Investigation 03HDC19128 – Informed Consent Not Provided – The Heath and Disability Commission Fraud

Investigation 03HDC19128 – Informed Consent Not Provided

https://www.hdc.org.nz/decisions/search-decisions/2004/03hdc19128/

Here is a culmination of the mind set and ethics of New Zealand laparoscopic cholecystectomy surgeons confirmed so far:

They believe they have the right to conduct illegal experimentation procedures that put patients at risk. There have potentially been thousands of patients affected and possible deaths never followed up. The HDC continue to issue surgeons a ‘free pass’ so they are never held accountable for their actions. (See HDC
Investigation 00hdc07593 )
Surgeons continue to carry out unjustified or illegal surgeries that are killing patients, or significantly lowering their quality of life. The HDC continue to issue surgeons a ‘free pass’ so they are never held accountable for their actions. (See HDC investigation 2hdc00779 , 09hdcC01932 , 09hdc01505)
Surgeons and trainees carry out surgical training on patients without consent. The HDC continue to issue surgeons a ‘free pass’ so they are never held accountable for their actions. (See HDC investigation 03hdc18935)
Surgeons do not believe in a patient’s rights to autonomy, the cornerstone of medical legal and ethical practice. Consent is obtained illegally, though deception and concealment. The HDC continue to issue surgeons a ‘free pass’ so they are never held accountable for their actions. (See HDC investigation 03hdc18925, hdc6446, 11hdc00531 , 2hdc00779)

An expert advisor’s view (surgeon) is that the “ultimate decision” (whether to have surgery in public or private) is “that of the surgeon”. However:

Patient Autonomy (cornerstone of medical law, legal and ethical practice): The right of patients to make decisions about their medical care without their health care provider trying to influence the decision. Patient autonomy does allow for health care providers to educate the patient but does not allow the health care provider to make the decision for the patient.

Definition of Patient autonomy – MedicineNet https://www.medicinenet.com/script/main/art.asp?articlekey=13551

In this investigation, a patient is coerced into providing consent to undergo treatment in another private hospital. The surgeon had surgical restrictions in place with the original hospital, preventing the surgeon from practicing there. Instead, patient is coerced into the very same procedure that the surgeon is barred from at a private hospital, under private insurance. This case is a carbon copy of Investigation ## resulting in a patient’s death.

Sadly, this patient was left traumatised as the result of a prolonged recovery, including approximately two and a half months before being able to return to work, as well as possible lifelong injuries from scar tissue. This outcome would have been avoided if consent were obtained legally.

1. Take Home Points

A lot of New Zealand’s laparoscopic cholecystectomy surgeons are completely lacking in integrity, honesty and moral fortitude.
This case provides compounding evidence that every consent for a cholecystectomy is obtained illegally through coercion, deception and concealment and a misrepresentation of the risks and side effects affecting quality of life, including a failure to provide alternative non-surgical treatment options. The result is that this is a criminal offence that continues to occur under the direct protection of the HDC and is in breach of the Code of Health and Disability Services Consumers’ Rights (the Code).

The HDC continue to apply their interpretation of the legally enforceable Code of Rights. Rather than protecting patients they continue their policy of ‘learning not lynching’ towards medical practitioners and protect them rather than holding them accountable. This equates to legalised fraud by the HDC, whilst ensuring the Code is never legally enforced. Medical practitioners have ‘clinical freedom’ and protection from the HDC to do what they like, how they like. The likelihood of them facing malpractice charges in New Zealand is slim to none.
The HDC protection amounts to a ‘free pass’ given to the despicable behaviour of surgeons. Consent fraud at the highest level is covered up. There is conspiracy that the HDC is concealing medical malpractice in order to cover-up the following breaches:

- Right 7(1) Right for a consumer to make an informed choice and give informed consent.
- Right 6(1), Duty of care to provide patients’ with full disclosure when something goes wrong during an operation,.
- Right 2 Every consumer has the right to be free from coercion and exploitation.

Patients’ informed consent is obtained legally – From a surgeon’s perspective:

New Zealand surgeons have gone on the record and stated, ‘when a patient signs their consent forms, absent of any disclosed long term side-effects and complications, the patient has accepted a surgeon’s opinion’. Incidentally, this cannot be backed by any evidence-based medical study or information provided by the HDC’s own internal advisors (obtained by Official Information Act request). As a result, the surgeon’s believe they cannot be held liable for any subsequent damages to health resulting from long-term side effects of surgery, or for not disclosing alternative treatment options.

Malpractice lawsuits have effectively been blocked by the fact that the HDC continues to issue no breach rulings, based solely on the surgeons’ opinions.

