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Speaker 1: My name is Hedley Thomas.

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Speaker 2: Sick to Death is based on my book of the

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Speaker 2: same name, and it's the true story of doctor Jan

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Speaker 2: Patel's lies and manipulation and the herculean effort it took

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Speaker 2: to finally stop him. We've used voice actors throughout this series,

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Speaker 2: and on occasion the real people from the story have

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Speaker 2: read their words for us.

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Speaker 1: It is brought to you by me and The Australian.

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Speaker 2: Jayan Patel lived quietly these days at the end of

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Speaker 2: a pretty cul de sac in a leafy neighborhood on

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Speaker 2: the outskirts of Portland, Oregon. In July two thousand and six,

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Speaker 2: Susan Goldsmith, an investigative reporter who was then working for

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Speaker 2: the Oregonian newspaper, drove with me two Patel's sprawling two.

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Speaker 1: Story home there.

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Speaker 2: Patel didn't talk to us, and a lot of water

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Speaker 2: has flowed under the bridge since then. My friend and

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Speaker 2: colleague from the Australian, Ellie Dudley, drove down the same

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Speaker 2: cul de sac at the start of this podcast series.

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Speaker 2: Ellie did speak to Patel in this the last episode

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Speaker 2: of the series. Here is the former surgeon's take on

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Speaker 2: the events of two decades ago.

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Speaker 3: I'd really love to sit down and interview you and

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Speaker 3: chat about the events in Bunderberg in the early.

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Speaker 4: Two thousand ages ago.

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Speaker 5: Yeah, I completely forgot about did and I'm beyond that.

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Speaker 6: I would really love to sit down with you.

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Speaker 4: As who's going this history and here.

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Speaker 6: About what you've got to say about what happened.

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Speaker 5: No, I don't react to stupid praticism, so I'm imaging

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Speaker 5: my life.

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Speaker 1: I'm fake.

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Speaker 2: Patel was a couple of weeks away from his seventy

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Speaker 2: sixth birthday as this episode was being produced in late

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Speaker 2: March twenty twenty six.

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Speaker 1: He does not.

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Speaker 2: Appear to be working in any paid capacity. If you

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Speaker 2: look him up on the State of Oregon Medical Boards website,

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Speaker 2: it shows his licensed status as suspended. Of course, he

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Speaker 2: has agreed not to practice medicine in any jurisdiction of

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Speaker 2: the United States. This is the last hour of audio

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Speaker 2: in our series, an hour in which we'll go down

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Speaker 2: a checkered path through Australia's criminal justice system and explain

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Speaker 2: how Patel won his freedom.

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Speaker 1: It's like addiction ed okay.

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Speaker 7: I call it a physical god complex, and you will

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Speaker 7: find it in about five to ten percent of the

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Speaker 7: Nians their fine thing is I could do what nobody

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Speaker 7: else can do.

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Speaker 2: Shortly before this final episode in the Sick to Death series,

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Speaker 2: doctor V J. Mehta spoke to me for the first

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Speaker 2: time in ages. The highly qualified former chief of Thoracic

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Speaker 2: and vascular surgery has never met nor talked to Jaunt Patel,

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Speaker 2: but two decades ago they became aligned at a time

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Speaker 2: when there were very few defenders of the former Bunderberg

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Speaker 2: Hospital Director of Surgery. In two thousand and five and

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Speaker 2: for several years afterwards, doctor Meta took a close interest

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Speaker 2: in the Patel case. Doctor Meta believed that he understood

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Speaker 2: the evidence against Patel, and doctor Meta spoke to Patel's wife,

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Speaker 2: Kashoori back then. In later years, he followed the prosecution

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Speaker 2: of the surgeon over the alleged manslaughter of three male

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Speaker 2: patients and the grievous bodily harm inflicted on a fourth.

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Speaker 2: Doctor Meta told me and other journalists back then that

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Speaker 2: the criminal case against doctor Patel was over the top

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Speaker 2: and unjustified. He believed that Patel's colossal ego, a kind

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Speaker 2: of surgical god complex, led Patel to believe that he

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Speaker 2: could help everyone, and as a result, Patel wanted to

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Speaker 2: prove this to others by performing as many complex surgeries

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Speaker 2: as humanly possible, and many which were on their face impossible.

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Speaker 2: According to doctor Meta, we spoke twenty years ago, doctor Meta,

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Speaker 2: and you were worried that he was being unfairly treated.

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Speaker 1: Why were you so motivated to speak out?

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Speaker 7: Because I'm in the victim. I was chief of somebody.

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Speaker 7: I had friend and under me who were like Jay

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Speaker 7: and Patil. The handred so good that they would really

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Speaker 7: do operation that nobody would ever do. He was doing

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Speaker 7: more cases than anybody else. He was so driven to

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Speaker 7: do it that clouded his judgment. He's doing three times

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Speaker 7: the work more he did, more money can do Bundoba Gospital.

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Speaker 2: In his view, a large number of those operations were

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Speaker 2: always going to end badly, not because of issues around's competence,

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Speaker 2: but because of the underlying frailties of the patients and

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Speaker 2: their comorbidities. Now those were controversial views two decades ago.

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Speaker 2: After all, Patel was found to have been dishonest and

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Speaker 2: negligent by US authorities well before he turned up at

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Speaker 2: a regional hospital in Bunderberg, where the same patterns continued.

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Speaker 2: But what was a controversial view of doctor Meta two

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Speaker 2: decades ago is at least a thought provoking one now

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Speaker 2: as we look back at Patel's appeal in twenty twelve

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Speaker 2: to the High Court of Australia and ultimately the unraveling

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Speaker 2: of a prosecution which had resulted in the surgeon's imprisonment.

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Speaker 2: I telephoned doctor Meta in his hometown of Temple in

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Speaker 2: Texas in the United States, where he's retired.

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Speaker 7: Do you want your surgeon to put all his effort

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Speaker 7: to save her life, but on the other you don't

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Speaker 7: want to go out of control?

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Speaker 2: Doctor Mesa told me that surgeons like doctor Patel, who

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Speaker 2: are addicted to operating rationalize it by concluding that the

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Speaker 2: patient's cancer is going to kill him or her anyway.

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Speaker 2: And according to this logic, the premature death of a

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Speaker 2: patient on the operating table during an extremely high risk

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Speaker 2: procedure is acceptable because there was a small chance of

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Speaker 2: success with the scalpel. But in some of these cases,

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Speaker 2: the life expectancy of the patient was years if there

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Speaker 2: had been no operation, and doctor Meta does not allow

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Speaker 2: for the probability that the surgeon from Portland was incompetent.

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Speaker 2: He was accused in the United States and found to

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Speaker 2: have been incompetent, but he had lied about that.

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Speaker 1: Do you agree that he was dishonest?

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Speaker 7: Well, yeah, he was twisting his tool gee an extremity

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Speaker 7: paid the heavy duty pray.

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Speaker 2: In the previous episode, you heard that Jayan Patel and

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Speaker 2: his lawyers had tried to persuade the Court of Appeal

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Speaker 2: in Queensland that he had been unjustly convicted. To the

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Speaker 2: relief of the patients, prosecutors and nurses like Tony Hoffman.

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Speaker 2: This legal bid by Patel and his team failed, but

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Speaker 2: the Court of Appeal was merely the first hurdle. Above

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Speaker 2: it is the High Court of Australia. Here's Tony Hoffman again.

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Speaker 8: By that time, I think he'd spent two years in jail.

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Speaker 2: Had you begun to countenance the unthinkable that he might

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Speaker 2: win his appeal?

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Speaker 8: Look, I didn't think it was possible that he could

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Speaker 8: win his appeal.

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Speaker 2: I spoke to Karina Berger, who looked closely at the

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Speaker 2: next stage in Patel's legal battle, waged while he was

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Speaker 2: behind bars in a Queensland prison now Karna. He applied

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Speaker 2: to the High Court of Australia for what's called special

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Speaker 2: leave to appeal or special leve.

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Speaker 3: He did He applied on the ground that he'd been

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Speaker 3: convicted on a wrong basis, and he was relying again

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Speaker 3: on the idea that section two hundred and eighty eight

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Speaker 3: of the Criminal Code applied only to the conduct of

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Speaker 3: surgery and not to the decision to operate. You'll recall

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Speaker 3: that Patel had been convicted on the basis of his

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Speaker 3: decisions to operate, not on the basis of the conduct

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Speaker 3: of the surgery.

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Speaker 2: But he had a second ground of appeal, and that

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Speaker 2: was that there had been a miscarriage of justice in

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Speaker 2: the conduct of his original trial. After a two day

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Speaker 2: hearing in June twenty twelve, the High Court handed down

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Speaker 2: its decision two months later.

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Speaker 9: The High Court's quashing of the convictions of the former

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Speaker 9: surgeon Patel will lead to another complex trial. There were

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Speaker 9: tears and disappointment in the Queensland city of Bunderberg this

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Speaker 9: afternoon after the news from the court broke and he

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Speaker 9: guessed reports from Brisbane.

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Speaker 10: As the rain came down around them. This was the

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Speaker 10: reaction from the Bunderberg Hospital patient support group when the

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Speaker 10: High Court handed down its judgment today.

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Speaker 4: Oh no, neutral, Oh dude? Is anybody going to cope

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Speaker 4: for the neutral? How much a shit checked.

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Speaker 10: Beryl Crosby has been the stoic public face of the

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Speaker 10: support group since two thousand and five, but today that changed.

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Speaker 11: I mean I tried to kindeplat it, but in reality

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Speaker 11: I didn't it.

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Speaker 4: I couldn't. That's going to happen there.

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Speaker 12: I don't know, darl We'll get it.

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Speaker 1: Here's Carina again.

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Speaker 3: The High Court found that a miscarriage of justice had

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Speaker 3: occurred because on the forty third day of the fifty

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Speaker 3: eight day trial, the prosecution radically changed its case in

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Speaker 3: a way that made much of the evidence that had

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Speaker 3: been admitted irrelevant, and the majority of the court found

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Speaker 3: that the prosecution's made to shift in focus late in

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Speaker 3: the trial was prejudicial to Patel's defense.

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Speaker 2: And when you and judges use words like prejudicial, you're

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Speaker 2: really saying unfair, aren't you.

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Speaker 3: That's right, it's a good way to describe it.

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Speaker 2: Listen to how Tony Hoffman responded soon after the High

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Speaker 2: Court effectively handed doctor Patel a get out of jail card.

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Speaker 8: It's devastating. It's devastating because you know, it's just for

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Speaker 8: such a long road.

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Speaker 4: She get to that point.

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Speaker 10: Tony Hoffman is the intensive careness who first made allegations

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Speaker 10: about Patel's practice when he worked as the director of

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Speaker 10: surgery at the Bunderberg Hospital between two thousand and three

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Speaker 10: and two thousand and five. The long road she refers

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Speaker 10: to has included an aborted judicial inquiry, Betel's extradition from

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Speaker 10: the US, and eventually the fifty eight day trial.

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Speaker 8: I mean, I'm so disappointed. I'm devastated, but I don't

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Speaker 8: know that I'm particularly surprised. It was difficult with a landmark, okay.

