Dates: 03/01/ /01/2018 Medical Practitioner s name: Dr Srinivas Venkatachalapathy GOVERDHAN

Transcription

1 PUBLIC RECORD Dates: 03/01/ /01/2018 Medical Practitioner s name: Dr Srinivas Venkatachalapathy GOVERDHAN GMC reference number: Primary medical qualification: Type of case New - Misconduct MB BS 1991 Bangalore Outcome on impairment Impaired Summary of outcome Suspension, 6 months. Review hearing directed Tribunal: Legally Qualified Chair Lay Tribunal Member: Medical Tribunal Member: Mrs Linda Lee Mrs Katriona Crawley Dr Bryn Davies Tribunal Clerk: Miss Emma Saunders and Mr Michael Murphy Attendance and Representation: Medical Practitioner: Medical Practitioner s Representative: GMC Representative: Present and represented Mr David Morris, Counsel, instructed by Gordons Partnership LLP Mr David Toal, Counsel Attendance of Press / Public The hearing was all heard in public. Determination on Facts - 05/01/2018 Preliminary Matter 1. At the start of proceedings, it was acknowledged that Dr Davies, the medical member of the Tribunal, is of the same clinical speciality as Dr Goverdhan, namely Ophthalmology. Mr Morris stated that there was no suggestion of bias but there was a 1

2 risk that needed to be guarded against that a Tribunal member from the same speciality might express expert opinions in camera that would not have been discussed in open session. He made reference to the cases of Lawrence v GMC [2012] EWHC 464 (Admin) and GMC v Southall [2010] EWCA Civ 407. The Legally Qualified Chair advised the Tribunal on this point and confirmed that the Tribunal would be mindful that a decision was not made on the basis of an expert view that had not been the subject of evidence or argument in the proceedings. Background 2. Dr Goverdhan qualified with an MBBS in 1991 and prior to the events which are the subject of the hearing Dr Goverdhan completed a number of post-graduate qualifications in Ophthalmology and then worked as a medical officer in charge of eye camps and cataract surgery in Aravind Eye Hospital. Dr Goverdhan completed Senior House Officer posts in the UK from 1998 onwards. He completed a PhD in Ophthalmology at the University of Southampton in 2008 and obtained a Specialist Registrar post in Ophthalmology in Dr Goverdhan obtained his Certificate of Completion of Training in Ophthalmology in At the time of the events Dr Goverdhan was practising as an Associate Professor and Honorary Consultant in Ophthalmology at the University of Southampton and the Southampton Hospitals NHS Trust ( the Trust ). Dr Goverdhan left his posts at the Trust in April 2016 and obtained a locum post as a Consultant Ophthalmologist at the Salisbury NHS Foundation Trust. 4. The allegations stem from concerns regarding Dr Goverdhan s treatment and management of Patients A to D. The General Medical Council (GMC) allege that Dr Goverdhan failed to adequately examine Patient B s eye and failed to diagnose Basal Cell Carcinoma (BCC) in the left lower eyelid on 5 April Further, that in July 2014, Dr Goverdhan amended Patient B s medical record to suggest that he had considered BCC on 5 April 2014 when this was untrue and he knew it to be untrue. 5. The GMC allege that that there were failures in regard to the cataract surgery that Dr Goverdhan performed on Patient A on 20 May 2015, including that there was inappropriate communication and a failure to advise Patient A properly about the change in refractive plan, which meant the prescription would not be left at as requested by Patient A. Further, it is alleged that Dr Goverdhan amended Patient A s operation record to suggest he had used viscoat and a soft shell technique and that this was maintained in a letter to Patient A in July 2015 and during a meeting with the Clinical Lead for Ophthalmology in October It is alleged that Dr Goverdhan knew this information to be untrue and that his actions were dishonest. 6. The GMC also allege that Dr Goverdhan inappropriately arranged for Patients C and D to have photodynamic therapy laser treatment (PDT) in August and September 2

3 2015, respectively. Further, that there was an alleged failure to refer Patient C for melanoma management and an alleged failure to diagnose Patient D s lesion correctly. 7. The initial concerns were raised with the GMC in April 2016 about Dr Goverdhan s treatment of Patient A and the alleged alteration of Patient A s medical notes. The referral to the GMC was further to a local investigation which arose from these initial concerns. The Allegation and the Doctor s Response 8. The Allegation made against Dr Goverdhan is as follows: Paragraph 1 On 5 April 2014 you consulted with Patient B and you failed to: a. adequately examine Patient B s eyes; To be determined b. diagnose Patient B s Basal Cell Carcinoma in the left lower eyelid; To be determined c. urgently refer Patient B for an oculoplastic opinion. To be determined Paragraph 2 On or around 22 July 2014 you amended Patient B s medical record of 5 April 2014 to suggest that you had considered possible Basal Cell Carcinoma in Patient B s left lower eyelid during the consultation of 5 April To be determined Paragraph 3 The information you provided as referred to in paragraph 2: a. was untrue; To be determined b. you knew to be untrue. To be determined Paragraph 4 Your actions as described at paragraphs 2 and 3 were dishonest. To be determined 3

