dental tribunal of nsw

In the Dental Tribunal of New South Wales In the Matter of Pegios (No1)

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DENTAL PRACTICE ACT 2001

DENTAL TRIBUNAL OF NSW

INQUIRY UNDER SECTION 130

REGISTRATION NUMBER: DE 0054722

GEORGE PEGIOS

REASONS FOR DECISION (WITH RESPECT TO THE PARTICULARS AND THE COMPLAINTS ONLY)

SUPPRESSION ORDER APPLIES

___________________________________________________________________ CITATION: HCCC v Pegios (No 1) [2009] NSWDT 1

PARTIES: NSW Health Care Complaints Commission (Complainant) represented by Ms Anna Katzmann SC, leading Mr Patrick Griffin (of Counsel), instructed by Mr Michael Darmody, Solicitor, Health Care Complaints Commission.

George Pegios (Respondent) represented by Mr Stuart Littlemore QC, instructed by Ms Kate Hickey, Solicitor, and Mr Don Grant, Solicitor, Guild Legal.

FILE NUMBER: 001/2008

TRIBUNAL: Ms Joanne Muller (Chairperson) Em. Prof. Keith Lester (Dentist Member) Dr Bruce Edelman OAM (Dentist Member) Ms Sandra Everett (Lay Member)


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DATES OF HEARING: 30 & 31 March, 1, 2, 6, 7, 20, 21, 22, 23, 24, 28, 29 & 30 April, 1 & 19 May 2009

DATE OF FINDINGS: 16 October 2009

FINDINGS (in summary): The Tribunal finds the Respondent guilty of unsatisfactory professional conduct and professional misconduct.

CATCHWORDS: Dentistry – unsatisfactory professional conduct –

professional misconduct. LEGISLATION CITED: Dental Practice Act 2001 – s4, s40, s41, s71,

schedule 5 – clause 1, clause 6; Dentists (General) Regulation 1996 – clause 23; Dental Practice Regulation 2004 – clause 33.

CASES CITED: Allinson v General Council of Medical Education

and Registration (1894) 1 QB 755; Briginshaw v Briginshaw (1938) 60 CLR 336; Clyne v New South Wales Bar Association (1960) 104 CLR 186; Fox v Percy (2003) 214 CLR 118; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Litchfield v Health Care Complaints Commission (1997) 41 NSWLR 630; Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; HCCC v Harper [2008] NSWCHT 1; Arvind v Walton [1995] NSWCA 23; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 328–9; 160 ALR 588 at 617; Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants” Marine Insurance Co (The Palitana) (1924) 20 LI L Rep 140 at 152; Solomon v The Psychologists Board of Western Australia (Supreme Court of Western Australia, Murray J, 6 December 1996, BC9606031, at page 12), Jacobsen v Nurses Tribunal and Anor (Supreme Court of New South Wales, Dunford J, 3 October 1997, BC 9705032, Jager v Medical Complaints Tribunal (Supreme Court of Tasmania, Blow J, 11 June 2004, BC200403487), Tai v Dental Board of Tasmania (Supreme Court of Tasmania, Evans J, 13 May 2005, BC200503031); Kalil v Bray (1977) 1 NSWLR 256.


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REASONS FOR DECISION (WITH RESPECT TO THE PARTICULARS AND COMPLAINTS ONLY)

Index Heading Paragraph number (s) Introduction 1 The Complaint 3 The Law – preliminary matters 4 Appearances 16 Suppression Order 17 Documents 18 Witnesses 19 Expert Conclave 20 Admissions 32 Background Information 33 Evidence regarding the Complaints generally 38 Patient A – Complaint 1 39 Patient B – Complaints 2A and 2B 65 Patient C – Complaints 3A and 3B 132 Patient D – Complaints 4A and 4B 187 Patient E – Complaints 5A and 5B 240 Patient F – Complaints 6A and 6B 298 Patient G – Complaints 7A and 7B 372 Further submissions made by HCCC 463 Further submissions made by Respondent 480 HCCC Submissions in Reply Generally 524 Summary of findings re Complaints 534 Annexure A - Schedule of documents in evidence Annexure B - Expert Conclave Report Summary Annexure C - Extract from the HCCC submissions 2 August 2009

Introduction 1. The Dental Tribunal of New South Wales (Tribunal) convened initially

at the Pharmacy Board Room in Sydney (and after 20 April 2009 in Hearing Room 2.2 of the Industrial Relations Commission of NSW) on 30 March 2009 to conduct an Inquiry into a complaint made by Karen Mobbs, Director of Proceedings, Health Care Complaints Commission (HCCC), dated 19 August 2008 in relation to a registered dentist, George Pegios (Respondent). The Complaints relate to the Respondent’s treatment of seven patients. The Inquiry in relation to the findings that should be made with respect to the Particulars of the Complaints and the Complaints was held over 16 days. A hearing as to appropriate orders to be made in view of the Tribunal’s findings is set for the week of 26 October 2009.

2. The Respondent has been a registered dentist since 1984. The

Complaint, as finally settled (set out in paragraph 3 below), relates to


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the treatment of seven different patients primarily over a period of more than three years.

The Complaint 3. The Complaint made by the HCCC alleges that the Respondent,

being a person registered as a dentist under the Act: Treatment of Patient A Complaint 1 is guilty of unsatisfactory professional conduct within the meaning of section 41 of the Act in that he engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience. Particulars Between about 17 October 2003 and 7 March 2005 the dentist provided dental treatment to patient A. The treatment was carried out in three stages. On 10 November 2003 the first stage implant surgery was undertaken to replace a missing front top tooth. On 7 December 2004 the second stage implant surgery took place. On 7 March 2005 the third stage of the surgery was carried out. This involved connecting the implant abutment and cementing it to a porcelain fused-to-metal crown. The dentist: (i) failed to provide sufficient information both orally and/or in

writing to the patient about the nature and potential outcomes of the implant procedure before the procedure was undertaken and to record what information he gave him in the patient record,

(ii) failed to make and retain adequate clinical records in relation to

his treatment of the patient and the advice or information he gave him contrary to the requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

Treatment of Patient B Complaint 2A is guilty of professional misconduct within the meaning of section 40 of the Act in that he: (i) engaged in conduct that demonstrates that the knowledge, skill or

judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience;


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(ii) contravened the Dentists (General) Regulation 1996; (iii) contravened the Dental Practice Regulation 2004. Particulars Between June 2002 and November 2005 the dentist provided dental treatment to Patient B. The treatment involved the replacement of three lower teeth and four upper teeth with implants. The dentist: (i) failed to carry out any, or any adequate, assessment of whether

the patient was a suitable candidate for implant therapy given his long term history of smoking, insulin dependent diabetes, bone quantity and quality and/or poor oral hygiene,

(ii) failed to provide sufficient information both orally and in writing to the patient about the nature and potential outcomes of the implant therapy, and failed to address the particular risks for the individual patient in his advice to the patient about the nature and potential outcomes of the implant therapy or provide adequate warning of the level of risk in his particular case,

(iii) failed to devise an appropriate and adequate treatment plan, (iv) failed to counsel the patient adequately or at all about oral

hygiene before the implant began to fail, (v) failed personally to conduct the pre-anaesthetic assessments of

the patient on 1 and 16 August 2002, (vi) exhibited a lack of adequate care or failed to exercise an

appropriate level of skill in his treatment in relation to the patient’s upper jaw,

(vii) failed to refer the patient to an appropriately qualified specialist within an appropriate time after the failure of the treatment of the upper teeth,

(viii) failed to provide adequate post-procedure care following the breakdown of the upper implants,

(ix) failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

In the alternative that the conduct particularised in Complaint 2A is insufficient to justify suspension or cancellation of the dentist’s registration: Complaint 2B is guilty of unsatisfactory professional conduct within the meaning of section 41 of the Act in that he: (i) engaged in conduct that demonstrates that the knowledge, skill

or judgment possessed, or care exercised, by the dentist in the


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practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience;

(ii) contravened the Dentists (General) Regulation 1996; (iii) contravened the Dental Practice Regulation 2004. Particulars The complainant relies on the particulars in support of Complaint 2A. Treatment of Patient C Complaint 3A is guilty of professional misconduct within the meaning of section 40 of the Act in that he engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience. Particulars Between 13 January 2005 and 14 March 2005 the dentist provided dental treatment to Patient C. The treatment involved placing porcelain veneers on five teeth, installing a crown and performing root canal therapy. The dentist: (i) failed to seek, or to advise the patient to obtain an orthodontic

opinion, (ii) failed to take adequate care or exercise an appropriate level of

skill in the installation of the veneers, (iii) failed to provide sufficient information to the patient to enable

him to give informed consent to the various procedures, (iv) failed to show the patient a preview of his veneers before

permanent cementation to enable him to evaluate and approve their appearance,

(v) failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

In the alternative that the conduct particularised in Complaint 3A is insufficient to justify suspension or cancellation of the dentist’s registration: Complaint 3B is guilty of unsatisfactory professional conduct within the meaning of section 41 of the Act in that he engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the


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standard reasonably expected of a dentist of an equivalent level of training or experience. Particulars The complainant relies on the particulars in support of Complaint 3A. Treatment of Patient D Complaint 4A is guilty of professional misconduct within the meaning of section 40 of the Act in that he: (i) engaged in conduct that demonstrates that the knowledge, skill

or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience;

(ii) contravened the Dental Practice Regulation 2004; (iii) engaged in improper and/or unethical conduct in the course of

the practice or purported practice of dentistry, Particulars Between 19 April 2005 and 20 May 2005 the dentist provided dental treatment to Patient D. The treatment involved six (6) implants in the maxilla, bone grafts in the mandible and a fixed upper denture attached to the implant. The dentist:

(i) commissioned and/or installed an upper denture that could not be properly cleaned, predisposing the patient to infection and/or bone loss,

(ii) promised the patient a fixed denture she could easily clean and which would fulfil her other requirements when he could not fulfil the promise,

(iii) incorrectly informed the patient in his letter of 22 March 2005 that there was no radiographic evidence of tooth decay or root canal filling when there was,

(iv) falsely advised the patient that on 20 May 2005 he performed a bone graft at site 34 on the mandible or, alternatively, failed to make an entry in his clinical notes for the patient to the effect that he had performed a bone graft at site 34 on the mandible,

(v) failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.


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(ii) contravened the Dental Practice Regulation 2004; (iii) engaged in improper and/or unethical conduct in the course of

the practice or purported practice of dentistry. Particulars The complainant relies on the particulars in support of Complaint 4A.

Treatment of Patient E Complaint 5A is guilty of professional misconduct within the meaning of section 40 of the Act in that he:

(i) engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience;

(ii) contravened the Dentists (General) Regulation 1996; (iii) contravened the Dental Practice Regulation 2004.

Particulars Between 1996 and 4 November 2004 the dentist provided dental treatment to Patient E. The treatment involved firstly, the installation of thirteen coverage crowns and secondly, the removal of all her upper teeth and the fitting of implants for a fixed implant denture. The dentist: (i) failed to refer the patient to a periodontist; (ii) installed a poor quality prosthesis, (iii) failed to properly plan the treatment provided to the patient and

failed to prepare and retain a written plan relating to it, (iv) failed personally to conduct the pre-anaesthetic assessment of

the patient, (v) failed to provide adequate post-procedure care, (vi) left a tooth root in situ without the consent of the patient,


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(vii) failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

In the alternative that the conduct particularised in Complaint 5A is insufficient to justify suspension or cancellation of the dentist’s registration: Complaint 5B is guilty of unsatisfactory professional conduct within the meaning of section 41 of the Act, in that he:



Particulars The complainant relies on the particulars in support of Complaint 5A. Treatment of Patient F Complaint 6A The dentist is guilty of professional misconduct within the meaning of section 40 of the Act in that he: (i) engaged in conduct that demonstrates that the knowledge, skill


(ii) contravened the Dentists (General) Regulation 1996; (iii) contravened the Dental Practice Regulation 2004, Particulars Between August 2002 and August 2005 the dentist provided dental treatment to Patient F. The treatment involved the extraction of all his teeth and their replacement with implant supported teeth. The dentist: (i) failed to undertake an adequate assessment, including a full

periodontal assessment, of the patient, or to refer the patient to a specialist periodontist for an opinion, before proceeding to extract all his teeth,


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(ii) failed to devise an appropriate and adequate treatment plan for the patient or undertake an adequate pre-surgical work-up,

(iii) failed to provide sufficient information to the patient or to obtain his informed consent before he proceeded to remove any of his teeth,

(iv) failed personally to conduct any pre-anaesthetic assessment of the patient,

(v) removed all the patient’s teeth and replaced them with 28 implants and crowns when such a course was not clinically indicated,

(vi) failed to take adequate care or exercise appropriate skill in the installation of acrylic resin bridges or the free-standing single tooth restorations,

(vii) failed to allow for adequate healing time to enable adequate bone regeneration to take place before the placement of the posterior implants,

(viii) incorrectly positioned or angled the implants, (ix) failed to refer the patient to an appropriately qualified specialist

after the treatment began to fail, (x) failed to make and retain adequate clinical records in relation

to his treatment of the patient contrary to the requirements outlined in the clause 23 Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.



(ii) contravened the Dentists (General) Regulation 1996; (iii) contravened the Dental Practice Regulation 2004. Particulars The complainant relies on the particulars in support of Complaint 6A. Treatment of Patient G Complaint 7A is guilty of professional misconduct within the meaning of section 40 of the Act in that he:


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(ii) contravened the Dentists (General) Regulation 1996. Particulars Between 9 August 2002 and 6 November 2002 the dentist provided dental treatment to Patient G. The treatment was carried out in two stages. On 9 August 2002 Patient G consulted the dentist to see if he was a suitable candidate for dental implants. Following an oral examination and a review of radiographs taken that day the dentist concluded that he was a suitable candidate. On 6 November 2002 the dentist sedated Patient G and performed a dental implant procedure. Prior to the procedure concluding Patient G became unconscious and was admitted to hospital where on 9 November 2002 ventilation was ceased and he died. The dentist: (i) failed to provide sufficient information both orally and in writing

to the patient about the nature and potential outcomes of the implant procedure (including sedation) before the procedure was undertaken and to record what information he gave him in the patient record,

(ii) failed to personally obtain the patient’s consent, (iii) failed to make and retain adequate clinical records in relation to

his treatment of the patient and the advice or information he gave him contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association,

(iv) failed to take an adequate medical history from the patient at the earliest opportunity,

(v) failed to personally conduct the pre-anaesthetic assessment, (vi) failed to respond appropriately to the history elicited from the

patient and his presentation, (vii) authorised the administration of excessive quantities of sedative

and anaesthetic drugs to the patient contrary to the Australian and New Zealand College of Anaesthetists and Royal Australasian College of Dental Surgeons guidelines in P.21 Sedation for Dental Procedures,

(viii) adopted a technique of administration of the drugs that was inappropriate for simple (conscious) sedation in his rooms,

(ix) failed to take proper account of the patient’s oxygen saturation levels prior to commencing the procedure,

(x) set the pulse oximeter at an inappropriately low level,


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(xi) failed to adequately monitor the patient or ensure that the patient was adequately monitored during the procedure,

(xii) failed to take adequate action when the patient’s oxygen saturations dropped to a clinically unacceptable level,

(xiii) failed to terminate the implant procedure in a timely manner, (xiv) failed to ensure that the resuscitation of the patient was

appropriately carried out. In the alternative that the conduct particularised in Complaint 7A is insufficient to justify suspension or cancellation of the dentist’s registration: Complaint 7B is guilty of unsatisfactory professional conduct within the meaning of section 41 of the Act, in that he: (i) engaged in conduct that demonstrates that the knowledge, skill or

judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience;

(ii) contravened the Dentists (General) Regulation 1996. Particulars The complainant relies on the particulars in support of Complaint 7A. In the alternative that the conduct particularised above in any or all of complaints 1- 7 does not amount to professional misconduct

Complaint 8 is guilty of professional misconduct within the meaning of section 40 of the Act in that he: (i) he engaged in conduct that demonstrates that the knowledge,

skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience;

(ii) he contravened the Dentists (General) Regulation 1996 and/or the Dental Practice Regulation 2004;

(iii) he engaged in improper and/or unethical conduct in the course of the practice or purported practice of dentistry.

Particulars The complainant relies on the totality of the dentist’s conduct established by the matters disclosed in the previous Complaints 1-7.

The Law – preliminary matters


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Meaning of ‘Professional Misconduct’ and ‘Unsatisfactory Professional Conduct’

4. Unsatisfactory professional conduct is found when the Tribunal is comfortably satisfied that the conduct made out demonstrates one of the deficiencies or inadequacies that are set out in section 41(1) of the Act. The Complaint currently before the Tribunal alleges that the conduct particularised amounts to unsatisfactory professional conduct within the meaning of this section – specifically sub-sections (a), (b) and (h).

5. The Tribunal considers first whether the conduct alleged in the

particulars of complaint are made out to the requisite standard. The next matter the Tribunal evaluates is whether, if established, the conduct amounts to unsatisfactory professional conduct within the meaning of the Act.

6. Professional misconduct is defined in section 40 of the Act as

meaning (noting that a dentist falls within the definition of a dental care provider as defined in section 4 of the Act):

unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the dental care provider's registration

7. At common law, the classic definition of professional misconduct is found in the judgment of Lopes L J in Allinson v General Council of Medical Education and Registration (1894) 1 QB 755, namely:

[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.

8. If satisfied that the particulars of complaint that are made out amount to unsatisfactory professional conduct, the Tribunal must then consider whether the unsatisfactory professional conduct established is of a sufficiently serious nature to justify suspension or cancellation of the Respondent’s registration. If so satisfied, that a suspension or cancellation of registration is justified, then a finding of professional misconduct is indicated.

9. After the Tribunal has followed these steps, if the conduct has been

characterised as unsatisfactory professional conduct or professional misconduct, the Tribunal will then need to consider the appropriate order(s) to be made in the circumstances.

Standard of proof required

10. Although the standard of proof required to establish a complaint in this jurisdiction is the civil standard, because of the seriousness of the


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allegations and the gravity of their consequences, the Tribunal must be ‘reasonably satisfied’ that the particulars of the complaint have been established. The Tribunal must determine whether the alleged acts have been proved to the requisite standard of proof before deciding whether any such conduct is unprofessional. In these matters, the HCCC bears the onus of proof.

11. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J, as he then

was, said at 362–363:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

12. Another matter to note is that the jurisdiction exercised by this Tribunal is protective, not punitive. There are dual reasons for this. In Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202, a matter involving a barrister, the High Court said:

Although it is sometimes referred to as the ‘penalty of disbarment’ it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege.

13. Although the primary role of the Tribunal is protective, it also has a

role in maintaining public confidence in the profession and maintaining the reputation of the profession. Orders of the Tribunal may operate to have a general deterrent effect for other members of the profession.

14. Other matters considered by the Tribunal are referred to in the

balance of this document.


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15. The role of the expert members of Tribunals has been considered in many cases. In the oft cited case of Kalil v Bray (1977) 1 NSWLR 256, the New South Wales Court of Appeal, when hearing an appeal from a case considering an allegation of misconduct in a professional respect against a veterinary surgeon, made the following comment at 261 per Street CJ, with whom Moffitt P and Glass JA agreed:

It would be unreal to expect the members of the tribunal, being professionally qualified veterinary surgeons and occupying seats on the tribunal by virtue of that very qualification, to fail to use their expert knowledge in resolving any matter of veterinary science arising in proceedings before the tribunal. The tribunal is in truth an expert panel, and as such it needs no expert evidence on matters within its particular field of expertise, that is to say, the field of veterinary science. Its function is to determine in the light of factual evidence, with or without supplementation by expert evidence, the proper veterinary conclusion to be drawn from such objective facts as may be established by the evidence, bearing in mind at all times that its function is essentially, as its name imports, disciplinary. It provides a veterinary surgeon facing a charge with a forum constituted in the majority by his professional peers and supplemented, in the interests of natural justice, with judicial chairmanship. As such, there seems to me to be no greater warrant for requiring the tendering to it of evidence of matters of veterinary science than there is before an ordinary lay tribunal for requiring the tendering of evidence on matters of common human experience. I should add, however, that I do not go so far as to suggest that expert evidence on matters of veterinary science is inadmissible before the tribunal in the same way that proof of common human experience is inadmissible in proceedings before the ordinary courts of the land: Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486.

Appearances 16. The parties were represented as per the headnotes, generally with

only one of Ms Hickey or Mr Grant instructing from time to time. Suppression Order 17. The Chairperson of the Tribunal made a Suppression Order in relation

to the name of patients mentioned in evidence. In accordance with Schedule 5 Clause 6 of the Act, the name of patients as indicated in the schedule annexed hereto and marked ‘D’ and any information that may identify them is not to be published. Annexure ‘D’ will only form part of the original Reasons document and the copy provided to each party. It is not to be copied for any reason.

Documents

http://www.austlii.edu.au/au/cases/cth/HCA/1960/42.html


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18. The documents received into evidence in this matter are set out in Annexure ‘A’ hereto. The Tribunal notes that the Respondent’s clinical file pertaining to each patient (save the file for Patient A and G) which had been sought under summons previously were not provided to the Tribunal until the first day of the Inquiry. Copies of parts of files are found in various exhibits as they were provided by the Respondent to the Dental Board, the Coroner, the HCCC and in answer to a summons issued by the Tribunal.

Witnesses 19. Patient A, Patient B, Patient C (by telephone with the leave of the

Tribunal), Patient E, Dr Condon, Dr Stolz, Dr Berne, Dr Ho, Dr Fleming and the Respondent all gave evidence before the Tribunal. The Tribunal notes receipt of medical certificates with respect to the likely detrimental effect that would flow from Patient D’s attendance before the Tribunal to give evidence. The Tribunal also notes that the HCCC were unable to locate Patient F for the purpose of serving a Summons to Attend to Give Evidence despite extensive efforts on the part of process servers to so do. The Tribunal notes Patient G is deceased.

Expert Conclave 20. Each party relied upon reports provided by other dentists by way of

‘Peer Evidence’. These dentists provided reports that came into evidence before the Tribunal. The HCCC relied upon reports from Dr Condon and Dr Stolz and the Respondent relied upon reports from Dr Berne and Dr Ho. The individual reports of each of these dentists were provided over a period of time. The exact wording of the Particulars of the Complaints has changed over time therefore the reports vary as to the exact matters dealt with. Consequently, a careful comparison of their opinions was required. The HCCC also provided reports from various dental practitioners who treated some of the patients after they had been treated by the Respondent.

21. Given the number of Particulars of the Complaints, the time required to

take evidence from each expert dentist individually would have been lengthy. In an attempt to reduce the amount of hearing time involved in taking evidence from each expert dentist, the Tribunal directed, with the consent of the parties, for there to be a conclave of the expert dentists (Expert Conclave).

22. On the morning of the conclave meeting, the expert dentists were

given an edited version of the ultimate Complaint and asked to report their views considering each Particular individually. They were not asked to express their view taking into consideration two or more Particulars, the entire Particulars relevant to a Complaint or to all the Particulars of all the Complaints (or any combinations thereof). The Expert Conclave was not asked to consider any of the Particulars in


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Complaint 7 (Patient G). The settled version of the Expert Conclave’s report is Annexure B hereto. The experts were also provided for the first time with a copy of the statement of the Respondent and with a copy of the admissions made by the Respondent regarding the Particulars they were considering.

23. Unfortunately, Drs Condon and Stolz did not have time to

comprehensively read the statement made by the Respondent due to the document not being provided until the actual commencement of the conclave and the finite time allocated for the conclave.

24. Evidence from Dr Condon and Dr Stolz established neither was aware

that Dr Berne was listed by the Respondent as being one of his ‘mentors’. Both Drs Condon and Stolz gave evidence that had they known this prior to the Expert Conclave it may have changed their approach to the conclave. Further, Drs Condon and Stolz advised that neither had ascertained from the documents provided by the HCCC that Dr Ho was listed as one of the dentists that referred patients to the Respondent. Dr Condon indicated in his evidence that this would have made a difference to his approach to the Expert Conclave as did Dr Stolz.

25. Dr Berne confirmed in his evidence that he had recently reviewed a

number of files for the Respondent (see T931 – 933) although he was not aware that the Respondent had conditions placed on his registration by the Board and he stated that had he known that fact he would have more formally documented the advice he provided to the Respondent.

26. Dr Condon gave evidence that he was at a meeting when Dr Stolz

made a comment regarding the Respondent setting up a practice in Melbourne but that he had not paid ‘much particular attention’ to the comment as the meeting was starting. Dr Ho gave evidence that he may have considered ‘some possible bias’ if he knew that Dr Stolz had been alleged to have stated that the Respondent ‘is coming to steal your patients’ to a meeting of dentists in Melbourne and he considered that it would ‘probably’ have been ‘good to know that’ before he participated in the Expert Conclave. Dr Berne knew of the comments made by Dr Stolz prior to his participation in the Expert Conclave. Dr Berne gave evidence that ‘it just confirmed’ what he had thought about Dr Stolz’s ‘reporting’ i.e. that it had a ‘significant degree of hubris’, was ‘very pejorative in numerous matters’ and lacking in impartiality. Dr Berne thought the reports of Dr Stolz were a ‘bit disturbing’.

27. Each of the members of the Expert Conclave gave evidence before

the Tribunal individually; significantly, this allowed the parties and the Tribunal an opportunity to explore matters where a unanimous


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decision was not reached. As can be observed from Annexure B hereto the Expert Conclave was asked three questions regarding most of the Particulars. The Expert Conclave was first asked to indicate whether they thought the evidence supported the particular, then whether it was below the standard reasonably expected of a dentist of an equivalent level of training and experience and finally whether it was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

28. Dr Berne gave the following evidence with respect to the interpretation

of the term ‘significantly’ in this context (T887): of such a departure from the standard as to warrant severe reprimand and possible impeachment, to coin a phrase, of such a significant departure from standard as to be totally unacceptable.

29. This is clearly the statutory test for professional misconduct. The Tribunal must therefore take a cautious approach to that part of the evidence of Dr Berne where this consideration is involved.

30. Dr Berne also informed the Tribunal that he had presented a speech at

a professional meeting which related to issues generally arising from the incident involving the Respondent and Patient G. He clearly has a certain view of the matter and has made this public.

31. None of the members of the Expert Conclave had access to the

entirety of the documentation in evidence. Their evidence must also be weighed by the Tribunal in that light.

Admissions 32. The Respondent made numerous written admissions to the Tribunal.

The first admission was dated 11 March 2009, but was not provided to the Tribunal until 25 March 2009. Another admission document dated 24 March 2009 was prepared for the Expert Conclave (this was for the purpose of editing out any reference to the Complaint with respect to Patient G, a matter not considered by the Expert Conclave). The Tribunal gave leave to the Respondent to withdraw the 11 March version of the admissions, along with a further admission made on the first day of the Inquiry (T30.42, 30/3/09). After the Respondent had considered the Expert Conclave Report, on 1 April 2009 the earlier admissions were replaced with an admission document that encompassed the previous admissions and made further admissions substantially in accordance with the views expressed in the Expert Conclave. A further admissions document came into evidence on 6 April 2009 titled ‘Second Further Admissions to Amended Complaint’. Further admissions were also contained in the Opening Address of Counsel for the Respondent which the Tribunal was advised would supersede any admission made in the admission document


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(‘Consolidated Admissions made by the Respondent to the Amended Complaint’) or in the Respondent’s statement (‘Evidence Statement’ in the form of an affidavit) which were also received by the Tribunal on that day.

Background information Background of the Respondent 33. The Respondent was born in 1961. The Respondent graduated from

the University of Sydney with a BDS in 1984 and was first registered in New South Wales in December 1984. After working as an associate in another practice for 2 years the Respondent has been the principal of his own practice since that time. He is currently registered until 31 December 2009.

34. The Tribunal notes that in around May and June 2003, pursuant to the

legislation then in force, the Board resolved to request the Respondent ‘desist from any intravenous sedation or surgical placement of implants’. The Tribunal notes that the legislation did not provide for the Board to impose conditions on registration at that time, the Board was only able to make requests of practitioners. The Respondent’s then legal representative, Ebsworth & Ebsworth responded by indicating that the Respondent would ‘consider providing undertakings to the effect that no dental treatment be provided to a patient who is under sedation unless the patient is under the monitoring of a registered anaesthetist’. By letter dated 18 July 2003, the Board indicated to the Respondent that it reaffirmed its request for an undertaking with respect to implant dentistry as well as IV sedation. The Tribunal notes that the current Act came into force on 15 August 2004. This Act gave the Board powers to impose conditions on the registration of practitioners. Pursuant to this power, the Board advised the Respondent on 22 October 2004 that it had resolved to place the following conditions on his Registration, effective from 27 October 2004, until the complaint against him had been determined:

First, you are not to perform any surgical placement of dental implants. Secondly, you are not to treat any patient under Intravenous Sedation, whether or not you are assisted by a qualified dentist or medical practitioner.

35. The Respondent filed a Summons in the Supreme Court of New South

Wales with respect to these conditions. Ultimately, in substitution for the conditions on Registration, the Court accepted an undertaking from the Respondent which as far as the Tribunal is aware is still in place, in the following terms:


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I will not treat any patient under intravenous sedation (whether for the performance of dental implant surgery or other dental surgery) without:

(a) obtaining the approval of the patient’s medical practitioner in the form of annexure “c”

(b) an anaesthetist independently assessing the suitability of the patient to undergo intravenous sedation; and

(c) the anaesthetist who carried out the pre-operative assessment also being present for the duration of the surgery in order to monitor the patient.

36. On 3 March 2006, the Board held an Inquiry in relation to complaints

made by Patient A, Patient C, Patient D, Patient E and the ongoing consideration by DCAC of the complaints relating to Patient F. The Board Inquiry noted that ‘a full and complete inquiry of the Dental Tribunal’ was required. On 7 November 2008, the Board placed conditions on the Respondent’s practice pursuant to section 69(1)(d) of the Act. The conditions stipulate that the Respondent must not undertake any treatment on any patient involving implants or crown and bridgework until he has developed a treatment plan approved by a committee of the Board or by a mentor approved by the Board. The Respondent was permitted to complete any treatment that had already commenced, but the Board strongly recommended the current treatment be reviewed by the Board committee or a Board approved mentor.

37. The Respondent’s CV records his attendance at numerous long and

short courses, mainly focussed on implants and restorative dentistry as well as the completion of a Diploma Course in Intravenous Sedation and Pain Control from the University of Sydney in 1999. The Respondent has also delivered papers at a number of conferences and appeared on national television on a ‘Today Tonight’ segment based on his practice of implant dentistry.

Evidence regarding the Complaints generally 38. The Tribunal considers it will be most convenient to deal with the

evidence as it relates to each of the Particulars. As the number of Inquiry days and the index of documents in evidence reveals, there was a significant amount of evidence before the Tribunal. The Tribunal has considered the entirety of the evidence.

Patient A - Complaint 1 39. The Complaint alleges the Respondent is guilty of unsatisfactory

professional conduct within the meaning of section 41 of the Act in that he engaged in conduct that demonstrates that the knowledge,


21

skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience. Particulars Between about 17 October 2003 and 7 March 2005 the dentist provided dental treatment to patient A. The treatment was carried out in three stages. On 10 November 2003 the first stage implant surgery was undertaken to replace a missing front top tooth. On 7 December 2004 the second stage implant surgery took place. On 7 March 2005 the third stage of the surgery was carried out. This involved connecting the implant abutment and cementing it to a porcelain fused-to-metal crown.

Particular (i) - The Respondent failed to provide sufficient information both orally and/or in writing to the patient about the nature and potential outcomes of the implant procedure before the procedure was undertaken and to record what information he gave him in the patient record. Particular (ii) - The Respondent failed to make and retain adequate clinical records in relation to his treatment of the patient and the advice or information he gave him contrary to the requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

HCCC Summary of the evidence re Patient A (Complaint 1)

40. The HCCC provided a summary of the facts at paragraphs 134 to 140 as follows (footnotes omitted):

134. This complaint relates to conduct over the period 17 October

2003 to 7 March 2005. 135. The first consultation with the patient was on 17 October 2003.

There are no clinical notes that record what transpired at that consultation.

136. It is common ground that this patient attended the

respondent’s practice to have his missing central incisor tooth replaced. It is also common ground that the respondent recommended that the tooth be replaced with an implant and that the patient accepted the recommendation.

137. The complaint relates to the information provided to the patient

before the implant was placed and the respondent’s record keeping.


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138. The expert conclave found that each particular was made out and that the respondent’s conduct fell below the standard in each case.

139. The respondent admits that he did not provide sufficient

information in writing and that his record keeping was below the requisite standard. However, he denies that his conduct amounts to unsatisfactory professional conduct.

140. The issues between the parties are:

a. Whether the respondent provided sufficient information orally to the patient; and

b. Whether on the whole of the evidence the complainant has proved that his conduct fell significantly below the standard reasonably expected of a practitioner of equivalent training or experience so as to amount to unsatisfactory professional conduct.

41. The Respondent in his Submission went to the issue of the credit of

Patient A (from page 69 onwards – formatting and fonts retained from original):

Preliminary issues:

The character and credit of the witness where he contradicts the respondent. [Patient A] 160: Q. You're not really an honest man, are you? A. I am. Q. Do you have any convictions for offences of dishonesty? A. Dishonesty? Q. Yes? A. What do you mean? Q. You know what dishonesty is and you know what convictions are, don't you? A. Yes I do. Q. Do you have any? A. Yes I do. Q. For dishonesty?


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A. Not for dishonesty. Q. Theft? A. Yes, I was young and I made a mistake. Q. Theft, you have convictions for theft, don't you? A. Yes, one conviction in my life, yes, and that was nine years ago, yes. [Emphasis added by Respondent - bold not in original transcript] Q. Well, that was how long ago? A. That was about six years ago. [Emphasis added by Respondent - bold not in original transcript] Q. Very close to the time really (of consulting Dr Pegios), isn't it, just within three years of your conviction for dishonesty? A. I don't see how that's related. Tp168/9 Q. How old were you at the time? A. I think I was 19. Q. And you had done some work for someone? A. Yes. Q. And they didn't pay you? A. Yes. Q. And you stole some money from them? A. Yes. … CHAIRPERSON: Q. Did you steal the amount that you considered was owed to you, or something? A. No, I stole more, but it's not like I could return it to him. MS KATZMANN: Q. Did you intentionally take more than you were owed? A. Yes. Q. What were the circumstances? How did that happen? A. I just stole it from his workplace. Q. Did you count it when you took it? A. No, I didn't.


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Q. Did you later count it? A. Yes. Q. And what did you realise when you counted it? A. That there was more money. Q. And why didn't you return the excess? A. If I returned it how am I going to return it? I will be giving myself up that I stole it, so-- Q. How old were you at the time? A. I think I was 19. Tp159/160 You were smoking dope at the time of these visits, weren't you? A. At that time? Q. Yes. A. I have smoked it, yes, before. Q. You smoked it immediately before you went to see the dentist, didn't you? A. Yes. Q. It affects your ability to recall things, doesn't it? A. I'm not a drug user though. I have tried it before and it was around that time. Q. Immediately before going to the dentist? A. Yes, that's why when he asked me have you been taking any drugs, I said yes, I did smoke marijuana at that time. Tp161 Q. When you initially went to Dr Pegios you told him and his staff, didn't you, that you'd just been smoking dope? A. I said that, yeah, but (it was) on the weekend. Yeah, I did (say that). [Patient A] as a difficult and demanding patient Ho 806: A. I had the viewpoint that the crown that was


25

provided was of satisfactory nature. It was not an unaesthetic crown. It was not excellent. It was not a perfect reproduction of the adjacent teeth. However, it is very difficult for a single central incisor to get perfect aesthetics. What he issued to [Patient A] was satisfactory. I would not say excellent, but it was satisfactory. Q. It obviously wasn't satisfactory to [Patient A]? A. He was a very demanding patient. I treated him after the fact and I saw him on numerous occasions, to try and achieve best aesthetics possible for him, so he had multiple appointments, many, many more than I would normally have for another patient, so he was extremely demanding and could be very difficult, nearly impossible to obtain nearly perfect aesthetics. Q. You gave him a new tooth presumably? A. Yes. Q. The first one, did he accept it? A. Well, when we gave him the tooth, we tried it in to make sure he is happy with the aesthetics and he said that this tooth was satisfactory and he was happy with that crown that I gave him. I actually cemented the crown and said I would review him in approximately two or three weeks and see what it looked like. At this point he was still not 100 percent happy. He was 90 percent happy but not 100 percent at that time. I removed the crown. Q. That is on review? A. Not that same appointment. I rebooked him for another appointment and I actually redid the crown again for him. It still took many more try-ins to get the aesthetics that he wanted to achieve. The Tribunal, having seen [Patient A] cross-examined, being aware of his criminal record and character, and having heard the evidence of Dr Pegios and Dr Ho, cannot possibly accept [Patient A] as a witness of truth where he is in conflict with the respondent.


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HCCC Submissions re Particulars of Complaint 1 42. The HCCC provided the following summary of this matter at

paragraphs 134 – 140 (footnotes omitted) :

134. This complaint relates to conduct over the period 17 October 2003 to 7 March 2005.

135. The first consultation with the patient was on 17 October 2003. There are no clinical notes that record what transpired at that consultation.

136. It is common ground that this patient attended the respondent’s practice to have his missing central incisor tooth replaced. It is also common ground that the respondent recommended that the tooth be replaced with an implant and that the patient accepted the recommendation.

137. The complaint relates to the information provided to the patient before the implant was placed and the respondent’s record keeping.

138. The expert conclave found that each particular was made out and that the respondent’s conduct fell below the standard in each case.

139. The respondent admits that he did not provide sufficient information in writing and that his record keeping was below the requisite standard. However, he denies that his conduct amounts to unsatisfactory professional conduct.

140. The issues between the parties are: (a) Whether the respondent provided sufficient information

orally to the patient; and (b) Whether on the whole of the evidence the complainant

has proved that his conduct fell significantly below the standard reasonably expected of a practitioner of equivalent training or experience so as to amount to unsatisfactory professional conduct.

Respondent’s Submissions re Particulars of Complaint 1

43. The Respondent’s submissions significantly deal with this Complaint on pages 69 to 74. The submissions recounted the evidence of Patient A admitting he had one conviction and that he had smoked marijuana the weekend before a consultation. Patient A gave evidence that the conviction occurred nine years ago but on further cross-examination stated it was six years ago.

44. The Respondent submitted that the evidence of Dr Ho indicated that

Patient A was a ‘difficult and demanding patient’.


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45. The Respondent submitted that the Tribunal ‘cannot possibly accept [Patient A] as a witness of truth’.

46. The Respondent’s Submission then turned to the Expert Conclave

findings (Conclave Findings), noting that with respect to both Particulars (i) and (ii) the conclave considered the conduct of the Respondent was below the standard reasonably expected of a dentist of an equivalent standard of training and experience.

47. The Respondent submitted that ‘… the Tribunal may well take the

view that no complaint should ever have been brought on the basis of the allegations made by [Patient A]’ and supported this submission as follows commencing at page 72 (formatting and fonts retained from original submission):

(i) Insignificant failing in providing information to the patient Dr Pegios Affidavit para 15: When [Patient A] consulted me, the first appointment was spent in examining him, taking Xrays, and discussing treatment. In that appointment, I explained the implant procedure, and certainly informed him of the risks it involved, together with possible complications. In that process, I used dedicated patient-education software. I also warned him of the possibility of infection, and counselled him about oral hygiene and its importance. I discussed choices of implants (which was fundamentally a matter of a choice between the work of two technicians), and warned him that no implant would perfectly match his natural teeth. I showed him photographs of completed treatments of former patients on my computer’s screen. I was careful not to say anything that could create an unrealistic expectation in his mind of the cosmetic result of the treatment. I had no doubt that [Patient A] had a good understanding of the treatment planned, and its risks and possible complications. [Patient A] 157/8 Q. So you could have discussed the treatment with him for as long as an hour and a half? A. Quite possibly. Q. You're interested in mechanical things, aren't you? A. Yes.


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Q. You like cars and so on? A. Yes. Q. And you understood when he explained to you that he would remove the tooth and drill into the bone, screwing the implant in there? A. Yes. Q. He showed you a video about it? A. Yeah, on the computer, I think. Q. And you understood that, as a person with a mechanical interest you understood that quite well, what he was going to do? A. Yes. Q. He explained that the extension would go into the screw and the tooth would be glued on to that extension and in one of these appointments you say the colour match guy came out and matched the tooth? A. Yes, that was later on. Q. I think you say in paragraph 8 in the first sentence, if you look at it: "I don't recall Dr Pegios warning me about any risks about the implant"; right? A. Yes. Q. But look at paragraph 10, second sentence: "Prior to putting the tooth on, Dr Pegios warned me the implant could get infected if I didn't clean it."? A. Yes. Q. So he certainly warned you about the risk of infection? A. Yes, if I didn't clean it after it was implanted, yes. Q. Well that's pretty obvious, isn't it, to you, that if you didn't clean it you risked infection? A. I know nothing about dentistry so when he mentioned it to me -- Q. Do you clean your teeth? A. Yes, every day. Q. Why?


29

A. So plaque doesn't build up. Q. Not to avoid infection? A. I don't brush my teeth every day then I'd have bad breath, wouldn't I? Q. Among other things? A. Yes, and my teeth would deteriorate if I didn't brush them. Q. You would get decay and infection? A. That's right. Q. Blind Freddie knows that, doesn't he, [Patient A]? A. Yes, he does. 162 A. What I said to him was I wanted the result to be like the tooth next to it. That's what I said to him and he said that he would. Q. (Make it) Like the tooth next to it? A. That's right. 163 Q. Dr Pegios showed you a DVD and other material on the computer screen, didn't he? A. Yes, that's right. Q. Do you remember what the material was? A. I think it was about how the implant went in, something like that. How the implant was - I think what - I can't recall but it was something like that. 164 Q. He showed you images of completed treatments, didn't he? A. Pictures of other patients. Q. Yes. Completed treatments on other people? A. I think so, yes. Q. And you had a good understanding of what the procedure involved, didn't you? A. Yeah, I knew he was going to drill inside my gums and put the implant in, yeah.


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(ii) Insignificant failing in clinical record-keeping Dr Pegios Affidavit para 18: I further agree that I did not make and retain records of the treatment and advice I gave [Patient A] in a manner that conformed to the ADA Guidelines applicable at that time.

The Tribunal may well take the view that no complaint should ever

have been brought on the basis of allegations made by [Patient A]. Submission 6: The respondent, in treating [Patient A], was not guilty of unsatisfactory professional conduct. At para 164, the complainant attempts to second-guess the expert

conclave, which “did not conclude that in either case the conduct

fell significantly below the standard”, but without any persuasive

reason for doing so. 48. The Tribunal also notes the Respondent made a submission under

the heading of ‘Patient E – Complaints 5A and 5B – Respondent’s Submissions re Particular (vii)’ which contains evidence the Respondent seeks to rely upon with respect to the other Particulars where the Respondent has made an admission as to deficient record-keeping (such as he has done in this Particular).

Concluding summary of each party re Complaint 1

49. The HCCC provided the conclusion at paragraph 164 (footnotes excluded):

The respondent accepts the opinion of the expert conclave that in the case of each particularised allegation his conduct fell below the standard reasonably expected of a dental practitioner of his training and experience. Whilst it is true that the expert conclave did not conclude that in either case the conduct fell significantly below the standard, they were not asked to consider the overall effect of the conduct. Moreover, for the reasons set out above, the value of at least some of the opinions concerning whether the conduct fell significantly below the standard is diminished by the application of the wrong test. If not individually, then cumulatively, the respondent’s conduct amounts to a significant departure from the standard.


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50. As to the characterisation of the conduct, the Respondent made the

following submission (paragraph 5.1, page 6): Dr Pegios has at all times admitted that the information he provided to the patient about the implant procedure in 2003 and the clinical records relating to this patient were below the relevant standard, but contends that his conduct was not significantly so. The respondent denies that these failures were of such degree as could constitute unsatisfactory professional conduct and adopts the view of the experts’ panel in this regard.

51. The HCCC made the following submissions in reply at paragraphs 70

to 75:

70. The respondent submits that he is not guilty of unsatisfactory professional conduct in relation to his treatment of [Patient A].

71. He says that the complainant, without any persuasive reason,

attempts to second-guess the expert conclave, which “did not conclude that in either case the conduct fell significantly below the standard”.

72. However, paragraph 164 of the complainant’s submission

states,

The respondent accepts the opinion of the expert conclave that in the case of each particularised allegation his conduct fell below the standard reasonably expected of a dental practitioner of his training and experience. Whilst it is true that the expert conclave did not conclude that in either case the conduct fell significantly below the standard, they were not asked to consider the overall effect of the conduct. Moreover, for the reasons set out above, the value of at least some of the opinions concerning whether the conduct fell significantly below the standard is diminished by the application of the wrong test. If not individually, then cumulatively, the respondent’s conduct amounts to a significant departure from the standard.

73. Once again, the respondent overplays the significance of any credit issues relating to the evidence of the patient. Any doubts the Tribunal might have about the credibility of this witness can only affect its decision on the sufficiency of the oral information imparted to him; it is irrelevant to the remainder of the first particular and to the whole of the second.


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Absent an admission to that effect, whether marijuana use would affect the patient’s recollection is a matter for expert evidence. The respondent adduced neither. The respondent was able to point to one episode of dishonesty in the patient’s life (when he was 19), some three years before he saw the respondent and a decade before he gave evidence. Of that the patient said: “I was young and I made a mistake”. (T161/1) The Tribunal is entitled to accept that explanation and conclude that it does not bear on the honesty of his testimony.

74. The cross-examination of the patient about the DVD and the

“other material on the computer screen” is interesting. The respondent never produced that material to the Tribunal, leaving it to accept his word about what was conveyed by that material. If the material was sufficient to inform the patient about the nature and potential outcomes of the procedure, why didn’t he produce it?

