We felt that the Health and Disability Commissioner's December 2010 decision on our complaint against Auckland ETS surgeon Murray MacCormick warranted a reply. Below is the reply sent to the HDC, Anthony Hill, in early February this year. The Kiwi ETS Group would like to extend heartfelt thanks to those who shared their expertise and assisted with writing this letter.
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“Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession.” (King CJ, in F v. R, 1983. 33 SASR 189 (medical malpractice case))
“Sympathectomy is a last resort.” (Australian Doctor, 15 December, 2006)
Dear Mr Hill,
Your response (dated December 7, 2010) to my complaint on behalf of (name deleted for privacy; hereafter referred to as 'the/this patient') is problematic for a variety of reasons and fails to address key elements of the complaint. I wish to point out material facts and failings in your decision.
First, I protest your choice of ‘expert’.
Second, you have – crucially – failed to note that Dr MacCormick contradicts himself while defending himself: Dr MacCormick defended his diagnosis of primary/idiopathic (lifelong, of unknown cause) hyperhidrosis to your expert, Professor Justin Roake, yet admitted in writing to you that he knows AROPAX (the antidepressant medication the patient was taking at the time of her first consultation with Dr MacCormick) is well known for causing sweating in some patients. That Dr MacCormick is still contradicting himself at this stage is evidence of his incompetence and/or his desire to invent justifications with hindsight.
In a complaint process such as this, your role is to ensure that the public are safe and not exposed to predatory or incompetent practices and practitioners. Your duty of care is to the patient and it should have been within your duty of care to ascertain whether the medical conditions and symptoms of the complainant are related to the elective surgical procedure she was offered as a “treatment of choice”. You failed your duty of care and in your role to ensure that the rights of this patient were upheld, and that her complaint was taken care of fairly.
You have a social responsibility to ensure that others are not exposed to harm, either by Dr MacCormick or other surgeons who offer a seemingly safe procedure that turns out to be something else.
By considering it unfair to call on an expert with background in neurology, you give away the fact that you are not interested in either finding out the truth of this case or protecting the public, as indeed such an expert would have found that the effect of sympathectomy does go well beyond arresting sweating (especially in a patient such as this patient, who already has an autoimmune disease (diabetes) and is, therefore, more vulnerable when it comes to injury to/surgery on the Autonomic Nervous System (ANS)).
By this refusal to face the facts, you betray your role.
Here are my observations and comments on the findings of both you and your expert, Professor Roake.
Diagnosis
Dr MacCormick is not qualified to diagnose hyperhidrosis or depression. He is a vascular surgeon.
Because Dr MacCormick also made a mistake by prescribing a drug post-surgery that could interact with AROPAX (a mistake you and Professor Roake do not consider to be a further sign of his incompetence), it is clear that he had or has very little understanding of drug management of disorders not within his area.
Dr MacCormick was not qualified to make a decision on whether the antidepressant drug that caused this patient's facial sweating could not have been changed for another drug, which she might have tolerated better. This should have been discussed with the patient General Practitioner (who prescribed the antidepressants), or Dr MacCormick could have referred the patient to a psychiatrist with experience of treating depression. This would have been a responsible move by a caring medical professional.
Instead, Dr MacCormick offered an irreversible, destructive surgical procedure on the ANS, causing permanent nerve injury and countless side effects for an already depressed patient, even though Dr MacCormick is aware that even one side effect – compensatory sweating – that is absolutely unpredictable, can cause depression even in previously unaffected individuals.
Neurology and specifically the science of the ANS are not something within the qualifications of Dr MacCormick or Professor Roake, yet they feel authoritative enough to make decisions on who this procedure is safe for and who is a good candidate for the procedure.
“Opinion must be more than “distinguished”. Epistemically warrantable rather that reputationally based.” (Journal of Law and Medicine, 2006. Feb. Vol. 13, No. 3)
I strongly disagree with your expert, Professor Roake, who also is a vascular surgeon with no qualifications in neurology or the function of the ANS, that this patient was a good candidate for sympathectomy. An expert's opinion in the ANS and neurology should have been sought – not only for him/her to establish causation in this case, but to consider what the likely outcome of such intervention would be, and thus, what the patient disclosure should contain in order to qualify as informed consent.
No responsible surgeon – and you can spend many nights going through the scientific literature – will agree with Professor Roake that this patient was a good candidate for this surgery.
ETS is considered an absolute last resort option for someone with primary hyperhidrosis (not this patient) where all other alternative and less invasive treatments have been tried and failed (not this patient).
Primary hyperhidrosis is present from birth or adolescence (not this patient), and is not dependent on triggers such as medication.