4 Paragraph 5 On 20 May 2015 you performed cataract surgery ( the Procedure ) upon Patient A and you: a. inappropriately communicated with Patient A in a dismissive and brusque tone; b. failed to allow Patient A adequate time to read the consent form; c. failed to discuss the various refractive options with Patient A; d. failed to properly advise Patient A about the change of refractive plan in not leaving Patient A s prescription at -2.00; e. failed to properly consider Patient A s medical records prior to the Procedure in that you: i. missed that Patient A had been diagnosed with corneal endothelial degeneration; ii. failed to take in to account that Patient A requested to be left myopic (-2.00) in the right eye; f. failed to keep adequate records for Patient A. Paragraph 6 On 1 July 2015 you amended Patient A s operation record of 20 May 2015 to suggest that you had used: a. viscoat; b. a soft shell technique. 4

5 Paragraph 7 You wrote a letter dated 14 July 2015 to Patient A asserting that you had used: a. viscoat; b. a soft shell technique. Paragraph 8 On 2 October 2015, during a meeting with the Clinical Lead for ophthalmology and the Division B Clinical Lead, you initially advised that: a. the amended operation record of 1 July 2015 had been created at the time of the Procedure; b. you had not amended Patient A s operation record of 20 May Paragraph 9 The information you provided as referred to in paragraphs 6 to 8: a. was untrue; b. you knew to be untrue. Paragraph 10 Your actions as described at paragraphs 6 to 9 were dishonest. Paragraph 11 On 27 August 2015 you consulted with Patient C and you: a. inappropriately arranged for Patient C to be treated with photodynamic therapy laser treatment and: i. University Hospital Southampton is not a centre approved for ocular oncology treatment; 5

6 ii. you did not have an in-depth working knowledge of ocular oncology; b. failed to refer Patient C for melanoma management at a recognised national ocular oncology centre. Paragraph 12 On 17 September 2015 you consulted with Patient D and you: The Admitted Facts a. failed to diagnose Patient D s pigmented lesion as a naevus; b. inappropriately diagnosed choroidal melanoma; c. inappropriately arranged for Patient D to have photodynamic therapy treatment ( PDT ) To be determined and: i. PDT is not a proven treatment for choroidal melanoma; (admitted as to fact but not admitted as to stem c) ii. Patient D had not at that stage been seen by a regional ophthalmology oncology unit; (admitted as to fact but not admitted as to stem c) iii. you did not have an in-depth working knowledge of ocular oncology. (admitted as to fact but not admitted as to stem c) 9. At the outset of these proceedings, through his counsel, Mr Morris, Dr Goverdhan made admissions to some paragraphs and sub-paragraphs of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the General Medical Council (GMC) (Fitness to Practise) Rules 2004, as amended ( the Rules ). In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved. The Facts to be Determined 10. In light of Dr Goverdhan s response to the Allegation made against him, the Tribunal is required to determine whether Dr Goverdhan failed to examine Patient B s eyes adequately on 5 April 2014, failed to diagnose BCC in the left lower eyelid, 6

7 and failed to refer Patient B urgently for an oculoplastic opinion. The Tribunal is also to determine whether Dr Goverdhan amended Patient B s medical notes in July 2014 to suggest that he had considered BCC during the April consultation, and if so, whether this was untrue, if he knew it to be untrue, and if his actions were dishonest. Further, the Tribunal must determine whether Dr Goverdhan inappropriately arranged for Patient D to have PDT. Factual Witness Evidence 11. The Tribunal received evidence on behalf of the GMC in the form of witness statements from the following witnesses who were not called to give oral evidence: Patient A; Dr E, Consultant Ophthalmic Surgeon at Southampton General Hospital; Dr F, Consultant Geriatrician at Southampton General Hospital; Dr G, Consultant Orthopaedic Surgeon at the Trust. 12. Dr Goverdhan provided his own witness statement dated 4 December 2017 and also gave oral evidence at the hearing. The Tribunal were helped by Dr Goverdhan s evidence to this Tribunal. Expert Witness Evidence 13. The Tribunal was provided with two reports dated 14 October 2016 and 20 January 2017 as well as oral evidence from an expert witness, Mr H, Consultant Ophthalmic Surgeon. Mr H prepared the reports as to the standard of care expected of a reasonably competent Consultant Ophthalmologist with regard to Dr Goverdhan s management of Patients A to D. Documentary Evidence 14. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to, sections of the medical records and correspondence for Patients A to D, Trust Investigation Reports regarding Patient A dated 22 June 2016 and Patient C dated 7 September 2016 and minutes of various meetings or interviews at the Trust about the concerns. The Tribunal s Approach 15. In reaching its decision on the facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Goverdhan does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred. 7

8 16. The Tribunal had regard to the case of Ivey, in relation to the question of dishonesty, which stated that: When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. The Tribunal s Analysis of the Evidence and Findings 17. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts. Paragraph The Tribunal had regard to the expert report from Mr H dated 14 October 2016, in which he considered Dr Goverdhan s consultation with Patient B on 5 April Mr H stated: Patient B s invasive cell carcinoma was causing watering of the left eye and this probably started in May or June The lesion would however have been very obvious to even a cursory examination of the eyelids at the time of the clinic appointment on 5 April By missing this diagnosis, in my opinion [Dr Goverdhan] has not examined the eyes adequately and this constitutes a standard of care which falls below, but not seriously below, that to be expected of a reasonably competent Consultant Ophthalmologist. It is not seriously below as the issue does not warrant that description in my opinion. 19. The Tribunal was mindful of Mr H s opinion that the lesion on Patient B s left lower lid would have been obvious during the consultation on 5 April His reasoning related to the description of the lesion detailed by Dr Goverdhan in the medical records on 22 July 2014, and extrapolating this back to what the lesion would have looked like in April The Tribunal also heard oral evidence from Mr H. It found him to be credible and measured in his approach. Mr H stated that BCC is an invasive tumour but is not 8