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Speaker 10: But at Brisbane's Wolston Prison, Patel is said to be

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Speaker 10: pleased with the outcome. He's now preparing to be released

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Speaker 10: after the Supreme Court granted him bail this afternoon. His lawyer,

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Speaker 10: Aaron Ranaga says, it's been a tumultuous time for Patel.

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Speaker 4: It's dramatic and it's unfortunate that we have to go

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Speaker 4: through it again.

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Speaker 12: But the st justice system and the High Court baby

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Speaker 12: sudict and we start again.

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Speaker 2: This was a massive spanner in the works for the

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Speaker 2: Queensland Office of Public Prosecutions for its director, Tony moynihan.

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Speaker 2: It was a very serious professional blow to the reputation

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Speaker 2: and standing of that office in the High Court judgment,

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Speaker 2: Doctor Bateel is referred to as the appellent as in

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Speaker 2: the person who appealed to the High Court, but we've

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Speaker 2: recorded a voice actor for the court to say Patel

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Speaker 2: as it is less confusing. The majority judgment stated that

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Speaker 2: much of the evidence put forward in support of the

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Speaker 2: prosecution's wider.

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Speaker 13: Case reflected adversely upon Patel as a person. It suggested

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Speaker 13: that he was egotistical, uncaring, and dishonest in his dealings

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Speaker 13: with the patient's families, and felt guilty about his performance

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Speaker 13: as a surgeon. The prosecution case might be described as

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Speaker 13: a wide ranging attack upon Patel, both professionally and personally.

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Speaker 13: There can be no doubt that the evidence was highly

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Speaker 13: prejudicial to Patel, and that much of it was rendered

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Speaker 13: irrelevant by the narrowing of the prosecution case. Patel was

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Speaker 13: denied an opportunity to have much prejudicial evidence excluded. Despite

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Speaker 13: the fact that the trial judge gave careful and succinct

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Speaker 13: directions as to some of the most prejudicial evidence, such

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Speaker 13: as evidence of errors in surgery, cannot be concluded that

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Speaker 13: the directions were sufficient to overcome the prejudicial effects of

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Speaker 13: the evidence individually and collectively upon the jury.

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Speaker 2: The conduct of the prosecution in the trial was criticized

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Speaker 2: by the High Court. The High Court looked at the

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Speaker 2: expert evidence which the prosecution had sought to rely on

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Speaker 2: in the trial to show that Patel was not competent

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Speaker 2: as a surgeon, and the High Court concluded what it said,

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Speaker 2: the prosecution should have concluded at an early stage that

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Speaker 2: the expert evidence would not cut the mustard. The expert

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Speaker 2: evidence just wasn't there to sustain a finding that Patel

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Speaker 2: was incompetent as a surgeon, or that he was grossly negligent,

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Speaker 2: not to the criminal standard of beyond reasonable doubt. But

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Speaker 2: by the time the prosecution had realized this and had

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Speaker 2: changed course trial to focus instead on Patel's decisions to operate,

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Speaker 2: the jurors had already heard the evidence of his incompetence

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Speaker 2: in surgery, and the juror's minds were filled with evidence

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Speaker 2: that was very bad for Patel and potentially very unfair.

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Speaker 2: It was legally worthless as evidence, as the prosecution had

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Speaker 2: decided to abandon it.

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Speaker 14: Not only had the jury been exposed to this large

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Speaker 14: body of evidence, it had been exposed to it repeatedly

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Speaker 14: over a long period of time, and in the context

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Speaker 14: of a much wider prosecution case, there has been a

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Speaker 14: miscarriage of justice. The miscarriage warrants in order for a

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Speaker 14: new trial. This is not a step to be taken

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Speaker 14: lightly in any case, let alone one where there has

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Speaker 14: been a very lengthy trial. The need to consider such

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Speaker 14: a course is brought about by the way in which

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Speaker 14: the prosecution conducted its case in tendering a body of

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Speaker 14: evidence prejudicial to Patel which could not be maintained as

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Speaker 14: relevant once it had radically revised its case. Had the

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Speaker 14: prosecution focused at the outset on the judgment Patel formed

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Speaker 14: about the need for or appropriateness of the surgical procedures,

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Speaker 14: the trial would not have assumed the dimensions that it did,

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Speaker 14: and there would not have been the miscarriage of justice

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Speaker 14: that occurred.

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Speaker 2: The upshot is the High Court qushed Betel's convictions. The

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Speaker 2: High Court did, however, unanimously reject Bettel's arguments about section

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Speaker 2: two hundred and eighty eight.

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Speaker 3: The High Court found that section two eight eight of

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Speaker 3: the Criminal Code applied to the decision to operate as

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Speaker 3: well as the conduct of the surgery. There were many

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Speaker 3: and varied reactions headly, and here's one that I came

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Speaker 3: across in a law journal that was written a few

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Speaker 3: months after the High Court's decision by senior Brisbane lawyer

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Speaker 3: Stephen Kin and lawyers Alamarsh.

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Speaker 15: The High Court's decision is a remind that even when

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Speaker 15: faced with the most unpopular of defendants and the greatest

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Speaker 15: of pressure to secure a conviction, it is still incumbent

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Speaker 15: upon the Crown to conduct a fair trial. It also

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Speaker 15: reinforces the importance of an independent judiciary in holding the

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Speaker 15: prosecution to this standard.

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Speaker 2: Fourteen years later, here's Beryl Crosby, the advocate for the

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Speaker 2: patients of Jaunt Patel.

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Speaker 1: You don't believe it was a justified decision.

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Speaker 4: No, no, not at all.

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Speaker 11: I don't feel that what they did in the end

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Speaker 11: was justified at all. I think they did it just

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Speaker 11: because they could.

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Speaker 1: How did the patients feel.

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Speaker 11: I think everyone was in disbelief by then. I was

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Speaker 11: so angry. I was angry, hurt. I was disillusioned, disbelief.

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Speaker 11: When the High Court overturned it. I just felt that

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Speaker 11: they did it because they could, and they think they're

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Speaker 11: God almighty, and they look for little flaws here and there.

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Speaker 4: It all came down to points of law.

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Speaker 2: Four days after being released from prison, Patel spoke publicly

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Speaker 2: in an exclusive interview with Channel seven's Kim Scubris.

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Speaker 5: I believe that I have always done my best for

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Speaker 5: my patients in their family, despite the attacks on my

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Speaker 5: character at the trial and much Edward's publicity about me.

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Speaker 16: The trauma was not mine alone.

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Speaker 5: I'm acutely aware that the trial and the events surrounding

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Speaker 5: it and the appeals are also very painful for those

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Speaker 5: in all in the events concerned, I want to offer

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Speaker 5: my sincere condolences and sympathy to my former patients and

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Speaker 5: their family affected by these events.

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Speaker 17: Queensland's Director of Public Prosecutions is yet to announce if

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Speaker 17: you'll go ahead with a retrial. Doctor Patel says he

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Speaker 17: has no intention of leaving Australia until the case is resolved.

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Speaker 17: It's obviously important to you to clear your name, is

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Speaker 17: it and you will stay here as long as it takes.

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Speaker 5: Exactly fagus Stadio as well as it picks.

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Speaker 2: About forty eight hours after that interview, the DPP Tony

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00:18:07,880 --> 00:18:12,159
Speaker 2: moynihan issued a statement, and in that he suggested that

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Speaker 2: on the admissible evidence, there were reasonable prospects of a

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00:18:16,160 --> 00:18:19,760
Speaker 2: conviction and that it was still in the public interest

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Speaker 2: to hold a new trial. He confirmed that the charges

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Speaker 2: against Patel would be tried separately. That meant there would

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Speaker 2: be a separate trial focusing on Ptel's treatment of each patient.

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Speaker 2: By early twenty thirteen, So that's eight years after Patel's

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Speaker 2: conduct in Australia was brought to light with the Google search.

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Speaker 1: We are back in court.

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Speaker 2: It's the first retrial of the disgrace surgeon, and this

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Speaker 2: time it is for the manslaughter of seventy five year

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00:18:52,800 --> 00:18:57,600
Speaker 2: old Mervyn Morris. The trial was delayed because Patel needed

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Speaker 2: more time to prepare his defense before the.

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00:19:01,520 --> 00:19:04,399
Speaker 3: Actual trial got under a Headly, there were some really

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00:19:04,720 --> 00:19:09,200
Speaker 3: interesting legal questions that had to be decided by the court.

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Speaker 3: One of these involved Patel applying for a judge only trial,

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Speaker 3: largely because of the significant pre trial publicity.

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Speaker 16: In his pre trial ruling, Justice Douglas said, the.

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Speaker 18: Law recognizes that juries are capable of handling issues of

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Speaker 18: prejudice arising from the pre trial publicity that has occurred here.

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Speaker 18: While I recognize the severity of the criticism of doctor

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Speaker 18: Patel in the pre trial publicity and that it may

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Speaker 18: affect jury deliberations, I am not persuaded that a properly

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00:19:42,080 --> 00:19:46,080
Speaker 18: directed jury will have difficulty in ignoring it in favor

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Speaker 18: of the evidence that is led before it. In other words,

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Speaker 18: I believe that a fair trial can proceed before a

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Speaker 18: jury in spite of the publicity.

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Speaker 3: And then, just a few days before the trial finally

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00:19:59,040 --> 00:20:03,439
Speaker 3: started on fairb j eight twenty thirteen, Patel successfully applied

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Speaker 3: to the trial judge Justice Freiberg for orders allowing the

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Speaker 3: questioning of people selected to service jurors and reserve jurors.

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Speaker 2: Patel wanted to know if any potential jurors were unfairly

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Speaker 2: against him.

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Speaker 3: Absolutely he did, and he put on an application to

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Speaker 3: try and flush that out, and this hadn't been done before,

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Speaker 3: which made it really interesting.

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Speaker 2: Well, ultimately it led to one of the jurors being

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Speaker 2: kicked off the jury in replace with another. And then

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00:20:32,320 --> 00:20:35,639
Speaker 2: what we saw was Patel himself getting in the witness box.

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Speaker 2: Maybe that was the underlying reason for them wanting to

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Speaker 2: ensure the jury was as fair as it could possibly be,

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Speaker 2: because he was going to give evidence on his own behalf, Yeah.

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Speaker 4: That could have been right.

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Speaker 3: And I think the publicity surrounding the trial had just

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00:20:50,359 --> 00:20:53,520
Speaker 3: been so intense that they wanted to take that extra

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00:20:53,840 --> 00:20:56,479
Speaker 3: step and try and have that certainty about the jurors

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Speaker 3: being impartial.

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00:20:57,960 --> 00:21:01,199
Speaker 2: So in the trial, the prosecution and is alleging that

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00:21:01,240 --> 00:21:05,600
Speaker 2: Patel was criminally negligent because he had recommended and then

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00:21:05,720 --> 00:21:09,160
Speaker 2: performed bow surgery on poor old Mervin Morris.

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Speaker 3: Fuller Underberg surgeon Jay and Pateell was accused in court

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Speaker 3: today of inventing the cause of former patient Mervin Morris's death,

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Speaker 3: and Lexi Hamilson Smith was there.

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00:21:20,760 --> 00:21:24,440
Speaker 19: Jane Battel still calm and in control. As today's cross

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Speaker 19: examination god tense. He shrunned off claims of being evasive.

350
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Speaker 19: Crime prosecutor Peter Davis. You are inventing this idea of

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Speaker 19: aspiration as a cause of death, aren't you, mister Battil No,

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Speaker 19: Today he denied his actions killed mister Morris.

