David Morris has successfully defended a consultant upper gastro-intestinal (GI) surgeon before a Medical Practitioners Tribunal (MPT) in a two week Fitness to Practise hearing.  The surgeon had been accused of a series of clinical failings in his treatment of a patient suffering  acute pancreatitis.  These included failing to refer the patient to a regional specialist pancreatic unit, conducting clinically inappropriate surgical procedures and on a number of occasions making insensitive comments to the patient’s family.

An earlier hearing of the case had to be abandoned because of the perceived bias of the MPT.  Whilst the GMC’s evidence was still being called the defence expert, who was attending remotely, had inadvertently overheard the MPT Chair discussing the case with the two other MPT members.  The Chair had expressed the view ‘I think we all know how this is going to go’.  The MPT had refused to recuse itself for bias in appearing to prejudge the outcome of the case.  David Morris applied for judicial review of their refusal and obtained an interim High Court injunction staying the proceedings.  The GMC did not contest the application and the case was relisted before a different MPT.

The surgeon admitted some clinical allegations but, apart from one insignificant matter, the new MPT found all the disputed allegations not proved.  On the clinical issues the MPT preferred the evidence of the defence expert to that of the GMC expert.  They considered that the defence expert adopted a pragmatic approach.  He recognised the ‘horrible’ situation the surgeon found himself in when having to decide whether and how to operate in emergency situations.  It was difficult to be critical of him unless ‘you were there’.  By contrast the GMC expert had adopted a mechanistic approach governed by hindsight and a rigid application of guidelines.  The MPT considered that the surgeon was measured under cross-examination and accepted that there were other points of view other than his.

The MPT considered that the surgeon’s admitted failings to seek advice from and refer the patient to the regional specialist unit amounted to misconduct. However, they considered that there was ‘little more that he could have done’ to demonstrate that he had fully addressed and remediated these failings and accordingly found his fitness to practise not impaired.  No formal sanction was required.

The MPT considered that the need to maintain public confidence and uphold clinical standards had been met through the public disciplinary proceedings and finding of misconduct.  Therefore, notwithstanding the finding of misconduct,  the MPT decided it was unnecessary and would be disproportionate to give the surgeon a formal warning.

David Morris was instructed by Tessa Davies and Tyler Bowden of DAC Beachcroft through the Medical Defence Union.