9 rapidly growing. He was of the opinion that there would have been a significant lesion visible on 5 April Dr Goverdhan had recorded in his notes of 22 July 2014, that Patient B had a sticky/watery eye for a few weeks. Mr Morris suggested that Mr H had misread this as a few months. Mr H did not dispute this. In a letter to Dr I of 13 October 2014, Mrs J, Consultant Oculoplastic Surgeon, refers to problems with a sticky and watery eye for approximately four months. Mr H had recorded, in his report, a history of a sticky, watery eye from May or June. Mr H was asked to consider if his opinion, that the BCC would have been visible at the April appointment, if the history of a sticky, weepy eye for only a few weeks prior to the July 2014 appointment was correct. 22. Mr H, in evidence, said that a BCC was invasive but not a rapidly growing tumour. For the eye to be described as watery he gave evidence to the effect that the tumour would have invaded the drainage system and therefore stopping the normal drainage of tears to the nose. He said that, by July 2014, it was multinodular and invasive. Based on his knowledge, he said that, even if the eye had been watery for only a few weeks by July 2014, there would have been a significant lesion visible in April The Tribunal had regard to Dr Goverdhan s account of events. In his oral evidence, Dr Goverdhan stated that he had not seen a lesion on Patient B s eyelid during the examination on 5 April 2014 and that he had not missed a diagnosis of BCC before in his long career. When questioned about the view he would have had of the eyelids with the use of a lamp during the consultation, Dr Goverdhan stated that he would have seen any nodular lesions or irregularity of the eyelids if present on the eyelid. 24. The Tribunal were also conscious that Dr Goverdhan stated that the lesion was not seen by the nursing staff who examined the eye on 5 April 2014 and who undertook a pre-operative assessment on Patient B on 3 June 2014 and preoperative preparation on 25 June The Tribunal had regard to the clinical records and assessment notes completed by the nursing staff on these dates and noted there was no reference to a lesion on Patient B s eyelid. 25. The Tribunal heard from Dr Goverdhan about the level of training of the two nurses that carried out the assessments, Nurse K and Nurse L, including the enhanced training of Nurse K in ophthalmology. The Tribunal felt that the failure of the nursing staff to identify the lesion may lend some support to Dr Goverdhan s case. However, it heard from Mr H that nursing staff may have various levels of training and experience and it was not expected that the level of training and ability to detect a BCC would match that of a Consultant Ophthalmic Surgeon. Dr Goverdhan agreed that he had greater expertise than the nursing staff. 9

10 26. The Tribunal noted that there were some dispute as to whether or not the watery eye had been present for two months or a few weeks at the time the BCC was discovered in July The Tribunal heard from Mr H that you cannot be dogmatic as there is always a range as to how rapidly these carcinomas develop but it would have been significant in April. The Tribunal accepted the evidence of Mr H that in either case, given the extent of the lesion in July 2014, the lesion would have been visible and should have been detected in April Mr H s evidence was credible and persuasive. 27. The Tribunal was of the view that, on the balance of probabilities, Dr Goverdhan did not carry out a proper examination of Patient B s eyes and did therefore not see the lesion on the eyelid. As such, the Tribunal has also determined that Dr Goverdhan failed to diagnose the BCC and did not urgently refer Patient B for an oculoplastic opinion as would have been normal practice. Accordingly, the Tribunal found this paragraph of the Allegation proved in its entirety. Paragraph The Tribunal had regard to Patient B s medical record dated 5 April The alleged amendment to those records related to a small diagram of a curve with an arrow leading to?bcc. 29. The Tribunal had regard to Dr Goverdhan s witness statement dated 4 December 2014, in which he referred to his actions on 22 July 2014 as follows: In light of my examination findings, I was really surprised and taken aback as to whether I had possibly missed any earlier clinical changes. I accept that on this date I annotated my notes for 5 April 2014 by sketching a rough diagram of a lower left eyelid and annotated with the words?bcc. The addition was made in blue ink, whilst the rest of the note was in black ink. I did not include the amendment to suggest that I had considered the possibility of a basal cell carcinoma on 5 April 2014, it was more a note or question to myself about whether I had missed anything suspicious at an earlier date. 30. The Tribunal asked Mr H if it would be normal practice to make a note in a previous medical record as described in Dr Goverdhan s witness statement. Mr H said that it would be highly unusual and not proper practice. He stated: It s unusual. If we do go back and add something it is our responsibility to say it was retrospective/date it you would usually write a note on that day, rather than going back to the previous date. 31. In oral evidence, Dr Goverdhan stated that it was stupid, it was misleading it was a note to myself it has not achieved anything but it has misled everyone. Further, the Tribunal heard that Dr Goverdhan was shocked on 22 July 2014 to see 10

