every medicine had to be re-entered at least once and the computer system would not automatically replace Omeprazole with Losec. This further contradicts the suggestion that these diagnoses

_{appeared automatically.}

[21] I accept the Director’s submissions that at least some of Dr Vatsyayann’s explanations appear to be implausible. His claim that he did not diagnose gastritis is also in conflict with the letter he wrote to the Health and Disability Commissioner on

23 April 2010. Ideally the Tribunal would have given more detailed reasons for accepting Dr Vatsyayann’s overall position that he did not in fact diagnose gastritis despite what appears in the medical records he created and his letter.

[22] The Tribunal was entitled to reject parts of Dr Vatsyayann’s evidence but accept other parts of it. It appears that this is what the Tribunal did. The Tribunal does not appear to have accepted that the computer system generated the diagnosis automatically despite reference to this being made in its decision. However, the Tribunal clearly did accept Dr Vatsyayann’s evidence that he did not diagnose gastritis but simply chose this diagnosis from the pre-set list for the drugs he prescribed.

[23] The Tribunal had the advantage of seeing Dr Vatsyayann give his evidence. The medical practitioners on the Tribunal would have been familiar with the computer system used by Dr Vatsyayann. They would also have understood the medical conditions for which Omeprazole and Losec could have been appropriately prescribed. Dr Vatsyayann also provided a demonstration of his computer system at the conclusion of the hearing and explained how he made the diagnostic entries. I have not had the benefit of seeing that demonstration. For these reasons I am reluctant to interfere with the Tribunal’s factual finding.

[24] There was sufficient evidence available to the Tribunal to justify its conclusion on this issue. While I accept that aspects of Dr Vatsyayann’s evidence were unsatisfactory, the Director has not persuaded me that the Tribunal was wrong in reaching its conclusion. I am therefore not prepared to interfere with the finding it made.

[25] The Director argued in the alternative that Dr Vatsyayann must take responsibility for the apparent diagnosis of gastritis appearing in the medical records because any other medical practitioner reading the records would conclude that this is what he had diagnosed. In those circumstances the Director contends that it does

not matter whether Dr Vatsyayann actually diagnosed gastritis. Either way, the Director says that Dr Vatsyayann has no defence to the allegation that he diagnosed gastritis without performing an abdominal examination or auscultating Ms L.

[26] I do not accept this argument. The specific complaint against Dr Vatsyayann on this issue was that he diagnosed gastritis without performing an abdominal examination or auscultating Ms L. The Director’s case was that gastritis should not be diagnosed without such an examination. That case falls away once it is accepted that no such diagnosis was made. The issue then becomes one of record keeping, rather than failure to carry out a necessary examination. It could only be relevant to the Director’s separate complaint that Dr Vatsyayann failed to document his care of Ms L adequately.

[27] It follows that the Director’s appeal against the Tribunal’s rejection of his claim that Dr Vatsyayann diagnosed gastritis on 14 July and 14 November 2008 without carrying out an abdominal examination or auscultating Ms L must be dismissed.

Was the Tribunal wrong to find that Dr Vatsyayann’s failure to document his care of Ms L adequately did not justify disciplinary sanction on its own, or when considered with other proven failures?

[28] The Tribunal accepted the Director’s allegation that Dr Vatsyayann made extensive and often inappropriate use of “hot keys” which had been programmed to produce words, phrases or sentences to save him time in completing the medical records. The Tribunal noted two examples which had appeared on numerous occasions in Ms L’s medical records:

Test results explained foods, feeds and care as advised, medicine/s as prescribed and explained, clarifications made as requested, revu prn to one month.

and

Chest NAD, no added sounds Heart NAD, no added sounds Abdomen NAD
JVP not raised

No carotid bruit

No pitting edema legs

Sensation and circulation to feet normal.

The latter entry appeared on six occasions from 22 March 2007 to 8 April 2008. A

slightly modified entry also appeared on 7 October and 3 November 2008.

[29] In relation to the former entry, Dr Vatsyayann acknowledged that the explanation may have been given in detail to the patient only once. He said that the entry was sufficient for his own purposes to record that he had discussed the matter earlier.