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Speaker 16: The crime prosecutor.

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Speaker 19: Said he died as a direct cause of you operating

355
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Speaker 19: on him. Mister Bottel, I disagree. In earlier evidence, the

356
00:21:47,520 --> 00:21:51,200
Speaker 19: former surgeon was accused of being ration operating and rejected

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Speaker 19: allegations that he was incompetent and being untruthful. Under oath,

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Speaker 19: His wife and daughter had sat quietly and court every

359
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Speaker 19: day showing no emotion.

360
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Speaker 2: Justice Freiberg told the jurors that they couldn't judge the

361
00:22:06,240 --> 00:22:08,879
Speaker 2: case with the benefit of hindsight, and they needed to

362
00:22:08,920 --> 00:22:14,360
Speaker 2: ignore any feelings of sympathy or dislike and decide solely

363
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Speaker 2: on the evidence.

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Speaker 3: After deliberating for two days, the jury returned a verdict

365
00:22:20,280 --> 00:22:23,639
Speaker 3: of not guilty and Patel was acquitted of Marius's manslaughter.

366
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Speaker 2: He is Beryl Crosby, the advocate for the patients of

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Speaker 2: Jay and Patel. Did you feel that he was fortunate

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Speaker 2: or do you think well, he serves several years in jail.

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Speaker 1: His reputation has been ruined, he'll never practice again.

370
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Speaker 11: Back then, I was angry. I was hurt for all

371
00:22:43,240 --> 00:22:49,600
Speaker 11: the patients. I was upset that the system didn't follow through.

372
00:22:50,359 --> 00:22:54,200
Speaker 11: I was angry at the High Court and the judges.

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Speaker 11: Maybe they should have been in the operating theater with

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Speaker 11: him when the nursing staff were horrified peers for hiding patients.

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Speaker 11: I had to let it go. I was still dealing

376
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Speaker 11: with patients through the years. That's what I've been doing.

377
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Speaker 11: I do it on a weekly basis.

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Speaker 2: It's amazing twenty years later and you're still advocating.

379
00:23:13,880 --> 00:23:17,080
Speaker 11: And I've had probably three people this week, just trying

380
00:23:17,119 --> 00:23:19,960
Speaker 11: to tell them how important it is to put in complaints.

381
00:23:20,480 --> 00:23:22,760
Speaker 4: They don't know how to do it, and I help

382
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Speaker 4: them do it.

383
00:23:24,000 --> 00:23:26,439
Speaker 11: Sometimes I do it for them, and I'll listen to

384
00:23:26,480 --> 00:23:29,600
Speaker 11: their story and I'll write it and I'll submit it.

385
00:23:30,160 --> 00:23:33,640
Speaker 11: They just have to okay it because they can't do it.

386
00:23:35,680 --> 00:23:40,080
Speaker 2: Soon after the jury's verdict in Patel's second manslaughd A trial,

387
00:23:40,480 --> 00:23:44,399
Speaker 2: the Queensland Director of Public Prosecutions confirmed that his office

388
00:23:44,440 --> 00:23:49,080
Speaker 2: would still pursue all outstanding charges against the former surgeon,

389
00:23:49,680 --> 00:23:54,000
Speaker 2: and two months later, in May twenty thirteen, Patel.

390
00:23:53,960 --> 00:23:56,960
Speaker 1: Was formally charged with the grievous bodily.

391
00:23:56,600 --> 00:24:00,680
Speaker 2: Harm of in vals during colon surgery in two thousand

392
00:24:00,680 --> 00:24:04,880
Speaker 2: and four. The trial unfolded in the District Court in

393
00:24:04,920 --> 00:24:10,080
Speaker 2: September twenty thirteen. Ian vows had his large bowel and

394
00:24:10,200 --> 00:24:14,800
Speaker 2: his rectum removed after Patel wrongly presumed that he had cancer.

395
00:24:15,520 --> 00:24:19,920
Speaker 2: The operations were of course life changing for Ian Vowels,

396
00:24:20,720 --> 00:24:23,840
Speaker 2: but according to the prosecution, the removal of his bow

397
00:24:24,119 --> 00:24:29,359
Speaker 2: and rectum was completely unnecessary. The Crown's case was that

398
00:24:29,400 --> 00:24:33,400
Speaker 2: Patel had breached his duty, failed to use reasonable care

399
00:24:33,440 --> 00:24:39,560
Speaker 2: and skill, and was criminally negligent. Patel's defense team argued

400
00:24:39,600 --> 00:24:43,720
Speaker 2: that he had performed the right operation because they said

401
00:24:43,840 --> 00:24:48,879
Speaker 2: he had correctly diagnosed Vowels with familial colon cancer or

402
00:24:48,920 --> 00:24:53,520
Speaker 2: a genetic vulnerability to cancers of the colon. But after

403
00:24:53,560 --> 00:24:57,560
Speaker 2: deliberating for six days, the jury couldn't reach a verdict.

404
00:24:58,400 --> 00:25:01,879
Speaker 2: Judge Terry martin In indicated that he would accept an

405
00:25:01,920 --> 00:25:05,960
Speaker 2: eleven to one majority verdict, but the jurors advised that

406
00:25:06,040 --> 00:25:10,600
Speaker 2: this would not be possible. The DPP Tony moynihan then

407
00:25:10,760 --> 00:25:15,400
Speaker 2: had some difficult decisions to make because since twenty ten,

408
00:25:16,000 --> 00:25:19,560
Speaker 2: the High Court had quashed the original convictions of Patel,

409
00:25:20,280 --> 00:25:23,760
Speaker 2: and then there had been an acquittal in the first retrial,

410
00:25:23,960 --> 00:25:27,879
Speaker 2: the one concerning Mervyn Morris, and now in the District

411
00:25:27,960 --> 00:25:31,439
Speaker 2: Court are hung jury over the less serious case of

412
00:25:31,560 --> 00:25:36,600
Speaker 2: the alleged grievous bodily harm of Ian vows. People who

413
00:25:36,640 --> 00:25:40,480
Speaker 2: had followed the history and knew of Patel's misconduct in

414
00:25:40,520 --> 00:25:43,280
Speaker 2: the United States and the lies that he had weaved

415
00:25:43,320 --> 00:25:47,480
Speaker 2: to gain registration in Australia must have been baffled. They

416
00:25:47,600 --> 00:25:51,480
Speaker 2: must have believed that the criminal prosecutions would be slammed

417
00:25:51,560 --> 00:25:55,920
Speaker 2: dunk certainties for guilty verdicts, but the Crown did chalk

418
00:25:56,040 --> 00:26:00,800
Speaker 2: up one win in November twenty thirteen, Totel guilty to

419
00:26:01,080 --> 00:26:05,920
Speaker 2: four counts of fraud. Here's how District Court Judge Terry Martin,

420
00:26:06,119 --> 00:26:09,960
Speaker 2: a former top criminal defense silk, described the case while

421
00:26:10,080 --> 00:26:11,160
Speaker 2: sentencing Ptel.

422
00:26:12,400 --> 00:26:17,280
Speaker 20: To gain registration and employment in Queensland, your deceit was substantial.

423
00:26:18,119 --> 00:26:21,840
Speaker 20: You falsely answered the Medical Board's questionnaire to conceal your

424
00:26:21,880 --> 00:26:27,600
Speaker 20: license restrictions and cancelation in the United States. You deceitfully

425
00:26:27,640 --> 00:26:32,359
Speaker 20: crafted your CV to avoid such disclosures. Had the Medical

426
00:26:32,359 --> 00:26:35,360
Speaker 20: Board of Queensland known the true position of your registration

427
00:26:35,520 --> 00:26:38,600
Speaker 20: in the United States, you would not have been registered

428
00:26:38,600 --> 00:26:42,200
Speaker 20: in Queensland, or you would have had conditions imposed upon

429
00:26:42,240 --> 00:26:46,119
Speaker 20: your practicing as a surgeon. There was a second episode

430
00:26:46,119 --> 00:26:50,080
Speaker 20: of blatant fraud. It enabled you to continue in employment

431
00:26:50,280 --> 00:26:53,600
Speaker 20: to which you were not entitled. In my view, the

432
00:26:53,720 --> 00:26:58,720
Speaker 20: seriousness of this offending cannot be overemphasized. The restrictions on

433
00:26:58,800 --> 00:27:02,879
Speaker 20: your license in the United States bespeak serious deficiency in

434
00:27:02,920 --> 00:27:06,720
Speaker 20: your competence as a surgeon. Yet you deliberately sought the

435
00:27:06,720 --> 00:27:11,320
Speaker 20: position as head surgeon at Bunderberg and calculatedly deceived your

436
00:27:11,359 --> 00:27:16,080
Speaker 20: way into that position. Your unlawful conduct plainly put the

437
00:27:16,119 --> 00:27:20,240
Speaker 20: health and welfare of patients at risk. Earlier this year,

438
00:27:20,359 --> 00:27:23,639
Speaker 20: you were acquitted of a charge of manslaughter in respect

439
00:27:23,720 --> 00:27:27,399
Speaker 20: of one of your patients. Before me, a jury was

440
00:27:27,480 --> 00:27:29,960
Speaker 20: unable to agree upon a verdict in respect of one

441
00:27:30,080 --> 00:27:33,160
Speaker 20: count of doing grievous bodily harm to one of your patients.

442
00:27:34,160 --> 00:27:38,560
Speaker 20: The jury's acquittal and the jury's inability to agree should

443
00:27:38,600 --> 00:27:41,800
Speaker 20: not be viewed as some sort of endorsement of your competence.

444
00:27:42,720 --> 00:27:46,480
Speaker 20: It means no such thing. It means no more than

445
00:27:46,480 --> 00:27:49,959
Speaker 20: that the juries were not satisfied beyond reasonable doubt that

446
00:27:50,000 --> 00:27:53,679
Speaker 20: your conduct amounted to criminal negligence. There can be no

447
00:27:53,800 --> 00:27:58,320
Speaker 20: doubt that you have been subjected to persistent and widespread

448
00:27:58,359 --> 00:28:00,080
Speaker 20: vilification for many years.

449
00:28:01,000 --> 00:28:03,160
Speaker 1: I take into account your pleas of guilty.

450
00:28:03,960 --> 00:28:08,320
Speaker 20: However I see no indication of and I hear no

451
00:28:08,440 --> 00:28:13,600
Speaker 20: expression of genuine remorse for your offending. This then brings

452
00:28:13,640 --> 00:28:17,080
Speaker 20: to an end a lengthy, tragic chapter in the history

453
00:28:17,119 --> 00:28:20,480
Speaker 20: of Queensland. There seems little doubt that your career is

454
00:28:20,520 --> 00:28:24,679
Speaker 20: forever ruined. Of course, you're the author of all the

455
00:28:24,720 --> 00:28:29,920
Speaker 20: misfortune that has resulted from your totally undeserved employment in Queensland.

456
00:28:31,320 --> 00:28:34,520
Speaker 2: On the same day that Pettel was convicted over the fraud,

457
00:28:34,760 --> 00:28:38,840
Speaker 2: the DPP broke the news that other charges from manslaughter

458
00:28:39,000 --> 00:28:42,040
Speaker 2: to grievous bodily harm against Bettel would.