11 the serious nature of Patient B s lesion. The Tribunal accept that Dr Goverdhan was shocked at the appearance of Patient B s lower lid and questioned himself as to whether he should have seen anything at the 5 April 2014 appointment. 32. In submissions, Mr Toal suggested that Dr Goverdhan realised that he should have diagnosed BCC at the April 2014 consultation and this motivated him to amend the record to suggest that he had considered the diagnosis at that consultation. 33. The Tribunal also had regard to Mr Toal s submissions, on behalf of the GMC, that Dr Goverdhan s behaviour in respect of Patient B was similar to that in respect of Patient A. Mr Toal also submitted that Dr Goverdhan did not make admissions in respect of Patient A until he was presented with evidence and had to admit his wrongdoing. In response, Mr Morris submitted that Dr Goverdhan had already taken the difficult step of admitting his dishonesty to Patient A and that he would have made similar admissions in relation to Patient B had he accepted culpability. 34. Within his submissions to the Tribunal, Mr Morris stated that if Dr Goverdhan, or any other ophthalmologist, had suspected BCC he would have urgently referred the patient and not proceeded with the cataract surgery. Mr Morris stated that there was no such note about referral, no reference in the clinic note, no referral letter and the cataract surgery went ahead in Patient B s case. 35. The Tribunal noted that there was no dispute that the amendment in blue ink to the 5 April 2014 record had been made on 22 July The Tribunal deliberated as to whether the additions to the note had been made to suggest that Dr Goverdhan had considered BCC at the consultation on 5 April The Tribunal noted that Dr Goverdhan had admitted making amendments to Patient A s medical records to suggest that he had used viscoat and soft cell technique and that this was dishonest. The Tribunal concluded that this admission alone was not sufficient to prove that the amendment to Patient B s records had been made to suggest consideration of a diagnosis of BCC. Similarly, the admission of dishonesty in respect of Patient A was not sufficient to exonerate Dr Goverdhan in respect of amendments to Patient B s records. 37. The Tribunal noted that the amendment to the 5 April note made on 22 July had been made in blue ink whilst the remainder of the April entry was in black ink. The Tribunal also noted that other notes made by Dr Goverdhan made on 22 July were also in blue ink. 38. The Tribunal makes clear that it was very poor practice to annotate the records in the way described, particularly given Dr Goverdhan s level of experience and seniority. The Tribunal did not accept that the evidence presented by the GMC 11

12 was sufficient to suggest that Dr Goverdhan had acted for the reason alleged. Whilst the Tribunal was of the view that Dr Goverdhan should have put his initials or a date on the entry it determined that there was not enough evidence before it to show that Dr Goverdhan made that amendment to suggest that he had considered BCC on 5 April Accordingly, the Tribunal found this paragraph of the Allegation not proved. Paragraph The Tribunal noted that, although Dr Goverdhan had added the note on 22 July 2014, it was not proved that he had done so to suggest that he had considered possible BCC at the consultation with Patient B on 5 April Therefore, the Tribunal considered that the information provided was not untrue. Accordingly, the Tribunal found this paragraph of the Allegation not proved in its entirety. Paragraph The Tribunal determined that paragraphs 2 and 3 of the Allegation were not proved. As such, there were no actions for which the Tribunal needed to consider in respect of paragraph 4. The Tribunal found this paragraph of the Allegation not proved. Paragraph 12(c) 41. The Tribunal considered Dr Goverdhan s consultation with Patient D on 17 September 2015 as to whether he inappropriately arranged for Patient D to have PDT. 42. Mr Morris stated that it was not accepted that Dr Goverdhan inappropriately arranged for Patient D to have photodynamic therapy treatment (PDT). However, he stated that the statements set out at paragraph 12(c)(i) to (iii) were a matter of fact and were admitted. 43. The Tribunal took account of the clinic letter of Dr M, Specialty Trainee at Southampton General Hospital, dated 17 September 2015, which stated that: Mr Goverdhan discussed the treatment options moving forward, including second opinions from either the Isle of Wight or Moorfields. He also discussed the treatment options including radiotherapy and photodynamic therapy (PDT). Patient D was warned she may be left with a blind spot in peripheral vision. Patient D has opted for referral to [Mr N] on the Isle of Wight for a specialist opinion. We have arranged for PDT here in Southampton in the meantime. 12

13 44. The Tribunal had regard to Patient D s letter to Dr Goverdhan, dated 18 September 2015, in which she asked a number of questions about the PDT treatment including: 1. You recommended PDT treatment, would this be a cure or just to reduce the size of the melanoma? 2. How many treatments in total do you feel I would require, how long will the course of treatment take to complete? 7. Will the PDT treatment affect how my eye looks cosmetically? 45. The Tribunal was mindful of Dr Goverdhan s referral letter to Dr O, dated 1 October 2015, as follows: PDT has been reported to cause significant regression of the melanoma and could be an option. I have arranged PDT session for her here in Southampton if you think that this is appropriate we can proceed with that locally. 46. The Tribunal heard oral evidence from Dr Goverdhan in which he stated that he had explored PDT as a possible treatment option and had, after the consultation, spoken to a senior colleague at the Hospital who had confirmed that PDT was not done at that location and would have to be done at a specialist oncology centre instead. 47. The Tribunal considered whether Dr Goverdhan had inappropriately arranged the PDT treatment. It considered the correspondence available and noted that Dr M stated that the treatment had been arranged by the 17 September However, the letter from Patient D on 18 September 2015 suggested that, although the PDT treatment had been recommended, it had not yet been arranged or consented to by Patient D. 48. The Tribunal considered the letter of Dr Goverdhan dated 1 October 2015 and, on the Tribunal s reading of the wording, the letter suggested that arrangement of PDT was contingent on the advice of Dr O. There being no other evidence, except for the correspondence outlined, to support that Dr Goverdhan had arranged PDT, the Tribunal determined that Dr Goverdhan had not arranged for the PDT as alleged. It concluded that PDT had been discussed as an option but a second opinion was awaited and Patient D was asking further questions about the option but no actual PDT was arranged. 49. The Tribunal considered that the matters set out in 12(c)(i) to (iii) were factual matters. Ultimately, the Tribunal has determined that Dr Goverdhan did not inappropriately arrange for Patient D to have PDT. As such, the Tribunal found this allegation was not proved. 13