75. As for the submission in the last paragraph on page 74, this is

not a case of the complainant “second-guessing” the opinion the conclave might have reached if they had been asked a question they were not. Rather, the complainant’s point is that the Tribunal can decide that the sum of the particulars is greater than its individual parts. In other words taken together the omissions of the respondent are sufficient to amount to a significant departure from the standard, notwithstanding that the conclave did not regard either of the individual failings taken alone as significant. That conclusion is obviously open to the Tribunal, whether or not the conclave considered the issue.

Tribunal’s Findings re Complaint 1

52. The Tribunal notes the admission made on behalf of the Respondent during counsel’s opening address. There are certainly no records produced by the Respondent that would constitute adequate record keeping with respect to Patient A.

53. The keeping of records is an integral part of the practice of a

professional person. In dentistry, this is evidenced not only by the development of Guidelines by professional bodies such as the ADA but also, more relevantly, by the making of Statutory Regulations. The importance of record keeping has been acknowledged with respect to other health professions (see for example HCCC v Harper [2008] NSWCHT 1).

54. The evidence regarding the oral information provided by the

Respondent comes, for the best part, from Patient A. Although the


33

Respondent gave evidence that he had provided information to Patient A, he later conceded that he had no genuine recollection of what he had told [Patient A].

55. Not only are there no clinical notes with respect to any information

provided to Patient A, there is no consent form in the file. There are no clinical notes of any substance before the Tribunal to record the treatment, advice or information provided by the Respondent to Patient A.

56. Although the Tribunal notes that the Respondent did not give

evidence that he believed Patient A was under the influence of drugs during his consultations, it may have been an inference available on the other material relied upon by the Respondent. Little turns on that matter as the Respondent accepted as correct the information recounted by Patient A as having been provided to him.

57. If the Respondent’s evidence was given full force, there was no

evidence that Patient A had orally received any information from the Respondent about the aesthetic limitations of the work performed or alternate treatment options.

58. There is no evidence that whatever information was provided by the

Respondent to Patient A was ever reduced to writing. 59. The failure of the Respondent to make written record of the nature and

potential outcomes of the implant procedure before the procedure was undertaken and to make clinical records in relation to his treatment of the patient is a significant departure from the standard reasonably expected of a dentist of an equivalent standard of training and experience.

60. The Tribunal is therefore reasonably satisfied that Particular (i) is

established. 61. The Tribunal is reasonably satisfied that the Respondent conducted

himself in the manner set out in Particulars (i) and (ii). The subject matter of the Complaint 1 is proven.

62. As the keeping of records is a fundamental element in the practise of

dentistry, failures of the nature found in this case must be considered as significant by the Tribunal.

63. Considering the totality of the conduct established, the Tribunal finds

the Respondent guilty of unsatisfactory professional conduct in that he engaged in conduct that demonstrated that the skill, judgment possessed and care exercised by the Respondent was significantly


34

below the standard reasonably expected of a dentist of an equivalent level of training or experience.

64. In so finding, the Tribunal rejects ‘Submission 6’ made by the

Respondent (see Submission 6 set out above in the Respondent’s submission regarding this Complaint).

Patient B – Complaints 2A and 2B 65. Complaint 2A alleges the Respondent is guilty of professional

misconduct within the meaning of section 40 of the Act in that he:



66. Complaint 2B alleges unsatisfactory professional conduct (section 41)

on the same basis. 67. The Complaints allege that between June 2002 and November 2005

the dentist provided dental treatment to Patient B. The treatment involved the replacement of three lower teeth and four upper teeth with implants.

HCCC Summary of the evidence


165. [Patient B] was 63, going on 64, when he first consulted the

respondent in June 2002 after seeing him on the Today Tonight show. He went to him to inquire about implants. The respondent showed him videos of a number of people of different ages who had implants “and they were very happy”.

166. [Patient B] was alarmed at the high cost of the treatment but

was prepared to go along with it because he “wanted the best”.

167. He said he attended upon the respondent approximately 66

times. The respondent has only recorded 28 occasions in his progress notes but the appointment books tend to support the patient’s account.


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168. [Patient B] said that did not recall receiving any advice from the respondent telling him about the risks of implants including not to smoke and dental hygiene although he remembers him telling him to cut down on his smoking and agreed he talked to him about brushing his teeth. He stated that the respondent did not explain the procedure to him save that he told him that he would remove the old teeth and insert implants.

169. On 1 August 2002 the patient’s lower teeth were removed and

three Novum implants inserted under intravenous sedation. Jennifer Gaudron, the registered nurse, apparently conducted the pre-anaesthetic consultation. A bridge was placed on the implants at the same visit. The patient told Dr Willey that he was not satisfied with the treatment because the teeth were not straight and there was a gap on one side of the bridge.

170. On 16 August 2002 the upper teeth were removed and six

7mm Endopore implants were inserted under intravenous sedation. A provisional bridge was placed on the implants the same day.

171. Repeatedly the patient returned to the respondent with

complaints about the treatment. 172. His diabetes became poorly controlled and in June 2005 he

saw his endocrinologist, Professor Michael Hooper, who referred him to the dental clinic at Concord Hospital. Professor Hooper related the poor control of the diabetes to recurrent gum and jaw infections after dental implants. This visit confirmed that the upper implants were failing and one implant had completely dislodged. Not long afterwards the patient sneezed and the whole prosthesis fell out of his mouth.

173. The dentist at Concord Hospital (presumably Dr John Linsley,

the VMO) referred the patient to a specialist. However, he returned to the respondent because he could not afford to see a specialist. The respondent removed ‘the remaining fixtures’ but there are no clinical notes recording this work.

174. The patient complained that “all the treatment that has been

carried out up to [the time he made his statement in June 2006] has been unsatisfactory, painful and has affected my eating which has affected my health as I am a diabetic”. In particular he complained that: a. The fixed plate that was to replace his bottom teeth did not

fit properly and when he reported the problem to the


36

respondent he disclaimed responsibility and blamed the x-rays.

b. He woke up in terrible pain during the procedure for the upper teeth although he was supposedly under sedation.

c. He was given a temporary denture and had to wait two years for a permanent one.

d. The temporary denture did not fit well and he could not eat meat or any hard foods during that two-year period.

e. The same day the implants were put in they became loose. The respondent blamed the screws.

f. He had to return about six times to get the screws tightened but each time they became loose again.

g. In January 2004 the ‘fixed’ upper plate came out. h. The respondent inserted two more implants under local

anaesthetic causing severe pain. i. One of the implants broke. The respondent told him he

was unable to explain why. He offered him no treatment (except for antibiotics which did not help) and told him to come back in three weeks after he had returned from a conference in Italy.

j. The implants fell out when he sneezed.

175. The respondent attributed the failure of the implants to the patient’s poor oral hygiene. However, this is unlikely. Not only does the literature tend to show that oral hygiene does not have a major influence on the success of implants, but, as Dr Willey observed, the implants were not in the mouth long enough for this to have been a factor.

176. The expert conclave found that he:

a. Failed to carry out an adequate assessment of whether the plaintiff was a suitable candidate for implant therapy given his long term history of smoking, insulin dependent diabetes, bone quantity and quality and/or poor oral hygiene;

b. Failed to provide sufficient information both orally and in writing to the patient about the nature and potential outcomes of the implant therapy and failed to address the particular risks for the individual patient in his advice to the patient about the nature and potential outcomes of the implant therapy or provide adequate warning of the level of risk in his particular case;

c. Failed to devise an appropriate and adequate treatment plan; and


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d. Exhibited a lack of adequate care or failed to exercise an appropriate level of skill in his treatment in relation to the patient’s upper jaw

177. In the first two respects it found that the respondent’s conduct

fell below the standard but not significantly so but in the latter two respects three of the four members of the conclave (Dr Berne being the dissenter) found that his conduct fell significantly below the standard.

178. The respondent admits that he is guilty of unsatisfactory

professional conduct in that he failed to refer the patient to an appropriately qualified specialist within an appropriate time after the failure of the treatment of the upper teeth and that he failed to make and retain adequate clinical records contrary to the relevant guidelines. He made no admissions with respect to any of the matters found against him by the conclave. However, through his counsel he “accepted the decision” that his conduct fell below the standard, but not significantly below, arguing that, absent unanimity, the Briginshaw standard could not be met.

69. The Respondent gave the following summary of ‘contentions’ at page 5

of his Submissions:

Dr Pegios admits that seven years ago in June 2002, he failed to devise an appropriate and adequate treatment plan for [Patient B] and in the period between June 2002 and November 2005, he exhibited a lack of adequate care or failed to exercise an appropriate level of skill in his treatment of the patient’s upper jaw, which he admits were both instances of conduct significantly below the relevant standard and constituted unsatisfactory professional conduct. This unsatisfactory professional conduct was never of a degree that could now justify or ever have justified the suspension or cancellation of his registration, and cannot therefore be assessed as professional misconduct. It is further noted that the experts’ panel were not unanimous in their view that these failings were significant, which is relevant to the Tribunal’s finding as to the degree of dissatisfaction.

70. The Respondent made the following submissions regarding the

credibility of the evidence of this patient (formatting and font styles retained) at page 48:

Preliminary issue: The patient’s credibility [Patient B] denied or claimed that he “didn’t remember” a number of


38

matters asserted in his complaint, and in evidence-in-chief, including: that he was counselled about smoking, and about dental hygiene; that he had a pronounced gag reflex; and that he had a history of diabetic blackouts. All of those things proved to be untrue, impacting heavily on his credit. The relevant evidence as to counselling is as follows: Dr Pegios Affidavit para 21:

I spent a good deal of time counselling [Patient B] about his smoking habit, and advised him of the importance of stopping because of the effect of smoking on his oral hygiene. [Patient B] 132/3: Q. (Reading out his HCCC statement)… "I don't remember Dr Pegios telling me about the risks of implants, including not to smoke and dental hygiene". He did tell you not to smoke, didn't he? A. That's true, yes. Q. And he did tell you why you shouldn't smoke, didn't he? A. True. Q. He did also tell you about the importance of good hygiene in your mouth? A. Yes. Q. Flossing and brushing, correct? A. Yeah. Q. Because that would keep your mouth free of disease, correct? A. But also I seen the hygienist there too at his practice. Q. He sent you to his hygienist? A. Yes. Q. She explained the importance of dental hygiene and oral health? A. Yes. Q. He said to cut down smoking and brush your


39

teeth regularly? A. Which I did. Tp142 Q. He talked to you about smoking and told you to cut down? A. Yes, which I did, yes. Q. And you told him about your diabetes? A. Yes. Q. And he discussed that with you? A. Yes. Q. And you've already agreed that he told you about the importance of oral hygiene? A. Yes. Q. But you thought well, I don't need appointments to have oral hygiene done. That's what your view was, wasn't it? Did you want to pay to go along there and do oral hygiene? A. I had no choice, I was told to. Q. Who told you? A. I was told there was a hygienist. Q. But you didn't always do that, did you? A. Yes I did. Q. You said "I shouldn't have to pay to have my teeth cleaned"? A. Well I thought it was part of the job he's done. Q. Yes. A. Apparently it's not. (Chairperson’s questions) 146 Q. When did you have the discussion with him about cutting down on the smoking? When was the first time he spoke to you about that? A. That was straight away I think when he said that to me. Q. So you recall in the first consultation?


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A. Just about, yes. Q. And was it the first consultation that you were shown the pictures and the DVD? A. Yeah. Q. And when was it that he spoke to you about the importance of keeping your mouth clean? A. Same time. Dr Berne 874: Q. Having read that evidence of [Patient B] and bearing in mind your view which was, I think, moderately critical of Dr Pegios in relation to the oral hygiene issue, did that evidence have any impact on your opinion? A. When I first wrote my report I took the patient's word as the truth of course. He said he hadn't received any (counselling) and I wrote my report on that basis. Clearly, following that he had received advice and guidance and I withdraw that part of my report. Q. Does that mean you would not be critical of Dr Pegios in that regard? A. I don't think I can justify being critical, no. 948: Q. Dr Berne, Professor Lester asked you a question about the [Patient B]report in which you attribute the problem with the upper jaw principally to defect in oral hygiene, do you recall that? A. And I think the patient's medical condition too, subsequent. Q. And you said in answer to his question something to the effect - I haven't got it correctly transcribed - that Dr Pegios provided adequate counselling and advice and is this what you then said, that in your view, given your belief as to the problem with the upper jaw and its cause, and that adequate counselling had been provided, you thought his conduct was not reprehensible?


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A. No, no, that's right … The evidence as to this patient’s pronounced gag reflex also impacts heavily upon [Patient B’s] credit: Dr Pegios Affidavit para 22: Despite his oral evidence to the Tribunal, the incontrovertible fact is that [Patient B] had a pronounced gag reflex, and that condition meant that [Patient B] could not tolerate removable prostheses, as well as explaining why he had not earlier sought treatment. Progress notes –Vol 2 Tab 3: 3.11.05 Patient came in for review. Denture fitting adequately. Gag reflex pronounced however... [Patient B] 140/1 Q. [Patient B], you've always had a problem, haven't you, with gagging? A. I never had a problem in my life. Q. With gagging? A. Never. … Q. Are you sure? What I'm really asking you is are you sure you never had this choking feeling that makes you want to vomit before Dr Pegios treated you? A. No, never. Q. Are you sure? A. Yes. That was, of course, given the lie by Dr Willey’s report on his examination of the patient: Volume 2 tab 5 – September 2006. My examination: … The upper denture was adequate but I noted the patient gagged when placing the denture back in. It is very difficult to understand why [Patient B] gave such untruthful evidence, but there is no question that he did, affecting the Tribunal’s ability to accept any claim he makes that is in dispute.


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The next area where [Patient B] is unreliable is in relation to his history of diabetic blackouts. This is the relevant evidence: Dr Pegios Affidavit para 27:

On the patient's last visit on 3.11.2005 he told me that he was having episodes of “black-outs” on a regular basis, and he briefly lost consciousness in the treatment room. I informed the patient I could no longer treat him if there was an urgent medical issue requiring attention. I advised him to see his doctor about the blackouts. [Patient B’s] evidence on this subject was quite incorrect. The complaint of prior blackouts was recorded by Dr Pegios: Ex Vol 2 Tab 9 p8: Explained (that I) will need authority from physician as the patient has been complaining of ‘blacking out.’ Having blood tests with physician next week. Asked (him) to relay results at first opportunity. Awaiting patient contact. [Patient B] 143 Q. And then you told him at the end of the time you were seeing him, the last thing that happened between you, you told him you were having blackouts, correct? A. No, I never told him that at all. Q. Were you having blackouts? A. The only time I had, I didn't even know what I had, the last time I seen Dr Pegios I felt real funny in his practice. I asked him for a drink, a fizzy drink I actually asked him for, he gave me that. I felt a little bit better after the drink. Q. But that wasn't the first time it happened, was it? A. Yes, first time, yes. Q. You told him you were blacking out? A. No, I never, no. Q. And he told you, didn't he, to go and see your doctor about it? A. I never told him that, never.


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Q. Did you ever see a doctor about it? A. I finished up in hospital the next day. Q. Did you go to a doctor before you went to hospital? A. No. The joint experts’ conclave summary: The respondent failed to devise an appropriate and adequate treatment plan and exhibited a lack of adequate care or failed to exercise an appropriate level of skill in his treatment of the patient’s upper jaw, which were both instances of conduct significantly below the relevant standard. The other failings (in assessing the patient as a suitable candidate for implant therapy; in the provision of information; in failing to refer the patient to a specialist within an appropriate time; in post-procedure care; and in record-keeping) were not significantly below the relevant standard.

Particular (i) - The dentist failed to carry out any, or any adequate, assessment of whether the patient was a suitable candidate for implant therapy given his long term history of smoking, insulin dependent diabetes, bone quantity and quality and/or poor oral hygiene.

HCCC Submissions re Particular (i) 71. The HCCC made submissions regarding this Particular at paragraphs

179 to 185 as follows (footnotes omitted):

179. This patient was a diabetic. He informed the respondent of that when he first attended.

180. There is a great deal of evidence to show that the risk of

implant failure for diabetics is very high. Diabetic patients show delayed wound healing, increased alveolar bone loss, increased periodontal disease, and increased inflammatory tissue destruction, all potential complicating factors when placing implants. Also, bone and mineral metabolism are altered in diabetes, possibly interfering with the integration process…

181. Diabetes, smoking, poor oral hygiene, bone quantity and quality are all significant risk factors for the failure of dental implants. Smoking alone is a high risk factor; it reduces vascularity and healing is usually slower and compromised. The failure rate of implants in smokers is about twice that of


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non-smokers. Diabetes, too, affects healing and also the ability to fight infection.

182. Although none of the risk factors is considered to contra-indicate surgery, when encountered they demand caution. He was “a high risk case”. The respondent denied that he had never considered the combination of the risk factors in determining whether the patient was suitable for implant treatment. But his denials should not be accepted. They are not supported by any contemporaneous evidence. Moreover, had he carried out an adequate assessment of the suitability of the patient for implant therapy, a practitioner of his training and experience would be expected to proceed with caution. Yet, the evidence indicates that the respondent did not proceed in a cautious way at all. Caution in this case would have demanded, at the very least, that an opinion first be obtained from the patient’s treating endocrinologist before any treatment was considered, let alone undertaken, particularly where the patient told the respondent his diabetes was uncontrolled. Further, as Dr Willey pointed out, there is no evidence that the respondent made a concerted effort to improve risk factors such as smoking and oral hygiene before he embarked upon the treatment.

183. The patient informed the respondent on the occasion of his first visit that he was under the treatment of Professor Michael Hooper at Concord Hospital. He also told him he was on medication but the respondent made no note of what that was. The first reference to the fact that he was insulin dependent appears in the pre-anaesthetic assessment apparently conducted by his nurse on 1 August 2002 although the respondent asserted in his ‘outline of treatment’ that he “initially presented with a history of insulin dependent diabetes”. Although the respondent assured him that medical examination was “an absolute necessity” and that he would be requesting medical clearance from the patient’s “medical doctor” who would then verify his general health, provide recent examination results including blood tests and urinalysis, indicate drug allergies and/or alternative recommendations and thus “be aware of the surgical treatment” the respondent planned and the medications he might prescribe, the respondent did not even contact Professor Hooper. It is difficult to see how he could assess whether he was a suitable candidate for implant treatment without obtaining any information from Professor Hooper.

184. The expert conclave was unanimous that this particular was made out. Dr Stolz in his oral evidence noted that there was no record that the GP had been contacted to establish his


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diabetic control status, no note in the planning suggesting that oral hygiene would be an important factor in reducing the risk of failure of the implants and the planning to place implants in sites where the teeth had a terminal prognosis was flawed.

185. The respondent defended his decision to use implants, despite the high level of risk, because, he contended the patient had a pronounced gag reflex and could not tolerate a denture. The patient, himself, emphatically rejected such a proposition. The respondent was just as emphatic that he had one throughout the period he had been treating him. He said that his entire treatment was affected by it. Yet, the only entry in the notes to that effect appears at the last consultation, three years after the first. Even the respondent conceded it was extraordinary in the circumstances not to see a reference to it in the notes on this question the Tribunal should prefer the evidence of the patient.

Respondent’s Submissions re Particular (i) 72. The Respondent notes the view of the Expert Conclave that this

Particular falls into the category of a ‘failing held by the experts to be insignificant’ (Respondent’s submissions page 56). The Respondent made the following submissions (formatting and font styles retained):

Dr Pegios explained his position thus: Affidavit para 20:

At the time of treatment, I believed that I had adequately assessed this patient as suitable for implants or the type of implants I used. I am aware that the expert panel members found that my assessment was below the relevant standard, and now accept that view as correct. I also adopt the finding of the experts that my assessment was not significantly below the standard as correct.

I spent a good deal of time counselling [Patient B] about his smoking habit, and advised him of the importance of stopping because of the effect of smoking on his oral hygiene.

73. The Respondent also made submissions regarding the credibility of

Patient B which the Tribunal considers go beyond what is necessary for a proper consideration of this Particular. The Tribunal accepts the HCCC submission that the Tribunal should look to the admissions, the objective evidence and the contemporaneous records in making findings (paragraph 58 and 59 of Submissions in Reply).

Tribunal’s Findings re Particular (i)


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74. The Tribunal notes the Expert Conclave found the conduct particularised established and that such conduct was below the standard reasonably expected of a dentist of an equivalent level of training and experience, although not significantly below. The Tribunal notes that the Respondent accepts this position.

75. The Tribunal is of the view that ‘The placement of implants should not

be undertaken without careful consideration of many variables, including systemic and local host factors and the design of a prosthesis. Treatment planning decisions should, wherever possible, be based on evidence-based predictions of the best long-term success’ (Melanie Wood and Stanley Vermilyea, “A review of selected dental literature on evidence-based treatment planning for dental implants: Report of the Committee on Research in Fixed Prosthodontics of the Academy of Fixed Prosthodontics,” in The Journal of Prosthetic Dentistry Vol 92 No 5, November 2004, p 447: Ex Vol 12 Tab 13 (to which Dr Selby referred in his report in Ex Vol 4 Tab 6 p 4).

76. The Tribunal has made some general comments with respect to the

Expert Conclave and although significant regard has been given to the joint opinion expressed therein, there are issues (e.g. they did not have the benefit of the entirety of the evidence) to be considered when weighing their conclusions.

77. The Tribunal notes the Respondent provided a copy of

documentation he provided to patients. One document included the following passage (Ex Vol 2 Tab 3):

Medical Examination This is an absolute necessity! We will request medical clearance from your medical doctor. He or she will verify your general health and provide recent examination results including blood tests and urinalysis. He or she will indicate drug allergies and/or alternative recommendations. We want to be sure you are healthy and will heal well. We want your medical doctor to be aware of the surgical treatment we plan and of the medications we may prescribe.

78. The Respondent failed to adhere to the standards this document

stated was an 'absolute necessity’. The Tribunal is of a view that the Respondent failed to carry out an adequate assessment of Patient B given the co-morbidity factors presented. A pronounced ‘gag-reflex’ is not a total contra-indication for a denture. In fact, Patient B gave evidence he is still wearing the temporary denture made after he ‘sneezed out’ the entire implant. Patient B told counsel for the Respondent that the had no choice but to keep using the dentures as


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he was unable to afford any further treatment after he had paid the Respondent.

79. The Tribunal accepts the submissions of the HCCC regarding the

characterisation of this conduct. 80. The Tribunal is reasonably satisfied that the Respondent conducted

himself in the manner set out in Particular (i) and that he engaged in conduct that demonstrated that the skill, judgment possessed and care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (ii) - The dentist failed to provide sufficient information both orally and in writing to the patient about the nature and potential outcomes of the implant therapy, and failed to address the particular risks for the individual patient in his advice to the patient about the nature and potential outcomes of the implant therapy or provide adequate warning of the level of risk in his particular case.

HCCC Submissions re Particular (ii) 81. The HCCC made submissions regarding this Particular at paragraphs


186. Similarly, the expert conclave found that this particular was also established.

187. The patient did not recall any discussion of specific risks and

the notes do not suggest that such a discussion took place. 188. Although the consent form was detailed, it is generic in nature

and does not refer to diabetes as a risk factor. There is nothing in the notes to indicate that the patient was warned that his diabetic status was an added risk or that he was a high-risk candidate for surgery. As Dr Willey noted, there is no evidence to suggest that the patient was told he was in a high-risk situation or that he was warned that failure was likely. No statement the respondent provided after the complaint was made contains any assertion that he issued such a warning and the whole course of treatment strongly points to the likelihood that he did not; rather he treated him like any other patient. Either the respondent did not appreciate the gravity of the situation, which adversely reflects upon the level of his knowledge and/or training, or he did but was reckless about it, which adversely reflects upon the level of his skill and care.


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189. As Dr Condon wrote, the failure to address the specific risks is significant where the patient was in a high-risk category as a diabetic, smoker and with poor oral hygiene. In a complex procedure such as this was, the plan needs to be presented in writing in a form readily understood by the reader. That was not the case here.

Respondent’s Submissions re Particular (ii)

82. The Tribunal notes the Expert Conclave found the conduct particularised established and that such conduct was below the standard reasonably expected of a dentist of an equivalent level of training and experience, although not significantly below. The Respondent includes submissions regarding this Particular under the heading ‘failing held by the experts to be insignificant’.

83. The Respondent made the following submissions (formatting and font

styles retained) at pages 57-58 of his submission:

Dr Pegios Affidavit para 25:

Insofar as [Patient B] indicated to the Tribunal that I did not adequately inform him about the nature and potential outcomes of implant therapy, he is wrong. I fully informed [Patient B] of the advantages and risks of the implant procedure, and its potential complications. I explained the procedure orally, and showed him a dedicated patient-education DVD covering all these matters. I discussed with him the relevant medical issues, including his smoking and diabetes, and that they increased the implant failure rate. I accept, however, that I did not give him such information in written form and adopt the experts’ finding that, although this was a failing in communication, it was not a significant one. [Patient B] 131/2 Q. "Dr Pegios did not explain the procedure to me". Now, he said he would pull out the old teeth and put in the implants. He told you what he would put the implants into, didn't he, into your bone? A. Yeah. Q. So he explained it in that sense, correct? A. Yeah. … Q. You say there he didn't explain the procedure to you but he did explain he would pull out your


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teeth, right? A. Yeah. … Q. Did you ask him for any detail? A. No, because I wouldn't know what he is talking about anyway. I didn't know what implants were, nothing. Q. Are you saying you didn't need the detail? A. Well, he is the doctor, I am the patient. Q. You were happy with that situation? A. Yes. 142 Q. Dr Pegios showed you on a screen, a television screen, a little one, pictures about this procedure, didn't he? A movie? A. I don't remember him showing me the procedure. I remember him showing me pictures of people who had had it done and smiling they had had it done, I remember that. Q. And he also showed you, you know what a DVD is? A. Yes. Q. He showed you a DVD, a movie about how it worked, didn't he? How the procedure worked? A. I don't remember that. Q. Could be but you don't remember, is that right? A. Could be. 150 Q. This is true, isn't it: "I don't remember Dr Pegios telling me about the risks of implants, including not to smoke and dental hygiene, but he may well have done so"? A. He could have. I seen him that often I didn't know whether I was coming or going. Q. He gave you a reason to cut down smoking, didn't he? A. Yes. (Chairperson’s questions) 147 Q. You understood that you were going to get a


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full set of teeth, upper teeth and lower teeth? A. Yes. Q. They were called implants, had something to do with implants; is that what you understood? A. Yeah.

Tribunal’s Findings re Particular (ii)

84. ‘It is a general principle of law that a person must consent to health care before it can be lawfully provided’ (paragraph 1.6 NSW Law Reform Commission Report 119 – October 2008). ‘There is another legal principle that requires a health practitioner to inform a patient of the material risks of a treatment or procedure before obtaining the patient’s consent to it’ (paragraph 1.10 ibid.). Consent serves more than one purpose in health law.

85. The Tribunal is of the view that the generic Consent Form used by the

Respondent was not sufficient. The Tribunal accepts the submissions of the HCCC with respect to this Particular.

86. The Tribunal is reasonably satisfied that the Respondent conducted

himself in the manner set out in Particular (ii) and that he engaged in conduct that demonstrated that the skill and judgment possessed and care exercised by the Respondent was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (iii) - The dentist failed to devise an appropriate and adequate treatment plan.

HCCC Submissions re Particular (iii) 87. The HCCC made submissions regarding this Particular at paragraphs

190 to 196 as follows (footnotes omitted): 190. The conclave was unanimous that the respondent failed to

devise an appropriate and adequate treatment plan. Drs Stolz, Condon and Ho were all of the opinion that in this regard the respondent’s conduct fell significantly below the standard. Dr Berne thought it fell below the standard, but not significantly so.

191. The majority view should be accepted. In considering the minority position the Tribunal would bear in mind, not only its assessment of Dr Berne, but also the fact that he appears to have applied the wrong test. His interpretation of “significantly” was

of such a departure from the standard as to warrant severe reprimand and possible impeachment, to coin a phrase, of


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such a significant departure from standard as to be totally unacceptable.

192. That interpretation unquestionably overstates the test, bringing it closer to the common law test for professional misconduct. In the circumstances, the Tribunal would have no difficulty in concluding that the majority view is the correct one.

193. Dr Ho said that with a patient with such severe periodontal disease he would assume that the teeth would probably be mobile and have a hopeless prognosis. In that event, the teeth would have to be removed and he would extract the teeth and follow up with immediate full dentures for the patient. He described the procedure that the respondent adopted as “high risk”. There were four or five factors that increased the risk in his case. In explaining why he reached the view that the respondent’s conduct was significantly below the standard he said:

I think with this patient, with those multiple risk factors, that this had a high chance of having failures for this patient and I think, from memory, the way that the patient was treated, the treatment sequence was high risk in terms of placing implants immediately into the those extraction sites as well, so that combined with the medical factors would be classified as a high risk.

Q. What was the risk involved in placing the implants immediately into the extraction sites in this case?

A. Because the sites still had periodontally involved teeth. Assuming that the patient didn't go through the hygiene or periodontal treatment, they would still have a form of bacteria present within the teeth, so to place implants into the extraction sites would be more difficult, but that's not to say it has not been done by - there are certain clinicians doing those sorts of procedures now, but I would still classify it as high risk. It is not evidenced in the literature to place implants into those sites but there are reports that this is happening.

Q. It is not something that you would either do yourself or recommend be done in a case like this?

A. In a case like this, no, I would not carry out treatment in this manner.

194. Dr Stolz was of a similar opinion.


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195. It ought to have been obvious to the respondent that placing implants immediately into extraction sites affected by diseased teeth in a smoker with poor oral hygiene, diabetes and poor bone quantity and/or quality that the implants were doomed to fail.

196. The respondent now recognises that his treatment planning was flawed

Respondent’s Submissions re Particular (iii)

88. The Respondent made the following submissions with respect to this Particular (commencing at page 52, formatting and fonts retained from original submission):

It is to be noted that this was a majority finding as to it being a

significant failing, with the experts’ panel dividing 3:1 (Dr Berne the

minority). Dr Pegios Affidavit para 20:

At the time of treatment, I believed that I had adequately assessed this patient as suitable for implants or the type of implants I used. I am aware that the expert panel members found that my assessment was below the relevant standard, and now accept that view as correct. para 22:

At the time of responding to the Dental Board, I denied that I failed to devise an appropriate and adequate treatment plan because my belief was that the plan was adequate. I now accept the finding of the experts that the plan was deficient, but contend that that deficiency was not significant. [Patient B] was certainly a suitable candidate for implant therapy. Despite his oral evidence to the Tribunal, the incontrovertible fact is that [Patient B] had a pronounced gag reflex, and that condition meant that [Patient B] could not tolerate removable prostheses, as well as explaining why he had not earlier sought treatment. Dr Berne 955: Q: … (W)hen my learned friend asked you questions this morning you answered in respect of [Patient B] having hopeless dentition and … your evidence was to the effect that it was appropriate, that being his condition, to extract all his teeth - in


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which case oral hygiene would be an irrelevant consideration at that stage? A. Absolutely. Q. And I want you to assume that Dr Ho's evidence was to exactly the same effect and he said that his view of the appropriate treatment, subject to the gagging problem, would be provision of upper and lower dentures? A. Yes. Q. Would you agree with that, subject to-- A. I would have no objection to that at all. I would accept that, yes. Q. And you went on to say well, the problem was the gagging therefore ideal treatment was in fact not an option? A. That's right. Q. And that's meaning that you can't go to the removable upper and lower dentures? A. Yes. Dr Condon turned out to be somewhat equivocal in his opinion: 284: Q. Dr Condon, I want to go through some of your views as evidenced in the joint report. Dealing with [Patient B], your view was, and you were in the majority, that Dr Pegios failed to devise an appropriate and adequate treatment plan, wasn't it? A. That is correct, yes. Q. Did you consider the plan was not appropriate, or not adequate, or both? A. Excuse me while I think. The appropriateness of such a plan would require input from persons expert in implants. The adequateness was my concern. … Q. Does that mean you thought it inadequate? A. Yes. Q. Did you not think … that the treatment planning decisions were arguably valid? A. Yes. Q. You read Dr Berne's view that the treatment plan was probably adequate to provide the patient


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with upper and lower fixed prosthesis, agreed? A. Yes. Q. And you do agree with that? A. Yes. Dr Stolz 462: Q. Now Dr Berne's view, in his report, was that the treatment plan was probably adequate to provide the patient with upper and lower fixed prosthesis. Do you disagree with that? A. If it's put in such simple terms, no, I don't disagree with it. But in terms of the way the treatment was executed, I do. It is therefore submitted that the conclave’s view, after further

enquiry, was by no means as clear-cut as the joint report would

suggest, enabling the respondent to submit that there has not

clearly been established a significant failing in relation to this

particular. Dr Condon qualified his opinion, and even Dr Stolz was

prepared to go some distance toward Dr Berne’s view.

Tribunal’s Findings re Particular (iii) 89. The Tribunal notes the Respondent admitted this Particular in

paragraph 22 of the Opening Address and accepted the unanimous view of the Expert Conclave that the conduct was below the standard reasonably expected of a dentist of an equivalent level of training and experience.

90. As noted above, the evidence of Dr Berne as to the test he was

applying to satisfy the requirement of ‘significantly’ accorded with the higher standard of professional misconduct.

91. Having embarked upon such an ambitious course of treatment when

the patient had multiple risk factors, the Tribunal is of the view that the Respondent should have had an appropriate and adequate treatment plan in place. The procedures undertaken by the Respondent on Patient B were invasive and irreversible procedures. Having an appropriate and adequate treatment plan is essential, not only for the benefit of the Respondent but also to be available in the event that something prevents the Respondent from continuing to care for the patient.


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92. The Tribunal is reasonably satisfied that the conduct demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (iv) - The dentist failed to counsel the patient adequately or at all about oral hygiene before the implant began to fail

HCCC Submissions re Particular (iv) 93. The HCCC made submissions regarding this Particular at paragraphs

197 to 199 as follows (footnotes omitted): 197. This particular is disputed and the expert conclave was of the

opinion that this particular was not made out. 198. There is nothing in the records to indicate that the respondent

ever gave the patient any advice about the importance of such matters until after the implants began to fail. He does not suggest he did. The post-surgery care printout is clearly designed for the recovery period only. Curiously, a copy appears with [Patient A’s] records but not with the records for this patient.

199. The patient gave some evidence about oral hygiene. He

agreed that the respondent told him about the importance of good hygiene and flossing and brushing and that he sent him to see the oral hygienist in his practice and she did, too. The evidence was not specific as to time. However, as the complainant bears the onus of proof it is conceded that, unless the Tribunal is of the view that adequate counselling would also involve the provision of written material, this particular is not established.

Respondent’s Submissions re Particular (iv)

94. The Respondent does not appear to deal directly with this Particular in the Submissions. The Tribunal notes that this Particular was not admitted by the Respondent on the basis of the findings of the Expert Conclave.

Tribunal’s Findings re Particular (iv)

95. The Tribunal cannot be reasonably satisfied that the Respondent failed to counsel the patient adequately about oral hygiene before the implant began to fail. The Tribunal therefore does not find this Particular established.


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96. In so finding, the Tribunal takes care to indicate that a patient presenting with oral hygiene problems (particularly those as severe as Patient B’s) should be provided with extensive counselling, both verbally and with written reinforcement, to ensure appropriate oral hygiene regimes are established prior to or concurrently with the commencement of extensive work. Further, it would be prudent for any practitioner to accurately record the advice provided.

Particular (v) - The dentist failed personally to conduct the pre-anaesthetic assessments of the patient on 1 and 16 August 2002

HCCC Submissions re Particular (v) 97. The HCCC made submissions regarding this Particular at paragraphs


200. This particular is admitted. 201. The respondent was taught that the pre-anaesthetic

assessment should be undertaken by the sedationist and not by a registered nurse. The respondent did not deny this. Yet, from the time he completed the course he decided to do otherwise. The other evidence on this question is also instructive:

Q. Why did you depart from what you were taught? A. I saw no issue that the registered nurse was medically trained. She asked, according to a template that was required, and quite thoroughly in most instances, of the patient's history, so I saw no issue with that.

Q. Did you depart from what you were taught because it was more convenient for you to delegate that responsibility than undertake it yourself? A. No.

Q. Why did you understand you were taught to conduct the pre-anaesthetic consultation yourself? A. To get a better appreciation of the patient's medical history.

Q. In that event, apart from convenience, there really was no justification, was there, for you delegating that responsibility? A. No.

Q. You are agreeing with what I am putting to you? A. Yes.


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202. He did not point to any other practitioner who conducted himself in the same way. Moreover, he agreed he decided that he could unilaterally ignore what he had been taught. Yet, he maintained that his conduct did not fall below the standard reasonably expected of a practitioner of his training. The Tribunal would not agree. In all the circumstances and in the absence of any evidence justifying his conduct, the Tribunal should find that his behaviour is inexcusable.

Respondent’s Submissions re Particular (v)

98. The Respondent did not make submissions with respect to this Particular or the other Particulars alleging similar conduct with respect to other patients.

Tribunal’s Findings re Particular (v)

99. The Tribunal notes that the Respondent admitted this Particular. The Tribunal agrees with the Respondent that there is no justification for the delegation of the obligation of the sedationist to conduct the pre-anaesthetic assessment.

100. The Tribunal also notes this Particular was not considered by the

Expert Conclave. 101. The Tribunal has the benefit of extensive evidence regarding the

issue of the administration of the pre-anaesthetic assessment. The Tribunal accepts the submissions made by the HCCC.

102. The Tribunal is reasonably satisfied that the conduct demonstrates

that the skill and judgment possessed and care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (vi) - The dentist exhibited a lack of adequate care or failed to exercise an appropriate level of skill in his treatment in relation to the patient’s upper jaw

HCCC Submissions re Particular (vi) 103. The HCCC made submissions regarding this Particular at paragraphs


203. Although Dr Willey could not be certain that there was a lack of skill in this case, the level of proof required is not so demanding. Although the evidence about lack of skill may, at best be equivocal, there is an abundance of evidence to show a want of care.


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204. In his affidavit the respondent admit (sic) that he failed to exercise adequate care or skill in his treatment of this patient’s upper jaw. However, he maintained that the principal cause for the failure of the treatment to his upper jaw was poor oral hygiene, rather than the treatment itself.

205. When the patient first presented to the respondent there is no

doubt that he had severe periodontal disease and active periodontal infection.

206. As Dr Stolz observed:

Removing periodontally infected teeth and placing implants immediately is a risky procedure as the failure rates of implant double when placed in the extraction sockets of these periodontally compromised teeth.

207. If implants were to be placed, scaling or root planning for the

teeth to remove calculus and minimise pocket depths would have enhanced the prospects of placement of implants in an infection free site. Dr Ho’s practice is to give patients a pre-implant course of hygiene treatments to prepare the mouth for implantation when there is active periodontal disease.

208. The loss of the bridge and the breakdown of the implants

were, on the respondent’s own admission, caused by his failure to exercise adequate care or skill.

209. The patient said that when he discovered that one of the

implants had broken he saw the respondent but he said he couldn’t do anything about it because he was going to Italy for a conference. Although he was in a lot of pain, he said the respondent offered him no advice and did not refer him elsewhere. The respondent confirmed this in his own account, indicating that he told the patient he should await his return from holidays before doing anything. He did not tell him that he should see someone else if he was concerned or give him any advice. It was only after the upper implants fell out and the patient complained to the receptionist that the respondent apparently suggested he see Dr Chou. Indeed, it appears from the email Ms Cattanach sent to the respondent in his absence overseas that the respondent had not even mentioned the matter to Dr Chou.

210. The patient complained that he was never advised to see his

doctor, despite his deteriorating state of health. This evidence should be accepted. The respondent never suggested otherwise.


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211. Dr Condon’s initial conclusion that the treatment outcome for

this patient’s upper jaw was “severely below the accepted standard of care” is irresistible.

212. In all the circumstances, given the number of risk factors

operating in this case and the level of periodontal disease with which he presented to the respondent, the prudent course was to take “a more cautious approach” and remove the upper teeth, curette the infected sockets, place a full upper provisional denture (even though the patient did not want it), wait four to six months for the infection to clear and some bony repair to take place and then take CT scans to assess the availability of bone for implants. If necessary, grafting would be required. Placing the implants at the time of extraction was not a prudent option in a patient such as this, because it constituted “an unreasonable risk”. Second stage surgery was carried out on 7 November. However, the final impression for the construction of the permanent appliance was taken only 15 days later, on 22 November, when a reasonably prudent practitioner would have waited 4-6 weeks to allow adequate soft tissue healing to occur and for the tissues to stabilise before the final impression is taken. At 15 days, as Dr Stolz went on to point out, the tissues are not stable and will continue to heal and contract so that there will be gaps under the appliance.

213. Dr Ho, too, said that in a case such as this “treatment should

have been done in a more staged approach, where teeth were removed, followed by issuing of a denture, with delayed placement of the implants.”

214. Until the admissions made in March this year, the respondent

disclaimed any errors or omissions. Indeed, he maintained that he had treated the patient “well”. He stated in his first response that “during the following months and in fact years it was evident that oral hygiene and compliance by the patient was poor.” Indeed, he attributes the loss of the implants to “grossly poor oral hygiene”. However, Dr Willey considered that the implants were not in the mouth long enough for oral hygiene to have been a factor. Moreover, given the success of the lower implants, oral hygiene seems an unlikely explanation.

Respondent’s Submissions re Particular (vi)


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104. The Respondent made the following submissions (formatting and font styles retained) with respect to this Particular commencing at page 54:

It is to be noted that this was also a majority finding as to it being a

significant failing, with the experts’ panel dividing 3:1 (Dr Berne the

minority). Dr Pegios Affidavit para 23:

I admit, accepting the experts’ opinion, that I failed to exercise adequate care or skill in treatment of [Patient B’s] upper jaw. I would wish to emphasise, however, that this patient had grossly broken-down dentition and poor oral hygiene and, because of these factors, my opinion was that his oral hygiene would improve with the replacement of his failing teeth and provision of smoother fixed teeth. I advised him in detail about the planned treatment, and informed him that his diabetes and poor oral hygiene increased the risks of the technique he had chosen. A Novum prefabricated system was utilised on three specialised implants, and as far as I was aware there have still been no problems related to the lower reconstruction. For the maxilla a customised acrylic bridge was fabricated with a titanium framework. As far as I was generally aware some upper implants became infected. When the upper system broke down new implants and a new reconstruction were fabricated (at no cost to the patient.) It remains my belief that the breakdown was primarily related to poor oral hygiene, and not the treatment itself.

As to the suggestion that it would have been preferable for a patient having an upper jaw implant for augmentation procedures to have been used, I say that my judgment at the time was that, in the case of a patient who is a smoker and who has diabetes, the effectiveness of such procedures was reduced. Smoking and insulin-dependent diabetes are only relative contraindications to implant therapy. Endopore implants (the type used on this patient) are suitable for patients with reduced bone height, such as [Patient B], because of the implants’ shorter length. I am aware that the literature (particularly papers published by Dr Frank Renouard and Dr Douglas Deporter) establishes that shorter implants, even in the maxilla, are successful. Dr Berne’s report on [Patient B] at point 6:


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No (Dr Pegios did not demonstrate inadequate skill or care in the patient’s upper jaw treatment). The failure of the upper implants appears to be related more to poor oral hygiene than lack of adequate care or skill in the treatment. Dr Condon 285: Q. Your next view that I want to ask you about in respect of [Patient B] was that he had shown inappropriate care or an inappropriate level of skill in the upper jaw treatment. Which did you think it was, or did you - you can't think both, it was one or other, the way it is posed. What was your view about that? A. My view would have been related to the care. … Q. Do you agree with what Dr Berne reported, that the failure in the upper jaw was caused by poor oral hygiene, rather than any shortcoming in the treatment? A. I think that's a question more related to implant expertise and so I wouldn't comment on that. 286: Q. In relation to particular 6 you were in the majority which felt that - and in particular may the Tribunal take it that you felt that - the lack of adequate care exhibited by Dr Pegios in relation to treatment of the upper jaw was significantly below the standard to be expected; correct? A. That's correct. Q. There was a dissent. Did you listen to what Dr Berne had to say? … A. Yes, I did. Q. Would you concede that minds may legitimately differ on the degree of deficiency in the care that Dr Pegios exhibited in this regard? A. Yes, of course. Dr Stolz 465: Q. In respect of this patient, [Patient B], you're aware that Dr Berne said in his report,


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are you not: "The failure was caused by poor oral hygiene more than any shortcoming in the treatment" … Did you read that, Dr Stolz? A. I did. Q. Is that a view that is tenable, in your opinion? A. The role of oral hygiene in breakdown of the tissue around and implant which is called implant mucositis or peri-implantitis is poorly understood and to say that oral hygiene was the cause of the breakdown I think is too simplistic an argument. Q. He doesn't put it quite as simplistically as you say. He says it appears to be related more to poor oral hygiene than lack of adequate care or skill in the treatment. He's not writing it all down to oral hygiene, is he? A. I think there were other factors that were present which will contribute to that. Q. But you acknowledge that is a serious and tenable view that Dr Berne expressed? A. I think it's a simplistic view. Q. Is it tenable? I'm not asking you whether you think it's right beyond all question? A. There's a body of literature that would suggest that it does play a significant role. Again, exploration of the majority’s views in cross-examination must

lead the Tribunal to a conclusion that it cannot be satisfied that the

significance of the failing has been established at all, much less to

the very high standard that applies (see earlier submissions re

Briginshaw’s case and reasonable satisfaction).

Tribunal’s Findings re Particular (vi)

105. The Tribunal notes that the words ‘(Dr Pegios did not demonstrate inadequate skill or care in the patient’s upper jaw treatment)’ was actually the question that Dr Berne was asked to answer by the Respondent’s solicitor in his report.