This HDC supported practice is a breach of patient Rights, 4(2) and 4(4):

Every consumer has the right to have services provided those comply with legal, professional, ethical, and other relevant standards. Consent for services cannot be obtained in a fraudulent manner, through deception and concealment. Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of the consumer.

Improper professional conduct: According to the New Zealand Medical Council, this in itself, for terms of reference constitutes malpractice. Malpractice involves illegal or unethical conduct, or neglect of professional duty. However, according to the HDC this breach never takes place. Once again, there is no referral to the Director of Proceedings to investigate illegal or unethical conduct, or neglect of professional duty.

2. What Happened?

The patient in this case presented with a 3cm stone impacting on the neck of her gallbladder. The surgeon misled the patient, and the patient’s private insurance provider (hospital), that the patient was in imminent, life-threating danger of gallbladder rupture. The surgeon used this argument in order to obtain access to facilitate surgery and gain the patient’s consent.
The surgeon performed urgent laparoscopic cholecystectomy at a private hospital. The private hospital was unaware of the restrictions in place, preventing this surgeon from conducting such procedures in other hospitals.
The patient’s condition deteriorated post-operatively and she was transferred to a public hospital, where she underwent further surgery to drain a haematoma. The patient advised the HDC she never provided consent for surgery to be carried out by a surgeon under restriction and pending the Medical Council’s competence review.

3. HDC Investigation Outcome

The Commissioner ruled the surgeon breached Right 6(1) of the Code by not informing he had restrictions on his practice prior to surgery. The Commissioner recommended that the surgeon:

Apologise to Patient; and
Review his practice.

Once again we see the HDC protection policy in action, fraud is legalised with a slap on the wrist and rather than carrying out their intended function the HDC acts as protector of deplorable surgeon behaviour.

4. Breaches of Patient Rights Not Investigated (Unanswered Questions)

There are several breaches that the HDC glaringly fail to investigate or identify. In the process, they have also failed to enforce the patient’s legal rights, which if properly investigated, should have resulted in the HDC referring the case to the Director of Proceedings, to decide whether to take a case to Health Practitioners Disciplinary Tribunal (HPDT), or forward to the appropriate authority, such as the police. This process would definitively determine whether there was any “liability or culpability”, or if a criminal office has occurred.

The right to protection from dishonest coercion and exploitation:

Patients have the right to make an informed choice and give their consent free from coercion and exploitation.

However, this is not the case according to the HDC – The surgeon did not exploit or coerce this patient, or act in a premeditated manner by lying, exaggerating and inventing a diagnosis that the patient’s gallbladders was about to explode. It was ignored by the HDC that the surgeon’s behaviour had the intention to persuade a patient to invest in an urgent, private hospital intervention, otherwise not available through the public healthcare system where the surgeon was also currently under tight restrictions.

The Patient can rightly feel defrauded and if this information had been disclosed, the operation would have been carried out by anther surgeon, or not have occurred, and post-injury complications problems would more than likely never happen.

Evidence the HDC Reviewed :

“Surgeon phoned Norfolk Hospital during the consultation (08 April) to request surgery on 10 April. The patient recalled that during the surgeon’s conversation with the Norfolk Hospital, he advised the hospital that there was a possibility her gallbladder could perforate. (burst)“
Advice from general surgeon: There are no indications in the notes of any increasing symptoms apart from some pain the previous night. This was suspected to be a perforation, but there was no associated peritonitis or fever suggesting any deterioration in the previous assessment of her condition. These circumstances would be normal to carry out a routine cholecystectomy, even if the patient had a perforation, which had sealed.
HDC advising surgeon: In this particular case there is no evidence in the pre-operative examination to suggest that this lady should not be operated on in private. On admission her temperature was recorded as normal. She had a normal pulse, which really did not hint at the findings at operation.

Breaches concealed:

Right to be protected from dishonest coercion and exploitation – medical malpractice fraud

Right 2, every consumer has the right to be free to freedom from discrimination, coercion, harassment, and exploitation. Every consumer has the right to be free form coercion by the surgeon forcing them to a single treatment solution, blocking them from alternative treatment options.

Right 7(1) –Informed consent is obtained illegally, by fraudulent deception

Every consumer has the right to make an informed choice and give informed consent. Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent. Without this information, patients are denied the opportunity to legally give informed consent.

Telling the truth:

Truth telling is defined as “avoidance of lying, deception, misrepresentation, and non-disclosure in interactions with patients or relevant to patient care”

““If we had known that Mr Breeze had limitations with respect to laparoscopic surgery and restricted to operating at Norfolk Hospital only, we would have chosen a general surgeon who could have operated more promptly and was competent at laparoscopic surgery.”