459
00:28:41,680 --> 00:28:43,080
Speaker 1: Not now go ahead.

460
00:28:44,000 --> 00:28:48,000
Speaker 2: Here's how the DPP at the time, Tony moynihan explained

461
00:28:48,040 --> 00:28:51,320
Speaker 2: his decisions and as with a number of the roles

462
00:28:51,520 --> 00:28:55,560
Speaker 2: in this episode, these are Tony Mornihan's words, but it's

463
00:28:55,600 --> 00:28:56,600
Speaker 2: not his voice.

464
00:28:57,480 --> 00:29:01,080
Speaker 21: I have acted decide with a jowned tell should face

465
00:29:01,120 --> 00:29:05,880
Speaker 21: a fourth trial for allegedly causing death or grievous bodily

466
00:29:05,920 --> 00:29:11,040
Speaker 21: harm through criminal negligence. In making this decision, I must

467
00:29:11,120 --> 00:29:14,840
Speaker 21: balance the obvious public interest in the due prosecution and

468
00:29:14,920 --> 00:29:18,400
Speaker 21: conviction of offenders with the views of the victims or

469
00:29:18,440 --> 00:29:22,040
Speaker 21: their families, the significant period of time that has passed

470
00:29:22,080 --> 00:29:25,360
Speaker 21: since the offenses are alleged to have been committed, the

471
00:29:25,400 --> 00:29:28,800
Speaker 21: two and a half years JR. Patel has spent in custody,

472
00:29:29,400 --> 00:29:33,840
Speaker 21: and the inevitable substantial cost of very complex litigation.

473
00:29:35,160 --> 00:29:39,400
Speaker 2: Tony moynihan made the point that in the retrials, credible

474
00:29:39,560 --> 00:29:42,920
Speaker 2: evidence from medical experts under Crown has not been able

475
00:29:42,960 --> 00:29:46,840
Speaker 2: to satisfy the requirement of proving the alleged negligence to

476
00:29:46,880 --> 00:29:51,720
Speaker 2: the criminal's standard in all the circumstances, I have decided

477
00:29:51,760 --> 00:29:54,880
Speaker 2: that it is not in the public interest to continue

478
00:29:54,920 --> 00:29:58,120
Speaker 2: the count's allegend criminal negligence against JR.

479
00:29:58,280 --> 00:29:58,680
Speaker 1: Patel.

480
00:30:00,120 --> 00:30:03,840
Speaker 2: There were mixed reactions. Beryl Crosby spoke at the time

481
00:30:03,920 --> 00:30:06,480
Speaker 2: to ABC journalist Stephanie Smaile.

482
00:30:07,360 --> 00:30:10,280
Speaker 22: Beryl Crosby was one of Giant Petel's patients at the

483
00:30:10,280 --> 00:30:15,520
Speaker 22: Bunderberg Hospital. She says she's shocked by today's development, devastated.

484
00:30:15,560 --> 00:30:17,480
Speaker 11: I think a lot of people feel the same way,

485
00:30:17,960 --> 00:30:18,880
Speaker 11: and it's been such.

486
00:30:18,720 --> 00:30:22,480
Speaker 4: A long time. A lot of victims still held out hope.

487
00:30:22,760 --> 00:30:26,600
Speaker 11: We've struggled for many, many years to get justice for victims,

488
00:30:27,240 --> 00:30:29,960
Speaker 11: and we've always held the faith. And that's one thing

489
00:30:30,000 --> 00:30:32,160
Speaker 11: I could kick myself for. Maybe I should have been

490
00:30:32,200 --> 00:30:35,320
Speaker 11: preparing people years ago, but I held the faith too.

491
00:30:35,360 --> 00:30:37,640
Speaker 11: I had faith that the justice system would work. At

492
00:30:37,680 --> 00:30:41,200
Speaker 11: one point, it did. It was just overturned and from

493
00:30:41,200 --> 00:30:42,720
Speaker 11: there I guess it went downhill.

494
00:30:43,960 --> 00:30:46,440
Speaker 1: Ian Vowels was also disappointed.

495
00:30:47,240 --> 00:30:50,120
Speaker 22: One of the grievous bodily harm charges that's now been

496
00:30:50,200 --> 00:30:54,160
Speaker 22: dropped related to a major colon operation on bunderberg man

497
00:30:54,200 --> 00:30:56,480
Speaker 22: Ian vowels in two thousand and four.

498
00:30:56,880 --> 00:30:58,720
Speaker 23: If something in the making of mind all the time,

499
00:31:00,320 --> 00:31:03,000
Speaker 23: not a definite profession because it's been going on for

500
00:31:03,000 --> 00:31:05,280
Speaker 23: so long, and just to throw it up in the air

501
00:31:05,280 --> 00:31:07,000
Speaker 23: and now other things a bit too excited.

502
00:31:07,920 --> 00:31:11,800
Speaker 2: But not everyone felt the same way, and some, like

503
00:31:11,920 --> 00:31:16,240
Speaker 2: Jerry Kemps's widow Judy and the nurse Tony Hoffman, wanted

504
00:31:16,280 --> 00:31:19,240
Speaker 2: to draw a line in the sand and move on

505
00:31:19,400 --> 00:31:24,800
Speaker 2: with their lives. Patel's barrister, Ken Fleming, agreed with the decision.

506
00:31:25,800 --> 00:31:30,200
Speaker 18: We actually conduct justice on the basis of evidence, not

507
00:31:30,360 --> 00:31:35,280
Speaker 18: upon the basis of passion, which runs high in the community.

508
00:31:36,480 --> 00:31:40,760
Speaker 2: Patel would soon be heading to Brisbane International Airport. He

509
00:31:40,800 --> 00:31:44,760
Speaker 2: could look forward to another one way flight to Portland, Oregon.

510
00:31:45,480 --> 00:31:48,880
Speaker 2: Here is Tony Hoffman looking back now with the benefit

511
00:31:48,920 --> 00:31:50,160
Speaker 2: of years of reflection.

512
00:31:51,320 --> 00:31:55,760
Speaker 8: I was okay with just seeing him sent back to

513
00:31:55,800 --> 00:31:58,959
Speaker 8: the States and not be able to ever operate again.

514
00:32:00,080 --> 00:32:03,520
Speaker 8: I agreed with their decision that they shouldn't spend any

515
00:32:03,560 --> 00:32:07,840
Speaker 8: more money on him, but I was disappointed. But I

516
00:32:07,880 --> 00:32:13,320
Speaker 8: don't think I was actually surprised. I think probably because

517
00:32:13,400 --> 00:32:18,200
Speaker 8: I knew how difficult it was to secure a manslaughter

518
00:32:19,000 --> 00:32:20,840
Speaker 8: case against a doctor.

519
00:32:21,240 --> 00:32:25,160
Speaker 2: But do you also have concerns that there were stronger

520
00:32:25,240 --> 00:32:29,200
Speaker 2: cases that could have been prosecuted more successfully.

521
00:32:30,080 --> 00:32:34,000
Speaker 8: I want to say only in my ignorance, because I

522
00:32:34,120 --> 00:32:38,320
Speaker 8: see things from the eyes of a person who doesn't

523
00:32:38,720 --> 00:32:41,960
Speaker 8: have anything to do with the law. So I'm sure

524
00:32:42,000 --> 00:32:46,320
Speaker 8: if I had asked the lawyers and the barristers, they

525
00:32:46,360 --> 00:32:52,320
Speaker 8: would have explained why they didn't choose those particular patients

526
00:32:52,360 --> 00:32:56,480
Speaker 8: that I think were obvious that they could have chosen.

527
00:32:57,240 --> 00:32:59,280
Speaker 4: I wasn't privy to that information.

528
00:33:00,240 --> 00:33:05,920
Speaker 8: It's very rare in Australia that a doctor's prosecuted for manslaughterer.

529
00:33:07,000 --> 00:33:12,760
Speaker 2: Why do you think it is incredibly difficult to prosecute.

530
00:33:12,560 --> 00:33:20,560
Speaker 8: Doctors unless there's intent or gross negligence. If it was

531
00:33:20,680 --> 00:33:27,880
Speaker 8: just an error or something went wrong, it's very hard

532
00:33:28,000 --> 00:33:35,360
Speaker 8: to associate the particular doctor with whatever's gone wrong. Even

533
00:33:35,400 --> 00:33:39,360
Speaker 8: when they've proven that things have gone wrong and doctors

534
00:33:39,400 --> 00:33:44,520
Speaker 8: have been negligent, they often don't get sent to jail.

535
00:34:08,400 --> 00:34:11,560
Speaker 2: With all of the criminal cases against Patel over, by

536
00:34:11,640 --> 00:34:15,280
Speaker 2: late twenty thirteen, it was time finally for the Medical

537
00:34:15,360 --> 00:34:17,920
Speaker 2: Registration Body to weigh in again.

538
00:34:19,000 --> 00:34:20,080
Speaker 1: You'll recall that.

539
00:34:20,000 --> 00:34:23,520
Speaker 2: The gross incompetence of the Medical Board of Queensland had

540
00:34:23,560 --> 00:34:27,880
Speaker 2: allowed Patel and other liars and shunks like the pretend

541
00:34:27,960 --> 00:34:34,440
Speaker 2: psychiatrist Victor Burgh, to work in the state's public hospitals. Inexplicably,

542
00:34:34,600 --> 00:34:37,520
Speaker 2: in my view, the Board and its staff got off

543
00:34:37,600 --> 00:34:43,840
Speaker 2: relatively lightly despite abject negligence. There were no prosecutions of

544
00:34:43,880 --> 00:34:48,640
Speaker 2: staff and no sackings. It did start disciplinary action, but

545
00:34:48,760 --> 00:34:51,600
Speaker 2: not of its own staff. The action was started by

546
00:34:51,600 --> 00:34:54,880
Speaker 2: the Board against Patel back in two thousand and five,

547
00:34:55,040 --> 00:34:58,760
Speaker 2: when his lying was exposed with that faithful Google search.

548
00:35:00,000 --> 00:35:01,040
Speaker 1: As the Petel.

549
00:35:00,719 --> 00:35:05,279
Speaker 2: Scandal grew in scale, a national registration scheme was set

550
00:35:05,360 --> 00:35:09,080
Speaker 2: up and a National Board took over the disciplinary action,

551
00:35:09,520 --> 00:35:13,280
Speaker 2: which had been postponed while the criminal prosecutions were on foot.

552
00:35:14,400 --> 00:35:17,880
Speaker 2: On the day of Patel's sentencing by Judge Terry Martin

553
00:35:17,960 --> 00:35:21,600
Speaker 2: over the fraud, Patel got a notice from the National

554
00:35:21,680 --> 00:35:25,680
Speaker 2: Board it too was going after him for having lied

555
00:35:26,120 --> 00:35:31,160
Speaker 2: and having delivered poor clinical care. The Board was formally

556
00:35:31,280 --> 00:35:35,360
Speaker 2: ensuring that Patel would not work in Australia again, but

557
00:35:35,480 --> 00:35:39,640
Speaker 2: there was no realistic chance of that happening. The disgrace

558
00:35:39,719 --> 00:35:44,520
Speaker 2: surgeon had already returned to Portland, Oregon. My colleague Kreena

559
00:35:44,560 --> 00:35:49,400
Speaker 2: Berger and I interviewed doctor Ian Freckleton for this episode.