14 The Tribunal s Overall Determination on the Facts 50. The Tribunal has determined the facts as follows: Paragraph 1 On 5 April 2014 you consulted with Patient B and you failed to: a. adequately examine Patient B s eyes; Disputed and found proved b. diagnose Patient B s Basal Cell Carcinoma in the left lower eyelid; Disputed and found proved c. urgently refer Patient B for an oculoplastic opinion. Disputed and found proved Paragraph 2 On or around 22 July 2014 you amended Patient B s medical record of 5 April 2014 to suggest that you had considered possible Basal Cell Carcinoma in Patient B s left lower eyelid during the consultation of 5 April Not proved Paragraph 3 The information you provided as referred to in paragraph 2: a. was untrue; Not proved b. you knew to be untrue. Not proved Paragraph 4 Your actions as described at paragraphs 2 and 3 were dishonest. Not proved Paragraph 5 On 20 May 2015 you performed cataract surgery ( the Procedure ) upon Patient A and you: a. inappropriately communicated with Patient A in a dismissive and brusque tone; 14

15 b. failed to allow Patient A adequate time to read the consent form; c. failed to discuss the various refractive options with Patient A; d. failed to properly advise Patient A about the change of refractive plan in not leaving Patient A s prescription at -2.00; e. failed to properly consider Patient A s medical records prior to the Procedure in that you: i. missed that Patient A had been diagnosed with corneal endothelial degeneration; ii. failed to take in to account that Patient A requested to be left myopic (-2.00) in the right eye; f. failed to keep adequate records for Patient A. Paragraph 6 On 1 July 2015 you amended Patient A s operation record of 20 May 2015 to suggest that you had used: a. viscoat; b. a soft shell technique. Paragraph 7 You wrote a letter dated 14 July 2015 to Patient A asserting that you had used: a. viscoat; b. a soft shell technique. 15

16 Paragraph 8 On 2 October 2015, during a meeting with the Clinical Lead for ophthalmology and the Division B Clinical Lead, you initially advised that: a. the amended operation record of 1 July 2015 had been created at the time of the Procedure; b. you had not amended Patient A s operation record of 20 May Paragraph 9 The information you provided as referred to in paragraphs 6 to 8: a. was untrue; b. you knew to be untrue. Paragraph 10 Your actions as described at paragraphs 6 to 9 were dishonest. Paragraph 11 On 27 August 2015 you consulted with Patient C and you: a. inappropriately arranged for Patient C to be treated with photodynamic therapy laser treatment and: i. University Hospital Southampton is not a centre approved for ocular oncology treatment; ii. you did not have an in-depth working knowledge of ocular oncology; b. failed to refer Patient C for melanoma management at a recognised national ocular oncology centre. 16

17 Paragraph 12 On 17 September 2015 you consulted with Patient D and you: a. failed to diagnose Patient D s pigmented lesion as a naevus; b. inappropriately diagnosed choroidal melanoma; c. inappropriately arranged for Patient D to have photodynamic therapy treatment ( PDT ) Not proved and: i. PDT is not a proven treatment for choroidal melanoma; (admitted as to fact but not proved as to stem c) ii. Patient D had not at that stage been seen by a regional ophthalmology oncology unit; (admitted as to fact but not proved as to stem c) iii. you did not have an in-depth working knowledge of ocular oncology. (admitted as to fact but not proved as to stem c) Determination on Impairment - 08/01/ The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Goverdhan s fitness to practise is impaired by reason of misconduct. The Outcome of Applications Made during the Impairment Stage 2. The Tribunal granted Mr Morris application, on Dr Goverdhan s behalf, made pursuant to Rule 34(13) of the Rules, that a defence witness be allowed to give evidence by telephone. The Tribunal s full decision on the application is included at Annex A. The Evidence 3. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. In addition, the Tribunal received further evidence as follows. 4. The Tribunal received evidence from the following witnesses on Dr Goverdhan s behalf: 17

18 Mr P, Consultant Lead in Ophthalmology at the Salisbury NHS Foundation Trust, by telephone link; Mr Q, Consultant Ophthalmologist and Associate Professor at University of Southampton, by telephone link. 5. Mr P made reference to his written reports dated 2 November 2016 and 8 March 2017, in which he confirmed that he had no misgivings about Dr Goverdhan s clinical practice. He stated: I think he has drawn many lessons from the unfortunate incidents and I have no doubt about his professionalism or probity from this stage. 6. Mr P told the Tribunal that there was no question of Dr Goverdhan s clinical skills and that he had the fewest complications arising from cataract surgery of any consultant in the department. He stated that he had no concerns about Dr Goverdhan s integrity and probity. 7. Mr Q provided a written testimonial dated 8 November 2017, in which he stated that Dr Goverdhan had shown insight into the concerns raised and the gravity of the allegations, particularly regarding dishonesty. He told the Tribunal that Dr Goverdhan was very remorseful and upset about the poor decision he had made and was desperate to right the wrong. Mr Q spoke of Dr Goverdhan as a useful and level headed colleague. He stated that Dr Goverdhan had, at the relevant time, experienced a difficult relationship with a senior colleague who Dr Goverdhan felt had placed him under undue pressure. Mr Q stated that they had discussed the probity matter and he felt that Dr Goverdhan was now a different man and would not now react in the same way. 8. The Tribunal also received a bundle of documents from Dr Goverdhan, including his Curriculum Vitae, Continued Professional Development (CPD) certificates, appraisals and feedback with reports from his clinical supervisor Mr P, Professional Development Plans (PDP), audits and testimonials. GMC Submissions 9. Mr Toal submitted that Dr Goverdhan is currently impaired by reason of his misconduct. He stated that, in order to promote and maintain proper professional standards and conduct for the members of the profession, a doctor must be honest and trustworthy. Mr Toal referred to paragraph 65 of the current edition of Good Medical Practice (2013) ( GMP ) which states: You must make sure that your conduct justifies your patients trust in you and the public s trust in the profession. 18

