Identifying Incompetent Surgeons: A Collective Failure to Learn from

Public Inquiries

The Hon Geoffrey Davies AO

Introduction

Incompetent surgeons may be only a small minority

But they can cause enormous harm

2 notorious examples:

1. Bristol Royal Infirmary

2. Dr Patel in Bundaberg

Both the subject of Inquiries

Introduction

These had a disturbing fact in common

That those, including fellow surgeons, who knew of or strongly suspected surgical incompetence causing serious harm, did not speak out about it

Why was that?

Introduction

Aust legislation encouraging whistleblowing by

1. Obliging a surgeon, who has a reasonable belief a fellow surgeon has significantly departed from accepted standards causing risk, to notify

2. Encouraging a surgeon to notify if the conduct, judgment or skill of a fellow surgeon is of a lesser standard than reasonably expected

Introduction

3. And, in both cases protecting the notifier, acting in good faith, against any legal or administrative action.

The assumption – that the sole or main reason why others did not blow the whistle was a fear of a defamation action or some action by the Medical Board

But that assumption was wrong

Introduction

I shall discuss five topics

1. Why that legislation was never going to expose the majority of operations involving preventable surgical error causing harm

And why that ought to have been apparent

Introduction

2. The only way of identifying preventable surgical error causing harm is by an objective and timely assessment of actual operations

And only by recording the operative history of a surgeon can you see whether he has a pattern of surgical error causing harm

How that may be done at little additional cost

Introduction

3. Why existing systems of assessment of surgeons –

- Reregistration in Australia

- Revalidation in the UK

- UK system of publication of surgical outcomes

Will never identify incompetent surgeons

Introduction

4. What the Medical Board should do

There is no point in pursuing the Plymouth Report. None of the proposals will identify fitness to practise

It should no longer accept as sufficient for reregistration compliance with the RACS CPD

It must require participation in audits identifying

incompetence

Introduction

5. The special position of ageing surgeons.

The problem of declining motor skills, endurance and enthusiasm to keep up to date

Monitoring surgeons over 60

Some conclusions

Why whistleblowing and patient complaints and claims won’t do it

(1) whistleblowers

The main fear of potential whistleblowers is not – a defamation action or action by Medical Board

- but retribution in retaliation by the surgeon or his supporters; harassment, intimidation, harm to employment prospects

- And that can’t be removed

Why whistleblowing and patient complaints and claims and claims

won’t do it

Surgeons are also reluctant to complain about colleagues in order to avoid bad feelings

So will do so only in the most serious cases of incompetence

Why whistleblowing and patient complaints and claims won’t do it

(2) patient complaints

Statistically most of these involve preventable adverse events causing harm

But only 4% of serious adverse events actually trigger complaints

So 96% of those the subject of a serious adverse event never complain

Why whistleblowing and patient complaints and claims won’t do it

(3) patient claims

Patient claims are likely to be no more frequent than patient complaints

So they are likely to represent only a tiny percentage of serious preventable adverse events

The only effective way of identifying incompetent surgeons

Two central propositions

1. Those who perform incompetently must be identified

2. This must involve an objective and timely assessment of the actual operations of surgeons which have had adverse consequences

The only effective way of identifying incompetent surgeons

Identification of a surgeon for this purpose does not have to be public identification

But unless you identify and record the name of a surgeon involved in surgery with adverse consequences you will never know whether that surgeon has a pattern of surgery having preventable adverse consequences

The only effective way of identifying incompetent surgeons

The greater the number of adverse events (than his colleagues performing similar operations) the greater the likelihood that some of these were preventable

The greater the number of preventable adverse events (than his colleagues performing similar operations) the greater the likelihood that some of these were caused by incompetence

The only effective way of identifying incompetent surgeons

Mortality and morbidity audits already assess adverse events in or following surgery

But

- Attendance at morbidity audits is not compulsory; and

- Neither audits identify the surgeon involved in the adverse event

And surgical bodies are opposed to even limited identification

The only effective way of identifying incompetent surgeons

The Medical Board has accepted, without question, the RACS CPD Program as sufficient to do this

And doesn’t seem interested in changing that

Why existing systems of assessment can’t identify incompetent surgeons

(a) The RACS CPD Program of “surgical audit and peer review”

- The audit is a self audit; an oxymoron

- The peer review is mostly a review, by persons selected by the surgeon, of the self audit

- It does not objectively assess the performance of the actual operations of the surgeon

Why existing systems of assessment can’t identify incompetent surgeons

(b) UK revalidation

It purports to assess whether doctor is “up to date and fit to practise”

It does not assess whether a surgeon is fit to practise because it does not objectively assess actual operations

Why existing systems of assessment can’t identify incompetent surgeons

(c) UK publication of surgical outcomes

- Only deaths in most cases

- Arranged under single procedures instead of total of a surgeon’s operations

- Information from surgeon so no objective opinion on whether preventable

- Surgeons engaging in risk averse behaviour

The role of the Medical Board

It has the power to approve or change any registration standard

So it could make reregistration conditional on participation in audits which identify surgeons and which keep record of each surgeon involved in adverse events

But it seems more interested in pursuing revalidation as in the UK

Ageing surgeons

Scientific evidence shows that, in surgeons, from about 55, fine motor skills, strength, endurance decline incrementally

So may enthusiasm for new learning

This is supported by empirical studies of clinical performance

This may be compensated, to some extent, by experience

Ageing surgeons

To allow for this risk

- In addition to recording, accumulating and analysing the adverse consequences of the operations of all surgeons

- the performance record of surgeons over 60, taken from audit reports, should be assessed every six months

Conclusion

It has been apparent for some time that the whistleblower provisions were not resulting in the identification of most incompetent surgeons

Nor were patient complaints

Australian reregistration provisions do not ensure a surgeon’s fitness to practice; they don’t ensure that he is performing his operations with reasonable competence

Conclusion

Up to now the Medical Board has accepted these as the standard of fitness to practise because the RACS says so

To test fitness to practise it must adopt a standard which measures objectively the overall competence of each surgeon’s operations

I have suggested one

Conclusion

Two questions:

1. Will the Medical Board now implement a system which assesses the competency of surgeons’ actual operations

Conclusion

2. If the Medical Board does not soon implement such a system and, before it does, another Patel emerges who could have been identified in such a system

Is the Medical Board liable to those who suffer?