106. The Tribunal notes the Respondent’s admission in March 2009 that

he failed to exercise adequate care or skill with respect to the treatment of this patient as set out in this Particular. The Tribunal


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accepts this admission and is of the view that, given the course of treatment followed by the Respondent, the conduct demonstrates that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (vii) - The dentist failed to refer the patient to an appropriately qualified specialist within an appropriate time after the failure of the treatment of the upper teeth

HCCC Submissions re Particular (vii) 107. The HCCC made submissions regarding this Particular at paragraphs


215. When the implants started failing, the respondent should have sought specialist assistance. There were numerous opportunities for this to occur as the patient re-presented with complaints that the appliance kept coming loose. Yet, the respondent foolishly tried to manage them himself, even when the patient presented with the OPG from the Concord Hospital dentist that showed that the whole upper arch was failing completely.

216. The patient said that the Concord Hospital dentist referred him to a specialist but he wanted $280 for the consultation and he could not afford it. He said that he telephoned the respondent and was advised not to go to the specialist but to see him. The respondent did not challenge this evidence in cross-examination and did not contradict it in his written or oral evidence.

217. Dr Ho’s view was that it was reasonable for the respondent to attempt to treat the patient when the implants failed the first time, but it would have been prudent for him to refer him to a specialist when they failed the second time. This was in June 2005 when he attended Concord Hospital.

218. It seems that the decision of the conclave that the failure to refer the patient did not fall below the standard reasonably expected of a dental practitioner of the respondent’s training or experience was based on an assumption that the patient had expressed a desire to remain in the respondent’s care. However, there is no evidentiary basis for that assumption. The respondent had a responsibility to at least recommend a referral, a responsibility he failed to discharge.

219. In the statement the respondent made on 25 March 2009 which was provided to the conclave, he admitted that he


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should have referred the patient to a specialist. He adhered to that in his affidavit. The Tribunal should find that this admission was properly made: that the respondent had an obligation to at least recommend a referral, an obligation he failed to discharge.

Respondent’s Submissions re Particular (vii)

108. The Respondent made the following submissions (formatting and font styles retained) commencing at page 58:

Dr Pegios’s position: Affidavit para 28:

I concede that I should have referred this patient to a specialist. In my defence, I would stress that I fabricated for him a provisional full denture and was awaiting resolution of his blackout problem before making a final decision, based on medical advice from his treating doctor. I adopt the finding of the experts that this failing was not significant.

Tribunal’s Findings re Particular (vii)

109. The Respondent acknowledges that he should have referred the patient to a specialist. The Tribunal is of the view that all health care professionals are expected to recognise and acknowledge the limits of the services that they are able to provide. Referring on after such limits are reached forms part of safe and appropriate practising.

110. The Tribunal finds the conduct Particularised established to the

requisite standard and that the conduct demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was below, but not significantly below, the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (viii) - The dentist failed to provide adequate post-procedure care following the breakdown of the upper implants

HCCC Submissions re Particular (viii) 111. The HCCC made submissions regarding this Particular at paragraphs


220. From January 2004 the respondent made “the wrong decisions in relation to the treatment”. At that time, the appliance should have been removed and a temporary denture made, the area allowed to heal and then the patient should have been referred to a specialist surgeon for assessment for bone grafting.


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221. The post-procedural care was unsatisfactory.

Respondent’s Submissions re Particular (viii)

112. The Respondent made the following submissions (formatting and font styles retained) commencing at page 59:


On the patient's last visit on 3.11.2005 he told me that he was having episodes of “black-outs” on a regular basis, and he briefly lost consciousness in the treatment room. I informed the patient I could no longer treat him if there was an urgent medical issue requiring attention. I advised him to see his doctor about the blackouts. [Patient B’s] evidence on this subject was quite incorrect.

I concede that I should have referred this patient to a specialist. In my defence, I would stress that I fabricated for him a provisional full denture and was awaiting resolution of his blackout problem before making a final decision, based on medical advice from his treating doctor. I adopt the finding of the experts that this failing was not significant. Dr Condon 287: Q. Just bearing in mind (that) the question is: “Did the dentist fail to provide adequate post-procedure care following the breakdown of the upper implants”, now, if that were a reference to the final breakdown of the upper implants and the post-procedure care given at that point and thereafter, it was your view, wasn't it, that the treatment was adequate? A. Yes. Dr Stolz 466: Q: … The question was asked (by the conclave): “Is this when implants first failed or denture failed?” I think Dr Condon went on to say something to the effect of “If it were the eventual failure the answer was no, wasn't inadequate.” Is that your view? A. Yes. [Patient B]


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137-140: Q: … You say you sneezed and the top teeth implant fell out. Everything came out and you just had holes in your gum, right? A. Yes. Q. You rang Dr Pegios' receptionist and she said look, he's overseas? A. Yes, I knew that too, yes. … Q. Yes, but Dr Pegios got an email from his receptionist or secretary? A. Yes. … Q. Dr Pegios received the email and he suggested you see Dr Johnson Chou, his assistant? A. Yes. Q. And you saw Dr Johnson Chou? A. The next day, yes. Q. Well, there was nothing more Dr Pegios could do that you could think of, was there, while he was overseas? A. Yes, but he could have wanted me to see another dentist or something. (Inaudible) … Q. But in any event, as soon as Dr Pegios came back, he fixed you up with a temporary denture? A. Yes. Q. Are you still wearing it? A. Yes. … Q. What else did you want him to do? When you had this problem, when the dentures fell out, sorry, the top teeth fell out, what did you want him to do, send you to another dentist? A. Well when it happened, I wish he had but he wasn't here. Q. Yes, but he sent you to Dr Johnson Chou? A. Yes, but he can't touch me. … Q. Did you ever say to Dr (Chou) well, if you can't treat me, please send me to somebody who can until Dr Pegios comes back? A. No, I never said that.


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Tribunal’s Findings re Particular (viii) 113. The Tribunal notes that the Respondent made no admission with

respect to this Particular. 114. The Tribunal notes the Expert Conclave did not fully discuss this

Particular and therefore reached no conclusion. On reviewing the clinical notes made by the Respondent it appears to the Tribunal that there was a breakdown of the upper implants in January 2004. There is also a record in this same month that Patient B had ‘grossly poor oral hygiene’. There appears to have been another breakdown in July/August 2004, which required the placement of two additional implants. There is another breakdown identified on 16 June 2005 by a dentist at Concord Hospital and then a final breakdown when the entire implant-borne prosthesis was ‘sneezed out’. It is extremely difficult to follow the progress of the breakdowns because of the severe deficit in the Respondent’s records with respect to this patient. It did not in any way assist the Tribunal that the clinical notes were handed up in a piece-meal fashion during the Inquiry and lacked correlation and consistency.

115. On reviewing the reports/evidence of each of the experts, the following

comments are noted:

Dr Ho (page 8 – exhibit R3) – ‘The clinical treatment provided by Dr Pegios to [Patient B] is difficult to follow because of the unsatisfactory written records, but when implants failed it may have been best to remove them and allow some bony healing to take place rather than to carry out immediate replacement with more implants. Infection associated with failing implants may necessitate delay in replacement, but would have been important in this case because of the patient’s medical status’. Dr Condon (Volume 2 - exhibit 10) – does not directly comment on this particular and in his oral evidence he only refers to the ‘final breakdown’ (T287). Dr Berne (page 4 - exhibit R8) – ‘No. Although [the Respondent] went overseas just after the upper prosthesis, together with the implants, failed, he arranged for his associate to construct a provisional full upper denture. This can hardly be called failing to perform adequate post operative care as there was probably little more that could be done at the time.’ Dr Stolz (page 16 –volume 2 – exhibit 13) – ‘The post procedural care was unsatisfactory because [the Respondent], at the time of discovery of ‘some’ failed implants in January 2004, did not make the correct treatment decisions.’ ‘[The Respondent] was slow to


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recognise that the treatment was failing as comprehensively as it was, and this has surely exacerbated the problem’.

116. The Tribunal finds that there was a significant progression of

breakdown over a period of time. The completion of this breakdown occurred with the ‘sneezing out’ of the implant-borne prosthesis. There is nothing to indicate that the Respondent took appropriate steps to satisfactorily address this progressive breakdown. Arranging for a provisional full denture to be made can only be seen as salvage of a treatment failure rather than as post operative care.

117. The Tribunal finds the conduct of the Respondent with respect to

Particular (viii) demonstrates that the skill and judgment possessed and the care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience and is severely critical of his conduct.

Particular (ix) - The dentist failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

HCCC Submissions re Particular (ix) 118. The HCCC made submissions regarding this Particular at paragraphs


222. The conclave neglected to express an opinion on this aspect of the complaint. However, there is no room for argument about the conclusion the Tribunal should reach.

223. In this case, as Dr Ho pointed out, “the notes are minimal and

in some cases [there are] no notes of what was done or recorded of treatment provided.” His view was that the record keeping in this case fell significantly below the standard. That would follow in any event from a breach of the Regulation.

224. The record keeping in this case is poor. The notes do not

even meet the minimum standards set out in clause 23 of the 1996 Regulation and clause 33 of the 2004 Regulation. Those requirements include recording the date on which the patient is first examined by the dentist as well as the date of each occasion on which the patient is treated, together with “a description that adequately records the treatment administered on each occasion (specifying the tooth or teeth concerned).”


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225. They certainly do not conform to the ADA Guidelines for Good

Practice. 226. The first entry in the progress notes is on 15 July 2002 and in

the “appointment notes” on 17 October only the words “post op” appear.

227. There is nothing in the progress notes recording what

happened during the first recorded consultation on 15 July 2002 – no record of complaints or presenting symptoms, no examination findings, no medical or dental history, no provisional diagnosis or treatment plan. Yet, as both Dr Condon and Dr Stolz have said (and the respondent concedes), all should be recorded.

228. A medical history chart apparently filled in by the patient is

incomplete. The ‘Outline of Treatment’ the respondent presented in March 2006 and written after the complaint to the Dental Board mentions that the patient presented at the first consultation with a history of insulin dependent diabetes. However, the first mention in the records is in the pre-anaesthetic assessment of 1 August 2002 although the first recorded consultation was two weeks earlier.

229. Although a number of the implants became infected, and

although he conceded it was important to make a note about such matters in the patient’s records, there is no mention of infection. The respondent accepted that it was a serious omission not to note the number of implants that had become infected and which they were.

230. Although the patient had a number of complaints, the

respondent conceded the records refer to none of them. 231. The records do not refer to the bridge having fallen out or of

an implant breaking. The respondent conceded it was a serious omission not to note the circumstances of the bridge falling out.

232. The respondent removed ‘the remaining fixtures’ but there are

no clinical notes recording this work. Moreover, as Dr Willey pointed out in his report there is no entry in the progress notes for 21 February 2003, which is the date the respondent nominates in his ‘Outline of Treatment’ for the issuing of the final prosthesis.


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233. A comparison of the patient’s records produced to the Dental Board and the appointment books produced by the respondent to the Tribunal reveals:

(a) No notes in any of the records for 2 August 2002 when the appointment book includes an entry for that day “GP01 Adj novum” and no record of cancellation of that appointment.

(b) No notes in any of the records for 6 August 2002 when the appointment book includes an entry for that day “GP01 CONSULT/2ND IMP” and no record of cancellation of that appointment.

(c) No notes in any of the records for 8 August 2002 when the appointment book includes an entry for that day “GP01imp” and no record of cancellation of that appointment.

(d) No notes in any of the records for 20 August 2002 when the appointment book includes an entry for that day “GP01 fit” and no record of cancellation of that appointment.

(e) No notes in any of the records for 22 August 2002 when the appointment book includes an entry for that day “GP02” and no record of cancellation of that appointment.

(f) No notes in any of the records for 23 August 2002 when the appointment book includes an entry for that day “GP01 Issue temp” and no record of cancellation of that appointment.

(g) No notes in any of the records for 10 March 2003 when the appointment book includes an entry for that day “GP01 TIGHTEN” and no record of cancellation of that appointment.

(h) No notes in any of the records for 17 March 2003 when the appointment book includes an entry for that day “GP01 Check” and no record of cancellation of that appointment.

(i) No notes in any of the records for 16 February 2004 when the appointment book includes an entry for that day “GP01 2nd stage” and no record of cancellation of that appointment.

(j) No notes in any of the records for 8 April 2004 when the appointment book includes an entry for that day “GP01 TREATMENT” and no record of cancellation of that appointment.

(k) No notes in any of the records for 29 April 2004 when the appointment book includes an entry for that day “GP01 TREATMENT” and no record of cancellation of that appointment.


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(l) No notes in any of the records for 16 June 2004 when the appointment book includes an entry for that day “GP01Try-in” and no record of cancellation of that appointment.

(m) No notes in any of the records for 29 July 2004 when the appointment book includes an entry for that day “GP01Try-in” and no record of cancellation of that appointment.

(n) No notes in any of the records for 6 August 2004 when the appointment book includes an entry for that day “GP01 Issues + tek” and no record of cancellation of that appointment.

(o) No notes in any of the records for 11 October 2004 when the appointment notes carry the entry for that day “GP01 Issues + tek” and no record of cancellation of that appointment.

234. To a large extent the progress notes are a misnomer. For the

first nine months they represent nothing more than billing records. Afterwards when the situation was rapidly deteriorating, there is no significant record of the problems the patient encountered, save on the occasion of the last appointment.

235. This was not a simple case where brief notes might have been

acceptable. Rather, the multiple risk factors dictated a cautious and staged approach to treatment from the outset which should have been reflected in the notes. Without more detailed notes on each occasion, there was a significant prospect that treatment would be compromised.

Respondent’s Submissions re Particular (ix)

119. The Respondent made the following submissions (formatting and font styles retained) at page 60:


I agree that I failed to make and retain adequate clinical records contrary the ADA guidelines. I adopt the finding of the experts that this failing was not significant. The respondent adopts the submissions, ante, as to his having overcome this failing.

120. The Submissions referred to as ante appear in this document under

the heading ‘Complaint 5A & 5B, Particular (vi) (Patient E)’.


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Tribunal’s Findings re Particular (ix)

121. The Tribunal notes the Respondent’s admission with respect to breaching the ‘ADA Guidelines’. The Tribunal notes that the Particular relates to breaching specified Regulations. These are patently different matters. All registered dentists are bound by any Regulations. Where a registered dentist becomes a member of the ADA they agree to comply with the Guidelines.

122. It is difficult to see how the Respondent can ‘adopt the finding of the

expert conclave that this failing was not significant’ as, due to a typographical error, the Expert Conclave was not asked to express a view as to whether this conduct was below or significantly below the standard reasonably expected for this Particular.

123. Given the nature of the treatment undertaken by the Respondent, the

medical history of the patient, the difficulties encountered during the course of treatment and the paucity of clinical records of the nature prescribed in the Regulation; the Tribunal is reasonably satisfied that the conduct the Respondent engaged in demonstrates that the judgment possessed and care exercised by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Concluding summary of each party re Complaint 2A and 2B

124. The HCCC made the following submissions by way of conclusion with respect to the Complaints regarding the Respondent’s treatment of Patient B (paragraphs 236 – 238):

236. In a number of respects the respondent’s conduct in this case

did not conform to the standards reasonably expected of a practitioner of equivalent level of training or experience.

237. The case was mismanaged from the start. 238. The combination of failings was substantial.

125. The Respondent makes the following submission which ‘addresses

directly the issue for the Tribunal’s determination’ at page 60 as follows:


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Submission 4: The respondent’s failure to devise an appropriate and adequate treatment plan for [Patient B] and his lack of adequate care or skill in his treatment of the patient’s upper jaw, found by the experts’ conclave to be significantly below the relevant standard, was unsatisfactory professional conduct, at most.

126. The HCCC made submissions in reply as follows (paragraphs 53 to

60):

53. In discussing the treatment planning relating to [Patient B] the respondent submits that:

the conclave’s view, after further enquiry, was by no means as clear-cut as the joint report would suggest, enabling the respondent to submit that there has not clearly been established a significant failing in relation to this particular. Dr Condon qualified his opinion, and even Dr Stolz was prepared to go some distance toward Dr Berne’s view. (page 54)

54. He relies in part on the following evidence of Dr Stolz at page

462 of the transcript:

Q. Now Dr Berne's view, in his report, was that the treatment plan was probably adequate to provide the patient with upper and lower fixed prosthesis. Do you disagree with that?

A. If it’s put in such simple terms, no, I don’t disagree with it. But in terms of the way the treatment was executed, I do.

55. However, this evidence is qualified by the next question and

answer, which are not extracted.

Q. But you see this particular is not about execution of the plan. It is about the plan itself?

A. The treatment plan by its very nature has to include sequencing of the treatment.

56. And later:

Q. A dentist, a treating dentist would always have his intended course of treatment in mind, won’t he or she?

A. That’s meaningless until it’s recorded, as far as I’m concerned.


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Q. Well surely not. Why is it meaningless if it’s just held in the intellect of the professional?

A. Because there is no guarantee that you will recall all of it. (T 462.)

57. That opinion is persuasive and accords with commonsense. 58. With respect to the gag reflex the patient was clearly mistaken

when he maintained he had never had a gag reflex in his life. The only record of it, though, is at the last consultation with the respondent on 3 November 2005 and at Dr Willey’s consultation on 30 August 2006. The history of diabetic blackouts is unclear. The respondent’s note quoted in his submission at page 51 is ambiguous. The Tribunal should conclude that [Patient B] appeared to be making a genuine attempt to give an honest account of his situation but his recollection was poor and aspects of his evidence are admittedly unreliable. He was not a satisfactory witness. In the result, the Tribunal should look to the admissions, the objective evidence and the contemporaneous records, and should not make adverse findings based on his recollection.

59. None of particulars (i), (iii), (v), (vi), (vii), (viii) or (ix) depends at

all on the word of the patient. Only one part of particular (ii) – the question of oral information – does. Thus, the significance of this patient as an unreliable witness has been exaggerated. In the case of particular (viii) it is one thing to focus on what might have been done by the time of the final breakdown but the respondent’s obligations did not start then.

60. The last paragraph of the respondent’s submission on this

complaint (commencing at the bottom of page 60), which refers to the complainant’s conclusion and in which it is suggested that the complainant has not directly addressed the relevant issues, completely overlooks the analysis relating to the individual particulars that preceded it.

Tribunals Findings – Complaint 2A and 2B – Patient B

127. The Tribunal has found the conduct of the Respondent set out in Particulars (i), (iii), (v), (vi), (viii) and (ix) fell significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience. The Tribunal also found the conduct of the Respondent set out in Particulars (ii), (vii) fell below the standard reasonably expected of a dentist of an equivalent level of training and experience.


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128. These are not failings of an isolated nature. They do not relate to a momentary lapse of concentration. The breaches go to the heart of the practice of dentistry.

129. Given the findings set out above, the Tribunal is reasonably satisfied

that conduct of this nature proven in this Particular is of a sufficiently serious nature to justify suspension or cancellation of the dental care provider's registration.

130. The Tribunal finds Complaint 2A established. 131. The Tribunal accepts Submission 4 made by the Respondent, that

Particular (vi) is unsatisfactory professional conduct. However, when considered with the balance of the Particulars of this Complaint the Tribunal has made a finding of professional misconduct.

Patient C – Complaints 3A and 3B 132. Complaint 3A alleges the Respondent is guilty of unsatisfactory

professional conduct within the meaning of section 41 of the Act in that he engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.


on the same basis. 134. The Complaint alleges that between 13 January 2005 and 14 March

2005 the dentist provided dental treatment to Patient C. The treatment involved placing porcelain veneers on five teeth, installing a crown and performing root canal therapy. HCCC Summary of the evidence


239. The patient first consulted the respondent on 13 January

2005. He was 27 years old. He sought advice on the best solution to improve his smile. His main concern was with the crookedness of his teeth, especially tooth 23.

240. On the second occasion, the respondent recommended veneers. The only other suggestion he made was implants. However the patient rejected that option.

241. In his complaint to the Board the patient stated that he thoroughly questioned the respondent about the thickness and appearance of veneers, noting that his worst fear was ending


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up with “horse’s teeth”. He was adamant that he did not want anything that appeared “obviously fake or unnatural”. The respondent assured him that the veneers were “fingernail thin and natural” – like the patient in before and after photos he showed him. He said that if he had teeth 11, 12 and 13 (which were not crooked) also veneered, then he would have a perfect smile.

242. It was the patient who raised the question of safety and complications. The respondent assured him that the procedure was “safe and conservative” and told him that veneers are stronger than teeth and do not decay. He repeated assurances of this kind at the third consultation.

243. The patient was very unhappy with the treatment and sought out the services of another practitioner. On 15 March 2005 he presented to Dr Michael Tam. Dr Tam considered there were a number of concerns about the porcelain restorations: a. The midline was axially inclined towards the patient’s

right. b. The tooth axes of most restored anterior teeth were

inconsistent. c. They had irregular proximal contours and surface texture/

morphology. d. They had excessive curved incisal edges. e. They had incorrect tooth lengths. f. There were marginal discrepancies at the tooth-

restorative interface on teeth 11 and 22, which would mean that the porcelain restorations would have failed in the short term.

g. There was no luting cement at the tooth 11 restorative interface which would allow ingress of food and bacteria at this junction – a failed restoration in the short term.

h. There was a possible inadequate fit of porcelain veneers at the tooth-restorative interface on teeth 12/11/22.

244. Dr Tam then went on to replace the six porcelain restorations with a new set.

245. When the complaint was drawn to his attention the respondent rejected all of the criticisms. He reiterated his position when given a further opportunity to comment after the investigation was completed.

246. On 11 March this year he admitted he was guilty of unsatisfactory professional conduct within the meaning of s 41 of the Act with respect to this patient in that he failed to make


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and retain adequate clinical records contrary to the relevant ADA Guidelines.

247. On 24 March he added to his admissions in this matter, admitting that he was guilty of unsatisfactory professional conduct within the meaning of s 41 with respect, not only to his record keeping, but also because of his failure to seek or advise the patient to obtain an orthodontic opinion.

248. After the expert conclave he withdrew his admission of unsatisfactory professional conduct.

249. Despite the conclusions of the expert conclave the evidence considered as a whole shows that the admission was properly made.

Respondent’s preliminary submission 136. The Respondent made the following preliminary submissions (page

6):

The respondent admits that he failed to seek or advise an orthodontic opinion; failed to use adequate care or skill in installing the veneers; failed to provide sufficient information for the patient’s consent to orthodontistry (sic) and other treatment options; failed to provide a preview of the veneers before permanent cementation; and failed to make and retain adequate clinical records. None of those failings was a significant departure from the relevant standard, and the respondent denies that any of them, individually or together, could constitute unsatisfactory professional conduct. He adopts the findings of the expert panel in this regard.

137. The Respondent also made general submissions, which essentially

go to the issue of the credit of Patient C, from page 75 onwards (formatting and fonts retained from original):

Preliminary issue: The credibility of the witness [Patient C] presented the Tribunal with a ‘dog ate my homework’

excuse for refusing to give viva voce evidence: a note from his

mother (who may be a medical practitioner, but is not his treating

doctor), which did not coincide with the account given by the

witness as justifying his demand to remain in hiding. Over the

respondent’s objection (supported by an argument that where credit

is in issue, it is a denial of procedural fairness to prevent the

respondent from exposing to the tribunal of fact, judging [Patient C]

credibility, his demeanour when under challenge), this witness was


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allowed to avoid showing his face to the Tribunal. The respondent

repeats his contention that it would be quite unfair to accept the

contested allegations of this witness, who hid at the end of a

telephone line, unwilling to be seen and judged.

Dr Pegios Affidavit para 39: I noted, listening to [Patient C’s] evidence on the telephone, that he made a number of disparaging remarks about me, attacking my motives. He even falsely claimed that I did not speak to him during treatment because I was “listening to music.” My surgery has piped Musak which plays all the time, to create a more relaxing atmosphere, and he has sought to distort that unexceptionable fact. [Patient C] 338/9 Are you working today? A. Just a little bit. Q. Were you working yesterday and the day before? A. A little bit. Q. You are not unwell, are you? A. Sorry. Q. You are not unwell, are you? A. I feel unwell, my stomach is hurting and I have stomach problems. Q. What's the name of your treating doctor? A. My treating doctor is Mr Hing. … Q. Dr Hing? A. Dr M Hing. Q. Thank you. You are not so unwell that you can't work, are you? A. I am - I can work only an hour a day. Because I work on a computer it is not too hard to work for an hour. Q. You are at Camperdown? A. Yes. Q. About what, a mile from Central Station? A. I would say so, yes.


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Q. You couldn't come down here and give evidence about a mile away from where you are now? A. It has nothing to do with the distance of where I am. Q. Why have you not obtained a medical report from your treating doctor? A. Sorry? Q. Why did you not obtain a medical report from your treating doctor? You don't want to come here and give evidence and got your mother to give you a medical report? A. (gave no responsive answer)I'm happy to give evidence in a private room with one person. If my identity is a problem I can come down into a private room and have my identity verified and someone could sit with me on the phone there and I can do that if that's what your concern is.

138. The Tribunal notes that the words ‘(gave no responsive answer)’ in the

last answer above did not form part of the original transcript but takes them to be part of the Respondent’s submission.

Particular (i) - The Respondent failed to seek, or to advise the patient to obtain an orthodontic opinion



250. This was in fact a case where every problem with which the patient presented could have been solved by orthodontic treatment. Moreover, there could be no doubt that the patient would have been better off with orthodontic management. Dr Ho said in his oral evidence that “all patients would be better off with orthodontic treatment in this sort of situation”. He went on to explain:

Because with veneer treatments there is always a maintenance issue with veneers that you may have to have these replaced, and there is an irreversible process in that you have to prepare the teeth. I would prefer that patients have orthodontics at the moment. However, there are many that don't want to go through that orthodontic treatment.


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251. In addition, as Dr Stolz pointed out: The crowding of the teeth could be corrected (his main problem); the alignment of the long axes of the teeth could be improved; the sloping midline could be corrected; the asymmetric arch form could be corrected; symmetry – a near mirror image of the three teeth on the right of the midline to match those on the left of the midline could be created. This is an essential prerequisite for good anterior aesthetics.

252. What is more, had he undergone orthodontic treatment he would have avoided the devitalisation of a virgin tooth (23), the potential for discolouration of the tooth in future and the need for any restorative treatment on the six front teeth. Dr Ho agreed.

253. In those circumstances, as Dr Ho said, a dental practitioner would be expected to urge his patient to seek an orthodontic opinion before going ahead with treatment.

254. As Dr Stolz said, at the very least, an orthodontic opinion should have been sought. Dr Tam actually advised the patient that he definitely needed an orthodontic opinion. Whilst it is true that the patient rejected Dr Tam’s advice, by then the horse had bolted. Veneers had already been inserted, against the background of the respondent discouraging the patient from an orthodontic remedy.

255. The respondent admits that he failed to seek, or advise the patient to seek, an orthodontic opinion. His explanation is that the patient was adamant he did not want one. The patient’s account is different. Whilst it is clear that he was seeking treatment that did not involve orthodontics, he said

I had a feeling towards not wanting orthodontics but I was open to orthodontics. I was seeking solutions without orthodontics and I don't know anything about solutions without orthodontics. That's why I made the appointment with him to find out what solutions he can present to me that are not orthodontics related because I understood orthodontics can give me a good smile.

256. There is no reason why the Tribunal should reject that account. It is no recent invention. It accords with what he said as early as April 2005 when he made his complaint. In that document he said:

My main concern was with the crookedness of my teeth, primarily tooth #23. I seeked (sic) advice from Dr Pegios for the best solution to improve smile.


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257. As Dr Stolz said, in these circumstances, the respondent should have sent him to an orthodontist.

258. It was at his first visit on 13 January 2005 that the patient noted on the Medical Chart that he was “seeking opinion in cosmetic treatment, without orthodontics”. However, the evidence indicates that it was at the third consultation that the subject was discussed and it was the patient who initiated the discussion on the question. As orthodontics was always an option, it should have been the subject of discussion from the outset. The respondent should have given the patient appropriate advice. It should have been the practitioner and not the patient who was driving the process.

259. At the third consultation the patient states that he asked whether orthodontics would be a better idea. He said that the respondent replied that he had had younger patients for veneer treatment, that it was common, veneers would last over 15 years, that it was a very safe, conservative procedure and that orthodontics could be risky.

260. There is little doubt that if such a statement were made it would have been “a gross misrepresentation” of the specialist field. If the Tribunal prefers the patient’s evidence on this question, then the conclusion that in this respect the conduct fell significantly below the relevant standard is inescapable.

Respondent’s Submissions re Particular (i)

140. The Respondent made the following submissions (formatting and font styles retained) regarding this Particular and Particular (iii) (which was labelled as (iv) by the Respondent) at page 76:


I admit that I did not seek to persuade [Patient C] to obtain an orthodontic opinion – because he was so adamant that he did not wish to take that course. I assert that that was not a failure to conform to the relevant standard. I have no doubt that I informed the patient sufficiently for him to provide a fully informed consent to the various procedures performed. I note that [Patient C] in his statement dated 1.6.2006 agrees that he was “shown before-and-after photos of people who had had veneers” (para. 8); that he was informed that the veneers would be “as thick as my natural teeth” (para. 8); that I told him that the veneers would last up to 15 years (in response to his question about life expectancy of veneers (para. 9); that he was given a brochure titled “ADA Veneers, Bonding, Bleaching and Composite Fillings” (para. 9); that he was informed that orthodontics take longer and can be risky (para. 12) (see my earlier evidence as to the word


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‘risky’); and that he had root canal therapy on #23 (obviously after it was explained, discussed and consented to) (para 15). Affidavit para 30: I discussed orthodontic treatment with him, but he made it very clear that he was not interested in orthodontics because he wanted a short treatment period, and chose to have porcelain bonding to the six upper front teeth. Indeed, he was quite adamant, saying that he wanted “straight teeth, quickly.” He told me “I don’t want braces, and I don’t want implants.” I did not discuss implants with him at all. He told me that he had researched alternative treatments on the internet. I did not actively discourage him from an orthodontic solution, but heeded his clearly-expressed wishes, which were for treatment that did not involve braces.

I deny that I ever told him anything to the effect that orthodontics were “risky” or “dangerous” or “bad.” I did not tell him of any patient who lost a tooth in such treatment. There are no circumstances in which I would or could have made such statements. Dr Condon 287: Q: … (T)he question is: “Did he fail to provide sufficient information to the patient to enable him to give informed consent to the various procedures?” The answer that you gave on behalf of the joint panel was a qualified one and it was, as I noted it, to this effect, “If that question is about information as to crowns … (and veneers), Yes, but not if the information was in relation to orthodontics". Does that refresh your recollection? A. That is correct. … Q. On the left-hand side (of the conclave’s document)it says "If it was for orthodontic or other options, not sufficient information (was) given to patient". Was that your view, Dr Condon? A. Yes. Q. That he gave sufficient information about veneers and crowns but he didn't give sufficient information about orthodontics (or other options)? A. Yes. … 288:


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Q. What did you assume Dr Pegios had said, or what information did you assume he had provided, whether in speech or any other form, in relation to the orthodontic course or any course other than veneers and crowns? A. I assumed he would have said something about orthodontics. Q. But without knowing what he said, how could you possibly be persuaded it was inadequate? A. Because if I can go back to where I was heading earlier, this is such a significant departure from what would be expected that I would have expected significant notes to have been made that he had offered orthodontic advice to [Patient C] and [Patient C] had refused. … 289: Q. So did you, in 2005, habitually write out everything you said to a patient by way of advice or options? A. In general terms, or for a case such as this? Q. In any case? A. In some cases, (a) few cases, because I don't do treatment like this. Q. You would agree, wouldn't you, that before you condemn somebody for their professional conduct, and particularly for failing to give information, you have got to be satisfied of what information was actually given? A. Yes. … 290 Q. But you see, for all you know, Dr Pegios said something to this effect: Look, one option for you is orthodontics and it involves this process over this period of time, and you won't get a result until three years time and you will have to wear braces and they do hurt and they are more difficult to clean, but that is one option and it will cost X, that's one option. The other options are these. And then the patient said to him: The only thing I don't want is braces on my teeth and a long delay. I am after the quickest, best result I can get. Now in that situation, would you be critical of the information he


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provided him about orthodontics? A. No. Q. Thank you. And you don't know that was not the conversation that was held, do you? A. No, I don't. Dr Stolz 442: Q. What if the patient said “Here is my medical form written before I came in to see (you), I want treatment without orthodontics” and repeated that at consultation? “I don't want to go that route. It takes too long, people tell me it is very uncomfortable it is hard to clean your teeth and you look silly”, all that stuff? A. Then I have sympathy for the approach that Dr Pegios would have adopted. 466: Now, was the view that you took then that Dr Pegios did provide sufficient information to the patient about veneers but if the question concerns orthodontics and options, other options, then not enough information was given to the patient? A. Yes. Q. And that is again a situation where you took the word of the patient as to what information he was given about orthodontics and other potential treatments, is it not? A. Yes. … Q. If it be the case that the patient made it perfectly clear to Dr Pegios at the consultation that he knew what orthodontics was and didn't want orthodontics, would you have a different view? A. If he was adamant about it, I would have a different view. [Patient C] 344-7: Q. Before you saw Dr Pegios you had decided you did not want to undergo orthodontic treatment, had you? A. No, that's not true. I didn't. I wanted to


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see what options I had apart from orthodontics and based on my research, there was a potential option of veneers and that's why I made the consultation to find out more about it. I was not 100 percent against orthodontics and there was three consultations that I had with Dr Pegios to make sure what I wanted was achievable, and yeah. … Q. The truth is (that) in advance of seeing Dr Pegios, you wrote in your own handwriting on the medical chart that you wanted treatment without orthodontics, didn't you? A. My initial impression -- Q. Would you answer that question? You wrote those words on the medical chart that you wanted treatment? A. Will you repeat the question? Q. Yes. You wrote on the chart before you saw Dr Pegios and had any conversation with him that you wanted treatment without orthodontics, didn't you? A. I wrote that, yes. Q. Thank you very much. So you already had an attitude before discussing any options with him that orthodontics was out? A. But no, that is incorrect. I had a feeling towards not wanting orthodontics but I was open to orthodontics. I was seeking solutions without orthodontics and I don't know anything about solutions without orthodontics. That's why I made the appointment with him to find out what solutions he can present to me that are not orthodontics related because I understood orthodontics can give me a good smile. … Q. Did he or did he not give you information about orthodontics? A. I would answer that no. … Q. (Y)our earlier answer that he told you not to have orthodontics was a lie, wasn't it? A. I didn't say he said that directly. I said


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that he said that orthodontics, this is what he said that I recollect. He said that orthodontics was dangerous, they were risky, it was long term and that he knows a patient that lost a tooth on it. That's what he told me about orthodontics. Q. That is false, isn't it? A. No, that is the truth. Q. You didn't want orthodontics because it took a long time and could be painful, isn't that right? A. I wanted a good result. Q. And a quick one? A. A good result. If it was perfect, quickness would be a bonus but in the end my main concern was to get a good natural smile. Q. You wanted a quick result, didn't you? A. I wanted a good result, that was the number one thing that I wanted. Q. Please answer my question? A. Timing was not the most important thing. Q. Please answer my question. Did you or did you not want a quick result? A. No. Q. That's a lie too, isn't it? A. I wanted a good result. If it was long or quick, that was irrelevant. The only reason I didn't want orthodontics at that point was because I wanted to seek opinions what is possible with a quick result and I was told that perfection was basically possible. Therefore, I welcomed that. Especially that it's, especially since it is a quick result, that is a great bonus. Q. So you now admit you didn't want a quick result? A. I did look for a quick result -- Q. And that is what you told Dr Pegios, isn't it? A. Sorry? Q. And that's what you told Dr Pegios?


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A. No, I didn't ask about quickness. I knew the word quick, I already understood that. Orthodontics, you have to wear braces for a number of years and veneers you don't. I already (knew) that. Q. What -- A. That's why I asked him initially what are the options with quick results and he presented the cosmetic option of using veneers as a quick result. Q. Exactly, you asked him what the options were for quick result. I'm repeating your very words to you? A. Yes, initially, yes. 348-351 Q. You see, you were advised by Dr Tam on the subject of orthodontics, weren't you? A. Dr Tam mentioned, yes, something on orthodontics. Q. And you rejected his advice on that subject didn't you? A. He said that I should have orthodontics and I said that I don't want to have orthodontics on Dr Pegios's teeth because if I have orthodontics on his teeth, that is it's horrible. It's a horrible appearance to have orthodontics placed on horrible teeth. Q. Despite the fact that Dr Tam advised you to have orthodontic treatment, you wouldn't do it, correct? A. Not with him. Not till they removed the veneers, the Dr Pegios' veneers. … Q. From your earlier answers you are indicating, are you not, that before you went to Dr Pegios you'd been on the internet researching veneers? A. Yes, I looked into, not deeply at the first time. I researched it after the second consultation when I had a deeper look. Q. Did you also research orthodontic treatment? A. Yes, sir, I look into orthodontics slightly.


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I knew they would take time. That's all I knew. I knew - I just realised that there could be differences between the two procedures. I was given the impression by Dr Pegios that veneers basically give you the exact same result as orthodontics but were in a different quicker timeframe. Q. You say you thoroughly questioned Dr Pegios about veneers, don't you? A. Yes I did. Q. He thoroughly answered you, didn't he? A. He answered the questions I asked him. Q. He gave you a pamphlet from the Australian Dental Association, didn't he? A. Just one pamphlet was all he gave me. … Q. You knew from reading the brochure or pamphlet that the risks of veneers included that they can't be repaired if damaged, or the gums shrink, or expand, or a small amount of tooth must be removed during the preparation? A. That's correct. Those particular points I did read in the pamphlet. That is basically the extent I was aware of the danger with the veneer. … 348: Q. You don't seriously suggest that Dr Pegios told you he could achieve a perfect result, do you? A. He implied that, yes. Q. He implied it? He didn't say it, did he? A. He didn't say the word perfect but he said things like perfect, very natural result, no one will be able to tell, it will look like your real teeth, you will have a great smile, beautiful smile. Even in his letter he mentions that it looks excellent, if I'm correct. Q. But you put the word "perfect" in his mouth and he never spoke it, did he? A. I don't believe he said the actual word "perfect" but he said natural, excellent, beautiful, great, undetectable, those were the words he said.


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Dr Pegios 573: Q. Look at paragraph 31 (of your affidavit). Did you see there he gave evidence as to what you said to him about orthodontic treatment? A. I do. Q. What do you say about that evidence? A. It was false. Q. Will you look at paragraph 32 (of your affidavit), the first sentence? …(W)hen he claimed that you promised him, whether expressly or impliedly … “a perfect result, a natural result, an excellent result, beautiful result, a great result, or an undetectable result” - did you hear him give that evidence? A. Yes I did. Q. What do you say about that evidence? A. It was incorrect. Dr Pegios Affidavit para 32: What I did say (about the veneers) was to the effect that the result would be “nice, straighter teeth.” The Tribunal will not be persuaded, and least of all to the Briginshaw standard, that [Patient C]’s claims should be preferred to the evidence of Dr Pegios.


141. The Tribunal notes the Respondent’s limited admission with respect to this Particular, the Respondent was adamant that he was advised by Patient C that he did not wish to undertake orthodontics. Patient C was rigorously cross-examined. Patient C maintained he went to the Respondent to seek

solutions without orthodontics and I don’t know anything about solutions without orthodontics. …..I understood orthodontics can give me a good smile.

142. It was never suggested that the Respondent obtained an orthodontic

opinion with respect to this patient. This is consistent with Patient C’s evidence that he had already received an orthodontic opinion and was seeking the Respondent’s opinion as to alternate ‘solutions’. As an aside, the Tribunal notes there is no obvious evidence before the


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Tribunal that the Respondent ever referred patients on to specialist dentists during the relevant period of time.

143. The Tribunal notes the Respondent’s submissions regarding

demeanour of Patient C. 144. The Tribunal is of the view that the mere fact that Patient C gave

evidence by telephone does not detract from his evidence. In this regard the Tribunal relies upon the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [31]:

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

145. The Tribunal also has regard to the NSW Court of Appeal decision in

Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 where his Honour Justice Ipp JA stated at paragraph 27:

27. These problems and doubts about demeanour findings

explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.

146. The Tribunal has carefully weighed the evidence of Patient C in the

context of the evidence in the matter (the incontrovertible facts, facts that are not in dispute and other relevant evidence), having particular regard for the probabilities of the evidence in dispute between Patient C and the Respondent.

147. The Tribunal weighs the evidence of Patient C with the denials of the

Respondent in the context of the Respondent’s admissions, the probabilities and consistency with other relevant evidence.


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148. Patient C’s evidence did not shift under cross-examination. There are no inconsistencies of substance in the evidence of Patient C.

149. The Tribunal notes the HCCC made the application to have Patient C’s

evidence taken by telephone. The Respondent objected to that application. The application was supported by a medical certificate from a registered medical practitioner who disclosed she was also the mother of Patient C. The Tribunal notes that supporting test results verified Patient C had been recently unwell. The Tribunal was not prepared to risk placing undue pressure on Patient C in the circumstances. Noting that it was the anterior maxillary teeth of the patient were the subject of this complaint, and that they would be easily observable had he appeared in public, it became obvious from the evidence given by Patient C that he was extremely uncomfortable about displaying his teeth in a public place. The Tribunal allowed the application of the HCCC and Patient C’s evidence was taken by telephone.

150. There is really no factual dispute between the parties with respect to

this Particular, merely an explanation offered by the Respondent for his failure. Clinical decisions involving the radical, irreversible, invasion of virgin teeth should not be patient driven. Patients must be provided with all appropriate information so that they can make informed consent. If it was that Patient C was determined not to consider advice of an orthodontic nature, then, it must be recorded clearly and precisely in the clinical notes. Informed consent must be obtained prior to commencement any irreversible work. The more destructive of healthy dentition and the more invasive the treatment, the greater the requirement on the practitioner to fully inform and carefully explain the treatment to the patient, including potential alternative treatment.

151. The Tribunal is reasonably satisfied that the Respondent failed to

seek or to advise Patient C to obtain an orthodontic opinion. This conduct demonstrates that the judgment possessed and care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience. Reference should be made to the comments at the end of findings regarding this Complaint with reference to the Tribunal’s characterisation of this conduct.

Particular (ii) - The dentist failed to take adequate care or exercise an appropriate level of skill in the installation of the veneers




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261. When the patient first presented to the respondent, his teeth

were ‘virginal’, showing no blemishes on any facial surface; they were in ‘near perfect’ condition. As Dr Stolz has written, they were just crooked.

262. Tooth 23 was positioned and angled buccally. The

respondent set out to reduce the tooth structure in such a radical way, cutting it so far back that it would require root canal treatment. Dr Stolz acknowledged that such a course of treatment was a potential option in an older patient with a heavily filled tooth or where orthodontics was not an option, but here, it constitutes “radical and ridiculous treatment planning” undertaken without foresight. Dr Stolz went on to point out, the coronal portion of the root filled tooth will darken with time and that could affect the colour of the overlying ceramic crown.

263. Dr Stolz is strongly critical of the respondent’s treatment

planning and is firmly of the opinion that his conduct represents “a significant departure from an acceptable standard of care”.

Respondent’s Submissions re Particular (ii) 153. The Respondent made the following submissions at page 83:


I do not, with respect, accept the view of the experts’ panel that that I failed to take adequate care or exercise appropriate skill in installation of the veneers. At the time of their installation, because of the amount of local anaesthetic used which causes the lips to distend and which affected lip mobility, it was not possible to determine the true result at the time of bonding. As the patient never returned after the installation of the veneers I did not have the opportunity to review or examine the situation as I had wanted.

Tribunal’s Findings re Particular (ii) 154. The Tribunal notes that the opening address of the Respondent

indicated that he did ‘not challenge’ this Particular. 155. The Tribunal agrees with the criticism expressed by the Expert

Conclave regarding the Respondent’s conduct and finds the conduct demonstrates that the skill and judgment possessed and care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level


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of training or experience. Reference should be made to the comments under the heading ‘Tribunal’s Findings re Particular (iv)’ below regarding the Tribunal’s characterisation of this conduct.

Particular (iii) - The dentist failed to provide sufficient information to the patient to enable him to give informed consent to the various procedures



264. The patient’s statement that his expectations were based solely on what the respondent told him underscores the deficiency in the information supplied.

265. In circumstances such as this, offering the patient only two options – veneers or implants – was irresponsible.

266. The respondent did not take issue with any of these assertions in any of his letters to the Board or the HCCC.

267. Dr Condon pointed out that the treatment, consisting of five veneers, a crown and root canal therapy, an elective endodontic procedure, are all “significant irreversible restorative procedures”, which were carried out on “apparently virgin teeth”. Yet, it is apparent that the patient was not advised on the endodontic procedure or, indeed given, any particular advice about the suitability of veneers given his particular orthodontic situation. The evidence indicates that the respondent did not point to any potential problems with the treatment he proposed. The patient referred to the ADA brochure that the respondent gave him with respect to veneers where some matters were raised. In contrast, Dr Tam provided detailed written information. With respect to the endodontic procedure, Dr Ho testified:

I would expect the dentist to explain the procedure of what root canal therapy is, the success of treatment would be with root canal treatment and the fact that it was an irreversible procedure. Once done, the treatment is completed. You mentioned the discolouration. I don't believe the tooth would always discolour. If you treat it in the correct manner and endodontic treatment, the tooth may not discolour.

268. That was a matter he omitted to consider in his report. 269. Furthermore, whereas Dr Tam sought and obtained written

consent, the respondent did not.


