Anderson, Justine --- "The case of Dr Gayed: How systemic breakdown perpetuated professional misconduct" [2022] PrecedentAULA 6; (2022) 168 Precedent 16

---

THE CASE OF DR GAYED:

HOW SYSTEMIC BREAKDOWN PERPETUATED PROFESSIONAL MISCONDUCT

By Justine Anderson

On 6 June 2018, over two decades after complaints were first raised against him, Dr Emil Gayed, an obstetrician-gynaecologist (OG), was found guilty of professional misconduct and had his registration as a medical practitioner suspended.^[1] Although Dr Gayed had surrendered his registration on 7 March 2018, a Health Care Complaints Commission (HCCC) prosecution was commenced, and he was disqualified from reapplying for registration for 3 years.^[2]

This case study demonstrates the intersectionality of reporting relationships between various agencies: public hospitals, private hospitals, the NSW Medical Board/Medical Council and regulators. It highlights the consequences of poor communication between these bodies in their regulatory safeguarding role of protecting the public from harm and maintaining confidence in the hospital system. This study also reflects the consequences when practitioners with conditions on their registration fail to comply with that of self-reporting to their employers.

BACKGROUND

Dr Gayed graduated from Ain Shams University in Cairo, Egypt in 1976, with a degree equivalent to a Bachelor of Medicine and Surgery. He trained in Cairo and the UK between 1982 and 1994, and between 1986 and 1994 held various OG positions at hospitals in Saudi Arabia; during his later UK appointments he worked as an OG.^[3]

On 17 May 1994, the NSW Medical Board, as it then was known, registered Dr Gayed in the speciality of obstetrics–gynaecology, with the condition that he practise only as an OG and only in positions approved by the Medical Board.^[4] The name of the Medical Board changed to the NSW Medical Council (Medical Council) in 2010, after the introduction of the Health Practitioner Regulation National Law (NSW) (National Law).

During his 22-year career in Australia, until 2016, Dr Gayed worked in a number of regional public and private hospitals.^[5]

Section 122 inquiry

On 31 October 2018, the Secretary of NSW Health initiated an inquiry into Dr Gayed’s practice under s122(1)(c) of the Health Services Act 1997 (NSW).^[6] The Health Secretary’s functions under s122 include: ensuring the facilitation of standards of patient care and efficient and economic operation of the public health system; inquiring into the administration, management and services of a public hospital; providing governance, oversight and control; causing an inspection of a public hospital; and making recommendations to the Minister regarding sums of money to be allocated to a public health organisation.

Gail Furness SC was appointed to conduct the inquiry to review the actions of a number of local health districts at which Dr Gayed had been appointed. The terms of reference were to perform a documentary review of the following:

• Dr Gayed’s appointment at five local health districts – Cooma Hospital, Kempsey District Hospital, Grafton Base Hospital, Manning Base Hospital (MBH) and Mona Vale Hospital (MVH);

• The management of complaints, adverse events or performance issues concerning Dr Gayed, the monitoring of compliance, and the consistency of Dr Gayed’s conditions of appointment and clinical privileges with any registration or other conditions or orders imposed on Dr Gayed;

• Whether there was appropriate reporting to the regulators of any conduct of Dr Gayed that ‘may constitute professional misconduct or unsatisfactory professional conduct’;

• Any requirement for future review or audit of clinical outcomes that ‘should be considered in respect of Dr Gayed’s clinical practice’; and

• Any matters that triggered a mandatory notification obligation to the Australian Health Practitioner Regulation Agency (AHPRA) which should have been made promptly to both AHPRA and the HCCC.^[7]

A second inquiry (its findings were published before the first) followed a simultaneous request by the Medical Council that Ms Furness inquire into the actions of the former Medical Board in response to concerns raised about the professional performance of Dr Gayed.^[8]

WHAT HAPPENED?