560
00:35:49,440 --> 00:35:53,120
Speaker 2: Here's a very senior barrister, a King's counsel who was

561
00:35:53,239 --> 00:35:55,120
Speaker 2: involved in the Medical Board action.

562
00:35:56,440 --> 00:35:58,200
Speaker 3: I wonder if you could tell us a little bit

563
00:35:58,200 --> 00:36:01,960
Speaker 3: about your involvement in those proceedings and also give us

564
00:36:02,000 --> 00:36:05,680
Speaker 3: a sense of what those proceedings related to.

565
00:36:06,640 --> 00:36:10,440
Speaker 24: I was counseled for the Medical Board in relation to

566
00:36:10,680 --> 00:36:13,960
Speaker 24: the disciplinary proceedings against Dr Patel.

567
00:36:15,160 --> 00:36:19,560
Speaker 2: Doctor Freckleton explained that there were two components to the action.

568
00:36:20,600 --> 00:36:25,799
Speaker 24: The first was in relation to his fraudulent procuring of

569
00:36:25,920 --> 00:36:30,760
Speaker 24: registered status in Australia, and the second was in relation

570
00:36:30,920 --> 00:36:36,759
Speaker 24: to specific patients whose operations he was responsible for and

571
00:36:36,800 --> 00:36:40,839
Speaker 24: where there had been adverse outcomes. He must have recognized

572
00:36:41,480 --> 00:36:44,240
Speaker 24: what was the likely outcome. He didn't come to Australia

573
00:36:44,280 --> 00:36:45,799
Speaker 24: for them at all.

574
00:36:45,960 --> 00:36:49,319
Speaker 2: A hearing was held in May twenty fifteen in the

575
00:36:49,400 --> 00:36:54,520
Speaker 2: Queensland Civil and Administrative Tribunal in Brisbane. Four days later,

576
00:36:54,719 --> 00:36:59,080
Speaker 2: Patel received the maximum penalty. Here's a voice actor for

577
00:36:59,320 --> 00:37:02,880
Speaker 2: Judge Ali Lexander Ornaman Wren, who heard the case and

578
00:37:02,960 --> 00:37:06,320
Speaker 2: made some pointed remarks about Betel's behavior.

579
00:37:06,840 --> 00:37:09,319
Speaker 12: One could have little, if any confidence that he would

580
00:37:09,360 --> 00:37:12,800
Speaker 12: ever in the future possess the qualities of integrity, honesty

581
00:37:13,080 --> 00:37:16,800
Speaker 12: and trustworthiness so essential for the practice of medicine. He

582
00:37:16,880 --> 00:37:19,360
Speaker 12: does not appear to have been deterred by his earlier

583
00:37:19,440 --> 00:37:24,360
Speaker 12: disciplinary experiences. The five grounds relating to his incompetent practice

584
00:37:24,560 --> 00:37:27,719
Speaker 12: are the manifest and tragic result of his obtaining unlimited

585
00:37:27,719 --> 00:37:32,319
Speaker 12: registration by his deliberate fraud. Doctor Bateell should never again

586
00:37:32,400 --> 00:37:35,120
Speaker 12: be registered to practice medicine.

587
00:37:35,239 --> 00:37:39,000
Speaker 2: After the decision, the Medical Board of Australia stated.

588
00:37:39,280 --> 00:37:43,439
Speaker 25: The Tribunal found that his practice was incompetent, showed lack

589
00:37:43,480 --> 00:37:48,080
Speaker 25: of adequate knowledge, skill, judgment and care, and fell well

590
00:37:48,160 --> 00:37:53,200
Speaker 25: below acceptable standards. This included misconduct in a professional sense,

591
00:37:53,680 --> 00:37:59,200
Speaker 25: improper and unethical conduct. This serious adverse finding will now

592
00:37:59,200 --> 00:38:03,280
Speaker 25: be on the public record and accessible to all international

593
00:38:03,440 --> 00:38:07,200
Speaker 25: medical regulators to whom doctor Pateell may apply for registration.

594
00:38:08,560 --> 00:38:10,520
Speaker 1: Here is doctor Ian Freckleton. Again.

595
00:38:11,520 --> 00:38:14,879
Speaker 24: By that stage he wasn't registered as a medical practitioner

596
00:38:15,040 --> 00:38:20,600
Speaker 24: in Australia, which limited what the Tribunal could do, and

597
00:38:20,640 --> 00:38:24,719
Speaker 24: so what it said in its extensive reasons was that

598
00:38:25,080 --> 00:38:29,520
Speaker 24: if he had been registered, the tribunal would have canceled

599
00:38:29,640 --> 00:38:34,440
Speaker 24: his registration and it would have precluded him from practice

600
00:38:35,000 --> 00:38:38,359
Speaker 24: for a lengthy period. The high point, and a very

601
00:38:38,360 --> 00:38:43,120
Speaker 24: emphatic point, was that doctor Pittel should never again be

602
00:38:43,239 --> 00:38:47,960
Speaker 24: registered to practice medicine. But what is unforgivable, of course,

603
00:38:48,200 --> 00:38:52,239
Speaker 24: is that, knowing his limitations, which had been drawn u

604
00:38:52,320 --> 00:38:57,080
Speaker 24: equivocally to his attention, he proceeded anyway, and he continued

605
00:38:57,120 --> 00:39:00,480
Speaker 24: to do it even when things had gone ray in

606
00:39:00,680 --> 00:39:03,320
Speaker 24: just the same way as it occurred in the United States.

607
00:39:03,560 --> 00:39:06,960
Speaker 24: And that's suddenly reprehensible behavior.

608
00:39:08,320 --> 00:39:11,600
Speaker 2: You'll hear more from the lawyer, doctor Ian Freckleton later

609
00:39:11,680 --> 00:39:16,280
Speaker 2: in this episode. On the day of the tribunal's decision,

610
00:39:16,600 --> 00:39:21,680
Speaker 2: seven News spoke with Doris Hillier, a former patient of Patel's.

611
00:39:22,120 --> 00:39:26,280
Speaker 16: Former Bunderberg based hospital. Doctor Jan Patel is now blacklisted.

612
00:39:26,680 --> 00:39:30,719
Speaker 26: The only stethoscope that that individual should have is to

613
00:39:30,760 --> 00:39:33,000
Speaker 26: go into a toy shop and buy AA doctors and

614
00:39:33,080 --> 00:39:36,120
Speaker 26: nurse's kit and get the stethoscope out of there. What

615
00:39:36,200 --> 00:39:39,719
Speaker 26: that man did to so many people, there's no way

616
00:39:39,719 --> 00:39:42,560
Speaker 26: in the wild that we can ever forgive that man.

617
00:39:42,920 --> 00:39:44,040
Speaker 4: I don't forgive.

618
00:39:44,960 --> 00:39:47,200
Speaker 1: Cheryl Johnson was also interviewed.

619
00:39:47,560 --> 00:39:52,920
Speaker 2: Patel had wrongly diagnosed Cheryl's husband Barry with cancer. Barry

620
00:39:53,040 --> 00:39:57,239
Speaker 2: died aged fifty seven after Patel performed a risky and

621
00:39:57,520 --> 00:40:02,960
Speaker 2: unnecessary Whipple's procedure involving surgery on the pancreas, even though

622
00:40:03,160 --> 00:40:06,719
Speaker 2: US authorities had previously banned him from that operation.

623
00:40:07,840 --> 00:40:11,279
Speaker 27: Of course, we beat ourselves up because we felt our fault.

624
00:40:11,320 --> 00:40:15,040
Speaker 27: Why didn't we go through to Brisbane? And Bettel was

625
00:40:15,120 --> 00:40:18,600
Speaker 27: so ardament that he had done hundreds of these operations,

626
00:40:19,040 --> 00:40:22,160
Speaker 27: And even now on this last episode, I see his

627
00:40:22,239 --> 00:40:26,759
Speaker 27: face on there in the end and I think, ah, end,

628
00:40:28,239 --> 00:40:28,920
Speaker 27: but it has.

629
00:40:30,840 --> 00:40:34,600
Speaker 2: While researching this episode, I found a document sent to

630
00:40:34,760 --> 00:40:37,759
Speaker 2: me by Cheryl in late two thousand and six when

631
00:40:37,800 --> 00:40:43,040
Speaker 2: people used bax machines. The document was an expert witness report.

632
00:40:43,600 --> 00:40:47,280
Speaker 2: It was from doctor David Morris, a professor of surgery,

633
00:40:47,440 --> 00:40:51,080
Speaker 2: after he had examined the Bunderberg Hospital clinical notes for

634
00:40:51,320 --> 00:40:56,520
Speaker 2: Barry Johnson. Doctor Morris had been asked by Queensland's Health

635
00:40:56,600 --> 00:41:01,560
Speaker 2: Quality Complaints Commission to answer a number of quests. Several

636
00:41:01,560 --> 00:41:05,960
Speaker 2: of those questions and his written answers are reproduced here.

637
00:41:06,120 --> 00:41:10,759
Speaker 2: Now voice actors have read the answers and the questions.

638
00:41:11,239 --> 00:41:13,359
Speaker 16: Was surgical intervention appropriate?

639
00:41:14,320 --> 00:41:17,680
Speaker 2: At the start of his expert witness report, Dr Morris

640
00:41:17,760 --> 00:41:22,719
Speaker 2: stated that surgical intervention was not appropriate and that if

641
00:41:22,760 --> 00:41:26,920
Speaker 2: a better assessment had been performed, Barry Johnson would have

642
00:41:26,960 --> 00:41:31,479
Speaker 2: avoided surgery and had an almost normal chance of long

643
00:41:31,560 --> 00:41:32,360
Speaker 2: term survival.

644
00:41:33,320 --> 00:41:37,040
Speaker 6: Did the patient experience an adverse outcome from the treatment

645
00:41:37,520 --> 00:41:39,120
Speaker 6: or procedure of Doctor Patel?

646
00:41:39,719 --> 00:41:45,040
Speaker 28: Yes, mister Johnson died postoperatively, almost certainly from postoperative complications

647
00:41:45,320 --> 00:41:48,000
Speaker 28: and following surgery which he should not have had.

648
00:41:48,960 --> 00:41:52,200
Speaker 6: Did the adverse outcome have a material effect on the

649
00:41:52,280 --> 00:41:55,960
Speaker 6: quality of the deceased's remaining life or curtail it.

650
00:41:56,600 --> 00:41:59,960
Speaker 28: Yes, mister Johnson died following his surgery and maywell have

651
00:42:00,280 --> 00:42:03,279
Speaker 28: lived for many years had he not had surgery.

652
00:42:04,200 --> 00:42:07,080
Speaker 6: Would it be usual practice to refer such a patient

653
00:42:07,200 --> 00:42:08,520
Speaker 6: to a tertiary facility.