19 10. Mr Toal submitted that the most serious part of Dr Goverdhan s behaviour was his dishonesty relating to Patient A which involved clear breaches of GMP. The areas of GMP referred to were as follows: 19. Documents you make (including clinical records) to formally record your work must be clear, accurate and legible. You should make records at the same time as the events you are recording or as soon as possible afterwards. 71. You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. a. You must take reasonable steps to check the information is correct. b. You must not deliberately leave out relevant information. 73. You must cooperate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality. 11. Mr Toal asked the Tribunal to take account of the conclusions of Mr H that Dr Goverdhan s actions, in fraudulently amending Patient A s record and in writing to Patient A, was behaviour that fell seriously below the standard expected of a Consultant Ophthalmologist. 12. With regard to clinical deficiencies Mr Toal referred to paragraphs 7, 14, 15 and 16 of GMP, which includes the need work within the limits of your practice, to be competent in your work and to provide a good standard of care such as referring patients and providing prompt advice. 13. Further, Mr Toal submitted that Dr Goverdhan s misconduct amounted to more than one breach of GMP and in relation to a number of patients. He stated that Dr Goverdhan s behaviour brought the medical profession into disrepute, in that the public and other medical professionals would view his behaviour as deplorable. 14. Mr Toal submitted that Dr Goverdhan had little choice but to make the admissions when he did in relation to Patient A about his dishonest conduct as he only did so when he received incontrovertible IT evidence from the Medisoft medical records. He acknowledged that Dr Goverdhan did produce evidence of good character and remediation which is to his credit but he has nonetheless admitted serious misconduct. 15. Mr Toal submitted that, due to the nature and seriousness of his misconduct, Dr Goverdhan s fitness to practise is impaired. He stated that a finding of impairment should be made in order to uphold public confidence in the profession and to uphold proper standards of conduct and behaviour for members of the profession. 19

20 Submissions on Dr Goverdhan s behalf Probity regarding Patient A 16. Mr Morris stated that Dr Goverdhan has accepted that it was dishonest of him to try to conceal a clinical failing by altering Patient A s record. He submitted that this was an attempt to cover up a past failing. Mr Morris submitted that this was an isolated episode of dishonesty in a long and otherwise unblemished career. 17. Mr Morris submitted that, in relation to probity, Dr Goverdhan recognises that the dishonesty which he has admitted in relation to Patient A, is so serious that it amounts to misconduct. Dr Goverdhan, in his own estimation, accepts that his fitness to practise is impaired because of the serious nature of dishonesty. 18. Mr Morris stated that Dr Goverdhan had a difficult relationship with a senior colleague and was fearful that the clinical error would be used as a stick to beat him with. Mr Morris submitted that the Tribunal had been presented with cogent evidence of Dr Goverdhan s acceptance of his dishonesty and his foolishness in acting as he did. Mr Morris recognised that, in terms of the probity matters, the Tribunal would find that Dr Goverdhan s fitness to practise is impaired. Clinical issues regarding Patients A to D 19. Mr Morris referred to the reports from Mr H and his opinion was that the care provided by Dr Goverdhan did not fall seriously below the standards expected of a Consultant Ophthalmologist in respect of the clinical care provided to Patients A to D. He took the Tribunal through the various conclusions made by Mr H. 20. Mr Morris submitted that the observations from Mr H are that the clinical failings do not add up to serious misconduct. He submitted that this was supported by the evidence of Mr H who stated that the clinical errors were below but not seriously below those expected of an Ophthalmic Surgeon. He submitted that, where Mr H referred to Dr Goverdhan s standard being seriously below that expected of an Ophthalmic Surgeon in respect of Patient A, he was referring to the admitted dishonesty rather than the clinical care. With reference to the defence document bundle provided at this stage and the comments from Mr P, Mr Morris stated that the Dr Goverdhan has remedied these clinical failings. 21. Mr Morris stated that Dr Goverdhan has undertaken a lot of remedial work, including discussions with colleagues and attending courses. Mr Morris submitted that it is highly unlikely that any clinical failings will be repeated in the future. He submitted that, in terms of the clinical failings, the Tribunal should find no current impairment of Dr Goverdhan s fitness to practise. 20