No knowledgeable medical professional will agree with you that this patient had primary/idiopathic (of unknown origin) hyperhidrosis – this was Dr MacCormick’s diagnosis, as stated in paragraphs 1and 4 on page 3 of your decision letter dated December 7, 2010 – and the conclusions and credibility of Professor Roake are questionable. Dr MacCormick is not qualified to diagnose primary hyperhidrosis, and he could not have diagnosed primary/idiopathic hyperhidrosis when he freely admits that this patient's facial sweating was likely caused by the antidepressant drugs she was taking. The fact that ETS arrested the facial sweating does not prove Professor Roake’s conclusions; rather it illustrates his incompetence, bias or both. Professor Roake should know that Endoscopic Thoracic Sympathectomy (ETS) will disrupt nerve signals to the sweat glands (among many other structures and organs) and arrest sweating, no matter what the cause. The so-called ‘success’ in this case does not indicate that the patient had primary hyperhidrosis.
In his letter to you, dated 20 August, 2010, Dr MacCormick freely and of his own will admits to having been aware during his first consultation with the patient that she was taking the antidepressant AROPAX, and that he is aware this drug is “well known to cause sweats in susceptible individuals”. In this letter, under the subheading ‘Diagnosis and choice of treatment’, Dr MacCormick listed non-surgical treatment options for facial sweating as a side effect of AROPAX, concluding that these options were “not advisable” and “not .... safe or practical” and ETS could be considered a “treatment of choice”. Dr MacCormick failed his duty of care by offering an irreversible procedure that placed the patient in danger and had a significant chance of severe side effects, even though he knew the patient's facial sweating could be eliminated by a change in medical therapy. This indicates that Dr MacCormick placed his own (financial) interests above the safety and well-being of the patient in his care.
In addition, Dr MacCormick is not qualified to make decisions on various drugs that are on the market to treat sweating. If he feels such drugs are unsafe, harmful to patients, and ineffective, he should have contacted Medsafe to make sure such drugs are removed from the market so that patients are not harmed by using them.
Informed consent
“Known risks should be disclosed when an adverse event is common, even though the detriment is slight, or when an adverse outcome is severe, even though its occurrence is rare.” (National Health and Medical Research Council of Australia, Guidelines, 2004. Para. 1, p. 11)
“The standard for informed consent is that which a reasonable patient might expect rather than what a reasonable doctor might think (Rogers v. Whitaker 1992), and failure to fulfil requirements may be considered as medical misconduct.” (Coles Medical practice in New Zealand, 2011. Chapter 9, p. 88)
Informed consent is at the heart of patient’s right for self-determination, and a violation of this right (by deliberately withholding information that would have been necessary for the patient to form a balanced view of the procedure) is a violation of the patient’s rights, integrity, and the code of the profession.
I have little doubt that Dr MacCormick would have exaggerated the positives of ETS surgery; conclusions can be drawn from comments he made at a 1999 Royal Australasian College of Surgeons conference, which were later published in a major daily Australian newspaper. Please find a copy of the article attached to this letter. In addition, please also see this online article written by Dr MacCormick for the website Family Doctor, where he states that hyperhidrosis is classically a life-long affliction of no known cause (see paragraphs 3 and 6).
“With no underlying clinical need for surgery, and the somewhat entrepreneurial nature of ‘cosmetic/elective’ surgery, there is arguably a greater degree of inherent tension between the wish of the surgeon to sell his or her services, and the more rigorous patient selection required to protect the patient seeking such procedures from misconceived notions as to what may be their benefit.” (Bill Madden: Competence and Irrationality: Locating the Law, Australian Civil Liability, 2006. Vol. 3, No. 5 & 6)
When it comes to elective surgical procedures, it seems likely that disclosure will sometimes fall short of accepted standards. Most ETS surgeons describe their procedure as ‘safe, easy to perform, minimally invasive’, and ‘transforming lives for the better’, with either 100% or 99% effectiveness. This myth is maintained by constant repetition of the fiction. There is no independent scientific evidence in support of these claims. While ETS surgeons describe it as a brilliant ‘cure’, other medical professionals refer to it as having ‘adverse effects that are understated’, and a significant number of ETS patients describe the procedure as ‘the worst mistake of my life’.
You have not provided any evidence that the patient had the information necessary to make an informed choice. Crucially, you have not provided any evidence of the existence of the said “written material” provided to the patient, as stated by Dr MacCormick and Professor Roake, nor have you provided any evidence that the patient was given such a document. Perhaps I should have been provided with Dr MacCormick’s “written material” on ETS so that I could determine if it covers the subject well. I am afraid that if your office received this information, you failed to forward it to me.
In addition, there is no evidence that Dr MacCormick had a lengthy consultation with the patient, taking her medical history, giving a diagnosis, explaining alternative treatments and the pros and cons of each, and then explaining the surgical procedure, possible complications, frequent side effects and less frequent and severe side effects.
