Consultant paediatrician Prof Martin Corbally has won High Court orders overturning a finding of poor professional performance (PPP) made against him after another doctor carried out an incorrect “tongue-tie” procedure on a young patient of Dr Corbally’s.
The finding was “disproportionate” and not reasonable and amounted to blaming Dr Corbally for systems failures at Our Lady’s Hospital, Crumlin, for which he was not responsible, the president of the High Court ruled.
Corrective surgery was quickly carried out by Dr Corbally on the two-year-girl, who has made a full recovery, Mr Justice Nicholas Kearns said.
A central issue in the case involved the court considering for the first time what was captured by the definition of PPP in the 2007 Medical Practitioners Act.
'Serious'
Mr Justice Kearns ruled that because the Act allows for no appeal against a sanction imposed for PPP it was appropriate to read it as requiring a single lapse or offence must be "serious". Given the effects for Dr Corbally of extensive media reporting of the matter, and reports linking it to another matter in relation to which the Medical Council had found Dr Corbally had no case to answer, it "could hardly be more serious".
He ruled the Medical Council’s fitness-to-practise committee had erred in finding PPP against Dr Corbally arising from an admitted error in his notes concerning the required procedure for the child.
This error, while not “a mere slip of the pen”, was not very serious and made no real contribution to the procedure carried out on the child, the judge said. A non-causative lapse must be seen as less serious than one which causes damage. He also found a finding of PPP could not rationally arise from the fact that Dr Corbally had delegated the procedure to another competent doctor after being called to emergency surgery.
The “real problem” lay with the systems in the hospital that did not allow for Dr Corbally’s detailed and correct description of the required procedure on the admission card to be properly transcribed, he found.
The case arose after the girl was seen by Dr Corbally at the Crumlin hospital in 2010 with a history of the frenulum (soft fold of tissue) under her top lip catching. He recommended division of her upper frenulum but, in his notes, described the required procedure as excision of “upper lingual frenulum” rather than “upper labial frenulum”. (There is no upper lingual frenulum.)
Tongue tie
Dr Corbally then booked the child in for the procedure, correctly labelling her admissions form as "tongue tie (upper frenulum)" but when the form was sent to the admissions department, the reference to "upper frenulum" was not inputted into the hospital system.
“Difficult as it is to believe”, the then system in Crumlin had just one code for all frenula dissection, the judge said. All three types of dissection were described as “tongue tie” and the child’s procedure was inputted as “tongue tie release”.
Dr Corbally intended to do the surgery but, when called to an emergency, delegated his registrar, Dr Farhan Tareen, to perform the procedure and Dr Tareen was very competent to do so, the judge said.
Dr Corbally had said he delegated the procedure by referring to it on the hospital theatre list. The hospital also had a policy of “surgical pause/time out” when those involved in surgery would check the correct patient was listed for the correct procedure. Dr Tareen and others attended that surgical pause.
Had anyone examined Dr Corbally’s notes, the consent form, admissions card and a discussion with the child’s mother, any confusion would have been eliminated, the judge said. Unfortunately, Dr Tareen had carried out an unnecessary lingual frenulectomy but Dr Corbally later that day carried out the correct procedure.
In the circumstances, Dr Corbally, with an address at Corballis, Donabate, Co Dublin, but working in Bahrain, was entitled to orders quashing the PPP finding and sanction of admonishment imposed on him, the judge ruled.
A stay on the PPP finding and sanction was imposed pending the outcome of the case, also brought against the State, on grounds that it breached Dr Corbally’s rights under the European Convention of Human Rights due to the absence of any right of appeal against a sanction of censure.