21 The Relevant Legal Principles 22. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal s judgment alone. 23. In approaching the decision, the Tribunal was mindful of the two stage process to be adopted: first whether the facts as found proved amounted to misconduct, and that the misconduct was serious, and then whether the finding of that misconduct which was serious could lead to a finding of impairment. 24. The Tribunal must determine whether Dr Goverdhan s fitness to practise is impaired today, taking into account Dr Goverdhan s conduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. 25. The Tribunal was mindful that it should have regard to the statutory overarching objective, namely to protect and promote the health, safety and wellbeing of the public; to promote and maintain public confidence in the medical profession; and to promote and maintain proper professional standards and conduct for the members of the profession. 26. The Tribunal heard and accepted advice from the Legally Qualified Chair. The Chair referred the Tribunal to the case of Calhaem v GMC [2007] EWHC 2606 (Admin) and to the principles set out within paragraph 39 of the judgement as follows: (1) Mere negligence does not constitute misconduct within the meaning of section 35C(2)(a) of the Medical Act Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to misconduct. (2) A single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as misconduct. (3) Deficient professional performance within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work. (4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute deficient professional performance. 21

22 (5) It is neither necessary nor appropriate to extend the interpretation of deficient professional performance in order to encompass matters which constitute misconduct. The Tribunal s Determination on Impairment Misconduct 27. The Tribunal first considered whether Dr Goverdhan s actions amount to misconduct. Clinical 28. The Tribunal had regard to the facts found proved in relation to Patient B, namely that on 5 April 2014 Dr Goverdhan consulted with Patient B and failed to adequately examine his eyes, failed to diagnose BCC or urgently refer Patient B for an oculoplastic opinion. The Tribunal took account of Mr H s conclusion as to Patient B, in his report dated 14 October 2016, that: By missing this diagnosis, in my opinion [Dr Goverdhan] has not examined the eyes adequately and this constitutes a standard of care which falls below, but not seriously below, that to be expected of a reasonably competent Consultant Ophthalmologist. 29. The Tribunal accepted Mr H s opinion. The Tribunal also noted that the possible diagnosis of BCC was identified by Dr Goverdhan in July The Tribunal determined that, whilst it was a failing, Dr Goverdhan s actions in respect of Patient B were of concern but did not pass the threshold to be classified as misconduct. 30. With regard to Patient A, the Tribunal took account of the facts found proved including that, on 20 May 2015, Dr Goverdhan performed cataract surgery on Patient A and he inappropriately communicated with him in a dismissive and brusque tone, failed to allow him adequate time to read the consent form, failed to properly advise Patient A about the change of refractive plan and missed that he had been diagnosed with corneal endothelial degeneration. The Tribunal was mindful of Mr H s opinion, that: [Dr Goverdhan] offered a standard of care to Patient A that fell below the standard to be expected of a reasonably competent Consultant Ophthalmologist. 31. The Tribunal determined that, whilst the clinical care of and interaction with Patient A is of concern, it did not consider that this amounted to misconduct. 22

23 32. The Tribunal had regard to the fact found proved in relation to Patient C, that on 27 August 2015 Dr Goverdhan inappropriately arranged for Patient C to be treated with PDT, despite the fact that the Hospital was not approved for ocular oncology treatment and Dr Goverdhan did not have an in-depth working knowledge of ocular oncology. Dr Goverdhan also failed to refer Patient C for melanoma management at a recognised national ocular oncology centre. 33. The Tribunal took account of Mr H s report, in which he stated that: [Dr Goverdhan] should have referred Patient C to one of the ocular oncology centres in the UK for ongoing care in August [Dr Goverdhan] appears to have diagnosed choroidal melanoma. Southampton is not a recognised or approved centre for the management of ocular oncology and as such by deciding to initiate primary treatment [PDT] himself, [Dr Goverdhan] was offering a standard of care that fell below that to be expected of a reasonably competent Consultant Ophthalmologist. 34. The Tribunal concluded that the facts found proved in relation to Patient C, whilst of concern, do not amount to misconduct. 35. In relation to Patient D, the Tribunal took account of the facts found proved, namely that on 17 September 2015 Dr Goverdhan failed to diagnose Patient D s pigmented lesion as a naevus and inappropriately diagnosed choroidal melanoma. Within his report dated 20 January 2017, Mr H stated: When Patient D was seen by an expert in pigmented lesions and melanomas, the diagnosis was made of a choroidal neavus that simply required monitoring. By diagnosing choroidal melanoma inappropriately, [Dr Goverdhan] will have created significant anxiety in Patient D. In my opinion the overall standard of care offered to Patient D by [Dr Goverdhan] fell below that to be expected of a reasonably competent Consultant Ophthalmologist. 36. The Tribunal determined that, in accordance with Mr H s opinion, Dr Goverdhan s care of Patient D was of concern but did not amount to misconduct. 37. The Tribunal considered that the following paragraphs of GMP were engaged as follows: 7. You must be competent in all aspects of your work, including management, research and teaching. 15. You must provide a good standard of practice and care. If you assess, diagnose or treat patients, you must: 23