First signs of ‘unsatisfactory professional conduct’

Between April 1997 and July 1998, while Dr Gayed was working at Cooma Hospital, 15 events were recorded concerning his clinical treatment and conduct in the operating theatre.^[9] Those incidents or complaints were investigated by the HCCC between 1998 and 2001. In March 2001, the HCCC referred ten complaints to a Professional Standards Committee (PSC) regarding Dr Gayed’s clinical work between July 1996 and July 1998. One complaint alleged Dr Gayed was suffering from a visual impairment (high myopia).^[10]

The PSC found Dr Gayed guilty of unsatisfactory professional conduct in relation to these ten complaints.^[11] It found he had suffered from an impairment of high myopia which detrimentally affected or was likely to detrimentally affect his capacity to practise as an OG.^[12] Conditions were imposed on his registration, inter alia: he was not to perform microsurgery; he was to be assessed by an ophthalmologist approved by the Medical Board; and he was to be subject to a performance assessment.^[13]

Unfortunately, while orders were made for copies of this decision to be forwarded to the Medical Board, the HCCC, Dr Gayed and his adviser, his peer reviewers and the CEO of the health service that made the report, copies were not made available to other facilities where he was then working.

Failure to inform

Dr Gayed worked at Kempsey District Hospital from October 1999 to June 2002. Following the 2001 PSC findings, the Medical Board notified Mid North Coast Area Health Service of the condition restricting Dr Gayed from undertaking microsurgery, but this communication failed to inform the health service of the finding of unsatisfactory professional conduct, the reprimand and the recommendations made.^[14]

Vision impairment issues

To address Dr Gayed’s high myopia, in January 2005 he had cataracts removed and myopic intraocular lenses inserted.^[15] His insurer reported to the Medical Board that Dr Gayed had had procedures performed which ‘have corrected [his] myopia'.^[16] Further, Dr Gayed’s ophthalmologist reported that his vision was ‘now superior to that which it was for the past decade’; the ophthalmologist also noted that his stereopsis (depth perception, critical for performing surgery) was ‘excellent’.^[17]

From this time to Dr Gayed’s resignation in 2016, concerns remained about his vision and depth perception. For example, in 2015 nursing staff at MBH reported concerns to an anaesthetist regarding Dr Gayed’s perceived impaired vision.^[18] These concerns, though echoed by other senior nursing staff, were never the subject of any internal written report.^[19]

Lack of due diligence and supervision

Dr Gayed was initially contracted to work at MVH in May 2002 on a temporary appointment and was then offered a secondary 5-year appointment.^[20] The hospital did not check his registration status with the Medical Board, nor was there evidence that it sought from Dr Gayed information ‘as to his conditions of registration or his consent to contact the Medical Board and/or the HCCC’.^[21]

Dr Gayed failed to mention the HCCC investigation, the PSC and its outcome in the material he provided to Northern Sydney Health (NSH); as a result, his clinical privileges did not reflect the conditions of his registration.^[22] Concerns regarding his eyesight were not known to the hospital or Area Health Service at the time of this appointment.^[23]

Complaints regarding Dr Gayed’s management of patients were made by staff to the executive each year following his appointment in 2002. In June 2003, after concerns arose, a number of cases involving Dr Gayed as consultant came to the attention of the Director of Medical Services at MVH.^[24]

On 12 August 2003, Dr Gayed was suspended pending investigation into his clinical performance.^[25] Around this time NSH sought and obtained confirmation from the Medical Board of the conditions on Dr Gayed’s registration.^[26]

On 22 September 2003, the NSH Credentials Committee (Committee) met regarding the cases where Dr Gayed was consultant and noted that the outcomes were not comparable with those of his MVH peers. The Committee noted, inter alia, a pattern of Dr Gayed performing procedures on patients which could be considered as over-servicing; his lack of compliance with his conditions of registration; and suboptimal outcomes for three patients.^[27] Notwithstanding these concerns, the Committee recommended reinstatement of full clinical privileges; review of Dr Gayed’s appointment if any similar concerns were replicated; and notification to the Medical Board.^[28]