654
00:42:09,360 --> 00:42:12,520
Speaker 28: Yes, I believe mister Johnson should have been referred, and

655
00:42:12,600 --> 00:42:15,600
Speaker 28: I do believe it is very likely that he would

656
00:42:15,640 --> 00:42:18,719
Speaker 28: not have had surgery and he would have had a

657
00:42:18,800 --> 00:42:22,120
Speaker 28: stent placed instead. And I think that it is also

658
00:42:22,440 --> 00:42:25,239
Speaker 28: likely he would still be alive and would have a

659
00:42:25,280 --> 00:42:30,480
Speaker 28: good long term prognosis from this benign chronic pancreatitis. Did

660
00:42:30,560 --> 00:42:35,000
Speaker 28: any aspect of the surgery performed by doctor Patel contribute

661
00:42:35,000 --> 00:42:39,640
Speaker 28: to or cause the death of the patient? Yes, postoperative

662
00:42:39,680 --> 00:42:43,920
Speaker 28: complications caused the death of mister Johnson. Not only were

663
00:42:43,920 --> 00:42:48,440
Speaker 28: the postoperative complications almost certainly avoidable and treatable, but the

664
00:42:48,520 --> 00:42:51,759
Speaker 28: surgery should not have been done.

665
00:42:52,000 --> 00:42:56,440
Speaker 2: There is another fascinating footnote in the Patel files. In

666
00:42:56,480 --> 00:43:00,560
Speaker 2: February twenty fourteen, Patel gave instructions from his home in

667
00:43:00,640 --> 00:43:05,279
Speaker 2: Oregon to a new solicitor in Brisbane. Patel wanted to

668
00:43:05,520 --> 00:43:10,080
Speaker 2: sue his former lawyers. Patel alleged that solicitors of the

669
00:43:10,120 --> 00:43:13,759
Speaker 2: suburban law firm which had defended him, along with a

670
00:43:13,920 --> 00:43:17,600
Speaker 2: then junior defense barrister who was in the thick of it,

671
00:43:17,719 --> 00:43:22,000
Speaker 2: lacked the skill and experience to do criminal trials, and,

672
00:43:22,080 --> 00:43:25,840
Speaker 2: according to Patel, his former lawyers had failed.

673
00:43:25,400 --> 00:43:27,719
Speaker 1: To obtain from the prosecution the.

674
00:43:27,680 --> 00:43:32,680
Speaker 2: Full details of the chargers and allegations he faced. Therefore,

675
00:43:32,800 --> 00:43:36,880
Speaker 2: the surgeon claimed his own lawyers could not properly advise

676
00:43:37,040 --> 00:43:42,600
Speaker 2: him about best defense strategy. The fully disgraced surgeon wanted

677
00:43:42,760 --> 00:43:46,480
Speaker 2: eight hundred and eighty four thousand dollars in damages, which

678
00:43:46,560 --> 00:43:49,080
Speaker 2: was the amount of money that he said he had

679
00:43:49,160 --> 00:43:53,440
Speaker 2: paid in legal fees. Three and a half months later,

680
00:43:53,800 --> 00:43:57,080
Speaker 2: the Queensland District Court was alerted to what is called

681
00:43:57,160 --> 00:44:01,160
Speaker 2: a notice of discontinuance. It was filed on behalf of

682
00:44:01,239 --> 00:44:04,200
Speaker 2: Patel and it meant that he had stopped his legal

683
00:44:04,239 --> 00:44:10,080
Speaker 2: action against his former lawyers. You've heard the senior barrister,

684
00:44:10,200 --> 00:44:14,160
Speaker 2: doctor Ian Freckleton speaking about the Medical Board of Australia's

685
00:44:14,200 --> 00:44:19,240
Speaker 2: action against Patel in our interview with him. Kaarina Berger

686
00:44:19,320 --> 00:44:22,920
Speaker 2: and I also asked doctor Freckleton for his views on

687
00:44:23,000 --> 00:44:25,960
Speaker 2: some things that we had been debating while we were

688
00:44:26,040 --> 00:44:30,520
Speaker 2: researching and writing this episode and the previous one.

689
00:44:30,880 --> 00:44:31,840
Speaker 1: In two thousand and.

690
00:44:31,760 --> 00:44:36,160
Speaker 29: Five, we heard a very significant amount of evidence in

691
00:44:36,200 --> 00:44:41,759
Speaker 29: relation to doctor Patel's alleged negligence with patients in so

692
00:44:41,920 --> 00:44:44,480
Speaker 29: far as the damage that was caused to them, and

693
00:44:44,520 --> 00:44:48,400
Speaker 29: that was evidence that came from senior surgeons like doctor

694
00:44:48,440 --> 00:44:50,160
Speaker 29: de Lacy and others.

695
00:44:50,840 --> 00:44:56,400
Speaker 2: And yet in the criminal trial the prosecution changed course

696
00:44:56,920 --> 00:45:00,960
Speaker 2: away from the allegations of negligence and more towards a

697
00:45:01,280 --> 00:45:03,600
Speaker 2: proposition that he shouldn't have done the procedures in the

698
00:45:03,680 --> 00:45:07,120
Speaker 2: first place. But having been done, they weren't done incompetently.

699
00:45:07,480 --> 00:45:12,120
Speaker 24: For the most part, the way in which the case

700
00:45:12,160 --> 00:45:17,520
Speaker 24: against him evolved was complicated by the fact that there

701
00:45:17,520 --> 00:45:21,200
Speaker 24: had been so much adverse publicity. The law wrestles with

702
00:45:21,800 --> 00:45:24,759
Speaker 24: how it can be fair to a person and that

703
00:45:25,239 --> 00:45:29,680
Speaker 24: illegitimate reasoning is not engaged in bio jury, and that

704
00:45:29,880 --> 00:45:34,279
Speaker 24: was part of what resulted in ultimately the decision by

705
00:45:34,440 --> 00:45:39,360
Speaker 24: the High Court that the proceedings had not been fair.

706
00:45:39,680 --> 00:45:41,839
Speaker 24: And then of course it went back for a very

707
00:45:41,880 --> 00:45:46,400
Speaker 24: limited retrial and effectively a clea bargain was reached relation

708
00:45:46,600 --> 00:45:49,640
Speaker 24: to much less serious matters taking place.

709
00:45:50,600 --> 00:45:53,440
Speaker 2: It must just be a bit of a confusion or

710
00:45:53,440 --> 00:45:57,960
Speaker 2: a puzzle for our listeners when we unpacked this episode

711
00:45:58,440 --> 00:46:02,120
Speaker 2: when they've heard so information that it's drawn directly from

712
00:46:02,160 --> 00:46:05,240
Speaker 2: the public hearings, from the transcripts and evidence that related

713
00:46:05,320 --> 00:46:10,480
Speaker 2: to his incompetence as a surgeon in Australia and his

714
00:46:10,600 --> 00:46:14,680
Speaker 2: incompetence that led to him being severely disciplined in the

715
00:46:14,800 --> 00:46:18,160
Speaker 2: United States. For us to get to a situation in

716
00:46:18,160 --> 00:46:22,480
Speaker 2: the criminal justice system where the allegation isn't about his

717
00:46:23,280 --> 00:46:27,160
Speaker 2: incompetence with a scalpel, it's more about his judgment expert evidence,

718
00:46:27,200 --> 00:46:31,240
Speaker 2: so damning in one forum doesn't measure up in the next.

719
00:46:31,920 --> 00:46:33,279
Speaker 16: Yes, it's deeparly confronting.

720
00:46:34,880 --> 00:46:38,799
Speaker 2: There are dangerous drivers on our roads every day, and

721
00:46:38,920 --> 00:46:42,120
Speaker 2: some who are paid to drive people or goods over

722
00:46:42,239 --> 00:46:46,480
Speaker 2: long and short distances, cause fatal accidents the course of

723
00:46:46,560 --> 00:46:52,520
Speaker 2: their negligence behind the wheel. They are routinely criminally prosecuted.

724
00:46:53,600 --> 00:46:58,799
Speaker 2: I asked doctor Freckleton whether surgeons who operate negligently and

725
00:46:58,920 --> 00:47:03,359
Speaker 2: in doing so injure or even kill their patients are

726
00:47:03,400 --> 00:47:08,120
Speaker 2: treated differently by the courts, and if so, why.

727
00:47:08,840 --> 00:47:14,040
Speaker 24: Yes, it's very different, because you're dealing with a professional

728
00:47:14,120 --> 00:47:19,000
Speaker 24: who usually is highly trained and well meaning, as against

729
00:47:19,040 --> 00:47:23,040
Speaker 24: a driver who takes drugs or drinks a significant amount

730
00:47:23,040 --> 00:47:26,719
Speaker 24: of alcohol, drives at an absurd speed, and ends up

731
00:47:26,760 --> 00:47:30,680
Speaker 24: in an accident that kills someone. Now, in terms of

732
00:47:31,120 --> 00:47:36,839
Speaker 24: criminal proceedings against medical practitioners, they're rarely brought, and they

733
00:47:37,080 --> 00:47:44,080
Speaker 24: even more seldom succeed. They're complex, they're technical, and in

734
00:47:44,120 --> 00:47:51,160
Speaker 24: most scenarios jurors are hesitant to find that the high

735
00:47:51,360 --> 00:47:56,960
Speaker 24: standard is reached of negligent manslaughter and resurgeons get the

736
00:47:57,040 --> 00:48:01,000
Speaker 24: benefit of doubt, even though the outcome is adverse. Even

737
00:48:01,120 --> 00:48:04,040
Speaker 24: though there might be question monks about the selection of

738
00:48:04,080 --> 00:48:08,040
Speaker 24: a patient, the selection of a procedure, the responsiveness and

739
00:48:08,120 --> 00:48:12,799
Speaker 24: the aftermath of complications, it's really quite rare for a

740
00:48:12,880 --> 00:48:15,000
Speaker 24: surgeon to be found guilty.

741
00:48:15,440 --> 00:48:20,240
Speaker 2: Doctor Freckleton described the prosecution's radical remaking of its case

742
00:48:20,560 --> 00:48:23,279
Speaker 2: and the unveiling to Betel of a new set of

743
00:48:23,400 --> 00:48:26,440
Speaker 2: revised particulars on the forty third day of.

744
00:48:26,400 --> 00:48:31,960
Speaker 24: The trial as extraordinary and really unfortunate. The nightmare scenario

745
00:48:31,960 --> 00:48:35,600
Speaker 24: for the prosecution nearly nine weeks into a trial is

746
00:48:35,640 --> 00:48:39,960
Speaker 24: a dreadful outcome from their point of view. Allegations that

747
00:48:40,160 --> 00:48:43,240
Speaker 24: he had been criminally negligent in the conduct of century

748
00:48:43,840 --> 00:48:46,360
Speaker 24: were no longer pressed, nor was it said that the

749
00:48:46,440 --> 00:48:50,920
Speaker 24: deaths or serious bodily harm were caused by negligent post

750
00:48:50,960 --> 00:48:54,880
Speaker 24: operative care. So what you had at this very advanced

751
00:48:54,920 --> 00:49:01,040
Speaker 24: stage of betrayal was the prosecution recalibrating fundamentally and focusing

752
00:49:01,080 --> 00:49:04,279
Speaker 24: upon whether the surgical procedure in each case ought to

753
00:49:04,360 --> 00:49:08,080
Speaker 24: have been undertaken, And ultimately that's what led to the

754
00:49:08,200 --> 00:49:10,760
Speaker 24: success of doctor Patel in the High Court.

755
00:49:11,920 --> 00:49:15,200
Speaker 2: Listeners and readers now so scratching their head waning well

756
00:49:15,600 --> 00:49:19,440
Speaker 2: did they just mess up the prosecution adopt the wrong strategy.