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270. In his report Dr Condon wrote that the information the respondent provided the patient for informed consent “fell significantly below an acceptable standard” and his and his colleagues’ level of disapproval would be severe. The respondent no doubt relies on Dr Condon’s failure to obtain written consent in the cases he was cross-examined on. However, his practice was quite different from the respondent’s and he was not treating a patient like these. It is noteworthy that the ADA Guidelines stipulate that

Oral consent is sufficient for most dental treatments; but for procedures such as general anaesthesia and major oral and maxillofacial surgery, written consent is needed and this consent should include contingency consent to cover unforeseen eventualities.

271. The information the respondent provided this patient was insufficient for informed consent.

Respondent’s Submissions re Particular (iii) 157. The Respondent relied upon the submissions made with respect to

Particular (i) above. Tribunal’s Findings re Particular (iii) 158. The Tribunal has already made comments regarding the important

place obtaining the appropriate consent for the procedure to be undertaken has in the practice of all health care professionals (see above under Tribunal findings re Particular (ii) – Complaint 2).

159. The Tribunal notes that the Expert Conclave commented that they

were unclear as to whether this Particular related to information regarding orthodontics or information regarding veneers and crowns. It is the view of the Tribunal, given the radical and irreversible nature of the treatment undertaken on virgin teeth that Patient C should have been provided with detailed information regarding orthodontics, crowns, veneers and root canal therapy. Further, the Tribunal is of the view that a registered dentist practising at a standard reasonably expected would record the details of the advice provided and the consent given.


provide sufficient information to the patient to enable him to give informed consent to the various procedures he undertook. The Respondent engaged in conduct that demonstrates that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.


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Particular (iv)-The dentist failed to show the patient a preview of his veneers before permanent cementation to enable him to evaluate and approve their appearance



272. In a case such as this where there was to be a significant aesthetic alteration to the upper six anterior teeth, “the normal standard of care” would be to use a “try-in” paste to allow for an accurate preview of the veneers before final cementation and to arrange for the patient to have a try-in visit at which final approval could be given.

273. Dr Condon considered that cementing the veneers before final

agreement falls significantly below an accepted standard. He described it as “foolhardy”. It attracted his moderate disapproval.

274. Dr Stolz agreed that cementing the veneers without securing

approval amounted to conduct that fell significantly below the standard. He, in fact, was strongly critical. As the patient presented in the first place solely for an aesthetic problem, he argued, it was paramount that his approval be secured before the veneers were permanently cemented. That conclusion is inescapable.

275. The respondent denies that he failed to show the patient a

preview of his veneers before permanent bonding. 276. There is nothing in his records to confirm that he did. 277. The patient’s account was not contradicted until the

respondent submitted his affidavit, although the respondent had known about the allegation since it was first made and despite the numerous opportunities he had to deny it earlier. In particular, he did not dispute it in the letter he wrote to the patient in response to the letter in which the allegation was made.

278. In all the circumstances, the patient’s account should be

preferred. 279. The respondent makes much of the fact that the evidence

from this witness was taken over the telephone with, it is said, no opportunity to evaluate his demeanour. However, the mere


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fact that he gave oral evidence by telephone does not detract from his evidence. As Gleeson CJ, Gummow and Kirby JJ observed in Fox v Percy (2003) 214 CLR 118 at [31]:

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

Respondent’s Submissions re Particular (iv)

162. The Respondent made the following submissions commencing at page 83 (formatting and fonts of original retained):


There was not a failure to show [Patient C] a preview of the veneers before permanent cementing. Porcelain laminates are made on plaster models, but cannot be tried in the mouth in a secure manner, as crowns are. They must be, and were, reviewed in the mouth. Anaesthesia made it impossible assess their appearance at the time of bonding, as the photographs (supplied to HCCC) taken at the time of bonding demonstrate. [Patient C] is correct that at the relevant appointment I administered local anaesthesia, removing the temporary veneers, cleaned the tooth surfaces, and cemented in place the permanent veneers. Those processes occupied some 90 to 100 minutes. The other 20 to 30 minutes of the two-hour appointment were spent on the try-in, where I put the permanent veneers in place without fixative (cement or luting agent), and [Patient C] viewed them in a hand-held mirror before approving their cementation. This is certainly not an ideal demonstration, but to overcome the preview difficulty, I had taken photographs and made models pre-operatively and a diagnostic wax-up was also undertaken to show the patient the likely outcome of this procedure.

Dr Pegios 1304


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Q. It was put to you that you couldn't have done the try-in because it was not mentioned in either of those (clinical notes)? A. I remember that, yes. Q. Indeed, the only description of the procedure was “cementation of veneers”, I think? A. Something like that, yes. Q. Did you administer local anaesthetic on that day? A. Yes, I did. Q. Would you normally in cementation of veneers? A. Mostly, yes. Q. Did you on that day clean away the fixative, or whatever you call it, on the supporting teeth? A. Cement, yes. Q. Would you have to do that in every cementation case? A. Yes. Q. Did you prepare the surfaces for cementation of the final treatment? A. Yes. Q. You would have to do that in every case? A. Etching and bonding, yes. Q. Did you record any of those steps in the notes? A. No. Q. Why not? A. Because it is all part of the procedure. The cementation encompasses that. Q. Do you say that any dentist reading those notes would know that? A. Yes. Q. Now, it has been suggested to you that you didn't do the try-in for [Patient C]. What is the truth? A. I did, and it's invariably that I always do. Q. Did you have any reason not to do it? A. No.


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Q. Would it be of any advantage to you not to do the try-in? A. No. Q. Would it be a disadvantage? A. You are asking for trouble. Dr Condon 290: Q. … you were of the view that Dr Pegios failed to show [Patient C] a preview of his veneers before permanent cementation, right? A. Yes. Q. On what material did you base that factual conclusion or assumption? A. I couldn't see anything in the documentation. Q. Even though Dr Pegios said he did it? A. I couldn't see anything in the records. Q. Yes. Of course your records, when you one looks at the ones you've produced, are pretty sketchy, aren't they? A. Yes, they are. Q. So you were satisfied that notwithstanding what Dr Pegios says, he didn't give [Patient C] a preview because you couldn't find a record that he had given him a preview? A. That's correct. Q. You could be wrong about that, couldn't you? A. I could be. Dr Stolz 443: Q: … You say the fact that Dr Pegios did not give [Patient C] an opportunity to view the veneers … before final placement also attracts strong criticism. I put to you that Dr Pegios did give [Patient C] an opportunity to view the veneers. Are you in a position to contradict what I have just put to you? A. I'm taking the patient's word for that. Q. It doesn't say so in your report, does it? It doesn't say “if [Patient C] is telling the truth.” You just say Pegios did not give


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[Patient C] an opportunity to view the veneers? A. I apologise for that omission. [Patient C] 341: Q. (T)hat appointment lasted two hours? A. That is correct. Q. You can't remember everything that happened in those two hours, can you? A. Sorry? Q. You cannot remember everything that happened in those two hours, can you? A. Yes, I can. Q. All right, what happened in the whole of those two hours? A. Not everything. I remember that there was no preview given. 342 A. Well, I think he sat me down and looked at my mouth and I think he began taking the temporaries off. Q. Yes, and then the next thing you can recall happening? A. At this point there was drilling, like just some kind of drilling on my teeth, and I believe there was a point where anaesthetic was injected. I believe that was before he took off the temporaries actually, so he injected anaesthetic into my gums in multiple areas and then I had to wait for, I think, 15 to 20 minutes to make sure my teeth were numb and then I believe that's when he began to take off the temporaries. … Q. … And after he removed the temporaries, what do you recall happening? A. I recall, well after the anaesthesia, I recall him doing things with my teeth. I couldn't see anything obviously, all I could do was feel and hear. I remember him using an instrument to break my tooth. I remember something breaking in my mouth or I think I did. Some kind of things were done to my teeth. There was noises but I can't say exactly what's happening but I remember that continued on for a while with lights. There was also light at a certain point, some kind of


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blue light I think, and then I think there was some sanding of some kind between my teeth and I think at that point it was done and he said it was done. … Q. Did you have swollen lips? A. Yeah, definitely, yeah. Q. How do you know that? A. Because I saw them. Q. In a mirror? A. In a mirror after the cementation, at the end of the appointment. That's when I saw my swollen lips. … Q. Before the end of the appointment, you saw in a mirror your swollen lips, didn't you? A. Oh, if the end of the appointment is walking out of the office, that's correct.


163. The veneers were being installed for aesthetic reasons. Whether or not Patient C’s lips were distended due to the anaesthetic is not relevant to the question of whether the Respondent showed the patient a preview of the veneers before their being permanently cemented, so as to allow them to be evaluated and approved. Once again, the relatively permanent nature of the procedure weighs heavily on the obligation to ensure the treatment delivery matches the prescription and that the patient’s approval is recorded.

164. The Tribunal notes the Expert Conclave found the conduct occurred

and that it was below the standard reasonably expected of a dentist of an equivalent level of training and experience. The Tribunal has already made comments regarding the inappropriate ‘significantly below’ test applied by Dr Berne.

165. The Tribunal prefers the evidence of Patient C to that of the

Respondent and finds that the Respondent failed to show him a preview of his veneers before permanent cementation so as to enable Patient C to evaluate and approve their appearance. This conduct demonstrates that the skill and judgment possessed and care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

166. The Tribunal considers the conduct set out in Particulars (ii) and (iv)

demonstrates that the skill and judgment possessed and care exercised by the Respondent in the practice of dentistry was


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significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (v) The dentist failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association



280. The record keeping in this case is similarly well below what is reasonably expected of a practitioner of the respondent’s training and experience.

281. As Dr Condon put it in his report, it is reasonable to expect

that records will contain a description of presenting complaint, relevant history, clinical findings, diagnosis, treatment plans and patient consent, diagnostic data and radiographic findings, observations and procedures carried out, communication with the patient and the drugs administered. The respondent’s records are rightly characterised as ‘substandard’ and ‘basic’. None of these matters is recorded. As Dr Condon pointed out, essential elements of examination, diagnosis and treatment are not recorded, the odontogram is partially completed and there is no record of a periodontal assessment. Moreover, you would also expect to see a record of the cognitive processes involved in treatment planning and a signed consent form.

282. A comparison between the records the respondent produced

to the Dental Board and the appointment books reveals that there are entries in the appointment notes for 27 January 2005 and 10 February 2005 which read “GP01 TPP” and “GP01 Tpp” respectively for which there are no entries in the patient records and no records of patient cancellation. According to the patient and the appointment book the appointment on 27 January 2005 would have been the patient’s third visit. The patient states that it was on the third occasion that he sought and was given the respondent’s opinion in respect of orthodontic treatment. This visit is also omitted from the respondent’s document headed “Timeline Computer and


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Written records” produced for the purpose of responding to the Dental Board.

283. The Dental Care Assessment Committee, in its letter to the

respondent of 30 August 2005 noted:

Your handwritten records bore no resemblance to the computer generated records which were themselves inadequate, lacking details of local anaesthesia, use of rubber dam, length, size and reference points for endodontic instrumentation. The root filling in the canine was considered to be short by at least 1 to 2 mm.

284. Maintaining two sets of records - one computerised, the other

handwritten - is confusing. 285. The patient mentioned that the respondent wrote to him, but a

copy of the letter does not appear in the notes. 286. The document behind the computer printout behind Tab 4

does not even show the name of the patient or his date of birth. If it were to become detached from the file that would be problematic. The next document “timeline computer and written records” is plainly a reconstruction, yet there is nothing on the document to identify it as such.

287. Dr Stolz highlights the absence of a record of the patient’s

concerns or expectations, the failure to mention an analysis of the problems and the pitfalls of the case presented, the lack of any treatment planning notes, the omission of any options offered to the patient and the failure to record the process of history taking, data collection, formation of diagnosis and comprehensive treatment planning, all of which are “fundamental” to a successful outcome.

288. Not only should that discussion on orthodontics have taken

place at the first consultation, but the substance of it should have been recorded.

289. The records do not meet the standards set out in the ADA

Guidelines in the following respects:

a. There is no description of the presenting complaint; b. There is no mention of the relevant history; c. The clinical findings are not recorded; d. There is no mention of the diagnosis; e. Treatment options are not noted;


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f. There is no description of the agreed treatment plan.

290. Here, it is useful to compare Dr Tam’s notes with those taken by the respondent. The contrast between the two is striking. Unlike Dr Tam’s records, those created by the respondent do not contain:

a. A medical history; b. A dental history; c. A cosmetic evaluation; d. A form of consent to treatment; e. A record of complaints; f. Findings on examination; g. A treatment plan; h. A description of the treatment administered.

291. The position of the conclave, adopted by the respondent, was that the records fell below the standard but not significantly below. However, Dr Tam’s records are illustrative of what is reasonably to be expected of a practitioner of the respondent’s training and experience. It is difficult to escape the conclusion that, in not concluding that the record keeping fell significantly below the standard the experts had in mind their own deficiencies. Dr Berne suggested as much. However, the question of standards is not to be measured by comparison with those who fail to meet the standards. The Court of Appeal’s comment in Health Care Complaints Commission v Litchfield [(1997) 41 NSWLR 630 at 638C] made in relation to professional misconduct applies equally in the case of unsatisfactory professional conduct:

The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.


168. The Respondent made the following submissions at page 86 (formatting and font of original retained):


I agree that I failed to make and retain adequate clinical records contrary to ADA guidelines.


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The respondent adopts the earlier submissions about this failure,

and the fact that his present system has overcome the deficiency.

Submission 7: The respondent, in treating [Patient C], was not guilty of unsatisfactory professional conduct. In its contrary contention (para 292), the complainant puts all its

eggs in Dr Stolz’s basket – failing to acknowledge the views of the

expert conclave. Such a submission is best dismissed as

unreasonable and demonstrative of a lack of common sense.

169. The Submissions referred to as ‘earlier submissions’ appear in this

document under the heading ‘Complaint 5A & 5B, Particular (vi) (Patient E)’ below.


170. This is an area where defining the appropriate standards of record keeping does not fall to some review the average standards of the profession. Such a process is open to the possibility that the ‘delinquents’ of the profession will have some influence on the standards. Rather, there are standards embedded in documents such as the ADA Guidelines and the Regulations of the Act. Guidelines are not unique to the practice of dentistry. As set out above, appropriate record keeping is fundamental and is an essential element of the provision of all health services.

171. The records of the Respondent fail to meet these fundamental

standards, not just with respect to one aspect of them, but in numerous regards. They are below the standard that would be expected from a newly qualified registered dentist and certainly below what is expect of a practitioner with the Respondent’s training and experience. It is also of concern to the Tribunal that the detail of the notes does not appear to accommodate, in any way, the complexity of the work undertaken. This is not routine cleaning, scaling and fluoride treatment or even the placing of a routine restoration. It is significant and for the most part irreversible work.

172. Every profession develops a shorthand method of communicating

and recording details of commonly undertaken procedures. No criticism is made in this regard. However, in this matter the Respondent undertook a non-essential, invasive, irreversible procedure for purely aesthetic reasons and his notes provide no more than the barest sketch of his dealings with Patient C.


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173. The Tribunal notes the view expressed by the Expert Conclave to the effect that the conduct demonstrates that the skill and judgment possessed and care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience. The conclave did not have the benefit of the record of appointments ultimately provided by the Respondent (and summarised by the HCCC in the annexures to submissions).

174. One of the significant roles of the Tribunal is to maintain the

reputation of the profession and to ensure appropriate standards within that profession so as to maintain public confidence in it. From time to time this will involve the defining of a standard where it may not have previously been done. This is not the case with this matter as appropriate record keeping has been defined and remains fundamental and essential to appropriate practice. There were significant and numerous failures to meet the criterion in the Guidelines on the part of the Respondent demonstrated by the evidence before the Tribunal. The Guidelines and Regulations form, what the Tribunal considers to be, proper standards for the profession.

175. In this case the Tribunal acknowledges that there may well be a

failure on the part of other members of the profession with respect to record keeping. This cannot be relevant to the consideration of the characterisation of this Particular (see Litchfield above).

176. The Tribunal is of the view that the conduct of the Respondent

demonstrates that the skill and judgment possessed and care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

177. The Tribunal therefore rejects ‘Submission 7’ made by the

Respondent.

Concluding summary/submission of each party re Complaint 3A and 3B

178. The Respondent made the following general submission with respect to the Complaints regarding this patient as follows (page 6):

The respondent admits that he failed to seek or advise an orthodontic opinion; failed to use adequate care or skill in installing the veneers; failed to provide sufficient information for the patient’s consent to orthodontistry and other treatment options; failed to provide a preview of the veneers before permanent cementation; and failed to make and retain adequate clinical records. None of


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those failings was a significant departure from the relevant standard, and the respondent denies that any of them, individually or together, could constitute unsatisfactory professional conduct. He adopts the findings of the expert panel in this regard.

179. The HCCC made the following concluding comments at paragraph 292

(omitting footnotes):

Dr Stolz concluded that at no point in the management of this case did the respondent achieve an adequate standard of care, noting that he advised the patient poorly and his technical skills in controlling the production of the veneers were sub-standard. He is strongly critical. The Tribunal would reach a similar conclusion. If so, then the combination of failings, if not each one individually, amounts to unsatisfactory professional conduct.


to 85:

76. Both in cross-examination and in his written submissions the respondent conducted a petulant and unjustified attack on this patient. At page 75 of his submissions he quarrelled with the Tribunal’s ruling. The colourful language used in the first paragraph on that page is quite inappropriate and the submission as a whole does the respondent no credit.

77. As we pointed out in paragraph 279 of our submissions, the

significance of demeanour in assessing credit is overrated. We referred there to the remarks in Fox v Percy. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 328–9; 160 ALR 588 at 617, Kirby J referred to “the growing understanding . . . of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom”. He also noted that demeanour was “in part driven by culture”. David Ross QC wrote in the Australian Bar Review:

Demeanour is a most uncertain guide to the reliability of the evidence of a witness. Chester Porter QC said, ‘The best witness I ever saw, whose demeanour was 100 per cent perfect, was Australia’s top con man.’ (NSW Bar News, Spring 1999, p 20). In 1924 Atkin LJ remarked that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with


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known facts is worth a pound of demeanour’ (In Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants” Marine Insurance Co (The Palitana)(1924) 20 LI L Rep 140 at 152). So it is. Weigh the evidence. Few witnesses lie, although memory may paint the lily. In manner one witness will be shy, and another garrulous, one tentative and another so certain as to be cocksure. Only the practised witness will be used to the unfamiliar surroundings and the formality of court, with so many eyes watching ((2005) 26 Aust Bar Rev 102).

78. In this instance neither the respondent, nor the Tribunal, was materially disadvantaged by the fact that evidence was taken by telephone.

79. In any event, the credit of the witness was only relevant to

particulars (i), (iii) and (iv). On the question of orthodontics, contrary to the evidence to which the complainant refers in its submissions at page 65 (including the evidence of Dr Ho) as to what the respondent should have done, there is not only no evidence that the respondent urged his patient to undergo orthodontic treatment, but the respondent makes no assertion to that effect in his affidavit, the relevant passage of which is extracted at page 77 of his submissions. Indeed, in his evidence the respondent conceded that he should have been more forceful and accepted the opinion of the expert conclave (T1087).

80. The patient’s explanation of his position on the question both

at the time he first saw the respondent and when he was given advice from Dr Tam is entirely understandable.

81. At page 83 of his submissions counsel for the respondent

extracts paragraph 34 of the respondent’s affidavit in which he rejects the opinion of the expert conclave that he failed to take adequate care or exercise appropriate skill in the installation of the veneers (particular (ii) – wrongly referred to as particular (i) in the respondent’s submissions). He makes no other submission about that particular. Presumably his intention is to persuade the Tribunal to reject the opinion of the expert conclave and prefer his own assessment. Yet, at page 8 of his opening address (T 559/38) his counsel told the Tribunal that he accepted the opinion of the conclave. At this point in the proceedings, the respondent should not be permitted to change his position.


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82. With respect to particular (iv) (failing to show the patient a preview of his veneers), the patient has been consistent and the complainant’s observation at paragraph 277 of its written submissions is unanswered.

83. For the reasons given above, at this point in the proceedings,

comments about the respondent’s present system of record keeping (see page 86) are irrelevant.

84. Apart from criticizing the patient and impugning the Tribunal’s

ruling, the complainant’s submissions do little more than repeat the respondent’s self-serving statements. They are of little assistance to the Tribunal.

85. At page 86 the respondent criticizes the complainant’s

reference at paragraph 292 of its submissions to the opinion of Dr Stolz that “at no point in the management of this case did the respondent achieve an adequate standard of care . . .” describing it as unreasonable and ignoring the views of the expert conclave. However, the criticism is based on a false premise. There is no substantial conflict between Dr Stolz and the conclave; indeed he was a member of it. The expert conclave was in agreement that in all relevant respects the respondent’s conduct fell below the standard. Once more, the Tribunal is entitled to have regard to the totality of the failings to conclude that overall his conduct represented a significant departure from the standard. It ought not be forgotten that on 24 March the respondent admitted he was guilty of unsatisfactory professional conduct and his decision to withdraw the admission after he became aware of the report of the conclave may be regarded as opportunistic.

Tribunal’s Findings re Complaint 3A and 3B

181. The Tribunal finds that the conduct in Particular (i) demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

182. Further, the Tribunal finds that the conduct in Particulars (ii) and (iv)

demonstrates that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

183. The Tribunal finds that the conduct in Particular (iii) demonstrates that

the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard


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reasonably expected of a dentist of an equivalent level of training or experience.

184. The Tribunal finds that the conduct in Particular (v) demonstrates that

the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

185. The Tribunal finds Complaint 3B established. 186. The Tribunal is not reasonably satisfied that the conduct is of a

sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. The Tribunal finds Complaint 3A is not established.

Patient D - Complaints 4A and 4B 187. Complaint 4A alleges the Respondent is guilty of unsatisfactory



on the same basis. 189. The Complaint alleges that between 19 April 2005 and 20 May 2005

the dentist provided dental treatment to Patient D. The treatment involved six (6) implants in the maxilla, bone grafts in the mandible and a fixed upper denture attached to the implant. HCCC Summary of the evidence


293. On 31 August 2005 [Patient D] made a complaint to the Dental

Board about the respondent. 294. [Patient D] was 41 when she first saw the respondent in

February 2005. She had no teeth in the maxilla and was looking for help. First she had seen a Dr Julian O’Brien in Perth who advised her that a fixed denture was not feasible as she would need a removable one in order to clean it properly and a fixed one would not give her face enough support.


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295. [Patient D] found the respondent after a search on the internet and in the yellow pages and noted that he had featured on Today Tonight. She concluded that she had found “the best there is”.

296. Contrary to the advice she had received from Dr O’Brien, there

is no doubt that the respondent told her she could have a fixed upper denture and would still be able to clean it very easily with floss and Oral B water irrigator. The patient stated that he repeatedly acknowledged her concerns about the need for a denture that filled out her face and he assured her she could have fixed upper dentures that would give her lip support, fill out her face and be easily cleaned. He encouraged her to have a fixed denture. She was persuaded by him and put her concerns aside. It was not an inexpensive choice. She paid $30,180.

297. On 19 April 2005 the respondent placed 6 implants into her

maxilla. 298. On 20 May 2005 he performed a bone graft in the mandible

and fitted a fixed implant supported upper denture. He claimed that the graft included the 34 site. There was evidence of grafting material at various sites but not at 34. The progress notes show that the respondent charged the patient $2,000 for bone grafting. The DCAC attributed a third of this cost ($666) to the purported 34 graft.

299. [Patient D] hated the appearance of the denture, which she

described as making her eye-teeth look like they belonged to Dracula, and, “worst of all”, as she said in her letter of complaint, her concerns about cleaning the appliance were realised. She described the appliance as “impossible to be cleaned”. The respondent disputed her contention but, when she saw another dentist, Dr Glenn Willey, he confirmed it.

300. When she returned to the respondent she informed him that

she had obtained a second opinion and he agreed to his technician adjusting the denture. However, she could still not clean the appliance properly.

301. The ostensible purpose of the bone graft was to support six

implants in the mandible. After the surgery she noticed that there were stitches only in two places – on the right where there were three teeth missing and on the left where there were two missing but at 44 (sic) where there is only one tooth missing she did not see any stitches. When she raised that


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with the respondent he insisted he did a bone graft there too. However, he contended that he “went in through the back, and that is why there are no stitches”. She could not feel any bone graft, insisted that there was none and was concerned that the respondent had lied to her.

302. Dr Willey saw the patient twice. On the first occasion he did

not have the x-rays and the bridge was still in place. However, at that time he made the following observations:

a. The back teeth on the bridge were a little low; b. The fixed bridge was bulkier than usual with an extension

up into the patient’s upper lip. c. Although he checked the areas where grafts were possibly

placed, he could not comment on the success of the procedure without before and after CT scans; there was evidence on the x-ray of grafting material in some areas of the lower jaw.

d. The appearance of the bridge generally would be considered quite acceptable with some minor changes possible.

303. He told the patient that his main concern at the time was his

inability to see how she could clean the bridge owing to its shape and size and recommended she discuss the matter with the respondent before he considered doing anything. It is common ground that the patient returned to see the respondent but remained dissatisfied. When she last saw the respondent his progress notes show that she reported to him that she had consulted Dr Willey and told him she wanted the “uppers” remade “due to inability to clean”. Although it is clear that Dr Willey spoke to the respondent, there is no record in the progress notes of that conversation. The respondent offered her a different technician but the patient never returned to see him.

304. The patient did, however, return to see Dr Willey. At this

appointment Dr Willey removed the patient’s bridge and found “unacceptable amounts of plaque and debris covering the tissue fitting surface”. From his examination of the bridge he concluded that “proper cleaning would be impossible due to its shape”. He told the patient that the extra bulk was probably placed there to maintain good lip support but that the ability to clean the bridge must be a priority over aesthetic issues. After he saw the OPG he noted that there was no metal strengthening framework in the patient’s bridge. When she


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explained that this was done to reduce cost, he told her that “a metal framework is vital to prevent breakage”.

305. Dr Selby saw the patient on 22 November 2005 at the request

of the Dental Care Assessment Committee. In the area of the mandible Dr Selby agreed that there had been no graft surgery at 34. In the maxilla he also considered that the patient’s complaints were justified. He stated it was impossible to clean underneath the appliance.

306. The respondent informed the HCCC that the procedure he had

carried out on this patient was based on the work of prominent implant dentist, Dr Paulo Malo and that Dr Willey’s criticisms were, in essence, ill informed. It is abundantly clear that he did not consider that there was any basis for any criticism of his work. He maintained that “all care was taken”. He did not dispute, however, the patient’s contention that he had informed her that he had “gone in through the back” and that was why there were no stitches.

Respondent’s preliminary submission

191. The Respondent made the following preliminary submissions (page 5):

The respondent admits that four years ago he erroneously advised

[Patient D] that he had performed a bone graft at site 34 on the

mandible, which he also admits was unsatisfactory professional

conduct. This failure involves no question of moral turpitude –

because despite his honest belief at the time of treatment, advising

[Patient D] that he had successfully grafted bone at the site, he

cannot now say whether the graft did not take; or whether he was

simply mistaken in his belief that he ever attempted it.

192. The Respondent made further comments of an introductory nature on

page 61 as follows (formatting and font of original retained):

Preliminary matters: The Tribunal did not hear from [Patient D], but it would appear that

there was no factual issue in relation to advice or conversations,

and it is possible to resolve this element of the complaint without

making any judgment of the patient’s credibility.


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Dr Stolz – Bias severely limits his credibility in relation to his [Patient D] opinions: 435: Q. But let me move on to the real point I'm trying to make with you now, "B. Or possibly even bluff her into thinking it was unnecessary". That is an outrageous thing to include in the report, isn't it? A. No, I don't believe so Mr Littlemore. Q. So you're saying that you can infer, can you, from the treatment records you have of [Patient D] that Dr Pegios sought to hoodwink his patient? A. There was no other way he was going to convince her that that appliance could be cleaned. I'm sorry. Q. What are you sorry about, the words you used? A. No, I'm not sorry about the words I used. Q. You think that's all right, do you, to write in a report that he possibly bluffed her? A. If there's a more sanitised word, Mr Littlemore, I'm sure you know it. I'm sorry, I don't. The particulars of the [Patient D] complaint:

Joint expert report summary: The respondent falsely advised the

patient that he had performed a bone graft at site 34 on the

mandible, which was conduct significantly below the relevant

standard. The respondent also installed an upper denture that

could not be properly cleaned, which failure was found by two

experts to be insignificant, and by two to be significantly below the

relevant standard. The other failings (incorrectly informing the

patient that there was no radiographic evidence of decay or root

canal filling; and failing to make and retain adequate clinical

records) were not significantly below the relevant standard. The

Further Amended Complaint amended a particular to read

‘promised the patient a fixed denture (that) she could easily clean


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and which would fulfil her other requirements when he could not

fulfil the promise.’

Particular (i) - The dentist commissioned and/or installed an upper denture that could not be properly cleaned, predisposing the patient to infection and/or bone loss



307. The patient made her position very clear. She wanted a fixed upper denture that she could easily clean and which would fill out her face. She specified in the consent form:

I need to know for sure that a fixed upper bridge is easy to clean and will ‘fill out’ my face/lips adequately.

308. Yet, as Dr Ho said, the design of the bridge was inappropriate

for the patient’s requirements. With a prosthesis of the shape and contour the respondent installed in this patient’s mouth she was never going to get what she wanted. The fact that it might have been capable of modification does not detract from the fact that the appliance the respondent commissioned and installed could not be properly cleaned. The respondent does not dispute the patient’s claims that she could not clean the fixed bridge. What he states is that it was his intention to gradually reduce the extensions of the flanges to render the prosthesis “more hygienic” but the patient denied him the opportunity to do so.

309. The expert conclave unanimously concluded that this

particular was made out and that the respondent’s conduct was below the standard. They divided evenly on the question whether it fell significantly below the standard. Having regard to the misconception of the respondent’s experts about what ‘significantly below’ means, their views should be given little weight. In any event, the Tribunal will need to have regard to all the evidence.

310. Dr Willey said that his main concern when he first saw the

patient was he “could not see how it would be possible for [her] to clean [her] teeth” and when he removed the bridge, he wrote to the patient,

This confirmed your concern about oral hygiene as there was unacceptable amounts of plaque and debris covering


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the tissue fitting surface. From examining the bridge I concluded that proper cleaning would be impossible due to its shape.

311. Considerable weight should be attached to Dr Willey’s opinion. He was not required for cross-examination and he actually saw the appliance.

312. Dr Selby explained that the lack of hygiene may produce, at

the very least, a mal-odour and, at worst, compromise the success of treatment, noting that progressive bone loss around integrated implants is usually associated with pathogenic micro-organisms. He went on to say:

Anaerobic organisms, which require an absence of oxygen in order to proliferate, are implicated as the most significant pathogens. An anaerobic environment is most likely present beneath an acrylic denture base and the inability to remove the prosthesis or to clean beneath it is likely to predispose the underlying tissues to colonisation by anaerobic micro-organisms . . . Adequate hygiene is a basic tenet of oral care and inability to carry out oral hygiene would seem to predispose the patient to the development of soft tissue and infection or bone loss.

313. Dr Willey said that the ability to clean the bridge must be a priority over aesthetic issues.

314. The respondent purported to carry out a procedure based on

the work of a prominent implant dentist, Paulo Malo. 315. Dr Stolz pointed out that “the implant placement itself, and the

Paulo Malo protocol, invites no criticism whatsoever” but the prosthesis that the respondent designed did not conform to the protocol.

316. The Paulo Malo protocol relates to the “All-on-4” implant

design. The respondent referred to it in his letter to the HCCC on 30 October 2006. Yet, he purported to follow the so-called “All-on-6” protocol. There is no such protocol. His “explanation of treatment notes” refers to the “All-on-4” protocol. Nowhere does he explain why it was necessary to use 6 implants, rather than 4. The patient certainly requested it. However, there is nothing to indicate that he discussed with her the pros and cons of doing so.


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317. In any event, the Paulo Malo protocol is a red herring. There is no evidence to suggest that the protocol had anything to do with the bulkiness of the appliance or the difficulties the patient experienced with cleaning it.

318. Dr Stolz points out that the respondent ought to have done

was to trial a flangeless diagnostic set-up to see if the patient could be managed with a fixed appliance that could be adequately cleaned. That was precisely the course Dr Willey suggested to the patient. It was also Dr Ho’s evidence that this was the only available option if the patient was to have a fixed appliance.

319. The Tribunal should conclude that commissioning and

installing a denture that the patient could not properly clean falls well below the acceptable standard of care. The severe disapproval expressed by Drs Stolz and Condon was entirely justified.


194. Under the heading of ‘Insignificant failings’ the Respondent makes the following submission commencing at page 64 regarding this Particular (formatting and font of original retained):

Dr Pegios Affidavit paras 40-42:

I did not commission or install an upper denture incapable of being properly cleaned, predisposing my patient to infection or bone loss. The procedure I performed was based on the work of the prominent implant dentist, Dr Paulo Malo. The technique involves placing 4 or 6 implants into the maxilla (or mandible) and fabricating an acrylic bridge structure which is fitted within 1-2 weeks.

The acrylic bridge can have extensions or flanges that extend out to provide support to the lips and face. It was my intention to gradually reduce the extensions of the flanges (over time) to render the prosthesis more hygienic for the patient, but because the patient did not return I was denied the opportunity of doing so. On several occasions, the hygienist and I instructed the patient in the use of different floss aids and a water pick.

It is untrue to say that I falsely promised an easily-cleaned denture. The appliance was a work in progress, and my objective was to make such adjustments as would enable it to easily be cleaned.


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Dr Berne 952: Q: … To you as a practising dentist in this area, does ‘design’ include adjustment by grinding down the ridge or the-- A. Yes, the end result I guess is the design, what are you planning to achieve. Q. The design includes the design as finally adjusted? A. Yes. Q. The product as finally adjusted? A. That's what one would normally expect the end result is. CHAIRPERSON: Q. Is the design? A. Yes, exactly. Dr Condon 281: Q. And why did you take the view that his conduct fell significantly below the standard? A. Because I felt that a practitioner of such experience should have been aware that such a device would prove unsatisfactory. 291: You'd agree, wouldn't you, that such dentures are … works in progress? A. Yes. Q. They have to be adjusted? A. Yes. Q. For all sorts of reasons? A. Yes. Q. And that's perfectly normal, isn't it? A. Yes. … Q: … It was possible, wasn't it, to construct and adjust this denture over a period of time in such a way as it was cleansable? A. Yes. … 292: Q: … you wouldn't be satisfied, would you, that


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Dr Pegios produced a denture that under no circumstances would have been able to be properly cleaned, least of all predisposing the patient to pathological consequences. A. Yes, I agree with you. … 293: Q: … He could have fulfilled the promise about it being cleansable but your view was he couldn't make it both cleansable and cosmetically effective? A. Correct. Q. And you did note, didn't you, that the patient wrote: "He suggested grinding away more from the denture but I told him I wouldn't allow it."? A. Yes, I did read that. Q. In a sense, the patient certainly made it impossible for Dr Pegios to create or to finalise his work and produce a cleansable denture? A. Yes. Dr Stolz 436: Q: … (Y)ou say that you don't criticise the implant placement or the Paulo Malo protocol but you go on to say: "But the prosthesis designed doesn't conform to the protocol". Now let's be clear on what you say the protocol is. You remember there was some discussion when you put up your PowerPoint presentation on this subject, right? A. Yes. Q. That was not the Paulo Malo protocol but somebody's interpretation of it or somebody's own protocol superimposed upon it, isn't that right? A. That is splitting hairs, Mr Littlemore. Q. Well do you know what the Paulo Malo protocol is? Have you ever seen it in writing? A. It is that protocol. Q. Have you ever seen it in writing from Dr Malo? A. No, I haven't. Q. So you're talking about an abstracted version of it?


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A. And you're suggesting that that's not accurate? Q. It certainly is not, I put to you, the protocol as taught to Dr Pegios some years before the creation of the Victorian version. You're not in a position to disagree with that, are you? A. I'm not in a position to disagree with that. 469: Q: The final question (to the experts’ panel), the first two having been answered in the affirmative, was where two of the panel thought that the failure of the dentist was significant and two didn't. Will you agree that minds may differ about the degree of significance of the dentist's failing? A. Of course they can. 470: Q: (W)as it going to be possible to make adjustments that could have achieved that objective (a cleansable appliance)in this case? A. I don't know.

195. The Tribunal notes the words ‘(a cleansable appliance)’ in the above

evidence is an addition made by the Respondent to the transcript. The extract does not reflect Dr Stolz’s comments to the effect that the only way to determine if an appliance of this nature could be both cleansable and provide facial support would have been to make a ‘pre-treatment diagnostic work-up’ as a ‘try-in’ prior to the installation of the final appliance.


196. The Tribunal notes the Respondent denies this Particular although he states that he had intended to reduce the ‘extensions to the flanges (over time) to render the prosthesis more hygienic for the patient’ (emphasis added by the Tribunal).

197. In the Respondent’s submissions, it appears that this Particular is dealt

with from page 64 under the heading ‘Insignificant failings’ and refers to the Particular as ‘The quality of the appliance issued’. This misdescription of the wording (and nature) of the Particular has not distracted the Tribunal from properly considering the submissions made. There are several other Particulars similarly misrepresented throughout the Respondent’s submissions and the Tribunal has not allowed any of them to be distracting. The Tribunal had regard to the wording of the Particulars as put before the Tribunal by the HCCC. The


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Tribunal has noted the Respondent’s classification of ‘failings’ into the two categories, significant and insignificant.

198. Both Drs Ho and Willey stated that a diagnostic appliance should have

been prepared as a ‘try-in’ first to see if the face support promised to the patient could be delivered.

199. The Tribunal also notes that the Expert Conclave was of the view that

the Respondent commissioned and/or installed an upper denture that could not be properly cleaned, predisposing the patient to infection and/or bone loss. The Expert Conclave was of the view that the conduct demonstrated that the skill, judgment possessed and care exercised by the Respondent was below the standard reasonably expected of a dentist of an equivalent level of training or experience and the members were split two/two as to whether the conduct was significantly below (see Annexure B for details of the two/two split in the views of the members of the Expert Conclave).

200. The comments regarding the test applied by Dr Berne during the

Expert Conclave have been mentioned elsewhere. When cross-examined, it was the evidence of the members of the Expert Conclave that the appliance, essentially, as installed, was not appropriate for the patient’s requirements.

201. In summary the Tribunal finds that as commissioned and installed the

appliance could not be properly cleaned, although it did fulfil the more immediate requirement of Patient D for the appliance to fill out her face. The difficulties in keeping the appliance clean manifest themselves after the initial installation and in an attempt to address this issue there were numerous appointments both with the Respondent and the hygienist employed in his practice.

202. The Tribunal accepts the submissions of the HCCC. The request of

Patient D as recorded on the Consent Form was clear. Installing an appliance that would obviously require significant modification with the real possibility of never being able to meet the patient’s requirements is contrary to sound practice. The Tribunal is reasonably satisfied that the Respondent commissioned and installed an upper denture that could not be properly cleaned, predisposing the patient to infection and bone loss. The conduct of the Respondent demonstrated that the skill, judgment possessed and care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (ii) - The dentist promised the patient a fixed denture she could easily clean and which would fulfil her other requirements when he could not fulfil the promise


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HCCC Submissions re Particular (ii)

203. The HCCC made submissions regarding this Particular at paragraphs 320 to 326 as follows (footnotes omitted):

320. This prosthesis, as Dr Ho explained was always going to be

“very difficult” to clean. 321. On 24 March 2005 [Patient D] emailed the respondent:

The brochure you gave me on a fixed upper shows no lip support. The removable one has, but not the fixed one. I need to see an actual denture that you had made that’s fixed and has lip support. What about the sides? Will there be support so my cheeks won’t look sunken? I also need to see exactly how it is supposed to be cleaned, how easy that would be and how effective…….From the information I got off the other dentist I gathered that a fixed one is only good if there is still lots of bone and gum. If the fixed one does not work out for me, is it easy later on to have a removable one using the same implants/attachments? Or is that an added expense? I really need to see the actual denture and see for myself how it can be made bulky to support the lips and cheeks and also have you explain to me how to clean it before I go ahead with it. Your staff just told me I can’t see you before the 19th April. You are booked out. If you can’t see me before then, can we please change the date? I will come in on the 19th and have another information session with you, and then if I am satisfied, we arrange the placement of the implants.

322. The respondent’s reply was brief, but to the point and

emphatic on the question with which the patient was concerned.

Please feel free to come in when convenient. I’m sure we can arrange a visit. Of course you must fully understand everything. But one thing, you will have adequate lip support, front and sides! (Emphasis added).

323. In none of the documents is there any suggestion that the

respondent informed the patient that the appliance would have to be altered after it had been installed before either of her requirements could be satisfied.


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324. The expert conclave concluded that the respondent could have made her a cleansable denture had he been given the time to adjust it further but, then, it may not have fulfilled her other requirement of facial support. As Dr Stolz pointed out, if buccal and labial flanges were necessary to give the patient the support that she wanted for her lips and facial tissues, a fixed denture was never going to work because you could not clean under the flanges. As he also indicated, the respondent could never have believed that the appliance could be cleaned adequately. Not only did the labial flanges inhibit cleaning but the denture also had what Dr Stolz described as “a bulky palatal flange that made effective cleaning even more difficult”. It appears that the amount of tissue coverage was suitable for a removable overdenture but not a fixed prosthesis.

Respondent’s Submissions re Particular (ii) 204. Under the heading of ‘Insignificant failings’ the Respondent makes

the following submission commencing at page 67 regarding this Particular (formatting and font of original retained):

Pegios Affidavit paras 40 – 42:

I did not commission or install an upper denture incapable of being properly cleaned, predisposing my patient to infection or bone loss. The procedure I performed was based on the work of the prominent implant dentist, Dr Paulo Malo. The technique involves placing 4 or 6 implants into the maxilla (or mandible) and fabricating an acrylic bridge structure which is fitted within 1-2 weeks.

The acrylic bridge can have extensions or flanges that extend out to provide support to the lips and face. It was my intention to gradually reduce the extensions of the flanges (over time) to render the prosthesis more hygienic for the patient, but because the patient did not return I was denied the opportunity of doing so. On several occasions, the hygienist and I instructed the patient in the use of different floss aids and a water pick.

It is untrue to say that I falsely promised an easily-cleaned denture. The appliance was a work in progress, and my objective was to make such adjustments as would enable it to easily be cleaned. The joint experts’ report included the finding that had the

respondent been given time to further adjust the appliance, it


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could have been cleansable – but it may not have fulfilled her

other requirements.

Tribunal’s Findings re Particular (ii) 205. The Tribunal accepts the HCCC submissions, noting the comments

made by the Expert Conclave. The Respondent had already had a significant period of time to provide an appliance as promised to the patient. He had failed in this. The Tribunal is reasonably satisfied that the Respondent promised the patient a fixed denture she could easily clean and which would fulfil her other requirements when he could not fulfil the promise.

206. The conduct of the Respondent demonstrated that the skill, judgment

possessed and care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (iii) - The dentist incorrectly informed the patient in his letter of 22 March 2005 that there was no radiographic evidence of tooth decay or root canal filling when there was


325 and 326 as follows (footnotes omitted):

325. In this letter the respondent informed the patient that the x-rays showed there was no evidence of tooth decay or root canal fillings. However, as Dr Condon pointed out, the respondent was in error in both respects. This suggests one of too things: either the respondent exercised insufficient skill or care in the reading of the x-rays or he took insufficient care in the preparation of his letter to his patient.

326. The respondent admitted this particular. The conclave found

that his conduct in this regard was below the requisite standard.


208. Under the heading of ‘Insignificant failings’ the Respondent makes the following submission commencing at page 67 regarding this Particular (formatting and font of original retained):

Pegios Affidavit para 43: I agree that I made an error by signing a letter incorrectly telling [Patient D] that there was in the Xray no evidence of decay or root canal filling. It was an inadvertent error, and one that caused her no harm. It is not an error that I could ever repeat.


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Tribunal’s Findings re Particular (iii)

209. The Tribunal has no doubt and is therefore reasonably satisfied that the Respondent incorrectly informed the patient in his letter of 22 March 2005 that there was no radiographic evidence of tooth decay or root canal filling when there was. The Tribunal notes the findings of the Expert Conclave. The Tribunal finds the submission of the Respondent that ‘it was an inadvertent error’ and ‘it is not an error I could ever repeat’ as patently inconsistent. In any case, these issues do not form part of proper consideration of the characterisation of the conduct. The outcome for the patient is also not a relevant consideration to the question of whether the conduct demonstrates the matters set out in section 41 of the Act. Rather, the severity with which the conduct is viewed is more appropriately referenced to the potential for harm, not the actual harm that eventuates.


the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (iv) - The dentist falsely advised the patient that on 20 May 2005 he performed a bone graft at site 34 on the mandible or, alternatively, failed to make an entry in his clinical notes for the patient to the effect that he had performed a bone graft at site 34 on the mandible



327. At the first appointment after 20 May - 27 May – the patient asked the respondent whether he was sure that he had done a bone graft in the 34 site. She said she thought it was 44 but there is no doubt she was referring to the 34 site. The respondent replied:

“Yes I did a bone graft there too but I went through the back and that is why there are no stitches.”

328. Dr Willey declined to comment on the issue without seeing

before and after CT scans. However, after Dr Lim saw the patient in September 2005 she reported that

Clinically there was buccal onlay bone grafting in the posterior mandible sites, however, the 34 site had a significant bone concavity and no grafting was done here.


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329. Dr Selby was of the opinion that there had been no graft surgery at 34. When he examined the mandibular arch he found no indication of soft tissue surgery in the region and the periapical film he took during his examination revealed no evidence of any graft material. He said that clinically the ridge was very narrow (about 1mm wide), there was significant loss of buccal ridge contour with a noticeable concavity in the alveolus between 33 and 35.

330. A cone beam CT scan performed on 7 October 2007

confirmed that bone grafting was not performed at the 34 site.