24 a. adequately assess the patient s conditions, taking account of their history (including the symptoms and psychological, spiritual, social and cultural factors), their views and values; where necessary, examine the patient b. promptly provide or arrange suitable advice, investigations or treatment where necessary c. refer a patient to another practitioner when this serves the patient s needs. 16. In providing clinical care you must: b. provide effective treatments based on the best available evidence d. consult colleagues where appropriate 38. The Tribunal also had regard to the testimonial evidence from Mr P, Dr Goverdhan s clinical supervisor, and Mr Q. Both witnesses stated that there were no concerns about Dr Goverdhan s clinical skills and that he was working well at Salisbury Hospital. 39. The Tribunal considered the nature of Dr Goverdhan s clinical failings in respect of Patients A to D as to whether, as a whole, they amounted to misconduct. The Tribunal was conscious that these matters took place in a relatively short time period in a long and otherwise unblemished career. It also took into account the testimonial evidence as to Dr Goverdhan s current clinical competence where no other concerns have been raised. 40. The Tribunal accepted Mr Morris interpretation of Mr H s reports and evidence that he found the clinical failings, both individually and collectively, to fall below the standard expected, but not seriously below that standard. 41. The Tribunal concluded that Dr Goverdhan s conduct with regard to the clinical matters concerning Patients A to D, did not fall so far short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct in this regard. Probity 42. The Tribunal considered that paragraphs 19, 65, 71 and 73, as detailed above, were engaged in this case. It also considered that paragraph 68 was relevant in terms of the letter written by Dr Goverdhan to Patient A containing false information and of his initial denials to colleagues that he had not amended Patient A s medical records. 24

25 You must be honest and trustworthy in all your communication with patients and colleagues. 43. The Tribunal had regard to the facts found proved in relation to the probity concerns. The concerns were that, on 1 July 2015, Dr Goverdhan amended Patient A s operation record of 20 May 2015 to suggest that he had used viscoat and a soft shell technique. Dr Goverdhan had said that he had used these during the operation in a letter he wrote to Patient A on 14 July Further, on 2 October 2015 Dr Goverdhan advised the Clinical Lead for Ophthalmology and the Division B Clinical Lead that the amended operation record had been created at the time of the procedure and that he had not amended the 20 May 2015 record. It was found proved, following Dr Goverdhan s admissions, that the information Dr Goverdhan provided was untrue, he knew it to be untrue and that his actions were dishonest. 44. With regard to Patient A, the Tribunal was of the view that Dr Goverdhan s conduct constituted a series of dishonest actions. The Tribunal were concerned that Dr Goverdhan only appeared to admit to the dishonesty when he was confronted with evidence of the amendments from the Medisoft system during a Trust investigation meeting with Dr E on 2 October The Tribunal took account of Dr E s statement dated 9 August 2017 about the investigation meeting, where she stated: [Dr F] led the meeting and asked if Dr Goverdhan had made any changes to Patient A s records, to which Dr Goverdhan s response was no. We asked if he was sure, and explained that we could not find the viscoat tracking sticker. Whilst viscoat could have been used without a tracking sticker, it would have needed to be recorded in the list of drugs and include the batch number. Dr Goverdhan said he had used viscoat. It was at this point [Dr F] and I said that we had evidence from Medisoft confirming Dr Goverdhan added the comments set out above on 1 July 2015, which was after I had sent him a copy of Patient A s complaint. Dr Goverdhan then admitted he had changed the medical records and had not recorded anywhere that he had done so, or why. 46. The Tribunal were concerned that the letter Dr Goverdhan wrote to Patient A and the alteration of the medical records to assert that he had used viscoat and a soft shell technique might have had an adverse influence on future clinical decisions. 47. The Tribunal determined that Dr Goverdhan s actions did amount to serious misconduct in relation to the probity matters found proved. It concluded that Dr Goverdhan s conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct in this regard. 25

26 Impairment by reason of misconduct 48. The Tribunal, having found that the facts found proved in relation to the probity matter amounted to serious misconduct, went on to consider whether Dr Goverdhan s fitness to practise was currently impaired by reason of his serious misconduct. 49. The Tribunal had regard to the document bundle from Dr Goverdhan including evidence of CPD and testimonials. It heard from Mr P and Mr Q as to their opinion that Dr Goverdhan learnt from this matter and that they had no current concerns about his probity and insight. The Tribunal also heard Dr Goverdhan s explanation for his dishonesty that he made the changes to the patient record as he felt pressure from a senior colleague and wanted to avoid further conflict. He acknowledged that this was not a justification for his actions. 50. The Tribunal took account of Dr Goverdhan s witness statement, as follows: In short, I was upset when I received Patient A s complaint and disappointed in myself that I had not identified the patient s corneal condition. I panicked and departed from my normal practice because of the way I was feeling and due to a difficult relationship with a senior clinical colleague whom I considered would use the error against me. 51. The Tribunal also heard oral evidence from Dr Goverdhan and accepted that he had some insight into his actions. It was of the view that Dr Goverdhan accepted that his conduct was serious and deplorable. Within his oral evidence, Dr Goverdhan acknowledged that his conduct had an impact on others: disgraceful, what I have done disrepute to department and profession seems like I was protecting myself. 52. The Tribunal was of the view that there was evidence of remediation, both in terms of Dr Goverdhan s references, CPD and reflections. 53. Notwithstanding the positive testimonials and other evidence, the Tribunal determined that Dr Goverdhan s behaviour, as to the serious probity matters, was such as to justify a finding of impairment of his fitness to practise. It determined that Dr Goverdhan s actions represented comprehensive dishonesty to a patient and to his colleagues. The Tribunal was concerned that he only admitted his dishonesty when presented which conclusive proof in the form of the Medisoft records. 54. The Tribunal determined that Dr Goverdhan breached the fundamental tenet of the profession, of honesty and integrity. It considered that his dishonest conduct would be considered as deplorable by the public and by other members of the profession. 26