On 31 May 2004, nursing staff submitted a ‘major clinical incident’ report relating to one of Dr Gayed’s patients.^[29] This was reviewed at a multidisciplinary peer review meeting. The review concluded that a number of clinicians had correctly observed and documented features which were not consistent with the diagnosis being treated by Dr Gayed, and it was unclear why surgery had been undertaken.^[30] The inquiry held that this incident should have triggered a review of Dr Gayed’s clinical privileges in accordance with the outcome of the September 2003 Committee meeting.^[31]

In December 2005, concerns were again raised about a number of cases where Dr Gayed had been the treating doctor.^[32] NSH did not reconsider his appointment or clinical privileges, and the inquiry deemed that two of those cases, seen in the context of previous cases, warranted a referral to the Committee for review and consideration of whether Dr Gayed’s clinical privileges should be restricted.^[33] NSH did not formally notify the cases to the Medical Board, but did enquire about the outcome of Dr Gayed’s performance assessment, which was reported as satisfactory.^[34]

In September 2006, staff reported another incident via the Incident Information Management System (IIMS) concerning Dr Gayed’s surgical management of a patient. The Director of Medical Services commenced an investigation into the complaint in accordance with the relevant policy.^[35]

On 4 December 2006, another complaint was registered via the IIMS. This complaint also concerned Dr Gayed’s treatment of the patient, and was referred for review by external reviewers.^[36] One of the external reviewers noted Dr Gayed had a higher rate than his peers of general and difficult complications, without an obviously different practice.^[37]

In March 2007, two additional cases came to light. By this time there was widespread concern regarding Dr Gayed’s practice at MVH, and investigations and reviews were under way.^[38]

On 6 March 2007, Dr Gayed requested a meeting with MVH’s Director of Clinical Services, stating that the current and past reviews had been motivated personally rather than by safety concerns; he then resigned.^[39] On 16 March 2007, the CEO of Northern Sydney–Central Coast Area Health Service notified the Medical Board of their decision to suspend Dr Gayed. This was the second time a CEO had brought the Medical Board’s attention to serious concerns about Dr Gayed’s clinical practice.^[40]

Issues for private hospital patients

The terms of reference for the inquiry did not include the review of any adverse clinical outcomes relating to treatment within or associated with private hospitals. However, the involvement of Delmar Private Hospital arose when some of its patients experienced adverse outcomes from procedures performed by Dr Gayed, presenting to MVH for medical attention due to surgical complications such as bowel perforations.^[41]

Lack of oversight despite complaints

Dr Gayed commenced working as a visiting medical officer (VMO) at MBH in August 1999 and sought reappointment in 2003, 2006 and 2011.^[42] In each application he signed a release for enquiries to be made to, inter alia, previous places of employment, the HCCC and registration authorities.^[43] The inquiry found the Area Health Service did not exercise its right to make these enquiries prior to reappointing Dr Gayed in 2003, 2006, 2007 and 2011.^[44]

On each occasion that the Area Health Service was informed by the Medical Board that conditions had been placed on Dr Gayed’s registration, there were delays in reflecting those conditions on his clinical privileges.^[45] Most significantly, in 2001, some 16 months elapsed after the Area Health Service was informed that his registration was conditional on his not performing microsurgery.^[46]

In most years between 1999 and 2016, nursing staff, anaesthetists, other medical practitioners and patients raised complaints or concerns about Dr Gayed’s clinical treatment of patients^[47] additional to the 2001 PSC findings and conditions imposed on his registration, performance assessments imposed by the Medical Board, the imposition of further conditions on his registration, and the effective termination of his contract at three hospitals (Cooma,1999; Delmar Private, 2007; MVH, 2007).^[48] Most concerning was the repeated theme in the complaints and concerns of ‘the unnecessary removal of organs, unnecessary or wrong procedures, perforations of organs and reluctance to transfer [patients] to tertiary facilities.’^[49]

Dr Gayed remained at MBH until February 2016, when he was suspended. He then resigned.^[50]