331. The expert conclave found that this particular was made out. There can be no doubt, having regard to the unanimous answer that the conduct fell significantly below the standard that the conclave was of the opinion that the respondent had falsely advised the patient that he performed a bone graft.

332. On 6 April 2009 (11 days after the conclave had made its

findings and in the 5th set of admissions), the respondent admitted that he did not perform a bone graft at site 34.

333. The evidence from the respondent on this issue is not easy to

understand. 334. His explanation to the patient, repeated in more detail in his

letter to the Dental Board (‘Explanation of treatment notes”), is that the graft was effected through a tunnel preparation. However, as Dr Stolz pointed out,

Grafting in the mandible is a difficult procedure with a high rate of post-operative complication. It is generally acknowledged that, in order to give graft techniques the greatest chance of success, the hard cortical layer of the recipient site be perforated with a drill to allow the more vascular sub-surface layers to improve the blood supply to the contact surface of the graft. This would have been impossible to do without creating an incision line on the crest of the ridge of the 34, and a vertical incision of the buccal aspect of the 43 or 42 sites, so that a flap of soft tissue could be lifted off the bone to give access for cortical perforation. The incision lines required for this would surely have been noticed by Dr Selby. Furthermore, the physical difficulty of trying to insert graft material around the buccal convexity of bone over the 35, into the buccal concavity of the 34, is not a task even the most accomplished surgeon would attempt when a simple


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crestal and relieving incision in the 34 site would make graft placement so much simpler and likely to yield a more predictable outcome.

335. As Dr Stolz put it, the respondent told the patient that the site

was grafted but there was no evidence of graft material on the radiograph, no incision lines or sutures, no change in bulk in the site post-operatively, and the explanation for the graft technique “lacks credibility”.

336. Dr Ho referred to this on page 6 of his report, stating that “it

would be extremely difficult” to achieve “with any great success as he would have to raise a flap internally and lift this anteriorly over the root eminence of the 35, which would be nearly impossible”.

337. The treatment records are vague. Nowhere do they specify

which areas were grafted. The respondent agreed that nowhere in the patient’s file is there any reference to his alleged plan.

338. His evidence was confusing. When asked why he thought he

had done the graft at 34 he replied:

I remember doing the graft procedure, as I indicated before. It was a large, complex procedure and the scope or the plan was to do (sic) extend part of that graft procedure in the 34 region.

339. Only a little later the Chairperson sought to clarify the obvious

difficulties with his evidence.

So right now is it your evidence that you did not attempt the graft at 34, or you did attempt a graft at 34 and it was not successful? I think that might be the two alternatives. If there are more alternatives tell me if you think that there are other possibilities, but right now, do you say during that procedure with [Patient D], you did not even attempt a graft at 34 and just were mistaken in thinking that you had, or are you saying that you attempted a graft at 34 and it was just not successful for whatever reason?

340. The respondent’s reply was:

To be totally frank, I don't know. It could be either. I don't know. It's that far - it's four years ago now and obviously it was brought to my attention at some stage. I don't know.


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341. True it is that he was then asked what he thought at the time the matter was brought to his attention by the patient and he replied that he believed he had done the graft. However, earlier in the evidence the following exchange occurred:

When you say you just didn't, as in you didn't perform - attempt to perform the graft? What do you mean? A. I can't explain it. My understanding of how things happened was that I did try doing it, or I did attempt to do it, but the evidence shows that it didn't happen.

Q. So there was no attempt to do it? A. No. I don't know. The evidence shows that there is no bone in that area. Q. If the radiological evidence is that there is no bone in that area, does that mean that there is no attempt to do it, or does it mean it was just not successful? What does that mean to you? A. It could mean both.

342. It is unlikely that the respondent’s explanation is truthful. It

came after he had read Dr Ho’s report and at a time when the evidence was overwhelmingly against him; it was his only way out. If he had carried out such a difficult and extraordinary procedure, he should not only have remembered it but he should have been able to give a clear and consistent account of it. Furthermore, as the radiological evidence apparently persuaded the respondent that he had not carried out the graft, the explanation he gave the patient only a week later when he would have had good recall of the operation is likely to have been an invention. The resolution of this question may depend on the view the Tribunal takes of the respondent’s credit.

343. Dr Condon stated that if the respondent advised the patient

that a graft had occurred and it had not, then his behaviour falls significantly below an accepted standard of truthfulness and would earn his severe disapproval. That is scarcely surprising. The Code of Ethics and Conduct Guidelines (‘Code of Ethics’) published by the NSW Branch of the Australian Dental Association in 1997/8 stipulates:

3.1 Dentists should act at all times in a manner that will uphold and enhance the integrity and dignity of the profession. 3.1 Dentists should express opinions, make statement or give evidence in an objective and truthful manner.


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344. If the Tribunal is reasonably satisfied that the respondent informed the patient that he had done a bone graft at 34 when he knew he had not, he offended both of these clauses in the Code of Ethics and the Tribunal would hold that his conduct is both improper and unethical. That he maintained the false position for so long and that he fabricated a false account would be of particular concern. In that event the Tribunal should find that his conduct in this regard justifies the conclusion that he is guilty of professional misconduct.

Respondent’s Submissions re Particular (iv) 212. Under the heading ‘The single significant failing’, the Respondent

makes the following submission regarding this Particular commencing at page 62 (formatting and font of original retained):

Dr Pegios Affidavit paras 45, 46:

I reject the allegation of improper or unethical conduct in relation to the bone graft issue. At all times, I have honestly believed that I performed a bone graft on 20.5.2005. It was my certain memory, when I was first asked to comment on this allegation, that I had performed a graft via a tunnel into the deficient anterior area. Having that firm recollection, I assume that I persuaded myself that evidence to the contrary was a radiological artefact. I am now persuaded that I was wrong, and the graft was not performed. I apologise for my error, which was unintentional.

Any alternative that required suturing would have been subject to post-operative wound breakdown and possible loss of the graft. The way I went about the graft to the 1st premolar area was a prudent treatment decision. The use of palpation (see Dr Willey’s comment) is not an appropriate test to determine whether a graft procedure was done.

Dr Pegios Evidence 1240: Q. I'm going to ask you some questions, Dr Pegios, about particular (iv) - "falsely advised the patient that on 20 May 2005 he performed a bone graft at site 34 on the mandible" et cetera … First of all, do you recall performing (a)procedure, as in on 20 May 2005 … on [Patient D] on that day? A. Yes. Q. On that day did you think you performed a graft at site 34?


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A. Yes. Q. When you say you thought you did a graft at site 34, why did you think that? What had you done that made you think you had done it? A. That I had done a graft procedure. I remember doing the graft procedure, as I indicated before. It was a large, complex procedure and the scope or the plan was to do extend part of that graft procedure in the 34 region. … Q. And you thought that you had grafted into the 34 site? A. Yes. Q. And then one week later do you recall whether or not [Patient D] raised the question of whether or not there had been a graft at 34 with you, or about a week later? A. Yes. Q. What did you think then, at the time, about whether or not you had performed a graft at 34? A. I was still under the impression that I had. Q. What do you think now? A. Well, looking at the evidence, it appears that I just didn't, yes. Q. When you say you just didn't, as in you didn't perform - attempt to perform the graft? What do you mean? A. I can't explain it. My understanding of how things happened was that I did try doing it, or I did attempt to do it, but the evidence shows that it didn't happen. Q. So there was no attempt to do it? A. No - I don't know. The evidence shows that there is no bone in that area. Q. If the radiological evidence is that there is no bone in that area, does that mean that there (was) no attempt to do it, or does it mean it was just not successful? What does that mean to you? A. It could mean both. Q. Okay. So what's your position - I need to know what you say you recall doing to achieve - what do you say is the position? I'm really


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confused about this procedure and this issue and what your evidence is and I can take you to the parts of your evidence that seem to contradict, to be contradictory, if you like, and maybe that might assist? A. I think the evidence and what I had said was how the procedure would have occurred, so by raising a flap and pushing and undermining and pushing material, composite material into that area, but I cannot recollect at this time that the particulars, the exact particulars as at that time. Q. So you can't recall doing it? A. No. … Q. A week later or thereabouts, when [Patient D] raised the question with you, did you look to see whether or not you had actually placed any grafting material into the space for 34? A. I can't recall offhand. However, even a week later a direct observation would not be conclusive because of the amount of swelling and soft tissue changes. I mean, there were incisions and wounds in both posterior areas of the mouth, so even now I'd say that would not be conclusive a week or two later, to be able to directly observe and comment on that. Q. Is there any way you could have figured it out a week later whether or not there was some grafting material that did get to 34? A. I mean, you could take an x-ray but it's not considered appropriate to take too many x-rays, especially early on in the procedure - early on following the procedure. … Q. So right now is it your evidence that you did not attempt the graft at 34, or you did attempt a graft at 34 and it was not successful? … A. To be totally frank, I don't know. It could be either. I don't know. It's that far - it's four years ago now and obviously it was brought to my attention at some stage. I don't know. Q. You agree it was brought to your attention about a week later by [Patient D]? A. Yes and I was of the opinion that it was, yes, it was done.


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Q. At that stage you thought you had done it? A. Yes. 1294: Q: … Would it be fair to say that the summary of your evidence was: “At the time I saw her a week after (the treatment), I honestly believed I had done that bone graft”? A. Yes. Q. “But now there is so much time gone by I don't know whether I was mistaken in my belief, or I had attempted it and the graft hadn't taken”? A. Yes.


213. The Tribunal accepts the HCCC’s submission that the Respondent’s evidence on this Particular is not easy to understand. Considerable time was spent both in cross-examination and questions from the Tribunal attempting to clarify precisely what was the Respondent’s evidence on this issue.

214. The Tribunal is extremely concerned about the change in the

Respondent’s evidence with respect to this Particular. At T1240 the Respondent accepted that the patient raised this issue with him one week after the alleged procedure. When this matter was raised with the Respondent for the purpose of this Tribunal, the explanation he provided was clinically implausible and cannot be accepted by the Tribunal. The confused state of his evidence as set out in the HCCC submissions did not assist the Respondent in any way. It is of concern that the Respondent maintained any positive position with respect to the graft when the reality was that he had no clear recollection as to whether or not he had carried out the graft or even attempted the graft.

215. The Respondent has had a considerable amount of time to consider

his conduct and whether or not this work was actually performed. In paragraph 45 and 46 of his statement he appears to contradict himself and his position is unclear. The finding of the Dental Care Assessment Committee (DCAC) in 2005 wherein he was ordered to repay money to Patient D might also be expected to have assisted the Respondent to carefully consider the facts of this matter.

216. On balance, the Tribunal is reasonably satisfied that the Respondent

falsely advised Patient D that on 20 May 2005 he performed a bone graft at site 34.


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217. The Tribunal finds that the conduct in Particular (iv) demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

218. The Tribunal accepts the submission made by the HCCC at paragraph

343 and 344 and find the conduct of the Respondent demonstrates he engaged in improper and unethical conduct in the course of the practice of dentistry. Further, the Tribunal accepts the submission in reply made by the HCCC at paragraph 66 regarding the credibility of the Respondent’s evidence.

Particular (v) - The dentist failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association



345. There are no contemporaneous notes about what occurred at the first consultation – what were the patient’s complaints, what was found, what was diagnosed and no record of the treatment plan.

346. There is no medical or dental history to be found in the file. 347. The notes are also unclear about the dose of the anaesthetics

given. The respondent’s note is in marked contrast to the entry made in the patient’s progress notes by Dr Johnson Chou on 14 March 2005.


to the Dental Board and the appointment books reveal that there are entries in the appointment book for 21 April 2005 and 19 July 2005 which read “GP01 Try in + adj” and “GP01 Try in” respectively for which there are no entries in the patient records and no indication that the patient had cancelled the appointments. The appointment book also refers to an appointment on 5 August 2005 with the entry “GP02” when there is no entry in the progress notes for such a date and no record of cancellation.


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349. Despite the statement contained in the consent document that a medical clearance would be requested from her medical practitioner, no such “medical clearance” appears amongst the records. On 15 March 2005 the “appointment treatment notes” read “letter sent to Dr J.M.” However, there is no copy of any such letter and no information apparently supplied by a Dr J.M is contained in the records. The same medical chart as the respondent used in [Patient G’s case] and which had proved to be so uninformative in that case is used here. The letter he wrote to the patient in March 2005 included a heading “medical and dental history”. However, there is no record anywhere of the dental history.

350. Dr Condon describes the records as below an acceptable

standard but, because some detail is given, his disapproval is expressed as “moderate”. Dr Stolz was more critical and his criticism is justified. In several places in his report he noted the absence of any written evidence of diagnosis and treatment planning, the absence of any notes on the patient’s initial concerns on presentation, the lack of notes on treatment options offered or the fees quoted to the patient. He observes that such notes as have been provided are “brief, insubstantial and sketchy”, “confusing and difficult to follow”. His view is that “the lack of adequate records is where the respondent fell furthest below what is considered an acceptable standard”.

351. Dr Ho stated that he was in breach of the Dental Practice

Regulation as well as the ADA Guidelines and described his clinical records of treatment planning and of discussions during the consent process as “not satisfactory”:

in that they are minimal as to what was examined, patient expectations, clinical findings and the planning and treatment carried out. No signed record of patient’s details is present. There does not seem to be the level of record taking required for a complex case. Proper attention and detail to this is the responsibility of the clinician, and the record-keeping falls below an acceptable standard.

352. On any view of the matter, the record keeping in this case as

in the others, falls significantly below the standard reasonably expected of practitioners of equivalent training and experience.


220. The Respondent made the following submission regarding this Particular commencing at page 68 (formatting and font of original retained):


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Pegios Affidavit para 44: I agree that I failed to make and retain adequate clinical records, contrary to the ADA guidelines.

221. The Tribunal also notes the Respondent made a submission under the heading of ‘Patient E – Complaints 5A and 5B – Respondent’s Submissions re Particular (vii)’, which contains evidence the Respondent seeks to rely upon with respect to other Particulars where the Respondent has made an admission as to deficient record-keeping (such as this Particular).


222. The Tribunal notes the Respondent’s admission that he breached the ADA Guidelines, but did not do so with respect to a breach of the Regulations. The Tribunal notes the findings of the Expert Conclave that the conduct of the Respondent was below the standard reasonably expected of a dentist of an equivalent level of training or experience. The evidence relating to this Particular illustrates the problems created by a failure to keep appropriate records. The Respondent could not recall any details regarding he notation ‘Dr J.M.’ made in this patient’s clinical notes, he did not even recall who ‘Dr J.M.’ was. There was no copy of the letter recorded as having been written to ‘Dr J.M.’ in the clinical notes.


make and retain adequate clinical records in relation to his treatment of Patient D contrary to the requirements outlined in clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

224. The Tribunal has already made comments regarding the standard

applied by Dr Berne during the Expert Conclave. 225. Parliament has taken the step of embedding the standards expected

of a registered dentist with respect to record keeping into regulations. There is a penalty prescribed for not complying with the requirements. A breach of a regulation must be carefully considered by the Tribunal. In this instance, it is no mere loss of one radiograph or failure to make record of one consultation or to note the application of a medicament. Patient D’s clinical notes fail to meet fundamental requirements and are not adequate in any regard over the entire course of treatment.

226. The Tribunal is of the view that the conduct of the Respondent

demonstrated that the skill and judgment possessed and care


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exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.


227. The HCCC failed to provided a summary of the facts in the initial submissions, however, the HCCC did so at paragraphs 63 to 69 of the submissions in reply as follows (footnotes omitted): 63. The most significant deficiencies in the respondent’s management

of this case are promising the patient a fixed upper denture that could be easily cleaned and would fill out her face, knowing that that was what she expressly asked for, yet installed a denture that could not be properly cleaned, and falsely advising her that he had performed a bone graft at site 34.

64. Dr Willey, who (alone of the expert witnesses) actually saw the

denture, concluded that proper cleaning would be impossible due to its shape. If the shape were radically altered to permit cleaning it would not meet the second requirement of adequate facial support. The Tribunal should conclude that commissioning and installing the denture fell significantly below the acceptable standard of care and confirm the severe disapproval expressed by Drs Stolz and Condon.

65. In the summary of the respondent’s contentions he outlines his final

position with respect to the bone graft at site 34,

The respondent admits that four years ago he erroneously advised [Patient D] that he had performed a bone graft at site 34 on the mandible, which he also admits was unsatisfactory professional conduct. This failure involves no question of moral turpitude – because despite his honest belief at the time of treatment, advising [Patient D] that he had successfully grafted bone at the site, he cannot now say whether the graft did not take; or whether he was simply mistaken in his belief that he ever attempted it. (page 5)

66. This contention merely highlights the confused nature of the

respondent’s evidence on this subject and illustrates how he has endeavoured to ‘cover all the bases’ despite professing now to having no clear recollection of what he actually did. In deciding whether the advice to the patient was an innocent mistake or a deliberate attempt to mislead her, the Tribunal will need to apply its assessment of the respondent’s credit and will be guided by the analysis at pages 24 to 34 of the complainant’s submissions. It is notable that the respondent has not dealt satisfactorily, if at all, with any of the matters raised in that analysis. The only response to the


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complainant’s lengthy submission is to protest sincerity and to deny dishonesty (at least implicitly). However, the evidence speaks for itself. The transcript is replete with examples of it. It is telling that at no point in the written submissions does counsel for the respondent refer to any of the evidence elicited from his client in cross-examination. Extracts from the evidence in chief do not answer the substantial criticisms that have been levelled at him.

67. In the case of the bone graft issue, the respondent does not answer

the evidence about the difficulty of using a tunnel preparation and the likelihood that, if such a technique had been used, incision lines would have been obvious to Dr Selby. Dr Selby was not required for cross-examination.

68. If the respondent was untruthful in his advice to [Patient D], there

does not appear to be any argument that his conduct would have been both improper and unethical. In that event the Tribunal should find that his conduct in this regard justifies the conclusion that he is guilty of professional misconduct.

69. As for the attempt the respondent made to justify his treatment of

this patient by reference to the work of Paulo Malo, despite the cross-examination of Dr Stolz about this matter, the respondent called no evidence of his own to answer Dr Stolz’s criticisms.

228. The Tribunal noted that the Respondent had not made any

submissions by way of ‘conclusion’ with respect to the Complaint relating to Patient D.

229. The Respondent made the following submission at page 68:

Submission 5: The respondent’s single significant failure – his wrongly advising [Patient D] that he had performed a bone graft at site 34 – was unsatisfactory professional conduct at most, and involved no element of moral turpitude.

230. The Respondent was invited to make a submission in reply to the HCCC (belated) concluding submission. The Respondent failed to make any further submissions on this point despite the Tribunal sending a reminder regarding this issue.

Tribunal’s Findings re Complaint 4A and 4B

231. The Tribunal finds that the conduct in Particular (iii) demonstrates that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.


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232. The Tribunal finds that the conduct in Particulars (i) and (ii) each

demonstrates that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

233. Further, the Tribunal finds that the conduct in Particular (iv)

demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.


the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

235. In characterising the conduct, the Tribunal has particular regard to the

trust that is placed in all health professionals when treatment is provided. All patients are entitled to rely upon the information provided to them regarding the nature of the procedure performed. On this occasion, Patient D was not given an accurate account of the procedure undertaken on 20 May 2005 and this misinformation was not corrected when the Respondent was directly challenged by the patient shortly thereafter. Such behaviour is unbecoming of a health professional and can only act to undermine the confidence that the public will repose in the profession of dentistry.

236. Another matter of significance is the trust placed in health professional

to provide the outcome that has been discussed and agreed upon. Patient D made her concerns clear on the Consent Form. Even if the Respondent had convinced himself that he would be able to modify the appliance to the point where it was easily cleansable, the possibility that it would meet the patients other requirements was extremely remote and the pathway to that point verging on the tortuous. Professional practice should not involve such arduous courses when appropriate methods (i.e. the preparation of a ‘try-in’) are straightforward and simple.

237. The Tribunal is therefore reasonably satisfied that the conduct of the

nature of that particularised is of a sufficiently serious nature to justify suspension or cancellation of the dental care provider's registration. The Tribunal has made a finding of improper and unethical conduct with respect to Particular (iv).


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238. The Tribunal finds Complaint 4A established. 239. It follows that the Tribunal does not accept that Particular (iv) was the

only particular that amounts to unsatisfactory professional conduct in this Complaint and therefore the Tribunal rejects Submission 5 made by the Respondent.

Patient E - Complaints 5A and 5B 240. Complaint 5A alleges the Respondent is guilty of unsatisfactory



on the same basis. 242. The Complaint notes the dentist provided dental treatment to Patient E

between 1996 and 4 November 2004. The treatment involved firstly, the installation of thirteen coverage crowns and secondly, the removal of all her upper teeth and the fitting of implants for a fixed implant denture.

HCCC Summary of the evidence


353. [Patient E] first consulted the respondent in about 1996. She

had several fillings and extractions after which “it was decided” that she needed both an upper and lower bridge. After the bridges were fitted, her front teeth started to move. The respondent told her she had gingivitis. After he did “some [4 months of] periodontal treatment”, the respondent told her her teeth could be saved. He then suggested she have crowns fitted “which would ensure that [her] teeth would be saved”. He retained the original bridgework. The crowns lasted for less than two years. She often had to return to the respondent to have them adjusted.

354. In 2002 “it was concluded” that this option was not working.

The respondent advised her to have her top teeth extracted and have two implants fitted “as this was a better way to go than dentures on their own”. He assured her that implants were more secure than dentures. She trusted the respondent.


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355. She stated that she could not recall the respondent talking about any risks of implants or about oral hygiene, smoking or gingivitis having an impact on the implants. However, she did sign a form of consent.

356. After her teeth were removed and the implants installed

individual teeth began to fall out “at the most inappropriate times” – despite great effort to avoid placing stress on the teeth by eating the wrong foods.

357. Although the respondent tried several ways of repairing the

plate, the teeth continued to fall out. Ultimately, he asked the patient what he should do to rectify the situation and she suggested two further implants. Although he originally informed her that this would be an additional cost to her, he agreed to bear the additional costs himself.

358. In 2002 two further implants were installed. The same plate

was refitted. 359. Two or three months later the plate began to move and the

teeth started falling out again. On several occasions the patient’s husband repaired the plate with superglue.

360. In about July 2004 the patient saw a prosthodontist, Dr Paul

Hogan. On examination he found:

(a) Reduced lower 1/3 face height consistent with lost vertical dimension of occlusion.

(b) Complete maxillary denture with retention assisted by osseointegrated implants in positions 13, 23, 15 and 25.

(c) Denture demonstrating midline fracture through labial frenum area.

(d) Denture stability and retention unsatisfactory. (e) Mobility of ball abutments on 15 and 25 implants (at the

site of the premolars) apparently due to loose or fractured abutment screws.

(f) Failure of O-ring attachments within denture base. (g) Maxillary implants demonstrating divergent long axes. (h) Reduced posterior support in mandibular arch subsequent

to loss of 33-38 and 44-48 inclusive (11 teeth). (i) Carious breakdown and coronal fracture at 34. (j) Mandibular partial denture demonstrating poor stability and

retention and with significant impingement to the lingual mucosa at 32-43.

(k) Tooth 32 worst affected where there is stripping of the gingival attachment to a depth of approximately 7mm.


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(l) Marked inflammation around both lingual and labial surfaces of mandibular anterior teeth.

(m)Teeth 32, 31, 41, 42 and 43 have been treated with splinted porcelain fused to metal crowns which demonstrate poor marginal integrity.

(n)Recurrent caries evident on the buccal surface of 32. (o) Inflammation throughout the maxillary denture bearing

tissues consistent with chronic atrophic candidiasis.

361. The consequences of the respondent’s treatment were very serious. The patient had an unstable complete denture in her upper jaw. She was unable to function in her job as speech was difficult. She suffered chronic jaw pain and painful swelling in the oral mucosa secondary to the presence of failing implants.

362. Eventually, the patient complained to the Dental Board. 363. The DCAC arranged for the patient to be assessed by Dr Alex

Selby. He saw her on 28 November 2005. He made the following findings: Lower jaw

(a) There were only 5 teeth remaining in the lower jaw (32, 31,

41, 42 and 43). The teeth were not mobile. (b) With respect to 33 the crown has been lost but the carious

root remains, partially submerged beneath soft tissue. (c) The posterior alveolar ridges are severely resorbed; the

ridge is thin in the premolar/first molar region and becomes flat further posteriorly.

(d) The teeth are restored with splinted porcelain fused to metal crowns; the crowns are not splinted at the mid-line.

(e) The crowns have reasonable shape and appearance. (f) The margins were probed but could not be inspected

properly as they were obscured by plaque and calculus. (g) The patient’s oral hygiene is very poor. (h) There is 5-6 mm gingival recession on the lingual of tooth

32 and 4mm on the distal apparently the result of denture trauma.

(i) The lower partial denture installed by the respondent is small and under-extended. There are no occlusal rests.

(j) There is a cast metal roach retainer on the right canine and a wrought wire retainer on the left lateral incisor.

(k) The acrylic denture teeth are heavily worn with shiny occlusal surfaces.


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(l) An acrylic tooth and retainer have been added to the denture following loss of the 33 abutment.

(m)The lower denture is unstable and poorly retained. As a result of significant ridge resorption the denture has subsided and impinges on the lingual soft tissues behind the anterior teeth. As a result there is a lack of posterior jaw support, a significant loss of vertical dimension and decreased lower third face height.

Upper jaw (n) There are no teeth in the upper jaw. The patient wears a

complete upper denture overlying four implants. (o) There was a previous crack through the buccal flange and

extending distal to tooth 13 and on to the palate which has been repaired with cold cure acrylic.

(p) Tooth 12 has been reattached to the denture with superglue.

(q) There is a fine mid-line crack in the labial flange extending from the frenal notch and passing between the central incisors.

(r) The denture is under extended around the tuberosities. Retention is mediocre and stability poor. The acrylic denture teeth are worn, the posterior teeth are flat and there is heavy wear on the acrylic behind the cingulum of the anterior teeth. The teeth occlude in a Class 2 Division 1 relationship with a deep overbite.

(s) The fitting surface of the palate is stained. (t) There are attachment housings incorporated into the

denture in the canine and premolar regions corresponding with the position of the implants but the attachment is missing in the 13 region, the 23 housing contains an orange silicone O-ring which is shredded and deteriorated, at 25 there is a metal housing with a yellow plastic cap for a ball attachment, at 15/16 there is also a metal housing with a yellow plastic insert but the insert is so badly damaged that it is non-functional and the retentive ‘fingers’ are absent.

(u) The mucosa on the roof of the palate is moderately inflamed.

(v) The alveolar ridge is firm, with moderate width and height but the tuberosities are small and narrow.

(w) There are four implants in the maxillary arch in positions 13, 15/16, 23 and 25.

(x) At 13 the soft tissues around the implant do not adhere to the metal; they are loose and friable and displaced by air from the Triplex. The free gingival margin is white and keratosed. The implant is plaque coated and plaque


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extends sub-gingival. There is a loss of attachment which is evident upon periodontal probing. The fixture is inclined facially about 20 degrees from the vertical.

(y) At 23 there is a two millimetre abutment on the fixture suitable for an O-ring type abutment. About 2mm of the fixture is exposed on the buccal surface apical to the abutment. There is a lack of buccal attached gingival. The implant is positioned to the buccal of the ridge crest and tipped outwards about 25-30 degrees from the vertical. Probing depths around the implant were shallow.

(z) The implant in position 15 is to the buccal of the ridge so the buccal surface of the abutment is denuded. Although there is a 1mm ball abutment attached, the abutment was loose or unscrewed and had to be tightened. On the palatal surface the abutment shoulder is submerged about 1-1½mm sub-gingivally and the tissues have grown over the lingual, mesial and distal surfaces. The implant is plaque coated and the plaque extends sub-gingivally. The tissues are soft and not adherent to the metal; they are easily displaced by air from the Triplex.

(aa) At 25 there is a 1mm abutment attached to the fixture but it is loose and unscrewed and had to be tightened as well. Again the fixture is positioned to the buccal of the ridge crest and there is a lack of tissue on the buccal aspect and the abutment-implant interface is exposed. There is no attached gingival on the buccal. Probing depths were shallow around the implant.

364. In his formal admissions the respondent states “that he was

guilty of unsatisfactory professional conduct within the meaning of section 41” “as follows”:

That he did not refer the patient to a periodontist; that he installed a poor quality prosthesis; that he failed to prepare and retain a written plan relating to his treatment of the patient; that he did not conduct personally the patient’s pre-anaesthetic assessment; that he left a tooth root in situ; and that he failed to make and retain adequate clinical records in relation to the treatment of his patient, contrary to the relevant ADA Guidelines.

Respondent’s preliminary submission

244. The Respondent made the following preliminary submissions, noting that Patient E was treated by the Respondent in 1996 and from 1999 to 2004 (page 5 - formatting retained):

The respondent left a tooth root in situ. The respondent admits that


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this was conduct significantly below the relevant standard -

accepting the experts’ finding - but submits that it is mitigated by

the fact that he was quite unaware of the retention of a remnant of

the tooth’s root. [Patient E’s] claims that Dr Pegios knew of the

root’s retention cannot be accepted (see post, as to her credit). He

admits unsatisfactory professional conduct, but contends that the

conduct is incapable of amounting to professional misconduct.

245. At page 35 of the Respondent’s submission the following summary of

the Expert Conclave was provided (formatting retained):

Joint expert report summary: The respondent left a tooth root in

situ, which was conduct significantly below the relevant standard.

The other failings (in the quality of the prosthesis, the treatment

planning, the post-procedure care and record-keeping) were not

significantly below the relevant standard.

Particular (i) - The dentist failed to refer the patient to a periodontist



365. It seems clear that the patient had advanced periodontal disease. The respondent recognised it. When he saw the patient on 15 February 1999 she had inflammation, bleeding, pocketing and a pus discharge around tooth 13. It is common ground that he was trying to manage her periodontal disease. The clinical records show that both surgical and non-surgical periodontal treatment was carried out between March and July 1999 and then in May 2001.

366. The respondent admitted he did not refer the patient to a

periodontist but denies it was a failing. The expert conclave agreed.

367. However, in his report Dr Ho explained that it would have been

“good practice” for the respondent to have referred the patient to a periodontist. In his oral evidence he said a referral would be futile if the patient had “hopeless teeth” (as in [Patient B’s] case) but conceded that [Patient E’s] did not fall into that


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category in 1999. Still, he adhered to the view expressed by the conclave overall.


247. The Respondent made no formal admissions regarding this Particular. The Tribunal notes an admission was made by the Respondent in paragraph 48 of his statement dated 20 April 2009 as follows (formatting retained):

I agree that I failed to refer this patient to a periodontist when I

should have done so. I was confident and remain confident that I

could have managed her periodontal condition adequately with

regular appointments and her compliance. She did not return for

those appointments and in that sense I concede I should have

referred her to a periodontist, because she was apparently

unwilling to have me treat the problem.

248. The admission of this Particular was confirmed in Counsel’s opening

address (see page 10).

Tribunal’s Findings re Particular (i) 249. The Tribunal notes the Expert Conclave did not consider this conduct

was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

250. Considering the circumstances of the matter, the Tribunal comments

that although it would have been prudent for the Respondent to refer [Patient E] to a periodontist (as she may have received the treatment required or it may have prompted her to improve her compliance with the Respondent’s advice) the Tribunal is not reasonably satisfied that the conduct in Particular (i) was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (ii) - The dentist installed a poor quality prosthesis



368. Although the cosmetic appearance of the upper denture was adequate, it had “fundamental deficiencies in design”. It is under-extended in places, which contributed to its instability and retention. The lack of stability of the upper appliance caused excessive wear and tear of the O-rings.


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369. The instability of the opposing dentition also contributed to the

instability and retention of the upper appliance. The posterior saddles of the lower denture were unsupported because there was no stable occlusal table. As Dr Selby explained it, “there’s a deep anterior overbite and the occlusal forces are directed behind the upper anterior teeth resulting in a tipping action and displacement of the upper denture”. Dr Selby felt that the occlusal characteristics showed “a fundamental lack of understanding” on the respondent’s part.

370. In summary, as Dr Selby put it:

the appliance does not function properly. Stability is lacking and only one of the implant attachments is attaching to the denture. In my opinion the quality of the appliance is poor.

371. Contrary to the explanation the respondent offered, the

deterioration is not attributable to ‘parafunction’ and ‘bruxism’. There was in fact no evidence of parafunction apart from the shiny wear facets on the acrylic teeth and, if there was any bruxism, the bruxism was probably a consequence, rather than a cause. Dr Stolz provided the real explanation. Rather than making a new one, the respondent relined and remodelled the existing full upper immediate implant-retained over-denture. When it was first issued, this denture had protruding front teeth on it. These front teeth were replaced and then began to fall off. The reason, according to Dr Selby, was that the denture was under-extended at the tuberosities. For that reason, alone, Dr Stolz explained, it should not have been converted from a provisional denture into the over-denture. It was inadequate in the first place.

372. In addition, the implant-retained over-denture was not

horseshoe shaped or made with a metal framework, both of which are preferable.

373. The respondent admitted the prosthesis was of poor quality.

The expert conclave were in agreement that his conduct in this regard fell below, but not significantly below, the standard reasonably expected of a dental practitioner of the respondent’s training or experience.


252. The Respondent makes the following submission regarding this Particular commencing at page 39 (formatting and font of original retained):


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Dr Pegios Affidavit para 51 (use of the following typeface signifies Dr Pegios’s written evidence):

I have admitted providing a poor-quality prosthesis. I accept the finding of the experts that this was a failing, and adopt the majority’s finding that it was not a significant one. When the patient continued to experience problems with breakages after the second two of four implants were installed, I concluded that this was related to parafunction, or bruxism (involuntary habitual grinding of teeth) and smoking. The criticism with regard to the design of the denture is that the tuberosity regions are slightly deficient. This is the result of natural resorption following the removal of teeth, which is easily corrected with a reline procedure. The most appropriate design for someone with poor oral hygiene is a removable appliance. In my opinion the patient's excessive smoking was responsible for the degradation of the silicone washers in the attachment mechanism. I do not believe that there was an issue related to the quality of fit of the appliance. I provided an immediate denture after removal of the patient’s teeth and later converted the appliance to an implant-supported denture, in order to reduce costs.


253. The Tribunal notes the finding of the Expert Conclave that the conduct was below the standard reasonably expected of a dentist of an equivalent level of training or experience, and was unanimous in finding it was not significantly below, there was no ‘majority’s finding’ as referred to in the written Submission of the Respondent.

254. The Tribunal notes the admission of the Respondent as set out above

and as confirmed in the opening address of Counsel for the Respondent. The Tribunal is reasonably satisfied that the Respondent installed a poor quality prosthesis.

255. The Tribunal finds that the conduct in Particular (ii) demonstrates that

the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (iii) - The dentist failed to properly plan the treatment provided to the patient and failed to prepare and retain a written plan relating to it

HCCC Submissions re Particular (iii)


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256. The HCCC made submissions regarding this Particular at paragraphs 374 to 390 as follows (footnotes omitted):

374. In his affidavit the respondent denied that proper planning did

not take place and only admitted that he failed to keep a copy of the plan.

375. In his consolidated admissions he went further and admitted

that he failed to prepare and retain a written plan. In the opening his counsel urged a finding in the same terms as that of the majority of expert conclave.

376. The expert conclave were unanimous that in this regard the

respondent’s conduct fell below the standard but only one – Dr Stolz – thought it fell significantly below.

377. Dr Stolz pointed to two reasons why the treatment planning

was significantly flawed. First, the patient had two high risk factors (heavy smoking and chronic periodontal disease), which predisposed her to implant failure. The respondent did not appear to have taken adequate account of these risks in his treatment planning as he placed the implants into infected sites increasing the chances of further bone resorption. Secondly, he used only two implants in the maxilla despite the fact that the bone in less dense than in the mandible, whereas four are customarily used.

378. He considered that the position of the implants in the 13 and

23 sites buccal to the ridge and without any zone of attached gingivae and no bone around the coronal aspect of the 13 implant, which was failing when Dr Selby reported, was “an inevitable consequence of poor planning” as there was no attempt to control the infection in the implant sites before placement.

379. In his report Dr Stolz noted that the patient was a heavy

smoker and had chronic periodontal disease which had been the cause of the failure of her upper teeth. He pointed out that

It has been widely recognised that placement of implants into extraction sites where there has been pre-existing periodontal involvement results in a higher failure rate of implants. It is also widely recognised that placement of implants into patients who smoke results in a higher failure rate.

380. Moreover,


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In a periodontal patient with advanced bone loss, it is always likely that there will be significant further bone resorption following extraction, and the possibility of infective material contaminating the surface of the implant and jeopardising a successful outcome.

381. He noted that “the implants were placed in infected sites

where there was a high chance of further resorption and where (pointing to the pocket depths recorded on the periodontal examination of 25 May 2001) it was unlikely they were covered with bone on the labial-coronal aspect at the time of placement”.

382. He concluded that that treatment approach is “likely to

produce unpredictable and unsatisfactory healing in a patient like [Patient E]”.

383. He considered that it would have been far better to have

extracted all the upper teeth, thoroughly debrided the sockets, place a full upper immediate denture and wait three to six months before implant placement so as to allow the infection in the surrounding tissues to disappear and the sockets to heal, enabling the implants to be placed “more predictably” into a stable and healthy ridge. If ridge resorption meant that there was insufficient bone for implants, then grafting would be required. In this event, the only risk factor would have been smoking and, hence, the prospects of the implants failing would have been significantly reduced. He felt that “this phase of planning fell well short of accepted clinical practice” and was “strongly critical” of it. He could conceive of no argument that would justify managing this case as one for extraction and immediate placement.

384. He also explained that, as the bone in the mandible is denser

in the cortical layer than maxillary bone, it is much easier to stabilise implants there and only two implants are therefore required. In the maxilla, however, the bone is not as dense or thick in the cortical layer and, “because of the forces generated by the denture functioning on the implants”, it is generally recognised that two implants are inadequate, especially if they secure the denture with ball attachments. The load is considered too great for the long-term survival of the implants. Thus, four implants are regarded as “a reasonably safe minimum”. Yet, the respondent planned the case with only two implants when she was already at high risk of losing them because she was a chronic smoker with periodontal disease.


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385. In his oral evidence he explained why he differed from his colleagues in concluding that the respondent’s treatment planning fell significantly below the standard:

A. Most of the maxillary over-denture cases that fail are

retained by two implants. I don't believe that two implants is an appropriate treatment plan for retention of an over-denture in the maxilla. The bone is different. The bone in the lower jaw is much denser. In the upper jaw there have been - the literature is replete with examples of cases where the finite element analysis, which is the way it would have been stressed, is different for the two sorts of bone that exist there. Generally most implant over-denture cases in the upper jaw are based on four implants, not two.

Q. So do I understand your position to be this: you took

the view that two implants were never going to work? A. Yes.

Q. And so that if there had been a treatment plan it was

doomed to fail, is that right? A. Yes.

386. It is open to the Tribunal to prefer Dr Stolz’s opinion. 387. Dr Ho agreed that implants in the maxilla have a high failure

rate and it is “probably better to have more in case one fails”. Indeed, in his report he wrote that because the bone in the maxilla is less dense and the implants are subjected to higher biomechanical load,

Generally, these factors result in a recommendation that four implants be used to retain a fully edentulous maxillary implant overdenture, where the implants are also splinted to provide cross-arch stabilization.

388. Dr Ho’s evidence was that four implants should have been

placed. 389. In his report Dr Ho also noted that considering the deeper

occlusion that was present, the denture, which had been designed as a full acrylic denture with full palatal coverage, could have been designed as a cast framework with metal support with pins to provide better reinforcement. He felt that had such a design been used, the patient may not have lost teeth and the metal framework would also have minimized the chance of acrylic fracture within the denture.


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390. The respondent was constantly playing catch up. His

treatment was a case of trial and error. The poor outcome reflected poor treatment planning.


257. The Respondent makes the following submission regarding this Particular (referred to as ‘An inadequate treatment plan’) commencing at page 39 (formatting and font of original retained):

It is to be noted that this was a majority finding as to the failing

being insignificant (Dr Stolz the minority – and see, ante, [post in

this document] submissions about his unsupported opinions).


I concede that I did not retain a copy of my treatment plan, but I deny that proper planning did not take place. Dr Condon 294: Q. Now bearing in mind the admission was of a failure to prepare and retain a written plan, is that what you expressed your view upon to the effect that that failure was significantly below the standard to be expected? A. My recollection is that we considered point (v) in its entirety and didn't separate out those two questions, so if you want me to separate them out and give you my view, I can. Q. All right. Were you satisfied on the basis of any evidence that he failed to properly plan the treatment? A. No, I couldn't be on the basis of any evidence. Dr Stolz’s malice was undeniable: 455: Q. Dr Stolz, will you turn up your [Patient E] report, please? … (Y)ou have this sentence: "It suggests", that is the lack of any treatment plan (suggests), "that Dr Pegios's primary focus was on treatment alternatives that were in his area of interest and which were potentially more lucrative, rather than on a patient outcome" et cetera. Do you see


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that? A. Yes. Q. You infer from the lack of a (written) treatment plan that Dr Pegios was money-grubbing, don't you? A. The inference is there, yes. Q. The inference, sir, is not there, unless you are malicious, I put to you? A. No, it is not my intention to be malicious. Q. Upon what fact, or from what fact or facts do you infer that Dr Pegios's motivation was money grubbing? A. The absence of any treatment in the lower jaw. Q. Although what you have there is a statement that it's the lack of a treatment plan that suggests he was money-grubbing. That's what you have written, isn't it? A. Yes. Q. You were wrong, weren't you? A. As you wish, Mr Littlemore. Q. No, what's your answer? You have repeated that answer to me a dozen times, if once, “as you wish.” You just don't want to answer the questions, do you? A. Yes, Mr Littlemore, I do want to answer the questions. Q. What is the truthful answer to the question I asked of you, which was: You were wrong, weren't you? A. Yes, Mr Littlemore. 471: Q: … That was admitted and the panel was unanimous in its view that that was conduct below the reasonably expected standard but it was only you, Dr Stolz, who thought it was significantly below the standard. Is that a subject on which you acknowledge minds may differ? A. And our minds did differ, so I have to conclude yes.


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[Patient E]: 98/9 Q. Will you look at paragraph 4 please [Patient E], third sentence: "It was then decided after these extractions that I required both and upper and lower bridge to be fitted which was also done." Now what you're saying there is, is it not, that in consultation with Dr Pegios, you decided to agree to treatment involving fitment of an upper and a lower bridge? A. Yes. Q. And that was after serious discussion and thought? A. Yes. Q. And Dr Pegios gave you the information on which to make your decision? … A. Yes. Q. And after all these years, this is, after all, is something up to thirteen years ago, you wouldn't pretend to recall exactly what was said or even broadly what was said? A. I can't remember. ... 100 Q. … (L)ook please at paragraph 8 of your statement (where) you say: "Dr Pegios advised me that implants would be the go unless I wanted false teeth." Now that's certainly not what he said, is it? A. No, that's what he said exactly. … A. Again, I don't remember exactly. Q. Right. But the gist of it, the sense of it, as you understood it, this is what you're telling the Tribunal was that Dr Pegios, when he was advising you, advised you that you had a choice between implants and dentures? A. Yes. Q. And he advised you to have implants? A. Yes. Q. But he told you (that) you did have that choice? A. He told me implants would be, you know, he advised me that implants would be the better deal


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for me because having false teeth, because my gums had receded, they would be moving around and with the implants it's a more secure fit. Q. So he gave you the reasons why he advised you to take that course? A. Yes. 102 Q. What I put to you is that you told him you wanted the best solution? A. The best solution, yes. 110 Q. … you say "he asked me what I thought he should do to rectify the situation"? A. Yes, I remember that. Q. Do you recall that discussion? A. Yes, I do quite clearly. Q. It was quite a lengthy discussion, wasn't it? A. Yeah, we spoke to a long time in that consultation, yes.

258. The Tribunal notes that the words in round brackets above in the

extract from the transcript did not actually appear in the transcript, they have been added by the Respondent. Further the quote recorded as appearing on page 100 of the transcript in fact appears at page 101 and regard to the entirety of the transcript of Patient E’s evidence should be made to fully appreciate same.

Tribunal’s Findings re Particular (iii)

259. The evidence of the Respondent that there was planning undertaken with respect to the treatment of Patient E is corroborated in part by the evidence of Patient E that she discussed various options with the Respondent at various times. If it were not for this evidence, the Tribunal would be of the view that the conduct fell significantly below the standard reasonably expected. The clinical notes do not contain a written treatment plan. This is a failing on the part of the Respondent.


properly plan the treatment provided to Patient E and failed to prepare and retain a written plan relating to it.


the judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.


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Particular (iv) - The dentist failed to personally to conduct the pre-anaesthetic assessment of the patient



391. It was Nurse Couch who carried out the pre-anaesthetic assessment of this patient.

392. For the reasons given at paragraphs 202-3 (sic - 201-202)

above, this arrangement should be regarded as unsatisfactory.

Respondent’s Submissions re Particular (iv) 263. The Respondent did not make submissions with respect to this

Particular or the other Particulars alleging similar conduct with respect to other patients.


264. The Tribunal notes that the Respondent admitted this Particular (see page 11 of Opening Address made by Respondent’s counsel). The Tribunal agrees with the Respondent that there is no justification for the delegation of the obligation of the sedationist to conduct the pre-anaesthetic assessment.

265. The Tribunal also notes this Particular was not considered by the

Expert Conclave. 266. RN Gaudron made an induced statement for the purposes of the

Coronial Inquiry (Exhibit volume 8 – tab 36 page 1, point 5) which includes the following statement:

On the recommendation of Dr Stewart, Dr George Pegios… approached me in about 1999 and offered me employment in his dental practice to assist him in the administration of IV sedation.

