Case won't start open season on doctors

Jayant Patel attends court in Brisbane / AAP

IT would be a huge risk to board an aircraft knowing the pilot had killed people during take-offs and landings, leading to disciplinary action.

Similarly, if Jayant Patel had first disclosed his dubious surgical record from the US, the disciplinary actions taken against him there, and the heavy restrictions preventing him from doing the complex surgery he performed in Australia, any patient in Queensland who consented to a complex operation by him would struggle to win public sympathy.

The reality, however, is that Patel lied about his background.

He airbrushed what should have been career-halting incompetence from his curriculum vitae.

Unwitting patients in Bundaberg consented to surgery by him because they believed him to be a highly skilled practitioner with a distinguished and unblemished record.

This key distinction in the case of Patel, sentenced to seven years' jail yesterday after being convicted of the manslaughter of three patients and grievous bodily harm of a fourth, should be given more weight in the public debate about whether doctors are now at more risk from criminal sanction.

The Patel case is unique. Were it not for his easily verifiable record of botched operations and disciplinary action in the US, and his deliberate concealment of this appalling record, it is highly unlikely the consequences for him in Australia as a result of his surgery at Bundaberg would have been nearly as serious as they were.

Patients, politicians, regulators and the public were rightly outraged by his dishonesty. The repercussions of his selfish behaviour and his callous disregard for his patients were viewed through that prism. His past changed everything.

This is the context in the Patel case that makes it so different.

Surgeons acting in good faith will make mistakes in complex operations, and some patients will die or suffer injury.

While the mistakes may mean these surgeons are accountable to grieving relatives and plaintiff lawyers in the civil courts, doctors should not, and will not -- except in the most extraordinary circumstances -- face serious charges under Section 288 of the Queensland Criminal Code.

Lord Denning, an eminent judge of the House of Lords in Britain, put it this way in a medical negligence case, Roe v Minister of Health: "Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way."

Denning's analysis has been well understood and appreciated by patients, doctors, lawyers and the public at large. That is why criminal prosecutions of doctors are so rare.

Notwithstanding Patel's conviction and sentencing, it is improbable that it will trigger a welter of criminal prosecutions of doctors who have made mistakes in good faith.

The Australian Medical Association could make a more meaningful contribution to the debate by encouraging its doctor members to respond proactively to the transgressions of colleagues so that they can be counselled, retrained or restrained before patients are hurt.

They should learn from the moral failure of their colleagues in Bundaberg.

Doctors other than Patel contributed to the medical disaster there because they lacked the courage to do something.

They left it to a nurse, Toni Hoffman, to repeatedly blow the whistle. When she needed their support, most of them were found wanting.