During his time at MBH as a VMO, Dr Gayed also consulted patients in his private rooms, where he carried out assessments, examined patients and made diagnoses; he sometimes booked women in for surgery. His medical records, test results and other records were not available to the hospital.^[51] The inquiry expressed concern about a public hospital providing facilities for a VMO to practise without having oversight to ensure patients were being cared for at the expected standard.^[52]

Despite the requirement during Dr Gayed’s engagement at MBH for regular performance review of VMOs, this did not occur, and there were no clinical supervision plans for him as the policy required.^[53]

There is no evidence, before thecurrent Director of Obstetrics and Gynaecology Dr Nigel Roberts commenced work in April 2015, of any IIMS review to detect clinical patterns or follow up reviews.^[54] The Director of Clinical Services, a career Emergency Department doctor who responded to IIMS reports on occasion, was found to have been ‘unduly favourable to Dr Gayed’, not to have followed policy, and to have minimised the seriousness of concerns raised.^[55]

Though Dr Gayed’s high myopia had been surgically corrected, subsequent complaints concerned his vision.

MEDICAL BOARD OF NSW INTERVENTIONS

During Dr Gayed’s time as a registered practitioner in Australia, the Medical Board required him to undergo performance assessments, and his performance was reviewed by the Performance Review Panel (PRP).

Between October 2001 and June 2018, Dr Gayed underwent two performance assessments and peer reviews and was the subject of Performance Standards committees and PRPs. He was found to have been guilty of unsatisfactory professional conduct and unsatisfactory professional performance. In April 2016, an urgent s150 hearing was triggered by the Medical Council and substantial conditions were placed on his registration. In July he was disqualified from practising medicine for a period of three years.^[56]

INVESTIGATION AT REGIONAL HOSPITALS

Four Lookbacks (audits with specific purposes) were established to review the care provided by Dr Gayed.^[57] The inquiry found that between 25 June 2018 and 31 October 2018 the MBH public inquiry hotline (Lookback 3) received almost 200 calls from women reporting they had received care from Dr Gayed.^[58] By 30 November 2018, 176 patients required assessment. Dr Roberts^[59] reviewed these cases. An expert within the inquiry reviewed the reports and the inquiry referred 50 of the complaints to the HCCC for investigation.^[60]

Internal IIMS reporting was performed for only five of those 50 women.^[61] When incidents recorded on the IIMS were reviewed, it was found they were either not documented or the reports were not completed.^[62] The doctors did not record concerns on the IIMS and the nurses did so only ‘selectively’.^[63]

There was no clinical supervision of Dr Gayed as required by policy.^[64]

The hospitals appeared to be too heavily reliant on the Medical Board/Medical Council providing oversight and imposing conditions or correction of Dr Gayed’s performance to determine whether Dr Gayed was fit to practise.^[65]

While the Medical Board/Medical Council is the only body with overall knowledge of the performance concerns of practitioners across public and private facilities,^[66] its responsibility did not relieve the hospital from its own responsibility: proper review of the practitioner’s performance on a regular basis by a clinician with the same expertise and experience.^[67]

OBSERVATIONS BY HEALTH PROFESSIONALS

A long-serving OG at MBH reported to a superior that there had been ‘talk about Dr Gayed’ and asked what was being done; the inquiry notes the OG was told that the Medical Board was ‘keeping an eye’ on Dr Gayed and ‘it [was] “not really our concern”.’^[68] The same practitioner told the inquiry that there was ‘common knowledge with in [sic] the hospital of problems’ with Dr Gayed, including extended theatre times.^[69]

An anaesthetist who occasionally worked with Dr Gayed told the inquiry his impression was that Dr Gayed had higher complication rates than his peers and his patients required greater pain relief than expected. He had had discussions with colleagues, anaesthetists and nursing staff who shared his concerns.^[70] He believed that, due to Dr Gayed’s longstanding VMO position, staff had become desensitised to his performance.^[71]

Staff concerns continued to be raised, notwithstanding:

• the findings of a PSC in 2001 and the conditions imposed on Dr Gayed’s practice;

• the assessments by the Medical Board/Medical Council at various times over a decade and the imposition of further conditions on his registration; and

• the effective termination of Dr Gayed’s contracts at three hospitals: Cooma, Delmar Private and MVH.^[72]

POLICE INVESTIGATION

On 7 February 2019, the primary s122 inquiry report was published. On that date, at the direction of NSW Health Minister Brad Hazzard, a copy of the report concerning the local health districts was forwarded to the NSW Police for ‘investigation and consideration of prosecution’.^[73] A strike force was engaged and at time of writing (November 2021) the Police are investigating some of those complaints.