267. The Tribunal notes that Professor Stewart denies this in his statement

dated 3 December 2008 (Ex Vol 7.10 at page 9) and that he was not required by the Respondent for cross-examination.

268. The Tribunal accepts the HCCC’s submission with respect to this

Particular. 269. The Tribunal has the benefit of extensive evidence regarding the

issue of the administration of the pre-anaesthetic assessment. The


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Tribunal is reasonably satisfied that the Respondent failed personally to conduct the pre-anaesthetic assessment of the Patient E. The Tribunal accepts the HCCC submission.

270. The Tribunal is of the view that the conduct demonstrates that the

skill and judgment possessed and care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (v) - The dentist failed to provide adequate post-procedure care

HCCC Submissions re Particular (v) 271. The HCCC made submissions regarding this particular at paragraphs


393. The conclave was unanimous that the post-procedure care was inadequate and that in this respect the respondent’s conduct fell below, although not significantly below, the standard.

394. Dr Stolz was very critical of the respondent’s failure to provide

a new appliance with a different retention system, “especially as the existing appliance had so many intrinsic faults”.

395. Dr Condon considered the post-procedure care to be

“deficient” in several respects. Despite the obvious failings of the treatment, at no stage did the respondent review the treatment plan. At some stage, Dr Condon wrote, the respondent should have decided that the treatment plan was not working and needed major revision. Yet, he tried to “soldier on”, attempting to patch things up. Not once did he accept that he may not have had the answer, himself, and sought a second opinion. As Dr Condon pointed out, nothing is permanently successful in the mouth. However, if a treatment fails or starts to fail and “cannot be readily rectified”, “the general standard of care” involves referral to a specialist. The patient should not have been sent to the technician. If there were any deficiencies in the technician’s work, the dentist had to answer for them.


272. The Respondent makes the following submission regarding this Particular commencing at page 42 (formatting and font of original retained):

The relevant evidence is as follows:


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I now accept that I gave [Patient E] inadequate post-operative care, and the experts’ view that this was a failing to meet the relevant standard of care, albeit not a significant one. In mitigation, I point out that I asked this patient to return for regular maintenance and hygiene visits, but she did not comply. It was untrue for her to tell the Tribunal that I refused to speak to her on the phone. I have never refused to speak to a patient. I am taken aback by her evidence that Dr Altman instructed her not to permit me to repair the appliance. What is quite plain is that [Patient E], for her own reasons and at

the urging of the Dental Board’s representative, refused Dr Pegios

the opportunity of giving her adequate post-procedure care, and

that the HCC’s (sic) Ms Hadley ensured that an embarrassing

element was omitted from her statement about this aspect of the

case:

[Patient E] 93/4: Q. Dr Altman said to you "don't go back to Dr Pegios to get the plate repaired"? A. Mmm-hmm. Q. "Until the registrar can inspect the plate", is that right? A. Yes. Q. Were you willing to go back to Dr Pegios to have it repaired? A. No, no, definitely not, not after the last incident. Q. But whether or not that was the case, the representative of the Board told you not to do it? A. Well, with Dr Altman, as you can understand. Q. No, madam, would you just answer my question? A. Sorry. Q. The representative of the Board, Dr Altman? A. That's correct.


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Q. Told you "Don't let Dr Pegios repair it"? A. Well yes, of course. ... 111/2 Q. Incidentally, did you notice when Ms Hadley produced this statement for you she left out the part that was in your letter where you said you called the Dental Board for further advice and (were) advised not to return to George, that is Dr Pegios, to get the plate repaired. Do you know why that was left out of the Health Care Complaints Commission version of your statement? A. No I don't, I'm sorry. Q. Did Ms Hadley not discuss that with you? A. I don't recall her saying. … 121 A: … I rang Dr Pegios to talk to him to rectify the situation, person to person over the phone, and he would not come to the phone. Klara, who was his secretary, kept on talking to me. I was so frustrated and so upset, how can I go back to the dentist after he didn't even want to talk to me over the phone? Q. Well, was he treating a patient at the time? A. No, he wasn't. Q. How do you know that? A. Well I don't know that but I assume -- Q. Thank you, you assume? A. No, no, excuse me, I spoke to Klara (semble Carla Cattenach) and I said, I asked her that question: “Is he seeing somebody?” And she wouldn't answer me the question. I said: “Look, I need to speak to him right now.” I didn't add that to my statement but I can recall it right now. I was so frustrated over the phone because all I wanted to do was talk to him because I didn't want to go to the, if I could have rectified with him what the technician had said to me that particular day over the phone as human beings, to speak about it, you know, it would have been so much better than me leaving that lab in a very depressed manner, very frustrated manner. I went home and I started bawling my eyes out. I didn't know what to do.


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Q. Thank you. But what you're telling the Tribunal is because he wouldn't speak to you at a time you demanded he should, you never went back? A. Yes.


273. The Tribunal notes that the Respondent admitted this Particular. The Expert Conclave expressed the view that the conduct was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

274. The evidence before the Tribunal does not support the Respondent’s

contention that Patient E was instructed by a representative of the Board not to attend upon the Respondent. Rather, the evidence is that Patient E was asked to refrain from so doing until the ‘plate’ could be inspected. Further, from the account of the conversation between Patient E and the Respondent’s receptionist, there is nothing to suggest that the Respondent was even aware of the call on that occasion. The Receptionist was not called to give evidence. It may well be that the Respondent has never refused to speak to a patient as he claims, although it would be highly unlikely for any practitioner to be available at all times given the nature of the services provided. Although not directly considered by the Tribunal with respect to this Particular, it is appropriate to note the Tribunal’s view that it would be unreasonable to expect a patient to keep attending upon a practitioner indefinitely for the purpose of affording the practitioner an opportunity to make repeated attempts to rectify a chronic problem.

275. The Tribunal accepts the HCCC’s submission regarding the factual

findings regarding this Particular and is reasonably satisfied that the Respondent failed to provide adequate post-procedure care to Patient E.


the judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (vi) - The dentist left a tooth root in situ without the consent of the patient

HCCC Submissions re Particular (vi) 277. The HCCC made submissions regarding this Particular at paragraphs


396. Dr Selby examined the patient on 28 November 2005. His findings on examination revealed that in the lower jaw there were only five remaining teeth (32, 31, 41, 42, 43) and “the


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retained root of 33”. He goes on to point out that the crown of 33 has been lost but “the carious root remains, partially submerged beneath soft tissue”.

397. The Dental Care Assessment Committee noted that the x-rays

showed that the root was still in situ. 398. Just about the whole of the lower root of the tooth was still

present. 399. Despite that, the respondent charged for removing it. 400. He either made no attempt to extract the tooth root or

attempted and failed. In either event, he should not have charged her. If he had attempted to extract it and failed, then he should have told the patient.

401. In her supplementary statement the patient reported that at

one stage she mentioned to the respondent that there was still a piece of tooth left in the gum after the respondent had removed a tooth from her left lower jaw towards the middle. She asserted that she raised it with the respondent and he reassured her that was “OK, it’s easily removed”. In cross-examination she adhered to that evidence and explained:

In one of those consultations, I can’t remember exactly what day it was but I remember me saying to him: "By the way, there's a little white mark in there", when he was looking at my teeth, "and I think it's a root." And he did say: "Yes, it is a piece of root. It's okay, easily removed", but that was it.

402. Whereas ordinarily a practitioner might be able to rely on his

notes to resist such an allegation, that course is not available to the respondent whose notes are admittedly inadequate and often omit complaints he concedes were made to him.

403. The respondent claims that he was unaware that he had left

the tooth root and hence, his conduct was inadvertent.

404. However, that is unlikely. As Dr Berne conceded in answering questions from Dr Edelman, if a dentist removes a tooth and delivers only the crown, it is unreasonable for him not to go looking for the missing root.

405. In cross-examination the respondent contended that he

believed he had removed the root and that he saw what he believed was the root on his forceps. This evidence is not credible eight years after the event. It is inconceivable he had


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an actual recollection of the event. At best it is a self-serving reconstruction. On the other hand, the patient’s evidence on this subject had the ring of truth about it. She would not know the significance of a white mark.

406. Dr Edelman took Dr Stolz to this issue:

Q. Would it also not be true to say that if the patient became aware of a white spot in the area of the retained root, and indeed pointed it out to Dr Pegios, would it not be true to say that was most probably the root showing through the tissues and it should have alerted to him if she felt and saw a white spot above where the root was placed?

A. Are you talking about a soft fluctuant spot? Q. No, if the patient felt a hard white thing in the region of

the 23 (sic) root, would it not be likely to be that root showing through? A. Yes, it would.

407. The expert conclave was unanimous that leaving the tooth

root in place without the patient’s consent was conduct falling significantly below the standard reasonably expected of a practitioner of the respondent’s training and experience.

408. In answer to a question from Dr Edelman both Dr Stolz and Dr

Ho agreed that once the root becomes visible in the oral cavity, there was a greater the danger of potential problems for the patient, such as infection. Dr Ho said it was unreasonable to leave the root there and he would have removed it. Dr Stolz said that if the practitioner was alerted to the fact that the patient could feel a white spot in the region, it would have been good practice to remove the root or to recommend its removal, “particularly considering the fact that she was wearing a partial denture onto which an additional tooth had been added as a result of extraction or removal of the crown”.

409. The Tribunal will have no difficulty in concluding that the view

of the expert conclave on this matter is correct.

Respondent’s Submissions re Particular (vi) 278. Under the heading ‘The single significant finding: The tooth root left in

situ’, the Respondent made the following submissions commencing on page 35 (formatting and font retained from original):

The following is the relevant evidence:


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I was not aware that I left a tooth root in situ, but accept that the radiograph would indicate that I did. If so, I made an inadvertent error. It is important to state that [Patient E’s] evidence on this matter was untrue. For a start, there cannot have been a “little white mark” in her gum unless the tooth root was about to erupt. [Next sentence omitted by the Tribunal from the submission at this point as it had been struck out prior to the affidavit coming into evidence]. I have never had a conversation with [Patient E] about the tooth root or its removal. Dr Condon 294: Q: … Now you were of the view, and the whole panel was of the view, that that … was a failure significantly below the required standard? A. Yes. Q. Now the really vital part of that is, isn't it, doing it without the consent of the patient? A. Yes. Q. Because it's not a failure of any dental impact, is it? A. No. Often removal of a tooth root can be more traumatic than leaving the tooth root there. So providing the patient is given pros and cons and makes an informed decision, that's fine. Q. This would only be reprehensible if the dentist knew there was a tooth root left, wouldn't it? A. Yes. Q. On what basis were you satisfied that he knew there was a tooth root left? A. Based on the size of the root as evidenced on the x-ray. Q. You thought that it couldn't be missed on the x-ray? A. It's quite easy to miss a small amount during extraction process. In my view, it would be harder to miss a larger amount.


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Q. Have you ever made a mistake? A. Very many. Q. We're all human? A. Very much so. Q. Now you would say, wouldn't you, that one can make a mistake particularly about an ineffectual thing such as this? A. That's very easy to make a mistake. Q. And it wouldn't be reprehensible unless Dr Pegios knew the root was there, left it there without giving the patient the option of having it removed? A. That's correct. Q. And it all turns on that, doesn't it, his knowledge? A. It does. Q. And you would have a totally different view if he had inadvertently left it there and was unaware of it? A. Yes I would. Dr Stolz 445: Q: … (Y)ou say: "Dr Pegios should not have left a root in place without the consent of the patient." Now you'd agree that if he wasn't aware he'd left a tooth root in place, the issue of consent is irrelevant, wouldn't you? A. I don't believe that Dr Pegios was not aware of the tooth root in place. Q. … Now you could have answered that by saying yes or no. But no, you leapt ahead to say Dr Pegios is lying, didn't you? “I don't believe that Dr Pegios didn't know it was there.” See, you wouldn't answer my question. You went on to make an answer that was as adverse as you could make it for Dr Pegios? A. I disagree with you. … Q. You go on at that point, as you did at the top of the page, the last sentence of the paragraph on the top of the page, you talk about "he's charged the patient for an extraction he probably didn't even attempt to carry out"; that's a


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reflection on Dr Pegios's honesty, isn't it? A. Not necessarily. … Q. Do you or do you not acknowledge that that extract from your report reflects on Dr Pegios's honesty? A. Not necessarily. [Patient E] 115-117 Q. When do you say you learned you had a piece of tooth left in your jaw? A. In one of the consultations, I can't remember exactly what day it was but I remember me saying to him: "By the way, there's a little white mark in there", when he was looking at my teeth, "and I think it's a root." And he did say: "Yes, it is a piece of root. It's okay, easily removed", but that was it. Q. Did you ask him to remove it? A. Yes. Q. Really? A. Yes. Q. Why have you never told that to the Health Care Complaints Commission? A. Well maybe that was left out, I'm sorry, but it was there and it's still there. Q. Do you say you told (Ms)Hadley or Mr Darmody that you asked Dr Pegios to remove this root? A. Well I thought he was going to remove it. When he said it's not a problem, I was waiting for him to remove it. Q. But you've just contradicted yourself. You told the Tribunal two answers ago that you asked him to remove it. Is that true or false? A. Yes. I did in the initial consultation when I noticed it. I said there is a little white thing there, I wasn't even quite sure if it was root, and he looked at it and he said yes, it was a root. And he said there's no problem, easily removed and that was it. Never mentioned it again and I'm sorry, I didn't mention it again to him either. Q. Have you ever spoken to any other dentist


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about that root? A. No, never. And I actually, while in the consultations when these things weren't working out, I did recall saying to Dr Pegios -- Q. Madam, I simply asked you if you'd ever spoken about it to another dentist? A. No, I haven't. Q. The answer is no? A. No. Q. I put to you that you are mistaken and you've never had a conversation with Dr Pegios about that root, never? A. Yes I did. Q. It's never given you any trouble at all, has it? A. It's there. Q. It has never given you any trouble at all, has it? A. No, it hasn't given me any problem but it's there. Why would something be left there? Q. Well, one reason would be that he didn't know it was there? A. Oh, no, I'm sorry, but I mentioned it to him. Q. And when did you mention it to him? Do you remember the date? A. No, I'm sorry, I don't remember that. Q. Do you remember where you were at the time? A. Sorry? Q. Do you remember what year? A. No, I don't remember that. What is painfully obvious is that [Patient E] was making it up as she

went along – what lawyers call ‘recent invention.’ If her allegation

(that she made Dr Pegios aware of the root’s presence) were true,

she would certainly have made reference to it in her original letter

of complaint (which, after all, was closer in time to the event when

things were fresh in her mind), and she would have so informed the

HCCC’s Ms Hadley, or Mr Darmody, or any dentist who


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subsequently examined and/or treated her and reported on the

case. She did no such thing – not even a hint of such a suggestion.

Further, [Patient E] was unable to say when it was that she

allegedly told Dr Pegios of the root’s existence; and still further did

she contradict herself over whether she asked for its removal (and

– for that matter – why has she never had it removed?) or whether

Dr Pegios said he would remove it. Quite obviously, [Patient E] was

reconstructing with a self-serving motivation. It is to be remembered

that she sued Dr Pegios and was compensated (the Deed of

Settlement is in evidence – Ex R22). That she still nurses a

grievance is obvious: see transcript pp 122/3.

In relation to the failure to remove the tooth root, the Tribunal will

reject [Patient E’s] claims and accept Dr Pegios’s account of an

inadvertent failing as the truth. As Dr Condon said, there is nothing

reprehensible about such an inadvertent error.


279. The Tribunal notes the radiographic evidence clearly demonstrates the presence of the remnant of the tooth. The Tribunal is of the view that it is usually not appropriate to leave a remnant of a tooth if an extraction is undertaken. The Tribunal accepts the evidence of Patient E that she did not consent to the remnant being left in situ after the extraction. Although not required for a finding to be made with respect to this Particular, the Tribunal also accepts the evidence of Patient E that she raised the issue of the remnant with the Respondent shortly after the extraction.

280. The Tribunal notes the view expressed by the Expert Conclave that

the conduct of the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience. There was nothing in the additional evidence before the Tribunal that goes to the evidence relevant to consideration of this Particular.

281. The Tribunal is reasonably satisfied that the Respondent left a tooth

root in situ without the consent of Patient E. Extraction of a tooth in the circumstances of this matter required the removal of the entire tooth. The extraction of teeth is a fundamental part of practising


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dentistry. It is easy to ascertain whether or not a remnant has remained by either visual and radiographic checking or both.

282. The Tribunal finds that the conduct in Particular (vi) demonstrates

that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (vii) - The dentist failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

HCCC Submissions re Particular (vii) 283. The HCCC made submissions regarding this Particular at paragraphs


410. The respondent admitted his records were inadequate and that they did not conform to the ADA Guidelines. He did not admit that they were also in breach of the Regulations notwithstanding his inability to produce some of his records.

411. The expert conclave was of the opinion that in this regard the

respondent’s conduct fell below the standard although it is clear that they failed to take into account the missing records or the breaches of the Regulation which require a practitioner to retain radiographs and records for a periods of at least 7 years from the latest occasion on which the patient is treated by the dentist and which make it mandatory for the dentist to record on each occasion he or she treats a patient “a description that adequately records the treatment administered”, “specifying the tooth or teeth concerned”. Additionally, none of the experts had access to the appointment books.

412. Not only was the respondent unable to produce the records for

the earlier period of treatment, but there are also a number of instances where the Regulations have been breached. For example, the respondent issued medical certificates on dates when there is no record of any appointment. On 10 February 2003 the appointment notes record the date but nothing else and there is no entry in the progress notes. On several occasions all that appears is “post-op care”. Although Dr Stolz


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did not consider the Regulations to have been breached, in this respect he was plainly in error.


to the Dental Board and the appointment books reveal numerous discrepancies. There are two appointment book entries for 31 October 2002, 11 November 2002, 27 May 2003, 16 January 2004 and 21 May 2004 (where in each case the appointment book reads “GP01EmergEx”), 23 November 2004 and 3 December 2004 but no entry in any of the patient’s records corresponding to those dates and no reference to any cancelled appointment. On 2 May 2003 there is an entry in the appointment book and a note in the terms “GP02 Issue”, a reference to the date in the “appointment notes” but no information in them or in the progress notes.

414. There is no reference in the clinical notes to leaving the 33

root in situ. Neither do they record the repeated loss of tooth 12 on the denture, although the respondent conceded that tooth 12 broke off repeatedly. The only mention of the loss of tooth 12 is in a note by his employee, Dr Chou, whose records the respondent conceded were much more comprehensive than his. Moreover, although the records only indicate one repair (loss of tooth 12), again in an entry made by Dr Chou, the patient’s statement and Dr Selby’s report shows several repairs and Dr Pegios’s statements appear to acknowledge that several repairs were effected.

415. There is scant reference in the appointment or progress notes

to the repeated complaints of looseness or the need to change the attachments, all of which the respondent conceded had taken place.

416. As the Dental Care Assessment Committee noted, the

consent for implant placement for surgery was not signed by the patient and the request for treatment, though signed, was not completed.

417. The respondent, himself, pointed to other deficiencies. For

example, on 8 February 2002 there is no reference to the anaesthetic used or whether suturing was required. He agreed that for the entries on 24 February 2002, 11 March 2002 or 6 May 2002 there is no mention of the work that was done.


284. The Respondent makes the following submission regarding this Particular under the general heading of ‘The respondent’s


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insignificant failings commencing at page 44 (formatting and font of original retained):

Pegios Affidavit para 56:

I have admitted that I failed to make and keep adequate clinical records in compliance with the ADA guidelines. There has never been any issue that Dr Pegios’s clinical record-

keeping in the present cases was deficient. While it may have been

good enough for his own purposes, it certainly failed to provide

essential information for use by any succeeding practitioner or

examiner. This is what he had to say, finally, on that subject: 1250: CHAIRPERSON: Q. If I can take you to paragraph 79 of your affidavit, Dr Pegios, and you will see in that paragraph there are some dot points and if I can take you to the second dot point and the heading of that paragraph, or the lead in to that paragraph is "since the death of [Patient G], I have" and then the second dot point is "discontinued the use of two separate forms of treatment note records and now use solely the Dentrix computer system". By the two different forms of treatment notes do I take it to mean those handwritten notes that we have seen in some of the files where there was a date and then something written down next to it as well as the computer records, which look like a computer printout? A. Yes. Q. And you say "and now use solely the Dentrix computer system"? A. Yes. Q. Can you tell me when was it that you went solely over to the Dentrix computer system and abandoned the keeping of the handwritten notes? A. I can't say exactly but it would be roughly around 2004-05. Q. Then the third dot point, "changed my approach to treatment planning and treatment options". In what way do you say you have


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changed your approach to treatment planning and treatment options? A. I make a concerted effort to document the treatment planning options in my Dentrix notes and obviously indicate these in written form to the patients, and I keep a copy of these options in the patient's file. Q. For so the treatment planning is now done in writing, is that the case? A. It's done in the computer notes and a hard copy is given to the patient and quite often a hard copy is either - sorry, either a copy of that is either stored on computer and then printed out if required. Q. You have started the paragraph with "since the death of [Patient G]". You are saying that I changed my approach to treatment plans and treatment options and you are saying that you keep in the computer the treatment plans. Was it the case that you kept treatment plans before that period of time, before November 2002? A. Yes. Q. You did? A. Yes. Q. But in the seven matters before us there doesn't seem to be very much evidence of treatment planning. Can you explain that? A. I was not very hard on my staff to formulate these and to keep a record of where everything was kept and most of it was recorded by Carla Cattanach, whose name keeps appearing, and since she left in early 2006 we have not been able to find where she kept these. My current staff are told, who have been there since mid or early 2006, they have to be on top of that continuously and I always try and check it whenever I get a spare moment, to make sure everything is stored in an appropriate location. Q. So for files that you have got for treating patients from somewhere in 2006, but by the middle of 2006, would you say that they all have now got treatment plans in the Dentrix - it might be in the Dentrix system it might not be actually printed out in their physical file, but it is in their Dentrix file? A. In their Dentrix file there is a summary of


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what's been said. However, if there's a letter or a document that has been created, as well as it being given to the patient, then it's also kept on a computer dedicated to this, that has - it's a database and has people's names and all the correspondence that has been given to them. Q. So is mid 2006 an appropriate point to say or later in 2006? A. No, it's been happening since 2006. However, I've got to say I have really upped the ante in the last year or so. Q. So from halfway through 2008? A. Even earlier than that perhaps. Q. When can you confidently say that every patient you treated from a particular time has got a Dentrix treatment plan, obviously if they require it. Maybe if they only need a filling, I don't know if you need a treatment plan, but where a treatment plan is clinically indicated, that you are sure that the file contains a treatment plan. Where can you pinpoint it in time for me? A. Some time during 2006. Q. So from some time during 2006 onwards? A. Yes. Q. Every patient who has clinically needed a treatment plan, and I appreciate for simple things you might not need one, but for implant work? A. Or anything extensive. Q. You do need one? A. Yes. Q. So from 2006 onwards you can confidently say either in a file, or a letter, or in the Dentrix system somewhere in your practice there is a patient treatment plan? A. Yes. Q. Can you say the same thing about treatment options? A. Yes. Q. As in the treatment options you would have presented to the patient?


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A. Yes. Typically what happens is that if there are a few options that are available to a patient, I have a document that says that. It is a letter format that says this is option A. It involves this, this and this, what the fees are, and this is option B and there may be three options A, B and C. That's a common thing we do. Q. When you presented those options to the patient any time from 2006 there is going to be a record somewhere, whether it is a letter or in the Dentrix, somewhere it will be recorded? A. Or on a computer somewhere. 1307: Q. Why do you think it was that you offended against the standard on record keeping so much in these particular cases? I mean, every case, with one exception I think, involves you admitting your records weren't up to scratch. Is it because you were lackadaisical about it, or what? A. No, I just did not have the protocols in place and the systems in place to do that on an every case by case basis. Q. And for how long have you had an appropriate system in place? A. It's evolving, but I think it's markedly improved since 2006. Q. Do you think there is further refinement that needs to be done before it's up to scratch, or do you mean you think you can always improve? A. I think you can always improve. Q. You are reasonably content with the system now? A. I'm happy with it but I think there is always - no-one can say categorically they have always got it right. Q. Once again, is that an area in which there are, from the ADA or any other professional body, precedents given to you or given to dentists generally which (they) would suggest that you should replicate? A. No. Q. How do you actually run your record keeping now? I mean, somebody comes to see you for a


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first consultation and then you treat that person and deal with doctors and anaesthetists and whatever else. Do you see these people on their own? Do you have a stenographer, or what exactly goes on? A. If one of the secretaries is free she will sit in on the appointment in my office and take notes and dictate - sorry, take notes and formulate a document. Q. And if she is not there do you dictate from your own notes? A. I have a digital voice recorder that I copy. I may also take some notes in front of the patient, but then I place that into a USB port and e-mail the entire audio file to the receptionist, who at her own time writes down the notes and any other notes that I write down, so that's pertaining to a new patient or a consultation appointment. Is that what you are referring to? Q. Yes? A. She e-mails that back and I go through and double-check it. The respondent relies on these passages of evidence as the

relevant material for the Tribunal’s consideration in every instance

where it is admitted that the respondent’s record-keeping was

deficient. There were serious shortcomings, but they have been

rectified. His present record-keeping is, plainly, faultless.


285. The Tribunal notes the admission of the Respondent with respect to this Particular and the finding of the Expert Conclave that the conduct was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

286. The Tribunal repeats the comments made with respect to Particulars

of this nature above regarding the characterisation of a failure to keep appropriate records.

287. The Tribunal finds that the conduct in Particular (vii) demonstrates

that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the


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standard reasonably expected of a dentist of an equivalent level of training or experience.


288. The HCCC provided the following summary at paragraph 418:

The Tribunal would be reasonably satisfied that the respondent’s conduct amounts to unsatisfactory professional conduct. The respondent (sic) does not press for a finding of professional misconduct in this case.

289. The Respondent made the following submission at page 47 (font

retained from original): Submission 3 : The respondent’s leaving [Patient E’s] tooth root in situ, found by the experts’ conclave to be the only conduct significantly below the relevant standard, was at most unsatisfactory professional conduct – but only if Dr Pegios was aware of the presence of the root. It is noted that at para 418 the complainant would put Dr Pegios’s

failing no higher than unsatisfactory professional conduct.


to 52:

50. The respondent does not engage with the complainant’s submissions.

51. To point to a passage in the respondent’s affidavit as “the

relevant evidence” on any issue (here it relates to particular (iv) – the poor quality prosthesis, particular (vi) – inadequate post-procedure care and particular (viii) – inadequate clinical records) is of no assistance to the Tribunal.

52. The question of the current state of the respondent’s records is

a subject for exploration during the second phase of these proceedings. The submission made at page 47 that his present record-keeping is “plainly faultless” is premature.

Tribunal’s Findings re Complaints 5A and 5B

291. The Tribunal finds that the conduct in Particular (i) (although not prudent) did not demonstrate that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.


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292. The Tribunal finds that the conduct in Particular (ii) demonstrates that

the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

293. The Tribunal finds that the conduct in Particular (iii) and (v) each

demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was below the standard reasonably expected of a dentist of an equivalent level of training or experience.

294. Further, the Tribunal finds that the conduct in Particular (iv), (vi) and

(vii) each demonstrates that the skill and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

295. The Tribunal finds Complaint 5B established. 296. The Tribunal is not reasonably satisfied that the conduct is of a

sufficiently serious nature to justify suspension or cancellation of the Respondent's registration. The Tribunal finds Complaint 5A is not established.

297. The Tribunal rejects the ‘Submission 3’ made by the Respondent. The

Particular does not require the Respondent to be aware of the presence of the root. It is the responsibility of the dentist to ensure that either the entire tooth is removed or a proper assessment made, the patient informed and consent obtained for leaving part of the tooth behind. For clarity, the Tribunal has not accepted the Respondent’s submission as forming any basis for the finding that the conduct does not amount to professional misconduct.

Patient F - Complaints 6A and 6B 298. Complaint 6A alleges the Respondent is guilty of professional

misconduct within the meaning of section 40 of the Act in that he: (i) engaged in conduct that demonstrates that the knowledge,




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299. Complaint 6B alleges unsatisfactory professional conduct (section 41) on the same basis.

300. The Complaint alleges that between August 2002 and August 2005

the dentist provided dental treatment to Patient F. The treatment involved the extraction of all his teeth and their replacement with implant supported teeth.

301. The HCCC was unable to locate Patient F and was therefore unable to

serve him with a summons to attend the Inquiry. 302. The Tribunal notes the submission of the HCCC (see paragraph 439)

that nothing in this Complaint turns on the accounts given by the patient. The Tribunal accepts this submission. HCCC Summary of the evidence


The facts 419. Patient F (’the patient’) presented to the respondent shortly

after his 40th birthday, after seeing him on the television program Today Tonight in June 2002. He stated that he “thought the respondent was a TV celebrity, a professional, and at the forefront of dental technology”, “one of the leading dentists in the country”. The program confirmed this impression. When the patient first saw him, the respondent told him that he had “come to the right place. There is nothing like starting at the top”.

420. He consulted the respondent because he wanted advice about

what to do about his teeth. He described them as being “in good condition”. However, he said some facial bones on the right side had been broken in a fall from a horse and he was worried that that could lead to receding gums and tooth loss. He had already lost one tooth. However, he emphasised that none of the other teeth were loose.

421. He stated that he hoped that the respondent would be able to

advise him on what could be done about saving his teeth but conceded that he was open to suggestions about what was the best treatment in his case.

422. The respondent recommended replacing all his teeth with

implants and at the second consultation offered him a special, ‘today only’ price of $88,000.


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423. The patient claimed he was not advised of any of the risks and was reassured that, because he was young, “nothing could go wrong”.

424. The respondent treated this patient over a three-year period

from August 2002 to August 2005. The treatment involved the extraction of all the patient’s teeth and their replacement with implants. The treatment plan, according to Dr Fleming’s analysis, involved a staged extraction of 13 teeth in the maxilla and 14 teeth in the mandible and the later staged placement of 14 implants in the maxilla and 14 in the mandible (28 in total) in order to support 28 individual implant supported crowns which were to extend from tooth 17 to tooth 27 in the maxilla and tooth 37 to tooth 47 in the mandible.

The patient’s complaint 425. The patient complained to the Registrar of the Dental Board

on 5 September 2005. By that time he had undergone multiple procedures and been seen on an extraordinary number of occasions but still had an upper and lower fixed denture that had not had its bite adjusted. He complained that he could not eat properly and could actually feel his teeth move around when he ate. It is noteworthy that when Professor Chan examined him in November 2005 on behalf of the DCAC he described the patient’s existing bridge as “mobile”.

426. The patient also complained that: a. His teeth were falling out and had to be glued back in with a

cement that would turn a “disgusting yellow/green colour” the moment they came in contact with food or coffee.

b. Often his teeth would fall out while eating or speaking. c. The discoloured cement could be seen and the teeth were

different shades of colour making him “look ridiculous”. d. Many times when he tried to floss the individual implanted

teeth they would just pop out. e. A metal post had previously been left in situ for a year. f. The metal post had stripped because the dentist had forgotten

to put in two implants on the lower right and he ended up with a 3 tooth bridge on the lower right supported on only one implant post. In the result the whole bridge would rotate in his mouth.

g. When he expressed concern about the bridge the respondent told him he put implants there but they were unnecessary.

h. He had to keep going back to the dentist 3-4 times a week. 427. In his statement to the HCCC made on 10 July 2006 he made

additional complaints:


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a. He was not told of the risks of the treatment (despite signing a

consent form indicating otherwise). b. Initially he was given a denture. When he queried why that

was so when he had paid for individual teeth, the dentist offered no explanation.

c. The initial dentures [sic] fell apart. It would slip out of his mouth when he was speaking. Despite returning to the dentist a number of times and having it screwed back in again, by the time the patient had reached the train station they had fallen out again.

d. When he put in the fixed dentures they were too big and when he replaced them the new set was too small.

e. Of the 28 posts that were to be implanted he received only 25 and, although the posts were supposed to go into the jawbone only 5 did; most were in the gums.

f. He was charged for 28 posts despite receiving only 25 (and the respondent denied that).

g. The treatment was not in accordance with the treatment plan. h. At no time did the respondent tell him he should be referred to

another dentist or specialist. 428. When he raised concerns with the respondent he claims the

respondent would dismiss them. At times he would try to reassure him. At other times he would behave as if he were a fool and he made the patient feel as though he were delusional. At no time did the respondent acknowledge error on his part.

429. The patient claimed that he delayed seeking a specialist

opinion in the face of reassurances from the respondent. Finally, he saw an oral surgeon on 26 August and she confirmed his worst fears, namely, that he would not be able to have 28 individual implant supported teeth and those that were there had been positioned incorrectly.

430. He consulted Dr Lydia Lim on 26 August 2005 for a second

opinion. She recorded that his problems included cleaning under the bridge, not being able to bite or chew properly and that he felt misled by his ultimate result compared to what had been promised. She noted that he had a full upper and lower fixed implant retained bridge but that the bridges had poor occlusion, particularly posteriorly, and he had an open bite. The OPG showed an excessive number of fixtures: 13 in the maxilla and 12 in the mandible but now there were 6 in the maxilla and 5 in the mandible.


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431. Ultimately he was told that his few remaining lower implant teeth had to be removed as they were “beyond repair”.

432. The patient suffered emotionally, psychologically and

financially as a result of the treatment. It is clear he felt completely let down.

433. Dr Lim said she was “extremely shocked and saddened by the

treatment that [Patient F] has received”. She questioned the need for “a full dental clearance” and was critical of the excessive placement of fixtures and a treatment plan she described as “contrary to current standards of care”. She called for the respondent to be closely monitored.

434. Dr Fleming was critical of the treatment planning and the

treatment itself. 435. Dr Condon stated that ‘most practitioners’ would make every

effort to retain a patient’s existing dentition and only move to artificial replacement once all other options had been exhausted. This, he said, would be regarded the accepted standard of care.

436. Dr Stolz thought this was a case of mismanagement at every

level proving that the respondent lacked the necessary skills the treatment required. In this conclusion he appears to have been borne out by the deliberations of the expert conclave. The four experts were unanimous that in seven respects the conduct of the respondent fell significantly below the standard reasonably expected of a practitioner of his training or experience. They were that he:

a. failed to undertake an adequate assessment, including a full periodontal assessment, or to refer the patient to a specialist periodontist for an opinion before proceeding to extract all his teeth;

b. failed to devise an appropriate and adequate treatment plan for the patient or undertake an adequate pre-surgical work-up;

c. failed to provide sufficient information to the patient or to obtain his informed consent before proceeding to remove any of his teeth;

d. removed all his teeth and replaced them with 28 implants and crowns when such a course was not clinically indicated;

e. failed to take adequate care or exercise appropriate skill in the installation of acrylic resin bridges or the free-standing single tooth restorations;

f. failed to refer the patient to an appropriately qualified specialist after the treatment began to fail;


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g. failed to make and retain adequate clinical records in breach of the Dental Practice Regulation and the ADA Guidelines;

437. Despite that, as late as 25 March, the day the expert conclave

deliberated, the respondent maintained that: a. He made an adequate assessment of the patient’s periodontal

state before extracting his teeth; b. His treatment plan was both adequate and appropriate; c. He used an adequate method of extraction to reduce

complications; d. He was not guilty of inadequate skill or care in installing the

resin bridges. 438. After the conclave met, the respondent made further

admissions and, through his counsel, he “accepted the findings” of the conclave including their conclusions that his conduct was significantly below the standard.

439. The patient did not give oral evidence although he had been

required for cross-examination. He could not be served. In the circumstances, the Tribunal can give little weight to his assertions, unless they are not disputed or they are supported by other evidence. That said, however, nothing in the complaint turns on the patient’s account.

440. In this case, the respondent’s conduct was so poor that a

finding of professional misconduct is called for.

Respondent’s preliminary submission 304. The Respondent made the following summary of ‘contention’ in his

submissions (page 4 – font and formatting retained):

In the period between August 2002 and August 2005, the

respondent treated [Patient F] and he:

(i) failed to undertake an adequate assessment, including a

full periodontal assessment, of the patient, or to refer the

patient to a specialist periodontist for an opinion, before

proceeding to extract all his teeth,

(ii) failed to devise an appropriate and adequate treatment

plan for the patient or undertake an adequate pre-surgical

work-up,


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(iii) failed to provide sufficient information to the patient or to

obtain his informed consent before he proceeded to

remove any of his teeth,

(iv) failed to conduct any pre-anaesthetic assessment of the

patient or to make any record of one,

(v) removed all the patient’s teeth and replaced them with 28

implants and crowns when such a course was not

clinically indicated,

(vi) failed to take adequate care or exercise appropriate skill

in the installation of acrylic resin bridges or the free-

standing single tooth restorations,

(ix) failed to refer the patient to an appropriately qualified

specialist after the treatment began to fail, and

(x) failed to make and retain adequate clinical records in

relation to his treatment of the patient contrary to the

requirements outlined in the clause 23 Dentists (General)

Regulation 1996 and/or clause 33 of the Dental Practice

Regulation 2004 and in the Guidelines for Good Practice

on Patient Information and Records of the Australian

Dental Association.

Dr Pegios admits that the above was conduct significantly below

the relevant standard, and that his treatment of [Patient F]

constituted unsatisfactory professional conduct. By reason of a

number of mitigating factors that shall be set out, post, and by

reason of the effluxion of between four and almost seven years

since the conduct occurred, he will submit that it cannot be found,

as a matter of fact, that his unsatisfactory professional conduct

could now justify the suspension or cancellation of his registration,

and thus it does not satisfy the criterion for professional

misconduct (which is set out in section 40 of the Dental Practice

Act). Despite the manner adopted by the complainant in


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prosecuting its case, this Tribunal is not concerned with punishing

practitioners for past failings, but with judging their present

competence and capacity.

305. The Respondent did not make specific submissions with respect to

each Particular of this Complaint individually. Rather, the Respondent made the following overarching submissions and concluded with ‘Submission 2’ commencing at page 28 as follows (font and formatting retained):

Preliminary matters: [Patient F] gave no evidence. Despite the efforts of the complainant to find him and call him as a witness, [Patient F] failed to appear and, in consequence, the Tribunal may not resolve in the complainant’s favour any conflict between the sworn evidence of Dr Pegios and the matters set out in [Patient F’s] statement. So much was conceded by Ms Katzmann at the commencement of this hearing.

As to the findings in this case of the joint experts’ conclave - the respondent was found to have failed in relation to the following particulars, all of which were conduct significantly below the relevant standard:

• to undertake an adequate assessment, including a full periodontal assessment, of the patient, or to refer the patient to a specialist periodontist for an opinion, before proceeding to extract all his teeth;

• to devise an appropriate and adequate treatment plan for the patient or undertake an adequate pre-surgical work-up;

• to provide sufficient information to the patient or to obtain his informed consent before he proceeded to remove any of his teeth;

• to conduct any pre-anaesthetic assessment of the patient;

• removing all the patient’s teeth and replacing them with 28 implants and crowns when such a course was not clinically indicated;

• to take adequate care or exercise appropriate skill in the installation of acrylic resin bridges or the free-standing single tooth restorations;


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• to refer the patient to an appropriately qualified specialist after the treatment began to fail; and

• to make and retain adequate clinical records.

The respondent’s position (which is unchanged from his opening submissions):

The respondent says as to each of the above that he accepts the findings of the experts’ panel, and accepts as correct the findings that his conduct was significantly below the reasonably-expected standard.

He adopts the experts’ factual findings as to particulars (vi) – that he grafted the posterior sockets at the time of extraction (which was never in issue); (viii) – that he did not install unsatisfactory appliances and leave them in place for longer than was necessary; (x) – that he did not incorrectly position or angle the implants; and (xi) – that he did not place the implants in an unstable bony base. He further adopts as correct and unassailable the experts’ opinions that none of this conduct was below the reasonably-expected standard, and certainly not significantly below that standard. He submits that there is no evidential basis for the Tribunal to differ from these findings.

As to particular (ix) – that he failed to allow for adequate healing time to enable adequate bone regeneration to take place before the placement of the posterior implants, the respondent will submit that the split (2:1) opinion of the experts demonstrates that the fundamental factual allegation is not satisfactorily proven; but that – in any event – the unanimous view of the panel is correct, holding that any failure was not below the reasonably-expected standard, much less significantly below it.

Dr Berne 951: Q. (Y)ou said you thought three months was probably adequate (for bone regeneration). Have you placed implants at that period? A. Certainly. I think I mentioned that I have placed them routinely at six weeks post extraction. That is a routine procedure for a single tooth implant. Q. And for molars? A. No, you need longer than that, but he waited two to three months longer and three months would be more ideal.


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Q. And you have yourself placed molar implants at three months? … A. Depending on the bone available and the healing, as long as they healed well and everything is fine. Q. Depending on the bone available? A. Yes. I don't take issue at all with that.

There was added to the Amended Complaint a particular (as happened in relation to a number of the patients) that the respondent failed personally to conduct this patient’s pre-anaesthetic assessment. Again, the experts’ panel were not asked to make any findings on this allegation, and neither were the complainant’s experts when they gave individual evidence. Dr Pegios’s evidence confirmed the fact of delegating the pre-anaesthetic assessments (it was never in issue), and was as follows:

1308:

Q. (Y)ou were asked today about having the registered nurse do the pre-anaesthetic assessment and it was said to you "So you decided that you could ignore what you were taught at Sydney University?". Did you ever, when Nurse Gaudron was working with you … doubt that she, in particular with her training and experience, could do an adequate pre-anaesthetic assessment? A. I have no doubt. Q. And is that still your view? A. Yes. Q. And was there ever a case where she did the pre-anaesthetic assessment and did not discuss it with you? A. Never. Q. To be frank, would you accept (that) Nurse Gaudron in particular is a woman who can do just as good a pre-anaesthetic assessment as you can? A. Yes. The point to be made here is that it is the quality of the pre-

anaesthetic assessment that is of paramount importance, and not

whether the process complied with a particular teaching’s method.


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When the Tribunal assesses the deficiencies in the respondent’s conduct in the [Patient F] treatment, it is submitted that the following evidence must be taken into consideration, in that it mitigates the force of the experts’ findings of significant failings:

Dr Fleming 197: Inasmuch as you interviewed [Patient F], did you assume that what he told you was the truth? A. No. Q. Did you test his allegations in any way? A. In such that I asked certain questions that may require some understanding as to what went on, rather than fabrication. Q. But you have assumed in expressing your opinion, that what he told you at the interview was true, haven't you? A. That is correct. Q. And if what he told you was not true, then the conclusions based on accepting those assertions are worthless, aren't they? A. That is correct. Q. You never saw [Patient F] with the individual crowns inserted that Dr Pegios had planned for, did you? A. That is correct. Q. You saw him merely with provisional appliances? A. That is correct. Q. Now, you would know of your own experience that those provisional appliances were not for long-term use? A. Actually that is not correct. In that when I saw [Patient F] I was not of the understanding that they were provisional appliances. Q. But you have already said you knew that? A. When I saw [Patient F], the understanding was from [Patient F] on the initial presentation they were the final prostheses. Q. So he didn't tell you the truth, did he? A. Possibly not. Q. Certainly not, surely?


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A. Not by his understanding. Q. It is not for you to know what misunderstanding, you know what the facts are, don't you? He told you they were the final ones and you know they weren't? A. I do now. 204: A. I think Dr Pegios (would) be qualified and capable of making a periodontal assessment. Q. Thank you. Now you considered that in fact Dr Pegios had diagnosed this patient's main problem which was periodontal? A. I think that's in Dr Pegios's notes. Q. That's your view, isn't it, that he had made a correct diagnosis? A. That's correct. Dr Condon 295: Q: … (Y)ou were satisfied that (Dr Pegios)failed to undertake an adequate periodontal assessment and that that was a significant failing? A. Yes. Q. You're capable of making an adequate periodontal assessment, aren't you? A. Yes. Q. Any general practitioner can do that, can't he or she? A. Any general practitioner or any dental hygienist. Q. Even a dental hygienist can do that? A. Yes. … 297: Q. So you assume from the lack of a record of a full periodontal assessment that one had not taken place? A. Correct. Q. If on the other hand you were satisfied that one had taken place, your view would be different, correct? A. Yes.


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302: Q. This person was very bad. He had advanced chronic advanced adult periodontitis? A. That is correct. … Q. You have found that with people like that they took it more seriously if they were sent off to somebody? A. Sometimes, yes. Dr Stolz 475: Q. You don't seriously mean to say that a dentist has not conducted a periodontal examination if he has not recorded it? You don't mean to say that, do you? A. No, not at all. 479: A. What I could make of the x-ray suggested that there was some doubt about the terminal status of some of the teeth. … Q. … If you were going to form an opinion responsibly that the information given (to the patient)wasn't good enough, then you're going to have to first form an opinion as to what the information given was, aren't you? A. I didn't examine the patient. I used the reports of others to derive information from. Q. But this is about communication from Dr Pegios to [Patient F]. Now did you see any written communication between those persons? A. I don't recall. Q. You don't recall? A. No. Q. So when you formed that opinion -- A. I don't recall now. Q. But you formed the opinion less than a week ago, right? What were you relying on less than a week ago when you formed that opinion about the adequacy of the information? A. I don't recall. Q. You can't recall what factual assumptions you


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made? A. No. Dr Condon 297: Q. Now this is an allegation that Dr Pegios failed to provide sufficient information to his patient for consent before extracting the teeth. Now is this another matter on which you assumed, because there is no record of it or no record that persuaded you of it, that he'd failed to inform his patient sufficiently? A. Yes. Q. But you don't know what conversation took place, do you? A. I don't. Q. If a conversation took place which did inform his patient of all necessary matters, your view would be totally different, wouldn't it? The criticism would again be of his record keeping? A. With a strict answer to that question, given what you've said, my answer would be yes, it would. … 298: (shown Pegios letter to [Patient F] 23 July 2002) Q. That's an adequate letter as to patient information, isn't it? A. It's a reasonably adequate letter. Q. You didn't write letters like that in 2002, did you? … In any event you agree you didn't write letters like that? A. No. … Q. Given the treatment being contemplated, that's a comprehensive letter, isn't it? A. It is. Q. You wouldn't be critical of that at all, would you? … A. In the second last paragraph “following our discussion where several options have been outlined”, the only criticism I make is the “other options.” I would have stated them again. It is submitted, then, that although the Tribunal will be satisfied of


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the correctness of the experts’ conclave findings in the [Patient F]

case – and will note the respondents’ frank and cooperative

admissions, adopting those findings as correct – it will not be

persuaded that the respondent’s admittedly significant failings were

of such a degree as to warrant suspension or deregistration (and

thus amounted to unsatisfactory professional conduct, and not

professional misconduct).