The HDC glaringly failed to investigate and properly identify the patient’s right to be advised of the risks of injury, resulting from treatment. There is an absence of any information detailed in the patient’s medical notes:

Doctors have a care duty to provide patients full disclosure when something goes wrong during an operation, (disclose harm or injury). Right 6(1) of the Code affirms every consumer’s right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive. When a surgical complication occurs, the patient is entitled to open, truthful, and timely information about the complication, its effect and its significance.

Evidence the HDC reviewed continued:

The HDC: Surgeon advised me that he visited patient on 21 April in the HDU and talked to her. He advised that he explained to her that she had suffered from a persistent low-grade post-operative bleed, but that the blood had been evacuated by ‘another surgeon’.

The patient could not recall Mr Breeze visiting her while she was in HDU, and there was no record of his visit in her progress notes.

Doctors have a care duty to provide patients with full disclosure when something goes wrong during an operation (disclose harm or injury).

Right (1)(a) of the Code provides that patients have the right to be treated with respect. Failure to disclose inadvertent harm involves tacit deception – respect for patient autonomy supports a truthful and sensitive discussion about what went wrong and why;

Right 6(1) of the Code affirms every consumer’s right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive. When a surgical complication occurs, the patient is entitled to open, truthful, and timely information about the complication, its effect and its significance

Right 5(2) of the Code every patient has the right to an environment that enables both patient and doctor to communicate openly, honestly, and effectively. Open and honest communication requires candour about inadvertent harm on the part of the doctor;

Witman A, Park D, and Hardin S., “How do patients want physicians to handle mistakes? A survey of internal medicine patients in an academic setting” (1996) 156 Archives of Internal Medicine2565;

Higorai M, Wong T, and Vafidis G., “Patients’ and doctors’ attitudes to amount of information given after unintended injury during treatment: cross-sectional, questionnaire survey” (1994) 318 BMJ 640).

The HDC glaringly failed to investigate and identify the patient’s right to be advised of alternative treatment options, while they were under restriction:

The Surgeon did not discuss with patient the option of having her surgery performed at Southern Cross, by a different surgeon, or an urgent referral to the public hospital. The patient would not have provided consent, if they were made aware of this fact.

Breach of the code:

Right 6(1) Gives every patient the right to information that a reasonable consumer, in that patient’s circumstances, would expect to receive.

Right 6(1)(b) Every patient have the right to the information that a reasonable consumer in his circumstances would expect to receive, including an explanation of the alternative treatment options available and an assessment of the expected risks, side effects (affecting quality of life), benefits and costs of each option. Failing to disclose risks during the informed consent process breaches Right 6(1)(b) of the Code of Health and Disability Services Consumers’ Rights (the Code).

Question 1a: Did a breach of common law take place, with consent not legally obtained and a criminal offence occur?

If so, why was the matter not referred to the police, or the Director of Proceedings, or the Professional Conduct Committee, or the Medical Council of New Zealand medical council for review. This process should have taken place in accordance with section 45(2)(f) of the Health and Disability Commissioner Act 1994?

Question 1b: Did the HDC conspire to pervert the course of natural justice, by blocking a thorough investigation and deliberately omitting breaches?

This is previously identified in similar investigations. Once again the HDC do not take matters further and decide not to forward the case to the appropriate authority for a more detailed and qualified investigation.

Question 2: Why was no action taken when the HDC was aware of the high number of post-operative complications and mortality at the hands of this surgeon?

At the time of this investigation, the HDC was aware of high number of issues and they still gave a ‘free pass’ to the surgeon and in the process ignore fundamental patient rights and the breaches identified above.

Did the HDC breach its legal mandate to investigate breaches and protect health consumers? By not referring the case to the appropriate authorities in accordance with section 45(2)(f) of the Health and Disability Commissioner Act 1994 ?

Question 3: Is the HDC’s stance of ‘learning, not lynching’ and ‘protecting, rather than holding accountable’ medical practitioners an intrinsically wrong interpretation of the ‘The Code of Health and Disability Services Consumers’ Rights’?

Because these rights are enforceable by law, this in itself is a conspiracy to obstruct, prevent, pervert, or defeat the course of natural justice.

Everyone, (including the HDC misusing statutory powers) is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice in New Zealand under the Crimes Act 1961 No 43 (as at 28 September 2017),

Public Act 116 www.legislation.govt.nz/act/public/1961/0043/latest/DLM329005.html