A finding of poor professional performance against a paediatrician over an incorrect "tongue-tie" procedure on a young child in his care was unproven, irrational and disproportionate, the High Court was told yesterday.
The judicial review challenge by Prof Martin Corbally to the finding involves the court being asked to consider for the first time what is captured by the definition of "poor professional performance" in the 2007 Medical Practitioners Act.
Dr Corbally, with an address at Corballis, Donabate, Co Dublin but working in Bahrain, wants orders quashing the Medical Council's Fitness to Practice (FTP) Committee's decision he was guilty of poor professional performance (PPP) arising from the incorrect surgery.
The committee reached its conclusions on foot of findings Dr Corbally incorrectly described the procedure required by the two-year-old child in his outpatient notes, failed to communicate adequately to Dr Fahran Tareen, the registrar to whom he delegated the operation and to apply appropriate standards of clinical judgment expected from a surgeon with his experience. The council imposed a sanction of admonishment.
Breach of human rights
A stay on the findings and sanction applies pending the outcome of the case, which is also against the State on grounds it breached his rights under the European Convention of Human Rights due to absence of any right of appeal against a sanction of censure or admonishment in the 2007 Act.
Opening the case before the president of the High Court, Mr Justice Nicholas Kearns, Eileen Barrington SC argued there was no basis for the finding of PPP and it was unfair to admonish her client, a "brilliant paediatrician", over a "human error".
The FTP Committee had relied on systems deficiencies in Our Lady’s Children’s Hospital, Crumlin, to make findings against her client, she argued.
Some time before the surgery was performed in April 2010, Dr Corbally assessed the child as requiring an upper labial frenectomy, involving cutting the fold of skin attaching her upper lip to her gum.
The hospital required an admissions card to be filled out for each patient and Dr Corbally did so, Ms Barrington said. The system required him to enter it under a code as a “tongue-tie”, which he did, but he clarified it was an excision of the upper frenulum.
A "systems failure" then led to the planned procedure being incorrectly input by an administrator into the hospital system as a tongue-tie – involving excision of the fold of skin beneath the tongue.
'Once-off error'
Writing an outpatients note, Dr Corbally mistakenly wrote "upper lingual frenulum" rather than "upper labial frenulum", counsel said. Lingual frenulum related to the fold of skin beneath the tongue. The use of "lingual" rather than "labial" was a "typo" and Dr Corbally should not have been found guilty of PPP over this "once-off" error.
On the morning the child was due to have her surgery, Dr Corbally had been working for five of the previous seven nights, had a full list and was running late due to having patients in intensive care, counsel said. To catch up, he asked Dr Tareen to perform the procedure on the child.
When it was realised the incorrect procedure had been performed, Prof Corbally within an hour carried out corrective surgery, counsel said.
The case continues.