Submission 2 : The respondent’s treatment of [Patient F], found by the experts’ conclave to be significantly below the relevant standard, was unsatisfactory professional conduct, but not professional misconduct. The complainant (at para 526) asserts that the Tribunal should

find professional misconduct, purportedly in reliance (first) on the

quoted opinion of Dr Condon – which simply does not address this

question; and then by quoting Dr Stolz. No attempt is made to

balance his hyperbolic tendentiousness with the evaluations of the

other experts.

Particular (i) - The Respondent failed to undertake an adequate assessment, including a full periodontal assessment, of the patient, or to refer the patient to a specialist periodontist for an opinion, before proceeding to extract all his teeth.

HCCC Submissions re Particular (i) 306. At paragraph 441 the HCCC referred to the oral evidence of Dr

Fleming (T176) regarding the requirements of periodontal assessment as follows:

Dr Fleming explained that what was required in his case was: At the very minimum a full periodontal charting which would entail the recording of pocket depths on all surfaces around all teeth, an assessment of the soft tissue and its condition with regards to bleeding on probing, suppuration, recession, a full assessment of mobility of teeth, which gives an indication as to the degree of underlying periodontal support and a history with regards to other periodontal predisposing conditions, such as periodontal abscesses, subsequent tooth loss in the past, that would be a very minimum.


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An OPG would also form part of that assessment and I would feel in this case an assessment from a specialist which would entail a lot more detail and thus a referral back to the referring practitioner with recommendations of whatever treatment would be prescribed.

307. At paragraph 443 of submissions, the HCCC records evidence given

by the Respondent with respect to this Particular as follows: The respondent told the Dental Board that the patient came to him wanting “full clearance of the affected teeth and replacement with implant supported bridgework.” He presented the same position to the HCCC where he wrote that the patient had “deliberately attended [his] clinic for the removal of all his teeth and new implant supported teeth” and later, that he “specifically came for the removal of his teeth and placement of dental implant supported bridgework or crowns.” In his affidavit he contended that “periodontal therapy may have improved their (sic) teeth to some extent but would not have improved the appearance of his teeth” and “the patient wanted a ‘quick-fix’ and had deliberately chosen my clinic to perform the removal of all his teeth and their replacement with new implant-supported teeth” and he adhered to this account in his oral evidence.

308. The HCCC submissions continue at paragraphs 444 – 458 as follows:

444. However, this version of events does not fairly reflect the position at the time. In his contemporaneous letter to the patient on 23 July 2002 the respondent acknowledged that the patient attended his rooms

relating to the long-term prognosis of your teeth and the possible replacement of these utilizing dental implants. [Emphasis added (by HCCC)]

445. That contemporaneous statement is consistent with the patient’s account and inconsistent with the respondent’s later version of events. The respondent did concede in cross-examination that the patient was coming to him for professional advice and that he made it plain to him that he wanted him (the respondent) to tell him what was the best treatment for him.

446. The respondent acknowledged that the patient “exhibited advanced periodontal disease” when he first presented to him. However, at no time did the respondent seek a periodontal opinion or undertake a full periodontal analysis himself.

447. All the expert witnesses were strongly critical of the respondent’s assessment of this patient before he proceeded


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to extract all his teeth and the expert conclave was unanimous that the respondent’s conduct in this regard fell significantly below the standard reasonably expected of a dentist of equivalent training or experience.

448. Dr Fleming noted that the respondent had not assessed the patient’s suitability “from a psychological and personal standpoint” for such a radical procedure.

449. He thought that the radiographs showed terminal periodontal disease in three teeth (17, 27 and 37) but similarly observed that:

[Patient F’s] main dental condition was a periodontal problem that should have been fully assessed by a periodontal specialist and treated in guidance with specialist periodontal advice.

450. Dr Fleming pointed out that “no thought [was] given to a periodontal assessment or treatment program”. There is no periodontal charting and no mention of his periodontal condition in the respondent’s notes and “very little discussion” of the patient’s “main dental concern (i.e. his periodontal condition) . . .”.

451. Dr Stolz also asserted that the patient should have been referred to a periodontist for an opinion on the prognosis of the existing dentition so that all the treatment options could have been explored before a final decision was made.

452. Similarly, Professor Chan pointed to the absence of obvious radiographic evidence of terminal periodontal disease, the failure to undertake a full periodontal analysis and to seek a specialist periodontal assessment. He stated that without a full periodontal analysis, it was not possible to know whether the prognosis for the patient’s dentition was so poor that it warranted the radical step of removing all his teeth.

453. Professor Chan wrote: In the absence of a full periodontal analysis, it was not possible to ascertain if the prognosis of the entire dentition was indeed that poor to warrant removal of all the patient’s teeth.

454. He continued, “without obvious radiographic evidence of terminal periodontal disease, one would be expected to at least carry out a full periodontal analysis and perhaps also seek a specialist periodontal opinion before embarking on such a radical treatment plan”.


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455. Dr Condon was of the opinion that the respondent should have referred the patient to a periodontist at the second consultation. He considered that “a complete periodontal assessment . . . and specialist opinion” were mandatory.

456. Both Dr Fleming and Professor Chan indicated that only some of the molar teeth and the lower central incisors had a terminal or guarded long-term prognosis.

457. Only “with the benefit of hindsight” was the respondent prepared to concede that “some of the patient’s teeth could have been saved.” However, under cross-examination and after looking at the OPG he testified that up to 11 could have been saved.

458. The failure to conduct a full periodontal examination in this case was inexcusable. The Tribunal should find that in the particular circumstances of this case he should have done both. It was his part of his professional obligation to do so.

Respondent’s Submissions (i)

309. The Respondent accepts the finding of the Expert Conclave that his conduct with respect to this Particular is significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.


310. Having regard to all the evidence in this matter, the Tribunal accepts the submissions of the HCCC and is reasonably satisfied that the Respondent failed to undertake an adequate assessment, including a full periodontal assessment of Patient F or to refer him to a specialist periodontist for an opinion, before proceeding to extract all his teeth. The Tribunal finds the conduct of the Respondent demonstrates that the judgment possessed and care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

311. The Tribunal has made comments above about the level of judgment

and care that must be exercised by a dentist prior to embarking upon an irreversible course of treatment, especially where there is an ‘elective’ element to the treatment. Patient F had a significant number of teeth for which the periodontal prognosis was not terminal in the short or long term.

312. The Tribunal is therefore of the view that the failure of the Respondent

is of such a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore considers this conduct amounts to professional misconduct. The Tribunal rejects Submission 2 made by the Respondent.


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Particular (ii) - failed to devise an appropriate and adequate treatment plan for the patient or undertake an adequate pre-surgical work-up

HCCC Submission re Particular (ii) 313. The HCCC made submissions regarding this Particular at paragraphs

459 to 468 as follows:

459. All the experts concluded that the treatment plan was neither appropriate nor adequate. Despite that, even in his affidavit the respondent maintained there was nothing wrong with it. Ultimately, he accepted the view of the conclave to the contrary.

460. In his letter to the HCCC dated 13 June 2006 the respondent stated: “I feel that this patient was looking for an unrealistic result”. However, there is nothing to indicate that the respondent ever indicated as much to him. On the contrary, the evidence strongly suggests that he was urging him towards the unrealistic result.

461. Dr Condon said you would expect to see evidence that led to such a plan. He concluded that “fundamental errors in treatment plan decision making and formulation” went to the heart of the case, fell “well short of adequate standards” and were “worthy of universal condemnation”. Dr Stolz described it as “absurd”.

462. Dr Fleming described the treatment plan as “inappropriate” in the light of the patient’s presenting conditions and concerns. In particular, he noted that the patient’s ‘main treatment objective’ was to save his teeth, not to have them all removed. He advised that a “more appropriate treatment plan may have been: (a) Referral for specialist periodontal assessment. (b) Removal of those teeth with a terminal periodontal

prognosis (17, 27 and 37). (c) Performing of definitive specialist periodontal therapy on

the ‘treatable’ teeth. (d) Reassessment following periodontal treatment either for

further definitive restorative/prosthodontic treatment or placement on a regular maintenance program.

(e) If further future tooth loss occurs in those regions with a more guarded prognosis (16, 26, 36, 31, 41 and 46) then possible implant replacement could be considered then, provided the surrounding teeth were in a stable periodontal state.


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463. He went on to add that, even if the respondent’s assertion were correct, namely, that the patient wanted all his teeth replaced with implant supported bridgework, it was the dentist’s responsibility to present the patient with other, more conservative forms of treatment more in line with the patient’s clinical presentation or, at least, carried out a more thorough assessment before embarking on such a radical method of treatment.

464. Further, despite such a comprehensive implant treatment plan there were: (a) no articulated study models pre-treatment;

(b) no diagnostic wax-ups; (c) inadequate radiographic analysis during treatment; (d) a lack of accurate surgical guides and templates.

465. He said “the inadequacies in the pre-surgical work-up are reflected in the final implant positioning and subsequent aesthetic and functional complications in the final prognosis”.

466. He pointed out that all the treatment issues should have been assessed before any implants were placed and the dentist’s numerous attempts to rectify the problems as they arose resulted from poor treatment planning. He likened the situation to shutting the gate after the horse has bolted.

467. The respondent’s justification was that the patient wanted to be able to floss his implant teeth like his own. Whether or not this is true, it provides no proper basis for the treatment undertaken and should not even have been contemplated unless the patient demanded it.

468. Dr Stolz described the treatment plan as so inappropriate that he “would challenge him to produce any reputable implantologist in this country who would validate his treatment plan. Furthermore, the placement of 28 implants on the same patient would be a contentious issue in any part of the world, and would attract strong criticism as over-treatment.” The weight of the evidence bears out Dr Stolz’s opinion.


314. The Respondent accepts the view of the Expert Conclave that the conduct was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Tribunal’s findings re Particular (ii)

315. The Tribunal accepts the HCCC submissions with respect to this Particular, save that with reference to paragraph 467 the Tribunal is of the view that the treatment should not have been undertaken even if a patient demanded it. Further, the Tribunal is not of the view that the


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conclusion urged in paragraph 468 of the HCCC’s submissions is necessary for this Particular to be established.


devise an appropriate and adequate treatment plan for Patient F or undertake an adequate pre-surgical work-up. The conduct demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience.

Particular (iii) - failed to provide sufficient information to the patient or to obtain his informed consent before he proceeded to remove any of his teeth

HCCC Submissions re Particular (iii) 317. The HCCC makes submissions regarding this Particular at paragraphs

469 to 486 to support a finding that this Particular is made out. Paragraphs 469 to 486 read:

469. There were three problems with the consent process in the

present case. First, the consent form is generic in nature and not directed to the specific problems with which the patient presented to the respondent. Secondly, there was the financial incentive the respondent offered the patient. Thirdly, there was the question of the time the consent was obtained.

The insufficiency of the information 470. As Dr Stolz pointed out in his report, if the respondent was of

the opinion that the patient’s dentition was terminal he should have presented him with the evidence to support that conclusion and he should have arranged for the patient to have the benefit of a second opinion from a periodontist.

471. The respondent should have informed the patient of: a. The likelihood of success and the advantages and

disadvantages of all other treatment options; b. The treatment details and sequence of events; c. The risks of the proposed treatment as they applied in his

particular case, namely, risks such as: i. The reduced success rate of implants in grafted bone, ii. The inability to predict the rate of bone shrinkage after

extraction. d. The necessity to only finalise the implant treatment plan

after the extractions; e. A suitable period of healing (4-6 months); f. The probable need for CT scans;


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g. The possibility that the final prosthodontic design may need to be altered because of a failure of some of the implants.

472. None of these matters was included in the consent form. 473. Similarly, Dr Fleming considered that the patient consents are

“quite general” and badly worded. Dr Condon stated that “complex and totally irreversible treatment such as this requires more than the standard consent forms provided by the respondent”.

474. Dr Fleming described the situation as one of

“miscommunication or misunderstanding of the patient’s desires”.

475. The appointment books show that the patient had 69 visits to

the practice. Dr Condon considered the number of consultations “excessive”. It is not unreasonable to infer from the number of consultations, as Dr Condon did, that in the initial consultations the patient was given insufficient information. The respondent has conceded that the patient’s expectations were unrealistic. If the respondent had presented sufficient information to the patient, it is unlikely the patient’s expectations would have been so unrealistic.

476. Dr Condon referred to the respondent’s “apparent patronising

dismissal” of the patient’s concerns and said they were “unprofessional”. He went on to say that the apparent lack of consultation about replacing the failing implant crowns with an acrylic supported denture and the absence of clear advice about which implants were functional or not are “of great concern”.

477. Dr Stolz concluded that the level of communication about both

the viability of the treatment and the complications that ensued was wanting.

478. In all the circumstances, the Tribunal should conclude that the

patient was given inadequate information upon which to make an informed decision.

The financial inducement issue 479. The Practical Guidelines issued by the ADA set out the kind of

process that a dental practitioner should undertake in obtaining informed consent. One of the matters emphasised in the Guidelines is ‘absence of coercion’. Paragraph 2.4 reads:


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It is important that:

1.4.1 Consent is voluntarily given. 1.4.2 No misleading information is offered. 1.4.3 Ample time is allowed for decision. 1.4.4 (etc)

480. The treatment plan was apparently presented to the patient at

the consultation on 23 July 2002, the same day the letter was written. At that consultation the Tribunal would accept that the respondent offered to do the job at a special price. The respondent did not suggest otherwise either in his original letter to the Board, or in his first letter to the HCCC although he was specifically asked to deal with the issue of informed consent. Neither did he contradict the patient’s version in his affidavit. In his letter to the HCCC of 30 October 2006 he asserted:

The patient asked for a discount and it was given. There was not an inducement to ‘make’ the patient accept treatment.

481. Whatever label is given to the offer to do the work at $88,400,

he never disputed the patient’s account that the offer was “for today”. Offering the patient a discounted rate “for today” is unprofessional conduct and flies in the face of the ADA Guidelines.

Time written consent obtained 482. Written consent was not obtained until 6 August. Yet, by then

the respondent had given the patient intravenous and inhalation sedation, performed a bone graft and removed eight of his teeth. In re-examination the respondent attempted to explain this by suggesting that the patient had recorded the wrong date on the form. This is no more than speculation. There is no reason why the Tribunal should look behind the face of the document. Dr Chou witnessed the signatures. He was not called to give evidence and no explanation was given for his absence. In the circumstances the Tribunal should conclude that nothing he could say would assist the respondent’s case: Jones v Dunkel (1959) 101 CLR 298. As Kitto J said in that case,

any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the


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defendant and the evidence provides no sufficient explanation of his absence.

483. C.f. Menzies J who pointed out that:

where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

484. As Simpson J acknowledged in a recent case where the

plaintiff was alleging he had been assaulted by a police officer and was the subject of a malicious prosecution, that position is not confined to the situation where a defendant fails to give evidence in his own case, but extends to a situation in which he does not call witnesses he might reasonably have been expected to call. As her Honour put the position:

where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that [a party] disputing it might have proved the contrary had he chosen to [call] evidence is properly to be taken into account as a matter of circumstance in favour of drawing the inference.

485. That approach is consistent with what Windeyer J said in Jones v Dunkel, citing with approval Wigmore on Evidence (3rd ed. (1940) vol. 2, s.285, p. 162):

The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted.

486. This particular is made out.

Respondent’s submissions


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318. The Respondent accepts the Expert Conclave view that the conduct is significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Tribunal’s findings re Particular (iii)

319. Before embarking on such a ‘radical’ course of treatment, the patient should have been provided with specific and detailed information regarding treatment options, treatment details, probable need for CT scans, potential adverse outcomes, projected costs, irreversibility of the procedure, the long term prognosis of the planned treatment, the achievable aesthetic result and a likely time frame for the work. The patient consent form in evidence does not meet these requirements and there is no record in the clinical file that records the information that was provided to Patient F. Further, the Tribunal notes that the written consent in the patient’s file is dated 6 August 2002 and the progress notes record Patient F underwent IV sedation, inhalation sedation, IV cannulation, osseous graft and the removal of eight teeth on 5 August 2002. As to the Respondent’s suggestion that Patient F could have incorrectly recorded the date, the Tribunal accepts the HCCC submission that it was open to the Respondent to call Dr Chou to give evidence on this matter (drawing a Jones v Dunkel inference).

320. Given the scope of the work undertaken by the Respondent, the

Tribunal is of the view that the Respondent should have taken extreme care in obtaining fully informed consent from Patient F. As noted elsewhere, there is a significant obligation on a professional person to keep appropriate records. Where the treatment is conservative or accords with the patient’s previous regime of treatment, a specific written consent may not be required on each occasion. However, the work undertaken on Patient F was far from conservative and written consent specifying the aspects of the work listed above or a written record of that consent is in the Tribunal’s view, essential.

321. Even without making the Jones v Dunkel inference, the Tribunal is

reasonably satisfied that the Respondent failed to provide sufficient information to the patient or to obtain his informed consent before the Respondent proceeded to remove any of the patient’s teeth. The Respondent’s conduct demonstrated a lack of judgment possessed and care exercised in the practice of dentistry that was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience. The conduct constitutes unsatisfactory professional conduct.

Particular (iv) - failed personally to conduct any pre-anaesthetic assessment of the patient

HCCC Submissions


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322. The HCCC relied on the submission made with respect to Patient B (Particular (v)) and notes this Particular is admitted by the Respondent.

Respondent’s Submissions

323. On page 28 of the Respondent’s submissions, the Respondent indicates adoption of the Expert Conclave’s view that this conduct was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience. The Tribunal notes that the Expert Conclave did not in fact consider this Particular at all, but accepts the Respondent’s admission nevertheless.

Tribunal’s findings re Particular (iv)

324. The Tribunal is reasonably satisfied that the Respondent failed to personally conduct any pre-anaesthetic assessment of Patient F. For the reasons set out in relation to Particular (v) of the Complaint 2 relating to Patient B, the Tribunal finds this conduct demonstrates the skill and judgment possessed and care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience and therefore constitutes unsatisfactory professional conduct.

Particular (v) - removed all the patient’s teeth and replaced them with 28 implants and crowns when such a course was not clinically indicated

HCCC Submissions 325. Paragraphs 489 to 495 of the HCCC submissions relate to this

Particular and read as follows:

489. The expert conclave found this particular established and the respondent’s conduct significantly below the relevant standard. Ultimately, the respondent accepted this judgement of his peers.

490. In the absence of a specialist’s opinion, removal of all the

patient’s teeth was not clinically indicated. 491. Were it necessary to remove all the teeth, all the experts

agree that an appropriate treatment plan would have been to put 6 to 8 implants in the upper arch and 4 to 6 in the lower jaw.

492. Dr Fleming’s assessment of the appropriate treatment plan is

to the same effect. Moreover, he described the placement of 28 implants and their restoration with 28 individual crowns as “at best” “ambitious” and “at worst” “reckless”. He said that “such a course of treatment goes against current implant methodology and thinking”. He maintained that a maximum of


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six to eight strategically-placed implants in the maxilla and four to six in the mandible would have sufficed. That, he explained, would have:

(a) Optimised the chances of better soft tissue aesthetics; (b) Simplified oral hygiene measures; (c) Reduced surgical trauma and the risk of

complications; (d) Simplified the prosthetic procedures and reduced the

frequency of prosthetic and laboratory inaccuracies; (e) Allowed for cross arch splinting and stabilization of

the underlying supporting implants via a splinted superstructure, to allow for balancing and sharing of occlusal loads and forces.

493. Professor Chan was of a similar view, stating that “in general,

six to eight implants would provide more than adequate support for a fixed full arch prosthesis. He pointed to the numerous disadvantages that follow from an excessive number of implants:

(a) Higher cost. (b) More complicated surgery. (c) Increased difficulty in prosthodontic management. (d) Increased difficulty in oral hygiene access.

494. Dr Fleming described this treatment as verging on the reckless:

I think on a scale of 1 to 10, 10 being reckless, 1 being exemplary treatment, I rate it about 7 to 8.

495. The respondent sought to mitigate the seriousness of his

conduct by pointing to some case reports that he said showed each replaced by an implant. However, none of the case reports he produced to the Tribunal involved replacing 28 teeth with 28 implants as the subject of the case nor contained any justification for such a course. In any event, the case studies are simply self-reports and opinions without verification or peer review. They offer no true mitigation for the respondent’s behaviour and they provide no justification for the course of conduct the respondent pursued in this case.

Respondent’s Submissions


Tribunal’s findings re Particular (v)


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327. The Tribunal accepts the HCCC submissions with respect to this Particular and also relies upon the comments made by Dr Walton, set out in this document post.

328. The Tribunal is reasonably satisfied that the Respondent removed all

of Patient F’s teeth and replaced them with 28 implants and crowns when such a course was not clinically indicated.

329. The Tribunal is of the view that this conduct is of a sufficiently serious

nature to justify suspension or cancellation of registration as such a radical, invasive, irreversible and clinically unjustifiable treatment approach cannot be viewed otherwise.

Particular (vi) - failed to take adequate care or exercise appropriate skill in the installation of acrylic resin bridges or the free-standing single tooth restorations

HCCC Submissions re (vi) 330. The HCCC made submissions regarding this Particular at paragraph

496 to 501. The submissions note the view expressed by the Expert Conclave that the Respondent’s conduct was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

331. Paragraphs 496 to 501 read (footnotes omitted):

496. On this question the experts were in agreement. The respondent has accepted their decision. The particular is made out.

497. The provisional bridge secured over the posterior implants

was “a poor fit”. There are visible gaps between the implants and the titanium framework on all the implants on the left side of the maxilla (the upper jaw bone) and between the titanium framework and the implants on the right side of the mandible (the jaw bone) (sic).

498. The acrylic resin bridges were inadequate because the screws

kept falling out, the appliances were loose, the patient had difficulty cleaning under them, the upper and lower prostheses did not match in colour, the screw access holes were open in both upper and lower prostheses resulting in food entrapment and the teeth did not meet properly. The explanation for all this was that the acrylic resin appliances were not installed with an adequate level of care or skill.


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499. According to Dr Stolz, in the case of the single tooth restorations on the implants, having to return three or four times a week suggests a genuine problem with the prosthodontic management of the case. The abutments were too small to retain the crowns using a cement-on technique. Dr Stolz described the frequent loss of the crowns and the number lost (as many as nine at a time) as representing “ a grossly inadequate level of skill and care”.

500. The photos of the bridge that Dr Fleming took show, amongst

other things, that the area of tissue underneath the tissue coverage and around the implants cannot be effectively cleaned and the screws kept falling out and the appliances were mobile.

501. Whilst it might have been acceptable had the provisional fixed

acrylic appliance been just that, i.e. provisional, Dr Stolz considered that as a final appliance it was unacceptable, particularly as it was unsatisfactory.

Respondent’s Submissions re (vi)

332. The Respondent’s submissions merely note acceptance of the Expert Conclave result regarding this Particular and takes the issue no further.

Tribunal’s findings re (vi)

333. The Tribunal concurs with the view expressed by the Expert Conclave and notes the comments of Dr Fleming (Ex Vol 6 - tab 6). Dr Fleming commented that the provisional bridge secured over the posterior implants was a ‘poor fit’ and that the acrylic resin bridges were inadequate because the screws kept falling out, the appliances were loose, the patient had difficulty cleaning under them, the upper and lower prostheses did not match in colour, and the screw access holes were open in both upper and lower prostheses resulting in food entrapment.

334. The Tribunal is reasonably satisfied that the Respondent failed to take

adequate care and exercise appropriate skill in the installation of acrylic resin bridges or the free-standing single tooth restorations.

335. The Tribunal is of the view that this conduct demonstrates that the skill

and judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.


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Particular (vii) - failed to allow for adequate healing time to enable adequate bone regeneration to take place before the placement of the posterior implants

HCCC Submissions re Particular (vii) 336. The HCCC make submissions regarding this Particular at paragraphs

502 to 504. The HCCC submit that the Tribunal should not accept the Respondent’s suggestion that the Tribunal cannot make a finding with respect to this Particular because of the divided nature of the view expressed in the Expert Conclave (see paragraph 48 of the HCCC submissions).

337. The HCCC note Dr Fleming was of the view that 13 weeks was not a

sufficient period of time to allow osseointegration which would support the type of provisional prosthesis used by the Respondent for both the maxillary and mandibular posterior implants.

Respondent’s submissions re Particular (vii)

338. The Tribunal notes at page 29 of the Respondent’s Submissions, the Respondent makes an initial submission with respect to this Particular and the quote from the transcript is taken by the Tribunal to be submitted in support thereto as follows:

As to particular (ix) (sic) – that he failed to allow for adequate

healing time to enable adequate bone regeneration to take place

before the placement of the posterior implants, the respondent

will submit that the split (2:1) opinion of the experts

demonstrates that the fundamental factual allegation is not

satisfactorily proven; but that – in any event – the unanimous

view of the panel is correct, holding that any failure was not

below the reasonably-expected standard, much less significantly

below it.

Dr Berne 951: Q. (Y)ou said you thought three months was probably adequate (for bone regeneration). Have you placed implants at that period? A. Certainly. I think I mentioned that I have placed them routinely at six weeks post extraction. That is a routine procedure for a single tooth implant.


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Q. And for molars? A. No, you need longer than that, but he waited two to three months longer and three months would be more ideal. Q. And you have yourself placed molar implants at three months? … A. Depending on the bone available and the healing, as long as they healed well and everything is fine. Q. Depending on the bone available? A. Yes. I don't take issue at all with that.


339. The Tribunal notes that Dr Condon abstained from expressing an opinion on this Particular during the Expert Conclave. The Tribunal further notes that both Dr Ho and Dr Stolz were of the view that the conduct was below the standard reasonably expected of a dentist of an equivalent level of training and experience, but Dr Berne was not. The Expert Conclave was unanimous (with Dr Condon maintaining his abstention) that the conduct was not significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

340. The Tribunal notes, at this point, the comments made by the

Respondent in his affidavit dated 20 April 2009 (exhibit R10) which reads as follows:

As to the allegation that I allowed inadequate healing time for bone regeneration before placing the implants: I warned the patient and the patient knew that repeated cementation and removal of his abutment and crowns was likely to cause damage to the gum and bone around the implants. Any damage to the implants was not caused by inadequate care in placement but by the repeated work required by the patient.

341. Although not relevant to the conclusion reached by the Tribunal with

respect to this Particular, the Tribunal notes that it is imperative that ‘warnings’ of the nature alleged by the Respondent in the above paragraph be recorded clearly in the clinical notes. Further, it could not be expected that a patient would be able to make an assessment of the likely outcomes and possibilities that flow from repeated ‘cementation and removal’ of parts of appliances. That is a matter for the dentist to explain to the patient and to make clinical decisions about in consultation with the patient. Once again the practice of dentistry is not solely ‘patient driven’. Dentists are required to provide


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professional advice to their patients and use their own clinical judgment when providing treatment options to patients.

342. The Tribunal notes that Dr Fleming was asked for details of his opinion

with respect to this Particular and he confirmed he was critical of this conduct as it fell short of what was expected. He stated that the procedure adopted was ‘….asking a lot of that particular style of implants in that particular bone in that particular case of occlusion for the implants to survive’ (T179). The Tribunal accepts the submissions of the HCCC set out above as to the factual summary.

343. The Tribunal is reasonably satisfied that the Respondent failed to allow

for adequate healing time to enable adequate bone regeneration to take place before the placement of the posterior implants and is of the view that the conduct falls below the standard reasonably expected of a dentist of an equivalent level of training and experience, but not significantly so.

Particular (viii) - incorrectly positioned or angled the implants

HCCC Submissions re Particular (viii) 344. At paragraphs 505 and 506, the HCCC submitted it was common

ground that the placement of implants closer than 3mm apart will have an adverse effect and increase the chances of the implants failing as follows:

505. The majority of the maxillary implants were angled or placed

too palatally and the mandibular implants angled or placed too buccally. That led to the occlusal relationship of the final prosthesis of the maxilla lying inside the arch form of the final prosthesis of the mandible. Dr Stolz explained that they should have been placed with a space of 3mm between implants. Dr Ho agreed. Dr Fleming thought that 5mm was “the minimal acceptable separation”

so as not to compromise the blood supply, so to both the underlying bone and also the supporting soft tissue and it also allows us to produce a more cosmetic and final end result. Again though, might I say that there is a big difference between placing two implants in a partially dentureless space pertaining to three teeth, or even two teeth, as opposed to by comparison placing 28 implants in an upper and lower full arch. And I can see no reason why, from my own judgment, one would place 28 implants across a person's arch in that proximity and incur the concurrent risk that comes with that in compromising the blood supply in both the soft tissue and also an osseous perspective, in that we have ample space to place a


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minimum selection of implants and still obtain the same result.

506. Only Dr Berne considered that less than 3mm was acceptable but in response to questioning from Dr Edelman the respondent conceded that no less than 3mm was appropriate.

Respondent’s Submissions re (viii) 345. The Respondent submitted that the Respondent accepts the opinion

expressed by the Expert Conclave and submits that the finding is ‘correct and unassailable’.

Tribunal’s findings – (viii)

346. The Expert Conclave was originally asked to consider this Particular worded as follows:

Incorrectly position or angle the implants and/or the titanium framework

347. In the oral report-back made by the Expert Conclave, they indicated

that they could not identify any titanium framework, and that they did not find this Particular established. At this point of the Expert Conclave discussion, Dr Condon abstained from giving his opinion.

348. In oral evidence, Drs Ho, Fleming, Stolz and Berne were all asked

about the appropriate distance to be maintained between implants by a member of the Tribunal. The Respondent was also asked this question.

349. During the course of the Inquiry, the Tribunal carefully considered the

OPG x-ray evidence with respect to this patient. The expert witnesses were also taken to the OPG evidence. The Tribunal questioned each of the witnesses who expressed a view at the Expert Conclave, and as detailed above in the HCCC submission, each agreed that it was not appropriate for implants to be placed closer than 3mm apart.

350. The Tribunal is reasonably satisfied that the Respondent incorrectly

positioned or angled the implants and that the conduct demonstrates that the skill and judgment possessed and the care exercised by the Respondent is significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience. This conduct thereby constitutes unsatisfactory professional conduct.

Particular (ix) - failed to refer the patient to an appropriately qualified specialist after the treatment began to fail

HCCC Submissions – Particular (ix)


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351. The HCCC make the following submissions at paragraphs 508 – 510 (footnotes omitted):

508. This particular is admitted. The expert conclave thought that

in this regard the respondent’s conduct fell significantly below the relevant standard.

509. Dr Condon is very critical of the respondent for failing to refer the patient to a specialist when the treatment started to fail and of apparently failing to recognise (at any stage) that the patient would benefit from specialist opinion.

510. Similarly, Dr Stolz argued that, with the continuous loosening of the final crowns, there was a poor prospect of retention of the crowns on the abutments and rectification work was necessary. He stated that if the respondent was unwilling to do that work, himself, he should have referred the patient to an implant specialist or a prosthodontist. This is surely a matter of common sense. The experts were rightly concerned that the respondent insisted on managing the problem himself when all the evidence indicates that he was incapable of doing so. His failure to recognise his deficiencies is also worrying.

Respondent’s Submissions – (ix)


Tribunal’s Findings (ix)

353. The Tribunal is reasonably satisfied that the Respondent failed to refer the patient to an appropriately qualified specialist after the treatment began to fail. The conduct demonstrates that the skill and judgment possessed and the care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (x) - failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the clause 23 Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association

HCCC Submissions – Particular (x) 354. The HCCC make the following detailed submissions at paragraphs

511 - 525 as follows:


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511. The expert conclave was again unanimous that in this respect the respondent’s conduct fell significantly below the standard.

512. Dr Fleming described the dentist’s clinical records as

“incomplete, confusing, in some areas conflicting and inadequate in their description and detail of the work performed”. He listed the following deficiencies with respect to pre-treatment records: (a) Notes of the initial patient examination and later pre-

treatment consultations are missing. [That, of course, assumes that they were made in the first place.]

(b) There is no charting of the patient’s presenting conditions. (c) Documentation of the patient’s chief complaints and

concerns are absent. (d) There is no signed record of the patient’s details, medical

or dental history. (e) Study models are of poor quality and not articulated. (f) There appears to be no periodontal assessment or

charting. (g) There is an overexposed OPG but no periapical

radiographs.

513. In the case of the later consultations Dr Fleming maintained these, too, were inadequate in that: (a) The treatment notes were confusing and incomplete. (b) There are poor quality radiographs and they are not

adequately labelled.

514. There is no medical history despite the Australian Dental Association Guidelines stipulating the need for “an adequate medical history which is updated regularly” and despite the fact that the respondent claims to have been a continuous member of the Association since 1985.

515. All that appears in the progress notes at the initial consultation

is the description “comprehensive oral examination” and the fee. There is no description of the presenting complaint, relevant history, clinical findings, diagnosis or treatment options contrary to the ADA Guidelines. Similarly, there is no record of the treatment plan that was presented at the second consultation. All that appears in the notes is:

“Consultation: Tx plan pres.”

516. There is no record of the treatment options that were canvassed, of the pre- and post-operative instructions or of the likely outcomes.


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517. In each of these respects the respondent is in breach of the ADA Guidelines.

518. Moreover, despite the numerous complications at various

points in the treatment process, as Professor Chan pointed out, there is no record of any of them.

519. There are no progress notes after 10 October 2003. 520. A comparison of the patient’s records produced to the Dental

Board and the appointment books produced to the Tribunal show: (a) No entry any of the records for 9 August 2002 when the

appointment book indicates that the respondent was issuing the denture and no record of any cancelled appointment.

(b) No entry in any of the records for 23 September 2002 when there was an appointment for a post-operative check and no record of any cancelled appointment.

(c) No entry in any of the records for 10 February 2003 when the appointment book reads: “GP01 Exo + implants + bridge PGIV” and the date the pre-anaesthetic assessment sheet bears.

(d) No entry for 29 May 2003 despite an entry “GP02” in the appointment book and no record of any cancelled appointment.

(e) Two entries in the appointment book reading “GP01 EmergEx” on 14 and 16 October 2003 and no entry in any of the patient’s records.

(f) An appointment book entry “GP Issue” for 24 October 2003 but no entry in the patient’s records for that date and no record of any cancelled appointment.

(g) An appointment book entry for 28 October 2003 reading “TX02 re-cem temp” and no entry in any of the patient’s records for that date and no record of any cancelled appointment.

(h) An appointment book entry for 12 December 2003 (“GP01 Jig – EmergEx”) but no entry anywhere in the patient’s records.

(i) An appointment book entry for 13 January 2004 (“GP01EmergEx”) and no entry in any of the patient’s records for that date.

(j) An appointment book entry (“GP01 Issue’) for 13 February 2004 but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.


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(k) An appointment book entry (“GP02”) for 16 February 2004 but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(l) An appointment book entry (“GP01 Imp + photos”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(m) An appointment book entry (“GP01 EmergEx”) for 22 March 2004 but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(n) An appointment book entry (“TX02”) for 2 April 2004 but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(o) An appointment book entry for 16 April 2004 (“GP01 try in”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(p) An appointment book entry for 20 April 2004 (“GP02”) and a record of lab fees in the original file for that date [N/B – abutments x 2} but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(q) An appointment book entry for 15 July 2004 (“GP01 Fillings”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(r) An appointment book entry for 23 July 2004 (“GP01 Try in”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(s) An appointment book entry for 27 July 2004 (“GP01 Adj + tek”) but the “appointment notes” read “Happy with everything”.

(t) An appointment book entry for 2 August 2004 I”GP01 EmergEx”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(u) An appointment book entry for 23 August 2004 (“GP01 recement”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(v) An appointment book entry for 27 August 2004 (“GP01 Issue Standby”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(w) An appointment book entry for 7 October 2004 (“GP02”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.


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(x) An appointment book entry for 11 October 2004 (“GP02 Re-Cem”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(y) An appointment book entry for 15 November 2004 (“GP01 EmergEx”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(z) An appointment book entry for 30 November 2004 (“GP01 Remove”) but the only note in the “appointment notes” is “took records to discuss with DAS”. There is no note of what happened in, or the outcome of, those discussions.

(aa) An appointment book entry for 21 February 2005 (“GP02 EmergEx”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(bb) An appointment book entry for 25 February 2005 (“GP01 Try in”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(cc) An appointment book entry for 28 February 2005 (“GP01 EmergEx”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(dd) An appointment book entry for 24 March 2005 (“GP01 Try in”) but nothing in the patient’s records corresponding to that date apart from a record of lab fees (“Innova – screw x 2”) and no record of any cancelled appointment.

(ee) An appointment book entry for 29 March 2005 (“GP01 Replace”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(ff) An appointment book entry for 30 March 2005 (“TX 03”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(gg) An appointment book entry for 31 March 2005 (“GP01 Replace”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(hh) An appointment book entry for 5 April 2005 (“GP01 EmergEx”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(ii) An appointment book entry for 19 April 2005 (“GP01 Recement”) but nothing in the patient’s records


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corresponding to that date and no record of any cancelled appointment.

(jj) An appointment book entry for 2 May 2005 (“GP01 Re-cement”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(kk) An appointment book entry for 12 May 2005 (“GP21 Recement”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(ll) An appointment book entry for 17 May 2005 (“GP01 Cement”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(mm) An appointment book entry for 19 May 2005 (“GP01 Recement”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(nn) An appointment book entry for 18 July 2005 (“GP01 Try in”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(oo) An appointment book entry for 1 August 2005 (“GP02”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(pp) An appointment book entry for 4 August 2005 (“GP01 tx”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(qq) An appointment book entry for 9 August 2005 (“GP01 Tighten”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(rr) An appointment book entry for 16 August 2005 (“GP01 Try in”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(ss) An appointment book entry for 17 August 2005 (“GP01 Try in”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

(tt) An appointment book entry for 19 August 2005 (“GP01 Issue”) but nothing in the patient’s records corresponding to that date and no record of any cancelled appointment.

521. The only entry in the patient’s records for 13 June 2003

appears in the “appointment notes” and is illegible.


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522. Dr Condon said that none of the clinical records for any of the patients was adequate and the more complex the case, the more difficult the records were to follow. He described the records in this case as “particularly confusing”, “incomplete”, “not presented logically” and “of limited use to other practitioners who will be involved in repairing this case”. He noted that initial history, charting and periodontal charting was either absent or confusing. Although serious decisions had to be made at the initial consultation, there was no copious information in the records that would lead to a justifiable treatment plan, contrary to what would be expected. He considered that the records in this case fell “well short of an acceptable standard and are not satisfactory”.

523. Both the 1996 and the 2004 Regulations require the dentist to

record “a description that adequately records the treatment administered on each occasion (specifying the tooth or tooth concerned)”. Dr Stolz was of the opinion that the records did not even meet this minimum standard. There is no doubt he is correct.

524. A contravention of the regulations automatically leads to a

finding of unsatisfactory professional conduct: Dental Practice Act s 41(1)(b). Under the former Act it was professional misconduct: Dentists Act s 5(1)(b).

525. The records in this case are deplorable.

Respondent’s Submissions re Particular (x)


Tribunal’s Findings re Particular (x)

356. Considering all of the evidence in this matter, the Tribunal is reasonably satisfied that the Respondent failed to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the clause 23 Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.

357. The Tribunal has already made comments as to how this conduct is

properly characterised. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary.


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358. The Tribunal finds the Respondent engaged in conduct that demonstrated that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Concluding submission of each party re Complaint 6A and 6B

359. The HCCC provided a summary of the facts at paragraphs 526 to 530 of the submissions as follows (footnotes omitted):

526. There is an abundance of evidence to support the complaint.

It is a most serious case justifying a finding of professional misconduct. As Dr Condon put it:

[T]his case is particularly serious, as the respondent’s treatment plan and treatment has hastened the destruction of the dentition of a young man.

527. Dr Stolz summed up the position very well:

The viability of this treatment was dependent on exhaustive planning, successful surgical management, meticulous attention to provisional appliance construction, a robust understanding of the principles of implant crown retention and loading, clear and precise communication with his technician about the final abutment and crown design, and a willingness and skill to handle and explain all possible complications. The respondent failed on all counts.

528. He concluded that the respondent’s conduct demonstrated a

significant departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience and he strongly disapproved of all aspects of his management referring specifically to:

a. His choice of treatment; b. Lack of planning; c. Failure to get a periodontal opinion before removing

all the teeth; d. Lack of information to the patient; e. Pressuring the patient to make a hasty decision; f. Lack of adequate surgical and prosthodontic planning

following extraction; g. Failure to communicate honestly with the patient; h. Hopeless record keeping.


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529. He added that there was “almost nothing” about the case that would not attract the strongest criticism from colleagues of good repute and competence.

530. The Tribunal would be reasonably satisfied on the whole of the

evidence that the respondent’s conduct in this case justified his suspension or the cancellation of his registration and that in this case he is guilty of professional misconduct.

360. Some of the Respondent’s submissions regarding Complaint 6 are

set out above and the submissions of a more general nature are dealt with in the Tribunal’s findings below.

361. The HCCC made the following submissions in reply:

44. Once again the respondent has chosen to ignore the complainant’s submissions rather than to respond to them.

45. Particular (vii) in relation to [Patient F] alleges that the

respondent failed to allow for adequate healing time to enable adequate bone regeneration to take place before the placement of posterior implants. The respondent incorrectly refers to this allegation on page 29 of his submissions as particular (ix).

46. Particular (iv) alleges that the respondent failed to personally

conduct any pre-anaesthetic assessment of [Patient F]. 47. The reference in the complainant’s submissions at paragraph

488 to paragraphs 202-3 is incorrect; it should read paragraphs 201-2.

48. The respondent seeks to downplay the significance of this

failure with the submission that “it is the quality of the pre-anaesthetic assessment that is of paramount importance, and not whether the process complied with a particular teaching method”. (page 30)

49. This submission contains a false premise. The evidence was

all one way. There are not two schools of thought. There was an abundance of evidence about the importance of the sedationist performing a thorough pre-anaesthetic assessment. The respondent admitted he was taught that the pre-anaesthetic assessment should be undertaken by the sedationist and not by a registered nurse. Yet, from the time he completed the course he decided to do otherwise. He also admitted that apart from convenience there was no justification


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for delegating his responsibility. He was unable to identify any other practitioner who conducted himself in the same way. Even now he appears not to understand the importance of adhering to what he was taught nor the reason why he was taught it.

Tribunal’s Comments generally re Patient F Complaint findings

362. The Tribunal notes the view expressed by Dr Terry R Walton, in his report dated 14 June 2007 is relevant to many of the Particulars above. Dr Walton was consulted by Patient F after Patient F ceased treatment with the Respondent. In particular the following comments made by Dr Walton assisted the Tribunal in considering this matter:

• It would be the duty of the treating dentist to explain the

consequences of tooth loss and the fact that the treatment of the disease process would be a viable and recommended treatment alternative.

• It would be generally accepted by the majority of the dental profession that [Patient F’s] dentition was not terminal at the time of presentation to [the Respondent].

• It is likely that all the teeth anterior to the molars in the maxilla and anterior to the second molars in the mandible, except perhaps the lower central incisors, would have a good long term prognosis.

• It is not biologically, physiologically or aesthetically possible to provide the definitive treatment, that is, 28 single metal-ceramic crowns supported by 28 implants, recommended by [the Respondent].

363. The Tribunal notes that Patient F consulted Dr Lydia Lim after the

Respondent had undertaken a considerable amount of work. In a letter dated 21 December 2005 to the Chairman of the Dental Assessment Committee, Dr Lim wrote (exhibit volume 6 – tab 5):

I was extremely shocked and saddened by the treatment that [Patient F] has received. This includes the possibly questionable need for a full dental clearance, then the excessive placement of fixtures and a treatment plan that is contrary to current standards of care.

364. The Tribunal notes that the Respondent’s submissions indicate that the

Respondent ‘adopts’ the factual findings of the Expert Conclave with respect to ‘(vi) – that he grafted the posterior sockets at the time of extraction (which was never in issue); (viii) – that he did not install unsatisfactory appliances and leave them in place for longer than was necessary; …..; (xi) – that he did not place the implants in an unstable bony base’. The Tribunal notes that these were not Particulars that


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were ultimately before the Tribunal as they were withdrawn when the Complaint was amended.

365. The Tribunal also notes that the Respondent made the following

statements in his affidavit of 20 April 2009 (exhibit R10 commencing at paragraph 67 – font and formatting retained):

I think that my significant error in this case was that I conceded too

much of the decision making power to my patient, rather than

assuming total responsibility for the treatment decisions. I no longer

follow that course in my practice.

366. The Tribunal notes and adopts the comment of Dr Condon that ‘[T]his

case is particularly serious, as the respondent’s treatment plan and treatment has hastened the destruction of the dentition of a young man’ (page 7 – exhibit volume 6 – tab 13).