757
00:49:19,600 --> 00:49:21,080
Speaker 1: Or was he not that bad after all?

758
00:49:21,800 --> 00:49:23,800
Speaker 16: So where does that leave things.

759
00:49:24,640 --> 00:49:28,160
Speaker 24: He had been the subject of multiple prior matters going

760
00:49:28,200 --> 00:49:33,280
Speaker 24: to his competence and capacity to do complex procedures, whipple

761
00:49:33,360 --> 00:49:40,279
Speaker 24: procedures ofesophagectomies and similar delicate problematic procedures which have a

762
00:49:40,320 --> 00:49:45,319
Speaker 24: significant potential to miscarry, And standing back from it, one

763
00:49:45,360 --> 00:49:48,120
Speaker 24: can see that he wasn't very good, and that was

764
00:49:48,160 --> 00:49:54,120
Speaker 24: why the Americans took the step of limiting what they

765
00:49:54,160 --> 00:49:57,640
Speaker 24: call scope of practice for surgery in the United States.

766
00:49:58,360 --> 00:50:02,480
Speaker 24: He most assuredly knew, on the basis of multiple cases

767
00:50:02,840 --> 00:50:05,319
Speaker 24: to which he had been taken to task, that his

768
00:50:05,400 --> 00:50:12,160
Speaker 24: performance was seriously substandard and censured in respect of a

769
00:50:12,239 --> 00:50:17,440
Speaker 24: number of kinds of complex surgery, and having succeeded in

770
00:50:17,800 --> 00:50:20,680
Speaker 24: procuring registration which he should never have got.

771
00:50:21,640 --> 00:50:23,920
Speaker 16: Of course, what he did was to embark.

772
00:50:23,600 --> 00:50:27,400
Speaker 24: Upon the same kinds of surgery where his frailties and

773
00:50:27,440 --> 00:50:31,680
Speaker 24: his inadequacies had been exposed in the United States. Perhaps

774
00:50:31,760 --> 00:50:35,239
Speaker 24: he thought that he was liberated to do what he

775
00:50:35,360 --> 00:50:38,359
Speaker 24: genuinely believed he could do well because it was merely

776
00:50:38,400 --> 00:50:42,200
Speaker 24: in Bunderberg. Perhaps there was some feeling that he could

777
00:50:42,440 --> 00:50:45,720
Speaker 24: vindicate himself by doing what he'd been found he hadn't

778
00:50:45,719 --> 00:50:49,319
Speaker 24: done properly in the United States. Perhaps it was some

779
00:50:49,440 --> 00:50:53,840
Speaker 24: kind of a journey of self reclamation on his part.

780
00:50:54,920 --> 00:50:58,799
Speaker 3: You mentioned earlier, doctor Frackleton, that jurors could be very

781
00:50:58,840 --> 00:51:04,880
Speaker 3: reluctant to convict a doctor for criminal medical negligence, and

782
00:51:04,920 --> 00:51:09,160
Speaker 3: I wondered whether you think that expert witnesses in such

783
00:51:09,200 --> 00:51:13,040
Speaker 3: a case might also be reluctant to hold one of

784
00:51:13,080 --> 00:51:16,640
Speaker 3: their peers guilty of medical negligence.

785
00:51:17,320 --> 00:51:23,600
Speaker 24: Yes, it is difficult to obtain independent medical evidence in

786
00:51:23,600 --> 00:51:27,440
Speaker 24: the case that is highly sensitive, where the deficiencies involved

787
00:51:27,480 --> 00:51:31,520
Speaker 24: are surgical. The surgeons are conscious that while they might

788
00:51:31,560 --> 00:51:35,080
Speaker 24: not have done the same exactly, they too stand at

789
00:51:35,120 --> 00:51:40,480
Speaker 24: some measure of risk, and they're apprehensive but taking too

790
00:51:40,560 --> 00:51:43,360
Speaker 24: strong a stand in relation to these kinds of matters.

791
00:51:44,040 --> 00:51:47,480
Speaker 24: It's hard to get the convictions, and it's limited in

792
00:51:47,560 --> 00:51:52,400
Speaker 24: terms of its effectiveness as amans of improving the quality

793
00:51:52,440 --> 00:51:54,240
Speaker 24: of practice within a profession.

794
00:51:53,880 --> 00:51:59,560
Speaker 2: Generally, Why when doctor Bottel had obtained employment in Australia

795
00:51:59,680 --> 00:52:04,440
Speaker 2: through fraud and was not permitted to practice as a doctor,

796
00:52:05,040 --> 00:52:08,879
Speaker 2: wasn't it a criminal assault every time he just put

797
00:52:08,920 --> 00:52:12,880
Speaker 2: a hand on a patient, let alone cut them open

798
00:52:12,880 --> 00:52:13,680
Speaker 2: with a scalpel.

799
00:52:14,640 --> 00:52:19,399
Speaker 24: That's a good question and a difficult argument because he

800
00:52:19,560 --> 00:52:24,200
Speaker 24: was registered to practice and so he was entitled, although

801
00:52:24,239 --> 00:52:27,200
Speaker 24: he should not have been to work as the surgeon.

802
00:52:27,360 --> 00:52:30,000
Speaker 24: But it doesn't follow from the fact that he secured

803
00:52:30,040 --> 00:52:33,439
Speaker 24: his registration by fraud for everything that he did after

804
00:52:33,480 --> 00:52:37,239
Speaker 24: that was criminal. A lot of responsibility has to go

805
00:52:37,400 --> 00:52:42,280
Speaker 24: back to the unfortunate decision making of those who registered him.

806
00:52:42,760 --> 00:52:46,000
Speaker 24: The outcome of the Patel phenomenon has been much more

807
00:52:46,040 --> 00:52:52,160
Speaker 24: attentive care taken in the registration processes, a much more

808
00:52:52,320 --> 00:52:56,600
Speaker 24: acute awareness often need to be rigorous in terms of

809
00:52:56,840 --> 00:53:02,080
Speaker 24: checking claims and checking the status of people of what

810
00:53:02,160 --> 00:53:03,359
Speaker 24: need to be done with a Google search.

811
00:53:03,719 --> 00:53:04,600
Speaker 16: It's a tragic thing.

812
00:53:05,239 --> 00:53:09,560
Speaker 2: How do you see the Petel case in the landscape

813
00:53:09,600 --> 00:53:16,240
Speaker 2: of medical negligence and allege medic called criminal negligence in Australia,

814
00:53:16,440 --> 00:53:17,200
Speaker 2: Doctor Preckleton.

815
00:53:18,320 --> 00:53:21,640
Speaker 24: My own view is that generally the criminal law doesn't

816
00:53:21,719 --> 00:53:26,399
Speaker 24: sit easily in this area. The requirements of proof are

817
00:53:26,560 --> 00:53:31,279
Speaker 24: high as they must be, and in many scenarios there

818
00:53:31,400 --> 00:53:35,839
Speaker 24: is the likelihood that there will be some ambiguity and

819
00:53:36,120 --> 00:53:39,480
Speaker 24: a reasonable cross section of people who would practice an

820
00:53:39,520 --> 00:53:44,880
Speaker 24: area and say that the conduct was not sufficiently unacceptable

821
00:53:45,719 --> 00:53:49,200
Speaker 24: to reach the criminal standard of gross negligence.

822
00:53:50,160 --> 00:53:51,440
Speaker 16: I'm not sure that.

823
00:53:51,280 --> 00:53:55,480
Speaker 24: It is an especially worthwhile thing to be Sending health

824
00:53:55,520 --> 00:54:01,480
Speaker 24: practitioners to prison has caused havoc, distress, suffering death for people.

825
00:54:02,480 --> 00:54:06,440
Speaker 24: But whether in the greater scheme of things, penalizing him

826
00:54:06,520 --> 00:54:09,800
Speaker 24: with that kind of sanction is going to improve practice,

827
00:54:10,640 --> 00:54:14,640
Speaker 24: I have some reservations. Criminal laws of blunt instrument and

828
00:54:15,120 --> 00:54:18,360
Speaker 24: regulatory law has the potential to hone in on what

829
00:54:18,800 --> 00:54:21,720
Speaker 24: was going wrong and why it was going wrong, looking

830
00:54:21,800 --> 00:54:24,759
Speaker 24: then to see whether it's remediable. If it isn't, the

831
00:54:24,800 --> 00:54:27,080
Speaker 24: person has to be stopped from doing those procedures or

832
00:54:27,080 --> 00:54:30,319
Speaker 24: stopped from working at all. That seems to me to

833
00:54:30,440 --> 00:54:35,000
Speaker 24: be a better way of protecting the community in most,

834
00:54:35,320 --> 00:54:39,640
Speaker 24: not all circumstances. There were some major systems issues with

835
00:54:39,920 --> 00:54:45,760
Speaker 24: Dr Patel. The whole system enabled him to conduct himself

836
00:54:45,760 --> 00:54:50,200
Speaker 24: in the way that he did without virtually any inhibition.

837
00:54:51,160 --> 00:54:55,640
Speaker 24: Drawing the lens back and looking at systems is terribly

838
00:54:55,640 --> 00:55:00,600
Speaker 24: important because while it's easy to focus on into aitual palpability,

839
00:55:01,320 --> 00:55:04,960
Speaker 24: usually that occurs in a context which has allowed it

840
00:55:05,040 --> 00:55:09,359
Speaker 24: to take place, sometimes even encouraged it. The system let

841
00:55:09,640 --> 00:55:14,560
Speaker 24: Australians down by registering Patel that there was no real oversight.

842
00:55:15,360 --> 00:55:19,560
Speaker 24: You had a system which enabled a person who wasn't

843
00:55:19,600 --> 00:55:22,879
Speaker 24: prepared to play by the rules to persist in that way.

844
00:55:25,040 --> 00:55:29,480
Speaker 2: Margaret Kaneen prosecuted some of the most notorious cases in

845
00:55:29,560 --> 00:55:33,960
Speaker 2: New South Wales and in Queensland. She described some of

846
00:55:34,000 --> 00:55:37,640
Speaker 2: the challenges in criminal cases against doctors in a speech

847
00:55:38,000 --> 00:55:42,160
Speaker 2: shortly after the first manslaughter trial of Patel resulted in

848
00:55:42,280 --> 00:55:46,440
Speaker 2: his conviction. These are Margaret Kanen's words, but it's not

849
00:55:46,560 --> 00:55:47,840
Speaker 2: her voice.

850
00:55:48,120 --> 00:55:52,120
Speaker 30: It is really very difficult to prosecute medical practitioners criminally.

851
00:55:52,800 --> 00:55:57,719
Speaker 30: Even highly trained, intelligent, and generally well motivated professionals interacting

852
00:55:57,760 --> 00:56:01,640
Speaker 30: with powerful drugs and complex technology can make errors.

853
00:56:02,719 --> 00:56:04,960
Speaker 16: They are always expected to be well meaning.

854
00:56:05,760 --> 00:56:08,360
Speaker 30: We can generally be certain that they don't choose to

855
00:56:08,360 --> 00:56:13,040
Speaker 30: commit errors, even though as human beings involved in fine

856
00:56:13,120 --> 00:56:17,000
Speaker 30: judgments in situations where each individual is unique, they will

857
00:56:17,040 --> 00:56:21,880
Speaker 30: almost all do so. Life is fragile, particularly for people

858
00:56:21,960 --> 00:56:24,759
Speaker 30: at any age in life who find themselves in need

859
00:56:24,840 --> 00:56:29,640
Speaker 30: of medical assistance. A mistake can be irreversible and catastrophic.

