A General Practitioner performing pregnancy terminations at the Croydon Day Surgery has been reprimanded for four instances of unprofessional conduct in relation to the performance of a late stage pregnancy termination where the patient was unconscious.

Background

In 2011, Dr Mark Schulberg conducted medical practice from the Croydon Day Surgery (Surgery), including the performance of late term pregnancy terminations. In August 2011, the Patient presented to the Surgery for the termination of a 23 weeks and 3 day pregnancy, which was to take place over three days. On initial assessment, bruising was noted and standard blood tests were taken. They showed some abnormalities.

After discussion with the anaesthetist on duty the following day, Dr Schulberg ordered urgent blood tests, including those for liver and kidney function. It was usual practice for the pathology service to advise Dr Schulberg, via phone or fax, if any results were significantly abnormal.

Although the Patient’s results were significantly abnormal, Dr Schulberg was not notified, nor did he follow up the pathology results, despite having marked them as “urgent”. 

On the final day of the procedure, the Patient did not present to the Surgery as planned. After phone discussions with the Patient’s daughter expressing concerns regarding the Patient’s condition, a nurse from the Surgery was sent to collect her. On arrival to the Surgery, the Patient was responsive to movement, rousable, jaundiced, and moaning. Dr Schulberg formed the view that the Patient was gravely ill. He then requested the pathology results from the urgent blood tests taken the previous day.

Upon noting the results, Dr Schulberg formed the view that the patient had a pregnancy related complication. The anaesthetist determined that the Patient was not fit to undergo an anaesthetic and stated his preferred course was to wait for an ambulance. To the contrary, Dr Schulberg proceeded to evacuate the uterus while the Patient was unconscious, as he had formed the view that the foetus was causing the Patient’s symptoms.

There was no confirmation that an ambulance was en route prior to performing the procedure. It was not until 23 minutes after the commencement of the procedure that an ambulance arrived, and another 17 minutes until MICA Paramedics were present at the Surgery. Dr Schulberg met the Ambulance officers and left the Patient with the Ambulance Officers and returned to theatre to continue his operation list.

The Patient required admission to ICU in an altered consciousness for 7 days after the procedure.

Proceedings brought by the Medical Board of Australia

The Medical Board of Australia made two referrals to the Victorian Civil and Administrative Tribunal (VCAT) in relation to Dr Schulberg’s conduct, alleging that Dr Schulberg:

1. failed to adequately care for and treat Patient in that he failed to:

(a) access, follow-up, or consider the results of the urgent blood tests he had ordered; and/or

(b) adequately medically review the Patient after the procedure and prior to her discharge; and/or

(c) arrange for an ambulance and make arrangements for the immediate transfer of the Patient to hospital;

2. should not have performed an operation (late stage termination) on his Patient, in circumstances where:

(a) the Patient was unconscious; and/or

(b) the Patient was in renal and liver failure; and/or

(c) no anaesthesia was administered to the Patient; and/or

(d) the procedure was performed at the Croydon Day Surgery; and/or

(e) Dr Schulberg did not adequately consider the urgent pathology results ordered;

3. failed to ensure an ambulance had been called within a timely manner;

4. should not have performed further routine operations leaving his unconscious Patient without direct medical supervision by himself and/or another medical practitioner; and

5. failed to adequately record his medical treatment of the Patient.

Decision

Eight of the allegations against Dr Schulberg were proven.1 The Tribunal found in relation to each proven allegation that the level of departure by Dr Schulberg from the appropriate standard of care constituted unprofessional conduct. Dr Schulberg was reprimanded and 12 restrictions were placed on his medical registration, including limitations on practice and compulsory education.

The Tribunal found that Dr Schulberg failed to clinically care for and treat his patient and to ensure an ambulance had been called within a timely manner.

Further, the Tribunal found that Dr Schulberg’s performance of a late stage pregnancy termination on an unconscious patient, in renal and liver failure, without anaesthesia, and without adequate consideration of the urgent pathology results ordered, amounted to unprofessional conduct.

Finally, Dr Schulberg’s conduct of returning to theatre to perform other surgical procedures and leaving his unconscious patient without direct medical supervision also amounted to unprofessional conduct.

Comment

There was significant disagreement between the two parties as to the characterisation of the conduct. The Medical Board of Australia sought a finding of professional misconduct. In contrast, Dr Schulberg attempted to rely on Vissenga v Medical Practitioners Board of Victoria (2004) VCAT 1044 and submitted that although there were adverse findings made against him by the Tribunal, VCAT was not obliged to make a finding of unprofessional conduct or professional misconduct.

VCAT considered its findings, and related reasons, in regards to Dr Schulberg’s conduct and found that he had placed the Patient at significant risk of harm.

The determination of unprofessional conduct was reached as the Tribunal considered the conduct to be of a lesser standard than that which might be reasonably expected by the public or professional peers, but was not substantially below the standard expected of a registered health practitioner so as to be characterised as professional misconduct.