LOOKING AHEAD

It is difficult to say with any certainty where this might end. In addition to the 50 cases referred to the HCCC for investigation, more have been referred outside of the inquiry. No new NCAT judgments concerning Dr Gayed have come to light. It is suspected that disciplinary action will not enliven unless Dr Gayed seeks to have his registration reinstated.

A number of civil compensation claims are working their way through the courts. A law firm has established a scheme to assist in hastening the settlement of compensation claims and the resolution of non-complex medical negligence cases, while adhering to the legal requirements to establish breach and causation.

Systemic breakdowns on several fronts significantly contributed to the outcome for Dr Gayed and his patients. The mechanisms for oversight were not observed or engaged: regular performance reviews of VMOs were required, but unfortunately did not occur with Dr Gayed.^[74]

REGIONAL ISSUES

Regional, rural and remote hospitals are reliant on locums or VMOs to fill positions to service communities where the local health districts cannot attract or retain permanent specialists. And the retention of skilled doctors has long been problematic. Sadly, our regional, rural and remote populations do not receive the specialised care their city equivalents do.

CONCLUSION: RECOMMENDATIONS

The s122 inquiry made several recommendations for legislative change to improve information sharing. These included the following:

• Recommending the amendment of s99(2) of the Health Services Act 1997 (NSW) – which requires a practitioner to report any finding of unsatisfactory professional conduct within 7 days – to extend the requirement for reporting to private hospitals;^[75]

• Recommending the amendment of s176BA, which requires the Medical Council to give written notice to an employer or accreditor of a registered health practitioner if it decides to impose, alter or remove conditions, to include notification of any suspension, which is not currently required by this section;^[76]

• Having highlighted that the current law does not expressly allow the Medical Council to provide information to employers or accreditors about a doctor’s compliance with conditions on their registration, recommending that, where the Medical Council could conclusively advise an employer or accreditor about compliance with one or more condition, it should not be prohibited from doing so;^[77]

• Having identified the lack of a provision permitting the Medical Council to provide a copy of a performance assessment to any person it thinks fit, recommending that it should have discretion to inform employers, broadly described, of the outcome of a performance assessment, if a practitioner has reached the stage of performance assessment, if the practitioner is counselled or requires counselling, or if conditions are imposed;^[78]

• Noting that provisions within the National Law dealing with confidentiality and the sharing of information should not act as obstacles to information sharing;^[79]

• Making recommendations regarding the performance assessment mechanism, including that performance assessors have reference to the same documents as the Medical Council and be required to observe procedures the doctor had performed poorly in the past or specifically address the concerns raised;^[80]

• With regard to local health districts, recommending that governance processes be reviewed to ensure that IIMS reports are monitored; and ^[81]

• Recommending that, where VMOs treat their private patients in a public hospital, the hospital introduce an oversight mechanism to ensure there is sufficient information about those patients to be satisfied procedures are being performed to an appropriate standard.^[82]

Justine Anderson is an Associate at Carroll & O’Dea Lawyers, specialising in medical negligence with a focus on obstetrics, gynaecology, women’s health and birth cases, as well as hypoxic brain injury, delay of diagnosis cases and spinal injury. She is deeply interested in the intersectionality of medicine and the law.

---

^[1] HCCC v Gayed [2018] NSWCATOD, [433].

^[2] Ibid, [434].

^[3] GB Furness SC, Review of documentary material in relation to the appointment of Dr Gayed, management of complaints about Dr Gayed and compliance with conditions imposed on Dr Gayed by local health districts (NSW Health Section 122 Inquiry Report, 21 February 2019) [177] <https://www.health.nsw.gov.au/patients/inquiry/gayed/Documents/gayed-report.pdf>.