“Rogers v Whitaker (1992) 175 CLR 479 High Court Australia decision affirms that a doctor has a duty to warn a patient of any material risk involved in a proposed treatment. A risk is considered material if a reasonable person in similar circumstances would attach significance to the risk, or if the doctor is, or should be, cognizant that the particular patient would express concerns about the risk.” (Coles Medical practice in New Zealand, 2011. Chapter 9, p. 91)
While both Dr MacCormick and your expert are happy to refer to ‘compensatory sweating’ (and no other side effects), you should realise that this name is largely misleading. It is far from ‘compensatory’ and is in fact a symptom of dysautonomia, or deranged function of the ANS.
The question arises: why would Dr MacCormick offer an irreversible surgical procedure to a depressed and vulnerable patient who is stressed over her facial sweating, when he knows all too well that the resultant so-called compensatory sweating can be just as bad, if not worse, for the patient?
“Patients who have a complaint about the care or treatment they have received have a right to a prompt, constructive and honest response, including an explanation and, if appropriate, an apology.” (Good Medical Practice: A guide for doctors, Medical Council of New Zealand, Dealing with adverse outcomes, June 2008. Point 34, p.13 (http://www.mcnz.org.nz/portals/0/guidance/goodmedpractice.pdf))
Dr MacCormick refused to see the patient when she wrote to him in April 2010. I have little doubt that he treats his other unhappy patients who are dissatisfied with the outcome of their procedure in a similar fashion, and refuses to acknowledge some of the severe consequences ETS can have.
It is not in the interest of the patient's emotional wellbeing to meet with Dr MacCormick and his offer to meet in his letter dated August 20, 2010 is 5 years late, and would cause further trauma and have no resolution. There is no doubt that Dr McCormick continues to believe that he behaved and acted in an impeccable professional manner, and your finding just confirms this.
No doubt the offer to meet with the patient (for what purpose?) came only to make him look like a caring doctor. Sadly, the facts do not support this image he so wishes to portray.
Summary
I refuse your finding that the patient was provided “appropriate information”. Appropriate information would have included quotes such as these (or a layman’s version of), and more:
“T(2)–T(3) ganglionectomy significantly decreases pulse rate and systolic blood pressure, reduces myocardial oxygen demand, increases left ventricular ejection fraction and prolongs Q-T interval. A certain loss of lung volume and decrease of pulmonary diffusion capacity for CO result from sympathectomy. Histomorphological muscle changes and neuro-histochemical and biochemical effects have also been observed.” (Clin Auton Res. 2003, Dec; 13 Suppl 1:I40–4)
“Forty-one percent of the participants claimed that their quality of life decreased moderately or severely as a result of Compensatory Sweating.” (J Pediatr Surg. 2007, Jul; 42 7:1238–42)
With no awareness of such information and, therefore, no opportunity to discuss the wide-ranging effects and consequences with Dr MacCormick, the patient was not provided with sufficient information to make an informed choice.
Furthermore, your ruling that it would be “unfair” to consult a neurologist on this case to ascertain causation is unacceptable, irrational and contrary to your duty of care. Indeed, this is the most important point of the case, but your wilful refusal to even consider the implications this surgery might have – and not just for this patient but for many other unsuspecting patients who volunteer to undergo an elective procedure – allows the continuation of this practice to go unchallenged. By refusing to acknowledge the facts and turning away from the problem, you have become part of the problem. Not quite the role the commissioner should play.
For some unexplainable reason, you suggest that the patient should see Dr MacCormick and consult with him on the disabling side effects she now has. The patient approached you to protect her (and others) from medical professionals like Dr MacCormick, and you failed to act on her behalf.
The CONTRA PROFERENTUM rule may be invoked by the patient in interpreting the consent form. According to this rule, if there is any ambiguity in a written document, it should be interpreted against the interest of the person seeking to rely on it – that is, the doctor.
“His Lordship referred to American authorities, such as the decision of the United States Court of Appeals, District of Columbia Circuit, in Canterbury v. Spence ((18) (1972) 464 F 2d 772), and to the decision of the Supreme Court of Canada in Reibl v. Hughes ((19) (1980) 114 DLR (3d) 1), which held that the “duty to warn” arises from the patient’s right to know of material risks, a right which in turn arises from the patient’s right to decide for himself or herself whether or not to submit to the medical treatment proposed.” [ROGERS v. WHITAKER [1992] HCA 58; (1992) 175 CLR 479 F.C. 92/045]
“Given that it is a rarely performed procedure, the number of claims we have experienced appears to be disproportionate. It is a highly elective procedure, so in the event of an adverse outcome, any claim can be difficult to defend. There is also concern that some medical practitioners may be performing Endoscopic Thoracic or Cervical Sympathectomies with little or no specific training in this procedure.” Lyndall Hillbrich, The Medical Defence Association of Victoria Ltd.
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