[30] The Tribunal was concerned about the frequent use of such detailed “hot key” entries in the medical records and also that the entries did not accurately reflect what had taken place during the consultations. The Tribunal correctly rejected Dr Vatsyayann’s claim that this did not matter because he said he carried a lot of detail in his memory and that the medical records would not distract him from the correct position. It is obviously important that medical records are completed accurately, not least because they may be relied on by other health professionals. As the Tribunal said, medical records are not solely for the benefit of the doctor who enters the information.

[31] The Tribunal accepted the Director’s allegation that Dr Vatsyayann’s documentation of his care of Ms L was inadequate and amounted to misconduct, being malpractice or negligence likely to bring the medical profession into discredit. However, the Tribunal did not consider that this misconduct was of such severity as to justify disciplinary sanction. Accordingly, it found that this aspect of the charge was not made out.

[32] The Director argues that the Tribunal ought to have found that the inadequacies in Dr Vatsyayann’s documentation were sufficiently serious to justify disciplinary sanction. Alternatively, he argues that the Tribunal ought to have considered all proven allegations on a cumulative basis in considering whether Dr Vatsyayann’s overall conduct amounted to professional misconduct requiring a disciplinary response.

[33] Although the Director’s case on documentation was principally centred on the inappropriate use of hot keys, he argues that the Tribunal ought to have taken into account its finding in relation to the gastritis charges that Dr Vatsyayann made false diagnostic entries in Ms L’s medical records. The Director says that this was a serious departure from acceptable standards and warranted disciplinary sanction on its own.

[34] Where there are a number of separate charges, as in this case, the Tribunal is required to consider the evidence relating to each separately and to make separate findings on each. Where there is a comprehensive or omnibus charge as well, namely that the separate charges considered cumulatively constitute professional misconduct warranting disciplinary sanction, the Tribunal must consider this after determining the separate charges. In doing so, the Tribunal should assess the overall

gravity of the conduct of which it has found the practitioner guilty.[6]

[35] The Tribunal correctly considered each charge separately based on the evidence that was presented by the Director relating to each. The Director did not advance the allegation that Dr Vatsyayann entered false diagnoses in the medical records. To the contrary, it argued that Dr Vatsyayann made these diagnoses and that the medical records were accurate in this respect. That was the position the Director maintained on appeal. Even when the issue of the false diagnoses arose during the hearing as a result of Dr Vatsyayann’s evidence on the gastritis charges, the Director did not seek to add this allegation as part of his complaint about inadequate documentation.

[36] Dr Vatsyayann was therefore not required to answer any such allegation and was not vulnerable to sanction in relation to it. The Tribunal was right to confine its assessment of the documentation charge to the evidence and allegations made by the Director on that charge. I reject the Director’s complaint that the Tribunal ought to have taken into account the false diagnostic entries when considering this charge.

[37] Although the Director submitted that the Tribunal should have found

_{Dr Vatsyayann’s documentation failings were in themselves sufficient to satisfy the}

disciplinary threshold, his main complaint was that this conduct ought to have been considered cumulatively with Dr Vatsyayann’s failure to follow up Ms L’s pathology when deciding whether the threshold was met.

[38] I am not persuaded that the Tribunal was wrong in concluding that Dr Vatsyayann’s documentation failings resulting from his use of hot keys was not sufficiently serious on its own to justify disciplinary sanction. However, I agree with the Director that the Tribunal ought to have taken into account its finding of misconduct on the documentation charge when considering whether Dr Vatsyayann’s overall misconduct warranted disciplinary sanction. It did not do so; it only considered whether Dr Vatsyayann’s failure to follow up signs of Ms L’s pathology reached the threshold. However, the Tribunal found that the disciplinary threshold was reached and accordingly this issue only has significance in the context of the penalty imposed.

Was the Tribunal’s decision on penalty wrong?

[39] Having determined that the disciplinary threshold was reached, the Tribunal was required to consider the appropriate penalty having regard to the proven misconduct and prior disciplinary history. This is what the Tribunal did. It took into account a range of concerns regarding Dr Vatsyayann’s fitness to practise, not just his failure to follow up signs of Ms L’s pathology. The Tribunal took into account Dr Vatsyayann’s inappropriate use of hot keys and his ongoing failure to maintain accurate medical records. The Tribunal’s concerns in this respect were heightened by the fact that Dr Vatsyayann had already been penalised for inappropriate use of hot keys in an earlier decision of the Tribunal in April 2009. This was the correct approach.