^[4] GB Furness SC, Review of processes undertaken by the Medical Council of New South Wales pursuant to Part 8 of the Health Practitioner Regulation National Law (NSW) with respect to Dr Emil Gayed (NSW Health Section 122 Inquiry Report, October 2018), [15]–[16].

^[5] Furness, above note 3, [9], [11], [28], [34]–[36], [62], 30.

^[6] NSW Health, Inquiry relating to Dr Emil Gayed, Terms of Reference (31 October 2018) <https://www.health.nsw.gov.au/patients/inquiry/gayed/Pages/terms-of-reference.aspx>.

^[7] Ibid.

^[8] J Anderson and B Madden, ‘Dr Emil Gayed: professional misconduct – the adequacy of public health authority and regulator responses to multiple complaints about a medical practitioner’, Australian Health Law Bulletin, Vol. 27, No. 2, 2019, 36–9.

^[9] Furness, above note 3, [11].

^[10] Ibid, [23].

^[11] Ibid, [26].

^[12] Ibid, [25].

^[13] Ibid, [27].

^[14] Ibid, [29], [30].

^[15] Furness, above note 4, [402].

^[16] Ibid.

^[17] Ibid.

^[18] Furness, above note 3, [1222].

^[19] Ibid, [1224].

^[20] Dr Gayed’s employment was suspended between 11 August 2003 and 30 September 2003. On 6 March 2007 he heard that his appointment was again suspended, and resigned the following day.

^[21] Furness, above note 3, [37].

^[22] Ibid, [38]–[39].

^[23] Ibid, [39].

^[24] Ibid, [40], [41].

^[25] Ibid, [43].

^[26] Ibid, [44].

^[27] Ibid, [45].

^[28] Ibid, [46].

^[29] Ibid, [47].

^[30] Ibid, [48].

^[31] Ibid, [49].

^[32] Ibid, [50].

^[33] Ibid, [51].

^[34] Ibid, [52].

^[35] Ibid, [54].

^[36] Ibid, [55]–[56].

^[37] Ibid, [57].

^[38] Ibid, [58].

^[39] Ibid, [59].

^[40] Ibid, [60].

^[41] Furness, above note 4, [444].

^[42] Furness, above note 3, [62].

^[43] Ibid, [63].

^[44] Ibid, [64], [88].

^[45] Ibid, [65].

^[46] Ibid, [66].

^[47] Ibid.

^[48] Ibid, [67].

^[49] Ibid, [68].

^[50] Ibid, [71].

^[51] Ibid, [75].

^[52] Ibid, [76].

^[53] Ibid, [78].

^[54] Ibid, [82], [83].

^[55] Ibid, [84].

^[56] Furness, above note 4, [674].

^[57] Furness, above note 3, [1195].

^[58] Ibid, [69].

^[59] Dr Roberts became the inaugural Director of the Department of Obstetrics and Gynaecology in April 2015. Ibid, [1002].

^[60] Ibid, [1203].

^[61] Ibid, [1204].

^[62] Ibid, [1257].

^[63] Ibid, [1258].

^[64] Ibid, [1256].

^[65] Ibid, [90], [92].

^[66] Ibid, [93].

^[67] Ibid, [94].

^[68] Ibid, [1212].

^[69] Ibid, [1211].

^[70] Ibid, [1217].

^[71] Ibid, [1218].

^[72] Ibid, [1247].

^[73] NSW Health, ‘Report into Dr Gayed released’ (7 February 2019) <https://www.health.nsw.gov.au/news/Pages/20190207_00.aspx>.

^[74] Furness, above note 3, [1255].

^[75] Furness, above note 4, [686].

^[76] Ibid, [687].

^[77] Ibid, [688].

^[78] Ibid, [689].

^[79] Ibid, [691].

^[80] Ibid, [700], [703].

^[81] Ibid, [1274].

^[82] Ibid, [1275].