John Menadue. Cover-up in the health system.

Feb 20, 2015

There is an unacceptable refusal by many in the health sector to publish data and information about how services are delivered. There is a cover-up by powerful providers who don’t want transparency and exposure about the way they work.

At the Bundaberg Hospital some years ago it was clear that surgeons had little confidence in surgeon, Jayant Patel. But they sat on their hands and did little to protect the public. It was left to nurses to blow the whistle and risk their careers.

Judge Geoffrey Davies AO spoke of this problem in an address last October to 1,200 orthopaedic surgeons in Brisbane. The speech was reported earlier in this blog (7/12/15). It is very blunt about the performance of many orthopaedic surgeons.

Extracts from the transcript of his speech follow:


Why won’t you do something about incompetent surgeons?

The Hon Geoffrey Davies AO

You all know that, in your midst, there are incompetent surgeons; surgeons whom you would never recommend to your friends or family. They may have varying degrees of incompetence and for different reasons. But all are a danger. All can cause injury.

Together you know who many of them are. But for various reasons you have done little individually and nothing collectively, to expose them or even to identify them confidentially for the purpose of retraining or limitation of practice.

Patients are entitled to know, before they choose you for their surgery, rather than one of your competitors, not only how your fees compare with those of your competitors, but also how your success rate compares with that of your competitors; and that that latter information, in the case of much orthopaedic surgery, is recorded in your National Joint Replacement Registry.

Why would surgeons who are otherwise honest and decent men and women and who are themselves competent, fail to speak out against what was plainly gross incompetence causing harm? The author of the Bristol Inquiry report described it as an “old boys’ culture”. But that is simply a euphemism. The true reason must surely be either a view that the reputation of your profession is more important than the health and safety of patients; or a view that the incompetence of your colleagues is none of your business. It can’t surely be a misplaced loyalty to your incompetent colleagues. It wasn’t in Bundaberg because none of the other doctors there really liked Dr Patel.

If, individually, you don’t speak out, patients may be injured, possibly seriously.

As you are aware, following my Inquiry, there is now a mandatory requirement that you notify the Health Ombudsman if you have a reasonable belief that another health professional has behaved in a way which constitutes a significant departure from accepted professional standards; and that such behaviour has placed the public at risk of harm. You do not appear to have responded to this obligation notwithstanding the freedom which it confers from any legal or administrative action. And the legislation invites you to notify in respect of less serious incompetence and, if you do, also offers you full protection against legal or administrative action provided your notification is made honestly.

If, in those circumstances, you as individual surgeons will not act to protect the public from your incompetent colleagues, I have come to wonder how likely it is that your association or any other specialist association is ever likely to do so. However, as I shall point out, there are a number of ways in which it can and should do so.

Surgeons who are the subject of multiple complaints Studies in 2006 in New Zealand and the United Kingdom both show a close correlation between complaints and preventable adverse events :

-Two thirds of complainants had experienced adverse events; and
-75% of those adverse events were preventable.

And a study in 2012 of nearly 19,000 formal health care complaints against doctors, including surgeons, in Australia between 2000 and 2011 showed that two prior complaints over eleven years was a strong predictor of short term further complaints. It found that:

– compared with doctors with one prior complaint over that period, those with two complaints had nearly double the risk of recurrence;
– that risk increased substantially with each additional complaint.
– and these, in turn, showed that complaint prone doctors could be identified early in their complaints trajectory.

Together these studies show, in my view, a strong likelihood that those surgeons who have had, for example, two or more complaints within an eleven year period are incompetent.

Evidence (also) show that incompetent surgeons are much more likely to be found among older surgeons than among surgeons in early or mid-career.

There are three conclusions that can be reached from this evidence. The first is that the proportion of incompetent surgeons is likely to be greater in the older age group than in the mid-career group. The second is that this conclusion is not generally recognised or, at least, admitted within your profession. And the third is that there needs to be much greater scrutiny, than there is at present, of the performance of older surgeons, partly for these reasons, but partly also because there is likely to be much greater resistance, in your profession, to complaining about a once competent surgeon who is no longer so than there is about a younger incompetent surgeon.

Individual notifications under the Legislation, like complaints by patients, can never uncover more than a small percentage of the total number of incompetent surgeons. That is why the primary responsibility for uncovering and dealing with incompetent surgeons must be upon those who can establish a system for such objective assessment.

The view that the best way of determining competence is by assessment of actual operations appears to be rejected by you in a number of ways.

First, you appear to ignore the fact that multiple complaints against a surgeon probably prove a pattern of incompetence.

Secondly, you will not make participation in morbidity audits compulsory notwithstanding the overwhelming evidence of the benefit of such participation.

Thirdly, you will not permit audits of either kind to identify and record the name of a surgeon the subject of adverse events notwithstanding the evidence that this would enable determination of a pattern of incompetence.

And fourthly, you will not permit the NJRR to be used for this purpose notwithstanding that, as I believe, it can do so. If I am correct in that belief, I think that you have been acting improperly in failing to use it for that purpose. In saying that I appreciate that surgeons have been contributing data to the NJRR on the promise of anonymity. But that could and should have been changed before now.

I cannot see how the imposition of a fine or suspension from practice for a period can, alone, be an appropriate remedy for incompetence. The surgeon should be retrained if that is possible. But in many cases, especially those of older surgeons, that will not be possible. In that case he must have his practice limited to exclude operations of the kind which he cannot safely perform or he must be prevented from practising. Suspension from practice, in whole or in part, is appropriate only while decisions are pending about retraining or limitation or ceasing practice.

Why you won’t do something about incompetent surgeons?

I regret to say that my answer to this question is not one which you will like. Yet all of the evidence that I have seen convinces me that I am right.

What then is the answer to my question? I think that there are two.

The first involves how you think and act individually.

Many of you are concerned that disclosure of your own success rate or, more accurately, your failure rate might increase your risk of being sued. But realistically that is a risk for only a small minority whom you should want to see dealt with, for the health and safety of future patients.

Many of you are also concerned that reporting another surgeon whom you believe is incompetent may rebound on you. I have said that I understand that. But that concern does not excuse you, particularly given the protection which the law now gives you.

The second involves how you think and act collectively, as the AOA.

Collectively you are, it seems to me, still primarily a trade union having the primary purpose of looking after the wellbeing of orthopaedic surgeons. And sadly you appear, so far, to have put that before the health and safety of patients.

To change that you must make participation in morbidity audits compulsory for your members. You must require the recording of the names of surgeons involved in adverse events. You must use the results of these, and the results of complaints records to identify incompetent surgeons.

And you must use the NJRR for this purpose.

When I spoke at your annual conference in Adelaide four years ago I was still optimistic that you might, individually and collectively, do something about this serious problem. Despite your inaction since then, I remain optimistic. But time and public confidence are running out.


Geoffrey Davies was a judge of the Queensland Supreme Court of Appeal for 14 years. He headed the 2005 inquiry into the Bundaberg surgeon Jayant Patel. 

This speech was reported in The Australian on October 17, 2015.




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