[40] Despite its wide ranging concerns about Dr Vatsyayann’s fitness to practise, the Tribunal considered that he should not be suspended and that the appropriate penalty was to impose strict conditions should Dr Vatsyayann seek to recommence practice. Those conditions were carefully designed to ensure that patient needs would be met by requiring Dr Vatsyayann to undergo psychological treatment and

such other rehabilitation as required by the Medical Council, and to practise only under supervision in a group practice approved by the Medical Council.

[41] Dr Vatsyayann argues that these conditions are too prescriptive and that a more appropriate penalty would have been to require him to undergo such ongoing training, assistance and other rehabilitation as required by the Medical Council and to practise under a supervision plan approved by the Medical Council.

[42] I do not accept that the conditions imposed by the Tribunal were unnecessarily prescriptive. There is force in the Director’s submission that Dr Vatsyayann may be resistant to change. Dr Vatsyayann said himself that at age 62 “I will never change”. I agree with the Tribunal that strict conditions needed to be imposed on any recommencement of practice by Dr Vatsyayann to protect patient interests. But, I do not accept the Director’s position that the Tribunal should have gone further and made another order suspending Dr Vatsyayann from practice.

Costs

[43] Dr Vatsyayann also appeals against the costs awarded in the Tribunal arguing that the Tribunal ought not to have made this order without a clear understanding of his financial position, including as a result of an earlier costs award made by the Tribunal. Dr Vatsyayann also argues that the Tribunal failed to take into account personal and cultural issues, particularly as they related to his conduct at the hearing.

[44] The Tribunal took into account that costs for the Director and the Tribunal together totalled over $212,000. It noted that these costs were significantly contributed to by the way Dr Vatsyayann had conducted his case. The Tribunal referred to “his irrational and emotional outbursts, his extensive questioning, submissions and evidence on matters completely irrelevant to the charge, particularly his allegations of wrongful motivation on the part of the Director of Proceedings and his ‘conspiracy’ allegations against many other bodies and authorities”. The Tribunal stated that this conduct distracted from the main issue and wasted time.

[45] The Tribunal was careful not to penalise Dr Vatsyayann for language or cultural differences but said that many hours were lost as a result of his failure to make clear and succinct statements and ask questions in a similar way. The Tribunal also took into account Dr Vatsyayann’s failure to engage in the proceedings prior to the hearing. It noted that Dr Vatsyayann’s conduct throughout the nine hearing days was “obstructive and difficult”. Dr Vatsyayann chose not to provide any evidence as to his means. In all of the circumstances the Tribunal considered that Dr Vatsyayann should pay half of the Director’s and Tribunal’s costs of the hearing.

[46] I cannot see any error in the way the Tribunal exercised its discretion in awarding costs. It took all relevant matters into account and was not distracted by irrelevant matters. It exercised its discretion in accordance with well-established principles. The costs award was clearly reasonable and fully justified for the reasons given by the Tribunal in its decision.

[47] I conclude that the Director’s appeal and Dr Vatsyayann’s cross-appeal must both be dismissed.

Result

[48] The Director’s appeal is dismissed.

[49] Dr Vatsyayann’s cross-appeal is also dismissed.

[50] Both parties having been unsuccessful, I make no order for costs.

[51] I make an order suppressing publication of Ms L’s name or any details that

_{could lead to her identification.}

M A Gilbert J

---

[1] Dr Vatsyayann was suspended from practice from 20 August 2010 in relation to unrelated matters. He was later struck off the Register in relation to other unrelated matters in April 2011. The striking off order was quashed by this Court in May 2012 but the order lies in Court pending a rehearing by the Tribunal. Vatsyayann v Professional Conduct Committee [2012] NZHC 1138

[2] To listen and interpret sounds in the body using a stethoscope.

[3] _{Austin Nichols & Co Incident v Stichtling Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.}

[4] Health Practitioners Competence Assurance Act 2003, s109.

[5] Dr Vatsyayann later suggested that Omeprazole and Losec are also given to prevent gastritis.

[6] Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513 (CA) at 547.