860
00:56:30,160 --> 00:56:33,920
Speaker 30: But mistakes are not, as a rule, crimes. That's the

861
00:56:33,960 --> 00:56:38,200
Speaker 30: fundamental difficulty. The criminal law is not equipped with much

862
00:56:38,239 --> 00:56:42,120
Speaker 30: power to prosecute doctors very effectively because of the expectation

863
00:56:42,280 --> 00:56:45,640
Speaker 30: that doctors will not do something maliciously against a patient.

864
00:56:46,320 --> 00:56:49,839
Speaker 30: The expectation is that doctors will only make mistakes which

865
00:56:49,880 --> 00:56:52,200
Speaker 30: may or may not be civil negligence.

866
00:56:53,640 --> 00:56:58,040
Speaker 2: Margaret Kneen had researched the case. From eighteen ninety three,

867
00:56:58,920 --> 00:57:02,879
Speaker 2: a Polish man called John Lubienski went to the bedside

868
00:57:02,920 --> 00:57:06,040
Speaker 2: of a woman who was trying to give birth in Dubbo,

869
00:57:06,239 --> 00:57:07,120
Speaker 2: west of Sydney.

870
00:57:07,960 --> 00:57:10,200
Speaker 30: He was practicing as a doctor, but he was not

871
00:57:10,239 --> 00:57:13,320
Speaker 30: a legally qualified medical man. He was called to a

872
00:57:13,400 --> 00:57:16,360
Speaker 30: tender lady during her confinement and it was a disaster.

873
00:57:17,360 --> 00:57:21,080
Speaker 30: In fact, a real doctor, a doctor Fitzpatrick, arrived at

874
00:57:21,080 --> 00:57:23,800
Speaker 30: this unfortunate lady's home to find her in a state

875
00:57:23,840 --> 00:57:28,120
Speaker 30: of extreme exhaustion. As doctor Fitzpatrick would later say in evidence,

876
00:57:29,000 --> 00:57:29,520
Speaker 30: owing to.

877
00:57:29,480 --> 00:57:31,480
Speaker 31: The condition of the mother, I had to use four

878
00:57:31,560 --> 00:57:35,200
Speaker 31: steps and the birth took place immediately. I made an

879
00:57:35,240 --> 00:57:38,560
Speaker 31: examination of the body of the child. I should say

880
00:57:38,560 --> 00:57:41,560
Speaker 31: it had been dead for two or three hours. It

881
00:57:41,640 --> 00:57:45,480
Speaker 31: was well nourished, full grown, and well formed. The right

882
00:57:45,600 --> 00:57:48,920
Speaker 31: leg was swollen and black. It was dislocated at the

883
00:57:49,000 --> 00:57:51,840
Speaker 31: hip joint, hanging loosely from the body, and seemed to

884
00:57:51,880 --> 00:57:54,360
Speaker 31: have been twisted naturally.

885
00:57:54,400 --> 00:57:56,920
Speaker 30: The baby, of course, had died, and I don't think

886
00:57:56,960 --> 00:58:00,280
Speaker 30: its mother lived very much longer. But this medical man,

887
00:58:00,000 --> 00:58:04,120
Speaker 30: and not a legally qualified man, Levinski, was charged with

888
00:58:04,200 --> 00:58:08,520
Speaker 30: maliciously inflicting grievous bodily harm on the child during delivery.

889
00:58:09,120 --> 00:58:11,840
Speaker 30: The Crown argued that the man was utterly ignorant and

890
00:58:11,920 --> 00:58:13,720
Speaker 30: incompetent to perform the procedure.

891
00:58:15,040 --> 00:58:21,320
Speaker 2: The then Supreme Court Justice William Windier concluded that although Lubynski.

892
00:58:21,200 --> 00:58:24,160
Speaker 31: May have displayed ignorance, he could not be said to

893
00:58:24,160 --> 00:58:25,320
Speaker 31: have acted maliciously.

894
00:58:26,040 --> 00:58:29,680
Speaker 21: He did not act recklessly or with indifference to human life.

895
00:58:31,200 --> 00:58:33,360
Speaker 30: I can only say that I fear that the law

896
00:58:33,400 --> 00:58:35,440
Speaker 30: has not moved on very much when it comes to

897
00:58:35,480 --> 00:58:37,520
Speaker 30: the criminal prosecution of doctors.

898
00:58:39,960 --> 00:58:42,880
Speaker 2: We are almost at the very end of this series.

899
00:58:43,800 --> 00:58:48,400
Speaker 2: Tony Hoffman should have the last word. Throughout two thousand

900
00:58:48,440 --> 00:58:52,400
Speaker 2: and five, as a result of all of this scandal

901
00:58:52,480 --> 00:58:58,479
Speaker 2: being exposed, we saw not one but two public inquiries, and.

902
00:58:58,400 --> 00:59:01,160
Speaker 8: I actually said to Peter b when he came up

903
00:59:01,200 --> 00:59:05,320
Speaker 8: to visit one time when he wanted to shut the

904
00:59:05,360 --> 00:59:09,400
Speaker 8: inquiry down, you've got a chance to get this right

905
00:59:09,600 --> 00:59:12,560
Speaker 8: within Queensland help but we didn't get it right.

906
00:59:13,320 --> 00:59:15,400
Speaker 4: Unfortunately, It's not right.

907
00:59:16,200 --> 00:59:17,720
Speaker 1: Was it right for a few years.

908
00:59:18,400 --> 00:59:23,520
Speaker 8: It was better for a few years. It's going to

909
00:59:23,600 --> 00:59:29,680
Speaker 8: take another crisis to really get in and fix what's

910
00:59:29,720 --> 00:59:35,560
Speaker 8: going on now because the problems with resourcing and ramping

911
00:59:35,760 --> 00:59:41,760
Speaker 8: and staff ratios and competence, all of those sorts of

912
00:59:41,800 --> 00:59:47,320
Speaker 8: things raising their ugly heads again. We just don't have

913
00:59:47,480 --> 00:59:51,920
Speaker 8: enough resources to care for our patients properly.

914
00:59:52,880 --> 00:59:58,640
Speaker 2: We look at how Australia's first world health system operates

915
00:59:59,080 --> 01:00:04,600
Speaker 2: and all good things that it does, but I doubt

916
01:00:04,680 --> 01:00:07,520
Speaker 2: you can ever have a system that can be all

917
01:00:07,600 --> 01:00:11,600
Speaker 2: things to all people and be funded by the public purse.

918
01:00:12,160 --> 01:00:15,360
Speaker 8: It might come down to changing the way we do

919
01:00:15,440 --> 01:00:18,600
Speaker 8: things that they have to look at the salaries of

920
01:00:18,800 --> 01:00:23,760
Speaker 8: the executives, because they are huge. There comes a point

921
01:00:23,760 --> 01:00:28,200
Speaker 8: where the salaries are more important to the executives than

922
01:00:28,240 --> 01:00:33,240
Speaker 8: the patients are. It becomes about protecting your salary rather

923
01:00:33,280 --> 01:00:37,120
Speaker 8: than working for the patients. I think that's something that

924
01:00:37,240 --> 01:00:39,480
Speaker 8: we have to look at really carefully.

925
01:00:40,240 --> 01:00:44,880
Speaker 2: And many of those executive jobs, if they didn't exist.

926
01:00:45,040 --> 01:00:45,960
Speaker 4: Would anyone notice?

927
01:00:46,000 --> 01:00:47,040
Speaker 1: Would anyone notice?

928
01:00:47,600 --> 01:00:47,760
Speaker 23: No?

929
01:00:48,400 --> 01:00:53,960
Speaker 2: And yet the nurses and the doctors are absolutely overworked.

930
01:00:54,200 --> 01:00:57,600
Speaker 8: And it's not just that they're overworked and underpaid. They

931
01:00:57,600 --> 01:00:59,880
Speaker 8: don't take their meal brakes, they don't take their teep

932
01:01:00,200 --> 01:01:03,160
Speaker 8: sag our home late, they do extra work, they come

933
01:01:03,200 --> 01:01:05,840
Speaker 8: in on the days of One of the things that

934
01:01:06,080 --> 01:01:11,320
Speaker 8: may change the way healthcare is delivered is the focus

935
01:01:11,400 --> 01:01:19,240
Speaker 8: on corporate manslaughter, making the corporate sector responsible for things

936
01:01:19,320 --> 01:01:27,000
Speaker 8: like staff patient ratios, adequate resourcing, staffing. They're not taking

937
01:01:27,000 --> 01:01:28,920
Speaker 8: any responsibility at the moment.

938
01:01:31,160 --> 01:01:35,000
Speaker 2: Seek to Death is written and presented by me Hedley Thomas,

939
01:01:35,200 --> 01:01:40,320
Speaker 2: the Australians National Chief correspondent. Claire Harvey is The Australian's

940
01:01:40,520 --> 01:01:41,560
Speaker 2: editorial director.

941
01:01:42,160 --> 01:01:45,320
Speaker 1: Audio editing, production and music have.

942
01:01:45,400 --> 01:01:49,760
Speaker 2: Been done by Jasper Leik, with assistance from Leah Sammerglu

943
01:01:50,040 --> 01:01:55,120
Speaker 2: and Neil Sutherland. Our producer is Christin Amias. Production management

944
01:01:55,280 --> 01:02:01,800
Speaker 2: by Stephanie Coombs, artwork by Sean Kallenan. Thanks to Ryan Osland,

945
01:02:01,960 --> 01:02:08,120
Speaker 2: Matthew Condon, Kaarina Berger, Ellie Dudley David Murray, Dominique McDermott,

946
01:02:08,720 --> 01:02:13,360
Speaker 2: Zach Sculander, and all our family, friends and colleagues who

947
01:02:13,480 --> 01:02:17,800
Speaker 2: helped in this series and contributed voice acting and special

948
01:02:17,880 --> 01:02:23,960
Speaker 2: thanks to Tony Hoffman and Rob Messenger. Subscribers to The Australian.

949
01:02:24,160 --> 01:02:28,560
Speaker 2: Here new episodes of Sick to Death first at Sick

950
01:02:28,600 --> 01:02:33,800
Speaker 2: to deathpodcast dot com and on Apple Podcasts. You can

951
01:02:33,840 --> 01:02:39,640
Speaker 2: get exclusive access to photographs, videos, timelines and more at

952
01:02:39,680 --> 01:02:44,960
Speaker 2: the website that completes our podcast series Sick to Death.

953
01:02:45,640 --> 01:02:50,520
Speaker 2: There were twenty one episodes in total, including five bonus episodes.

954
01:02:51,160 --> 01:02:55,040
Speaker 2: Those five bonus episodes were produced by my gifted friend

955
01:02:55,400 --> 01:02:58,120
Speaker 2: Slade Gibson and Wasabi Audio.

956
01:02:58,880 --> 01:03:03,040
Speaker 1: Thank you Slade, and thank you everyone for listening. It

957
01:03:03,160 --> 01:03:04,160
Speaker 1: has been a journey.