367. The Tribunal had regard to the evidence of the Respondent that ‘with

the benefit of hindsight’ when he reviewed the OPG in the witness box he was able to concede that ‘10 possibly 11’ of Patient F’s teeth could have been saved (T1267). The Tribunal notes that the material relied upon to make this assessment was the OPG records for this patient that were contained in the patient’s file. These have been available to the Respondent since the time they were taken. Summary of Tribunals Findings – Complaints 6A and 6B re Patient F

368. The Tribunal has made findings of unsatisfactory professional conduct (Particulars (ii), (iii), (iv), (vi), (viii), (ix) and (x)) and professional misconduct (Particulars (i) and (v)) with respect to Particulars of this Complaint as set out above (with Particular (vii) falling below, but not significantly below the standard).

369. The Tribunal rejects the following submission of the Respondent

(made at page 34):

The complainant (at para 526) asserts that the Tribunal should find professional misconduct, purportedly in reliance (first) on the quoted opinion of Dr Condon – which simply does not address this question; and then by quoting Dr Stolz. No attempt is made to balance his hyperbolic tendentiousness with the evaluations of the other experts.

370. The Respondent also made the following submission (at page 34):


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It is submitted, then, that although the Tribunal will be satisfied of the correctness of the experts’ conclave findings in the [Patient F] case – and will note the respondents’ frank and cooperative admissions, adopting those findings as correct – it will not be persuaded that the respondent’s admittedly significant failings were of such a degree as to warrant suspension or deregistration (and thus amounted to unsatisfactory professional conduct, and not professional misconduct).

371. On the basis of the Tribunal’s findings, Submission 2 of the Respondent is rejected. Submission 2 reads:

Submission 2: The respondent’s treatment of [Patient F], found by the experts’ conclave to be significantly below the relevant standard, was unsatisfactory professional conduct, but not professional misconduct.

Patient G - Complaints 7A and 7B 372. Complaint 7A alleges that the Respondent is guilty of professional

misconduct within the meaning of section 40 of the Act in that he: (i) engaged in conduct that demonstrates that the knowledge,


(ii) contravened the Dentists (General) Regulation 1996. Complaint 7B alleges that the Respondent is guilty of unsatisfactory professional conduct within the meaning of section 41 of the Act on the same basis. Both Complaints rely on the same Particulars.

373. The preamble to the Particulars reads:

Between 9 August 2002 and 6 November 2002 the dentist provided dental treatment to Patient G. The treatment was carried out in two stages. On 9 August 2002 Patient G consulted the dentist to see if he was a suitable candidate for dental implants. Following an oral examination and a review of radiographs taken that day the dentist concluded that he was a suitable candidate. On 6 November 2002 the dentist sedated Patient G and performed a dental implant procedure. Prior to the procedure concluding Patient G became unconscious and was admitted to hospital where on 9 November 2002 ventilation was ceased and he died.

Background facts as prepared by the HCCC

374. The HCCC set out a summary of the facts surrounding this Complaint at paragraphs 531 to 563 as follows:


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531. This complaint concerns an implant procedure performed

under conscious sedation during which the patient’s oxygen saturation levels fell substantially and, at times, dramatically, and as a result of which the patient died. The respondent was tried for, but acquitted of, manslaughter arising out of the patient’s death. The complainant relies on the evidence tendered in the criminal trial and some further material that was obtained afterwards. No question of double jeopardy or autrefois acquit arises. See Litchfield v Health Care Complaints Commission

. 532. The patient saw the respondent in response to an

advertisement in the local newspaper. According to the respondent, the patient informed the receptionist that he wanted to talk to the respondent about whether he was a suitable candidate for dental implants. The receptionist had little recall of the meeting.

533. The patient saw the respondent on about four occasions – on

9 August, twice thereafter to discuss fees and on 6 November. There are no notes relating to the consultation on 9 August or the subsequent two consultations.

534. This patient consulted the respondent seeking implants on 9

August 2002. He was 67 years old. He was short and stocky in build. He was obese, with mild cardiomegaly and mild hypercholesterolemia. He had bilateral severe osteoarthritis of the knees and intermittent bronchitis. He had smoked for 35 years. He had hypertension, which was well controlled with medication (Privinil). However, he was “a constant drinker” and drank heavily (admitting to the respondent’s knowledge to consuming two litres of wine a day until the month before the procedure.) In addition, he had a glass eye and a thyroid problem.

535. At the time of this consultation the administrative assistant in

the respondent’s rooms, Carla Cattanach, probably provided him with a document entitled ‘medical chart’ for him to complete. The patient completed his personal details and certain entries were made in the chart by the respondent’s wife.

536. The medical chart revealed that the patient was seeing a

Dr “Alan Lorford [sic] from Arncliffe, was on a type of anti-inflammatory, had had knee surgery, suffered from arthritis


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and was seeking treatment for mobile teeth which have been bonded and had last seen a dentist a month ago.

537. A more complete medical history is set out in Dr Lawford’s

statement and his attached records. Amongst other things it showed that he was taking the following medication additional to the Prinivil:

(a) Nasonex nasal spray; (b) Solprin disp. tab ½ tablet daily; (c) Viagra tablet 50mg 1 a.c.; (d) Ex Voltaren 50 EC tablet 50 mg 1bd cc.

538. An echocardiography/Doppler study conducted on 11 October

2002, that is, about three weeks before the patient was placed under administered (sic), showed mild biatrial enlargement and impaired left ventricular diastolic relaxation.

539. His GP’s records also revealed that he smoked 100 ‘smokes’

a day 7 days a week for 35 years. 540. At the first consultation the respondent stated he questioned

the patient about his medical history, formed a preliminary view that there were no medical contraindications for implant placement under conscious sedation and “spent some time” explaining what dental implants were, how they worked and what the results looked like. He also showed the patient a CD (presumably a DVD) of the Today Tonight episode. In addition, he stated that he discussed “the consequences of dental implant therapy and other matters including issues related to intravenous sedation. He then asserted he took the patient to the examination room and conducted an oral examination that revealed that the patient had “extensive breakdown of the lower remaining teeth and a failing maxillary left lateral incisor tooth”. He claimed that the patient expressed an interest in the NOVUM procedure for his lower jaw, a procedure described as “same day teeth” because the therapy uses prefabricated components to enable the surgical and prosthetic therapy to be completed in one day. No notes appear to have been made of any of these matters. None has ever been produced, to the police, the DPP, the Board the HCCC or the Tribunal.

541. The patient returned to the respondent’s rooms on two

occasions to discuss fees. There are no records of these visits either.


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542. On 6 November 2002 the patient presented at the respondent’s rooms with his wife. On that occasion the registered nurse carried out a pre-anaesthetic assessment and asked the patient to sign the consent form, which she witnessed. According to the respondent’s account of what occurred, he did not read the form to the patient or satisfy himself that the patient understood the procedure but delegated that responsibility to his nurse.

543. The pre-anaesthetic consultation revealed he had had the

following previous operations: (a) A history of two or three right knee arthroscopies; (b) A thyroid operation; (c) Removal of the right eye

and had experienced a bloated abdomen after an anaesthetic.

544. The nurse recorded a medical history of arthritis and high

blood pressure and current treatment with Prinivil 20 mg. She also queried whether the patient was allergic to an anti-inflammatory. She took a smoking history of 120/180 a day but not since 10 November 1986 and noted that the patient consumed 2 litres of wine daily but not for a month. His blood pressure was 135/76, pulse 72 and oxygen saturation was 94%. He had not eaten since 6 pm the previous evening and had drunk water at 8 pm.

545. The respondent claims to have discussed the matters

disclosed in the pre-anaesthetic form with his nurse and said he recalled his nurse telling him that the patient had a glass eye. He also said that he took note of the various matters recorded in the form and described the elevated blood pressure reading at the time (135/76) as “acceptable”.

546. He concluded the patient was fit for the operation and

apparently saw the need for no further inquiries. 547. The patient was then taken to the treatment room and

cannulated. A nasal hood was placed. The respondent stated that there was both a flow of nitrous oxide and supplemental oxygen. At some stage a pulse oximeter was attached to the patient to record his oxygen saturation levels. The pulse oximeter was routinely maintained and later found to be in sound working order. The nurse administered penicillin and the sedation proceeded as follows:


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0800 Oximeter 86%. Midazolam 2mg; 100mcg fentanyl, 600mcg atropine and 4mg of dexamethasone.

0802 Midazolam 1 mg.

0805 Oximeter 84%.

0810 Surgery commenced. At that time the respondent had prepared a syringe of propofol.

0810 Oximeter 94%. Midazolam 1 mg.

0814 Midazolam 1mg.

0815 Oximeter 96%.

0818 Midazolam 1mg, propofol 20mg. 0820 Oximeter 95%.

Midazolam 1mg. 0823 Midazolam 1mg, propofol 10mg. 0825 Oximeter 96%. 0827 Midazolam 1mg, propofol 10mg. 0830 Oximeter 95%. 0831 Midazolam 1mg, propofol 10mg. 0833 Midazolam 1mg, propofol 10mg. 0835 Oximeter 84% 0836 Midazolam 1mg, propofol 10mg. 0839 Midazolam 1mg, propofol 20mg. 0840 Oximeter 89%.

Midazolam 1mg, propofol 10mg. 0841 Midazolam 1mg, propofol 10mg. 0845 Oximeter 91%. 0848 Midazolam 1mg, propofol 10mg. 0850 Oximeter 88%. 0852 Midazolam 1mg, propofol 10mg. 0855 Oximeter 94%. 0900 Oximeter 73%. 0905 Oximeter 88%. 0910 Oximeter 90%. 0915 Oximeter 85%. 0920 Oximeter 88%. 0925 Oximeter 91%. 0930 Oximeter 86%. 0935 Oximeter 94%.


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0940 Oximeter 90%. 0945 Oximeter 63%.

548. Ms Gaudron said that the patient was “constantly roused from

unconsciousness” and that resulted in “the need for further sedative medication”. She also said that the respondent was required to stop his work constantly to maintain proper airway. The respondent said that whenever the oximeter showed a reading below 90%, he stopped what he was doing, removed the instruments from the mouth and performed a chin lift to open up the airway and allow more airflow to the lungs. Ms Gaudron said that after this procedure, the alarm would stop. She also said that the anaesthetic and recovery chart shows that at 0835, 0850 and 0900 there are arrows indicating spontaneous recovery of oxygen saturation levels. The chart shows arrows and a T in the column below and there does not appear to be any other evidence to explain the meaning or significance of those symbols.

549. Ms Gaudron stated that when the oxygen saturation dropped

to 63%, the respondent performed another chin lift and head tilt but the blood pressure was down to 89/48 and the heart rate was slow. She added that the patient was showing a short run of irregular heartbeats.

550. The respondent stated that at 0950 Ms Gaudron indicated that

the patient’s blood pressure was falling and they agreed to place a saline bag to increase blood volume and blood pressure. Soon afterwards, he said, he noticed a significantly different waveform on the ECG. He indicated he then terminated the procedure (at 0950) and tried to rouse the patient but he was unresponsive. He said called for a stethoscope and checked for heart sounds and breathing but could not detect any. Ms Gaudron makes no mention of this in her statement. He said he then asked the registered nurse to call for emergency assistance, although the nurse, herself, said that she decided to call for help after she had returned to the treatment room and noticed that the patient had changed colour and the respondent was unable to rouse him. The respondent then stated he ran to the adjacent room to fetch the defibrillator, an emergency oxygen cylinder and mask (air-vivor) and the nurse made the call from the treatment room. He claimed that the oxygen saturation was 90% at this time (although Dr Harrison pointed out that such a reading is irreconcilable with the findings on examination at the time). He also claimed that CPR was begun “immediately” with the


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registered nurse supporting the airway and ventilations and he was performing external cardiac compressions.

551. The call to the ambulance was made at 0958 – 13 minutes

after the oximeter had shown that the oxygen saturation was 63% - and eight minutes after the surgery was terminated - and the ambulance arrived within two minutes of the call, namely, at 0959.52.

552. When the ambulance officers arrived, the patient was in the

dentist’s chair in a semi-supine position with his head up and with a female staff member behind him. He had a bag over his mouth but the female staff member was not squeezing the bag so he was not being ventilated. Indeed, the bag was not attached to the oxygen cylinder, although Ms Gaudron claimed in her statement that the air-vivor bag had been connected to an emergency oxygen cylinder and 100% oxygen was being administered by the nasal hood. At the same time another person (probably the respondent) was trying to operate the defibrillator. The respondent complained that the defibrillator would not shock the patient (i.e. deliver an electric charge). At this point Garth Thompson, one of the ambulance officers, looked to the screen of the debrillator and it showed that the patient was asystolic. At the same time no-one was performing CPR (i.e. external cardiac massage) and no adrenaline was being given, despite the fact that advanced cardiac life support guidelines call for the administration of cardiovascular drugs. Mr Thompson concluded from the fact that the patient was asystolic that he had been in cardiac arrest for a period greater than 10 minutes before the arrival of the ambulance.

553. Mr Thompson asked the respondent what drugs he had

administered and he did not indicate that he had administered any reversal drugs. Accordingly, the ambulance officers proceeded to administer adrenalin, atropine, sodium bicarbonate and Hartman’s solution to flush the drugs. The purpose of giving the adrenalin, atropine and sodium bicarbonate, Mr Thompson said, was to stimulate the heart, provide the best possible environment for the heart to start to beat again in a rhythmic fashion and sustain life. Reversal drugs act on the receptors in the brain that are affected by sedation drugs to reverse their effect so that the patient can return to a conscious state where the patient can spontaneously support his airway.

554. The ambulance officers were unable to restore the heart

function and removed him to St George Hospital.


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555. The patient was declared ‘brain dead’ at 1030 on 8 November

2002 and he passed away the following morning when he was taken off the ventilator.

556. An autopsy was carried out on 11 November 2002. Dr Johan

Duflou was the pathologist. His opinion was that the direct cause of death was hypoxic brain damage sustained during the procedure the respondent performed on the patient on 6 November. He found:

(a) Cardiac arrest during dental anaesthesia. (b) Severe irreversible hypoxic brain damage. (c) Cardiomegaly (enlargement of the heart), in keeping with

hypertension. (d) Pulmonary congestion and oedema (i.e. the lungs were

heavy and contained fluid). (e) Hepatomegaly (the liver was enlarged), in keeping with

the history of excessive alcohol consumption.

557. The overwhelming weight of evidence shows that the patient died from prolonged hypoxia brought about by the excessive amount of drugs the respondent administered to him, in circumstances in which “for almost an hour”, he failed to take appropriate action to manage the situation despite the frequent sound of the alarm from the pulse oximeter and when physical signs of hypoxia would have been increasingly apparent.

558. The respondent conceded in his evidence to the Tribunal that

his overall conduct exposed the patient to the very risk that materialised – the risk of over-sedation.

559. The evidence overwhelmingly shows that the respondent’s

conduct fell below the standard reasonably expected of a practitioner of his training or experience in multiple respects. The only evidence in his favour comes from Dr Berne.

560. Dr Vickers, a maxillofacial surgeon who was qualified for the

respondent at his trial, thought the patient should never have been offered clinical sedation and was over-sedated. He testified that “oversedation or sedation and obstruction of an airway will lead to hypoxia (abnormally low oxygen available to the body or an individual tissue or organ) which then leads to death if untreated” and he conceded that over-sedation can cause airway obstruction.


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561. For the reasons given above, Dr Berne’s evidence should be given little weight. Moreover, Dr Berne did not complete the diploma course the respondent undertook. Indeed, he has no post-graduated qualifications in sedation. Although he insisted that he had been independently assessed in the courses he had undertaken, he could not nominate one in which he had been examined. The notion he advanced at the trial that the patient was inadequately sedated is contrary to all the evidence and the Tribunal would emphatically reject his opinion that “there is no suggestion that this treatment departs from the standard of care expected”. If, as he asserted at the time, “there [was] no evidence that the respondent had departed from the standard of care expected during the sedation, ” there certainly is now.

562. Dr Vickers, a maxillofacial surgeon qualified for the respondent

in the trial, did not agree with Dr Berne that the administration of the drugs used to sedate the patient were within acceptable standards and reported that he was “clearly over-sedated”. He considered that the period of sedation was twice as long as would have been appropriate and any procedure longer than 30 minutes to an hour would cause the patient’s airway to become too unstable to manage and require endotracheal intubation beyond the expertise of a general dentist/sedationist.

563. Until three days into this hearing the respondent made no

admission about his conduct, save for the curiously worded statement that the trial judge found him guilty of professional negligence. Only after the complainant had opened its case, did he make any real admission. He now admits he is guilty of all of the particulars of the complaint and that his conduct amounts to unsatisfactory professional conduct. He has not, however, admitted professional misconduct.

Background as provided by Respondent

375. The Respondent made the following general submission regarding this matter commencing at page 2 (font and formatting retained):

Dr Pegios has admitted that in August and November 2002, the

respondent was consulted by and treated [Patient G] and that he:

(i) failed to provide sufficient information both orally and in

writing to the patient about the nature and potential outcomes

of the implant procedure (including sedation) before the


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procedure was undertaken and to record what information he

gave him in the patient record,

(ii) failed personally to obtain the patient’s consent,

(iii) failed to make and retain adequate clinical records in relation

to his treatment of the patient and the advice or information

he gave him contrary to the requirements outlined in clause

23 of the Dentists (General) Regulation 1996 and in the

Guidelines for Good Practice on Patient Information and

Records of the Australian Dental Association,

(iv) failed to take an adequate medical history from the patient at

the earliest opportunity,

(v) failed personally to conduct the pre-anaesthetic assessment,

(vi) failed to respond appropriately to the history elicited from the

patient and his presentation,

(vii) authorised the administration of excessive quantities of

sedative and anaesthetic drugs to the patient contrary to the

Australian and New Zealand College of Anaesthetists and

Royal Australasian College of Dental Surgeons guidelines in

P.21 Sedation for Dental Procedures,

(viii) adopted a technique of administration of the drugs that was

inappropriate for simple (conscious) sedation in his rooms,

(ix) failed to take proper account of the patient’s oxygen

saturation levels prior to commencing the procedure,

(x) set the pulse oxymeter at an inappropriately low level,

(xi) failed to adequately monitor the patient or ensure that the

patient was adequately monitored during the procedure,


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(xii) failed to take adequate action when the patient’s oxygen

saturations dropped to a clinically unacceptable level,

(xiii) failed to terminate the implant procedure in a timely manner,

(xiv) failed to ensure that the resuscitation of the patient was

appropriately carried out.

Dr Pegios admits that this conduct constituted unsatisfactory

professional conduct and accepts the experts’ joint report in that

regard. By reason of a number of mitigating factors that shall be

set out, post, and by reason of the effluxion of almost seven

years since the conduct occurred, he contends that it cannot be

found, as a matter of fact, that his unsatisfactory professional

conduct could now justify the suspension or cancellation of his

registration. The most important evidence on that score was this:

Transcript page 1313 (hereafter such references will be by page

number only, giving the commencing page):

Q. Do you believe you understand how you came to make those errors? A. Yes. Q. That is the ways in which you made them? A. Yes. Q. Do you believe you have an appreciation, that is a recognition of the gravity of the mistakes that you acknowledge having made? A. Absolutely. Q. Is it your belief that you have learnt from those errors? A. Yes I have. Q. So far as [Patient G] goes, is it even possible you could ever make that error again? A. No. Q. Is that because you will not do intravenous sedation without an anaesthetist?


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A. Absolutely. 376. The Tribunal notes at this point that there was no ‘experts’ joint report’

with respect to this Complaint as suggested by the Respondent’s submission.

377. The Respondent submitted that his conduct amounted to

unsatisfactory professional conduct but not professional misconduct. The Respondent makes submissions about the Particulars on pages 23 to 27 (with the Particulars numbered (xv) – (xxviii) rather than (i) – (xiv)). The Respondent stated that the HCCC ‘would not accept’ the Respondent’s ‘concession’ that he was guilty of ‘professional negligence’. The Respondent indicated that this concession was made on the basis of ‘conceding the validity of the District Court’s findings’. As this concession was ‘not accepted’ by the HCCC the Respondent ‘formally admitted the entirety of the particulars subscribed to this element of the further amended complaint’.

378. The Respondent then made the following submissions (commencing at

page 24 - formatting and font retained):

In fact, it was plainly open to Dr Pegios to contest certain of

those particulars: (i) in part; (ii), (iv), (xi) and (xiv), but he

knowingly waived that right, which is demonstrative of his

contrition. The respondent chose not to take unnecessary issue

with the complainant’s pleaded allegations, and admitted that his

treatment of [Patient G] was unsatisfactory professional conduct

He does not concede that it amounts to professional misconduct

as defined under the Dental Practice Act, in that that requires

proof to a very high standard (and certainly not merely the

balance of probabilities) that his admittedly unsatisfactory

professional conduct was of a sufficiently serious nature to justify

suspension or cancellation some seven years after the event of

the respondent’s registration (s.40 of the Dental Practice Act

2001).

The very strong mitigating factors in relation to the respondent’s

failings in relation to [Patient G]‘s death are: the unforeseeable

and unimaginable (to any dentist) conduct of the patient in


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concealing his true medical conditions and medications; and the

respondent’s lack of medical competence to handle the

emergency that developed, although the legislation permitted and

continues to permit medically-incompetent practitioners to act as

operator/sedationists. The Tribunal will find the latter dealt with,

exhaustively, in Dr Peter Vickers’ report to the District Court (Ex

R20) and his evidence at that trial (see the trial transcript Ex Vol

11). As to the former, not only was it conceded at the Coronial

inquest and at the trial that no dentist could reasonably have

anticipated that a patient would lie about his medical history in

order to ensure that he received dental treatment, but Dr Fleming

corroborated the belief that such conduct was unforeseeable: 211: Q. Have you ever had a patient lie to you about his medical history? A. I do not recollect that to be the case. Q. That's the last thing you would expect to happen, isn't it, as a reasonable person? A. You would hope that would be the case. Q. Saving your presence, most people don't want to have dental procedures conducted on them, do they? A. I think that's a fair comment. Q. So you wouldn't expect somebody to come along and in order to persuade you to conduct a dental procedure to mislead you about his health? A. You'd hope the opposite. Q. Yes. And I mean, in your lifetime of experience you have never found a patient to have lied to you in order to induce you to conduct a procedure, have you? A. No. Q. Have you ever heard of it happening? A. Not that I can recall. Section 41 of the Dental Practice Act 2001, defines ‘unsatisfactory professional conduct’; and the complainant in this matter relies on


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the following element of that extended definition: (1)(a) Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised (was) significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience. Section 40 of the Act defines ‘professional misconduct’ as, in

effect, aggravated unsatisfactory professional conduct – where

the conduct is not just ‘significantly below’ the relevant standard,

but of a sufficiently serious nature to justify suspension or

cancellation of the (dentist’s) registration.

Obviously enough, the Act provides that there are four degrees of

deficient professional conduct to be considered in any dental

disciplinary inquiry:

1. conduct that is below the relevant standard 2. conduct that is significantly below the relevant standard 3. conduct that is so significantly below the relevant

standard as to justify suspension 4. conduct that is so significantly below the relevant

standard as to justify deregistration. Because the duty of the Tribunal is to ensure, in order to protect

the public, that dentists are fit to practice dentistry, the essential

nature of the task given to the Tribunal is to judge the

respondent’s present fitness to practise. At the risk of

unnecessary repetition, the Tribunal does not inquire into these

complaints in order to judge the respondent’s knowledge, skill,

judgment or care in the period between August 2002 and August

2005: those events are, ultimately, only to be assessed insofar as

they inform the judgment of Dr Pegios’s professional competence

and capacity as at 2009. If, however, the Tribunal were satisfied

that Dr Pegios’s failings in that period were of such a nature as to

be beyond remediation, it would proceed to take such steps as


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would guarantee protection of the public. If, on the other hand, the

Tribunal were to form the judgment that the past failings, although

significant, cannot be said in 2009 to warrant either suspension or

deregistration (which must be the case where there dentist has

been approved in his continuing practice by the authorities, then a

finding of professional misconduct cannot be made. It is vital,

then, that the Tribunal should distinguish between a punitive

function (which it does not have) and a protective role (which is

the essence of its duty).

It is also important that the Tribunal should seek to conform to a

single consistent interpretation of the meaning of “unsatisfactory

professional conduct” – and maintain consistency, not least

importantly with the interpretations of the Dental Board of

New South Wales. When the Board imposed conditions on Dr

Pegios’s registration on 25.11.08 (which were to be reviewed six

months later – a review that has not yet taken place), it did so on

the basis that the Board was satisfied that those complaints

“separately established that inadequate treatment constituted

unsatisfactory professional conduct.” The relevant findings were

of “a significant lack of knowledge and skill.”

The respondent respectfully contends that an appreciation of the

objectives of the Act must lead the Tribunal to find that the

respondent’s conduct in his treatment of [Patient G] is of the

second level (as set out above). Accordingly, the respondent

submits as follows:

Submission 1: The respondent’s treatment of [Patient G] was unsatisfactory professional conduct, but not professional misconduct. The complainant’s assertion (para 710) that the case amounts (in

the present continuous tense) to professional misconduct most


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unreasonably ignores the temporal element: these tragic events

took place seven years (and more) ago. Even if the case

represented, at that time, conduct justifying suspension or

deregistration, the effluxion of so great a period changes matters

totally: the question now becomes – do the failings of Dr Pegios in

his treatment of [Patient G] (in 2002) now require his

disqualification (in 2009-10)? It is not Dr Pegios who has delayed

consideration of this matter for so unconscionable a period, but

the fault lies with the professional bureaucracy, which has never

conducted itself as if there were any need for alacrity, much less

urgency, in determining whether Dr Pegios had so conducted

himself as to warrant intervention at any earlier time. Plainly,

whatever the seriousness of the 2002 events, they are cast into a

totally different light some seven years later. There is a clear

analogy with the legal doctrine of estoppel: the complainant has

condoned, by its conduct, the situation where Dr Pegios has been

held out to the community as a competent practitioner. If his past

conduct was such as to justify his disqualification, why has the

public interest not been acted upon until now?

Particular (i) - The Respondent failed to provide sufficient information both orally and in writing to the patient about the nature and potential outcomes of the implant procedure (including sedation) before the procedure was undertaken and to record what information he gave him in the patient record

HCCC Submissions re Particular (i)

379. The HCCC made the following submissions with respect to this Particular (omitting the footnotes) at paragraphs 564 to 566:

564. The evidence of what information the respondent gave is

limited to the account the respondent provided to the coroner and the District Court. In that statement he said that at the first consultation he spent “some time” explaining what dental implants were, how they worked and what the results looked like. He also showed the patient the Today Tonight program. He said he also discussed the consequences of dental implant therapy – specifically, post operative swelling, bleeding,


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bruising as well as infection. He said the procedure could be performed with or without IV sedation but that if performed under IV sedation the patient would feel drowsy for the rest of the day and could not operate machinery or drive home.

565. This account omitted any reference to the risks of the drugs

used in intravenous sedation save for drowsiness. Yet, the pros and cons of intravenous sedation are not mentioned nor are the alternatives to implant treatment.

566. The respondent apparently gave the patient no information in

writing and there is no contemporaneous account of what he told him in the patient’s records.


380. The Respondent submitted with respect to this Particular that ‘it was plainly open’ to him ‘contest’ this Particular, but he has ‘knowingly waived that right’. The Respondent submitted that this action was demonstrative of contrition. The general submission made by the Respondent is set out above.


381. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to provide sufficient information both orally and in writing to Patient G about the nature and potential outcomes of the implant procedure (including sedation) before the procedure was undertaken and to record what information he gave him in the patient record. The Tribunal finds the conduct demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (ii) - The Respondent failed to personally obtain the patient’s consent

HCCC Submissions re Particular (ii) 382. The HCCC made the following submissions with respect to this

Particular (omitting the footnotes) at paragraphs 567 and 568:

567. It was the registered nurse, Ms Gaudron, who sought the patient’s consent. Yet, it was the respondent’s responsibility to do so and the respondent was taught as much.


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568. The manner in which the consent was taken was significantly below the standard reasonably expected of a dental practitioner of the respondent’s training or experience.

Respondent’s Submissions re Particular (ii) 383. The Respondent submitted with respect to this Particular that ‘it was

plainly open’ to him ‘contest’ this Particular, but he has ‘knowingly waived that right’. The Respondent submitted that this action was demonstrative of contrition. The general submission made by the Respondent is set out above.


384. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent that he failed to personally obtain the patient’s consent. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary.

385. The Tribunal finds the conduct demonstrates that the judgment

possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (iii) - The Respondent failed to make and retain adequate clinical records in relation to his treatment of the patient and the advice or information he gave him contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association

HCCC Submissions re Particular (iii) 386. The HCCC made the following submissions with respect to this

Particular (omitting the footnotes) at paragraphs 569 to 571:

569. There are no notes relating to the two earlier consultations and no explanation has been offered for their absence. This is a breach of the minimum requirements of clause 23 of the Dentists (General) Regulation 1996, which remained in force until it was replaced by the Dental Regulation 2004, which commenced on 15 August 2004.

570. The respondent did not obtain or keep any traces from the ECG. This constitutes a breach of clause 23(2) and (3) of the 1996 Regulation. Breach of the Regulation is unsatisfactory professional conduct. The respondent’s claimed unawareness of that requirement is of concern.

571. The respondent conceded that his failure to make a note of the first consultation was reprehensible.


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Respondent’s Submissions re Particular (iii) 387. The Respondent admits this conduct. The general submission made

by the Respondent is set out above.

Tribunal’s Findings re Particular (iii) 388. The Tribunal finds there is more than sufficient evidence to support the

admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to make and retain adequate clinical records in relation to his treatment of the patient and the advice or information he gave him contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association

389. The Tribunal finds the conduct demonstrates that the skill and

judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

390. The Tribunal is particularly concerned with the failure of the

Respondent not to keep the ECG trace in the circumstances of this matter.

Particular (iv) - failed to take an adequate medical history from the patient at the earliest opportunity

HCCC Submissions re Particular (iv) 391. The HCCC made the following submissions with respect to this


572. Sedation may “reduce the depth of breathing and the quantity of oxygen taken in, by its effect on ventilation/perfusion matching”. For this reason,

it has always been taught that the process of history taking and examination is to identify those persons who have risk factors, which mean that they have lower respiratory reserves than normal people and are less able to withstand further reduction in respiration with sedation.

573. The medical chart was incomplete. It did not contain contact

details for the patient’s GP. The medical history was limited to a history of a knee operation the nature of which was not specified. The question whether the patient was taking any “pills, drugs or medication” was unanswered. The allergic reaction he apparently had to anti-inflammatories was


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unspecified. The obscure note “yes/no” was placed (presumably by the plaintiff’s (sic) wife who took the patient through the chart). The chart did not refer to the patient’s history of hypertension or his enlarged heart. The nurse elicited the history of hypertension and his treatment with Prinivil at the pre-anaesthetic assessment on 6 November. However, the respondent did not follow up any of the gaps or apparently question the patient about his history at any time he saw him and no smoking history was taken. This was in spite of the fact that (as the respondent admitted) there was a great deal of emphasis in the graduate diploma course the respondent had undertaken on the importance of taking a comprehensive medical history and he had been taught that it was important to know as much of the patient’s medical history as possible and to record it.

574. The practice he apparently had of taking his patients through

their medical history by asking leading questions, including “whether there were any serious illnesses [he] needed to know about” is inexplicable. It was contrary to everything he was taught. It was scarcely designed to elicit a comprehensive medical history. It is self-evident that a patient could not be expected to know what mattered to the practitioner. As Professor Klineberg pointed out, the question is inappropriate for several reasons. First, it required the patient to make a judgement about whether an illness was serious when he or she might not regard it as so but when it might pose a risk for conscious sedation. Secondly, the patient is unlikely to have the necessary knowledge to make the judgement. Indeed, (s)he may not appreciate the relevance of his or her illness to the treatment, let alone to the sedation. Thirdly, it is not designed to elicit as much relevant information as possible. The approach the respondent adopted was “too narrow, specific and targeted. It requires the patient to drive the process rather than the dentist”.

575. In the circumstances, if he did follow his usual practice it is

unsurprising that the patient did not volunteer the information the respondent did not receive (directly or indirectly) about his medical history. For him to blame the patient for the inadequate information as he did both at his trial and even in these proceedings reflects poorly on his professionalism. That he continues to follow such a practice even now, despite his experience in this case and the evidence marshalled against him in these proceedings, raises serious questions about his capacity to safely continue in practice.


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576. The medical history in the chart was sparse. If he had questioned the patient at all he failed even to elicit the limited information that the nurse obtained. The only plausible explanation for his failure to extract from the patient the information that his registered nurse managed to elicit during her pre-anaesthetic consultation is that he did not ask the necessary questions. The Tribunal should conclude that - despite his denials – he had no input into completing the medical chart. Having regard to the time that has elapsed since the consultation, the evidence he gave at T1160/49-54 is not credible.

577. Whatever view is taken, the history taking seems to have been

a mechanical exercise only. No, or no sufficient, attention was given to its relevance or its importance.

578. Yet, in the course on conscious sedation that the respondent

attended at Westmead he was taught:

(a) To find out as much information as possible relevant to suitability for conscious sedation. That included anything that might be adversely affected by sedation such as current or heavy alcohol consumption, current or past smoking.

(b) If there was any doubt concerning the presence of a significant risk compromising respiration or gas exchange the dentist should consult with, or send the patient back to, his or her GP so that further information could be obtained.

(c) Patients at higher risk should be avoided as there are other ways to deal with those patients like well controlled and supported conscious sedation units in hospitals or general anaesthetic with an anaesthetist.

(d) The medical history should be taken by the proceduralist and he should also conduct the pre-anaesthetic assessment.

(e) If the proceduralist does not take the history, she or he should go through it again with the patient “in relation to the most relevant issues”.

(f) The proceduralist should always obtain the consent and not delegate it to a nurse.

579. The reference in the consent forms to the importance of

medical information demonstrates that his knowledge was not deficient. That he failed to follow what he was taught represents a significant departure from the standard of care and skill reasonably expected of a practitioner of his training or experience and, having regard both to the serious risks in


239

doing so and the representations he repeatedly made to his patients about what he would do, it is reprehensible.

580. Little wonder Professor Stewart strongly disapproved of the

respondent’s conduct in this respect.

Respondent’s Submissions re Particular (iv) 392. The Respondent submitted with respect to this Particular that ‘it was

plainly open’ to him ‘contest’ this Particular, but he has ‘knowingly waived that right’. The Respondent submitted that this was demonstrative of contrition. The general submission made by the Respondent is set out above.


393. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to take an adequate medical history from the patient at the earliest opportunity.


possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (v) - The Respondent failed to personally conduct the pre-anaesthetic assessment

HCCC Submissions re Particular (v) 395. The HCCC made the following submission with respect to this

Particular (omitting the footnotes) at paragraph 581:

581. Jennifer Gaudron, a registered nurse, conducted the pre-anaesthetic assessment. However, the respondent was administering the anaesthetic. It was quite inappropriate for him to delegate the task of taking the history to his nurse. He admitted that he was taught to do the anaesthetic assessment himself. The complainant repeats the submissions made at paragraphs 202-3.


396. The Respondent admits this conduct. The general submission made by the Respondent is set out above.



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397. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent that he failed to personally conduct the pre-anaesthetic assessment. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary.


possessed and the care exercised by the Respondent was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (vi) – The Respondent failed to respond appropriately to the history elicited from the patient and his presentation

HCCC Submissions re Particular (vi) 399. The HCCC made the following submissions with respect to this


582. The appropriate response was to seriously question the patient’s suitability for conscious sedation in his rooms. The history he actually obtained (albeit indirectly from his nurse) “has components which [he was taught] are associated with increased risks for conscious sedation with the risks multiplying as the number of risk factors increase”. The smoking history was so significant that, although the patient had apparently ceased smoking 16 years earlier, lung function tests should have been ordered to assess his safety for sedation.

583. Even Dr Berne, who, in reporting in connection with the issues

in the criminal case, was uncritical of the respondent’s conduct, observed that the history of heavy drinking taken by the nurse in the pre-anaesthetic consultation “should certainly have given cause for concern, even though the patient stated that he had stopped one month previously.” He noted that such patients were “notoriously difficult to adequately sedate” and often required large doses of drugs to achieve adequate sedation.

584. Dr Vickers considered that the respondent was entirely

unsuitable for clinical sedation as he was short and stocky with the potential for a difficult airway. Professor Stewart noted pointed (sic) out that the Faculty taught that in the case of a patient (such as [Patient G] there is a risk of partial airway obstruction for anatomical reasons alone.


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585. Dr Viljoen said that he was taught in the diploma course that by reason of his age alone a dentist should expect some degree of cardiovascular compromise.

586. The facts that the patient had high blood pressure, a thyroid

problem, a glass eye, a history of heavy drinking, a history of heavy smoking and an oxygen saturation level of 94% were all known to the respondent before he administered any sedation. They were all mentioned or alluded to in the pre-anaesthetic assessment form his nurse had completed. The history taken by the nurse also recorded a history that the patient had smoked 120 to 180 cigarettes a day. Although he was by then an ex-smoker, it is difficult to believe that any practitioner administering drugs that were capable of suppressing respiration would have thought that information irrelevant and not taken precautions to deal with the risk of respiratory compromise.

587. If the respondent did not appreciate the relevance of the

patient’s high blood pressure, obesity, previous alcohol intake, history of smoking and bruising (as Professor Stewart thought), in view of his training that would be surprising.

588. The unchallenged and uncontradicted evidence of Professor

Peter Klineberg, who taught physiology and history taking and examination in the Graduate Diploma in Clinical Dentistry (Conscious Sedation and Pain Control) at Westmead every year since its inception, and who would therefore have taught the respondent, shows that the significance of these matters should have been apparent to the respondent. His evidence demonstrates, amongst other things that the respondent knew or ought to have known that:

(a) High blood pressure is associated with cardiac

problems. (b) The thyroid is in the neck near the airway. (c) The glass eye raises other questions; it may indicate a

history of cancer or an accident resulting in multiple injuries.

(d) The alcohol history is indicative of alcoholism. (e) Past or current heavy drinking may be associated with

systemic disease and may be relevant to unsuitability for conscious sedation in a dentist’s rooms. It may give rise to a risk of alcoholic cardiomyopathy, liver disease and tolerance to sedatives. (Dr Kaplan’s evidence at the trial was that liver disease may give rise to a risk of increased bleeding.)


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(f) Past or current smoking may signify lung disease or other respiratory problems which may make the patient unsuitable for conscious sedation in a dentist’s rooms.

(g) The patient’s oxygen saturation level was only 94% (normal 98 or 99%) on room air. That in itself was indicative of abnormality of gas exchange in the lungs and of possible lung disease.

589. Dr Alcaino, who did the course at the same time as the

respondent, said he was taught that low oxygen saturations could indicate a cardiac history of concern as could other features such as obesity, age, unfavourable airway and a history of heavy smoking or drinking coupled with other signs indicating possible compromise to the patient should lead to assessment by a medical practitioner or, at least, reports being sought from the patient’s treating doctors.

590. Dr Vickers’s assumption that a general dentist would be

unaware that the respondent’s alcohol consumption would potentially cause liver damage or that his high blood pressure was cause for concern did not apply to a dentist who had undergone the diploma course in clinical sedation.

591. Dr Vickers noted that the respondent was not expert in the

effects of alcohol on liver disease, neurological or haematological status and as a general dentist lacked the ability to make an overall assessment of the patient’s medical suitability for such lengthy sedation. He appears to have been unaware of the nature of the respondent’s training on this issue. Even so, if the respondent lacked the ability to make such an assessment, all the more reason why he should have referred the patient back to his medical advisors for a full assessment.

592. The respondent conceded that [Patient G] had certain physical

attributes that could have affected his airways. 593. He also testified that he had been aware since before

graduation that anti-inflammatories and aspirin can cause more bleeding during surgery. He knew that the patient was on Voltaren, an ant-inflammatory drug, before he embarked on the procedure. Had he taken a proper history or made enquiry of the patient’s medical practitioner, he should also have elicited that he was taking aspirin.

594. The history elicited from the patient, no matter that it was

incomplete, was sufficient to put the respondent on notice that


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there were a number of significant risk factors that could make the patient an unsuitable candidate for conscious sedation. He was taught about those risk factors during the course. He was also taught that the risks multiply with the number of risk factors. Yet, the evidence indicates he did not do as he should and seriously question the patient’s suitability for conscious sedation. Rather, he treated the patient no differently from any other.

595. Professor Stewart strongly disapproved of the respondent’s

conduct in this regard, which plainly fell significantly below the relevant standard. His criticisms are well justified on the evidence.

Respondent’s Submissions re Particular (vi)



401. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to personally conduct the pre-anaesthetic assessment.



Particular (vii) – The Respondent authorised the administration of excessive quantities of sedative and anaesthetic drugs to the patient contrary to the Australian and New Zealand College of Anaesthetists and Royal Australasian College of Dental Surgeons guidelines in P.21 Sedation for Dental Procedures

HCCC Submissions re Particular (vii) 403. The HCCC made the following submissions with respect to this


596. This procedure was to be conducted under ‘conscious sedation’.

597. The objective of the technique of ‘conscious sedation’ is to

sedate the patient to a level where the procedure can be carried out without discomfort to the patient but where there is


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no loss of consciousness and rational communication with the patient is possible. To this end,

the drugs and the techniques used must provide a margin of safety which is wide enough to render unintended loss of consciousness unlikely.

598. If the patient were ‘consciously sedated’, despite his physique,

there should have been minimal or no problems maintaining the airway. Conscious sedation is to be distinguished from a state of general anaesthesia or deep sedation. Dr Kaplan, an anaesthetist, explained at the respondent’s trial that patients who are deeply sedated may wake up in response to significant pain and tend to obstruct the airway and those who are anaesthetised will not respond to any deep stimuli and will obstruct their airways.

599. P21 is a reference to the document published jointly by the

Australian and New Zealand College of Anaesthetists and the Royal Australasian College of Dental Surgeons entitled “Sedation for Dental Procedures”.

600. The document opens with a description of the techniques for

conscious sedation, the objective of which, it explains “is to produce a degree of sedation whereby rational communication with the patient is continuously possible, so that uncomfortable and/or stressful procedures may be facilitated.”

601. It sets out the reason for the risks attending the procedures. It

is noteworthy that amongst those risks are listed “the depression of protective reflexes” (1.1), “the possibility of excessive amounts of these drugs being used to compensate for inadequate local analgesia” (1.4) and “the individual variations in response to the drugs used particularly in the elderly or infirm” (1.5).

602. If the patient has a serious medical condition or danger of

airway compromise then P21 requires that an anaesthetist be present to monitor the patient during the procedure (2.2). There was plainly such a danger in this case.

603. What is more,

Techniques which compensate for excessive anxiety and/or for inadequate local analgesia by means of heavy sedation must not be used unless an anaesthetist is also present.


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604. Sedation for dental procedures and, in particular, the procedures the respondent undertook, involved administering drugs which cause depression of the central nervous system. A dental practitioner knows when administering a sedative that he is going to depress respiratory function.

605. As Professor Stewart explained,

Conscious sedation is about sedating the patient, making sure that they have no memory of the procedure and having profound local anaesthesia. It is not about having an unconscious patient as that is general anaesthesia. There is a serious risk of the patient losing consciousness with over dosage. [Emphasis added.]

606. The respondent administered fentanyl, midazolam and

propofol to sedate [Patient G]. The preponderance of the evidence shows that the patient was over-sedated and that the combination of drugs was “very likely to have caused unconsciousness”.

607. Fentanyl and midazolam were the appropriate drugs to use for

conscious sedation in a dentist’s rooms. Difficult patients should not be sedated in a dentist’s rooms. Loss of consciousness is beyond the desired sedation effect.

608. Fentanyl is an opioid used principally for analgesia and

sedation. Depression of respiration is its “most marked and dangerous side effect”. The manufacturer’s instructions stipulate that it should be used with caution in patients with (amongst other things) patients with decreased respiratory reserve or potentially compromised respiration in which patients opioids may further decrease respiratory drive and increase airway resistance.

609. The main action of fentanyl is as an analgesic and doses

should be titrated to a total of 100mcg, waiting for 2-3 minutes and examining the effect before administering further doses by titration as necessary and that sedation is achieved when the patient is calm and able to communicate although speech may be slurred.

610. Midazolam (Hypnovel) is a benzodiazepine. It is a short acting

sleep inducing agent for sedation for short procedures. All sedative drugs have an additive effect when used concurrently and in some cases a multiplicative effect.


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611. At doses sufficient to induce sedation intravenous midazolam reduces the sensitivity of the ventilatory response to elevated carbon dioxide tension in normal patients and in those with chronic obstructive lung disease. The latter are also “at special risk of hypoxia”. There was a significant risk of respiratory depression, apnoea, respiratory and/or cardiac arrest during intravenous administration of the drug. The manufacturer stipulated that lower doses were called for in certain cases including the elderly and those with limited pulmonary reserve because of the possibility of apnoea or respiratory depression. With a patient with a smoking history like [Patient G]’s, there must have been a high index of suspicion that he had chronic obstructive lung disease and was therefore at special risk of hypoxia. As his oxygen saturation levels were low before any drugs were administered the risk of respiratory depression was evident.

612. Propofol is a short acting intravenous anaesthetic agent

suitable for inducing and maintaining general anaesthesia in adults and children aged 3 years and over and can be used in adults for “monitored conscious sedation for surgical and diagnostic procedures”. The manufacturer’s instructions recite that when propofol is used as a sedative for surgical and diagnostic procedures, patients should be continuously monitored by persons not involved in the conduct of those procedures. The manufacturer also pointed out that, “as with other intravenous sedative agents, when propofol is given with central nervous system depressants, such as potent analgesics, the sedative effect may be intensified and the possibility of severe respiratory or cardiovascular depression should be considered and decreased oxygen saturation has been reported when propofol has been administered with fentanyl. The manufacturer noted that both opioids and benzodiazepines could increase the anaesthetic or sedative effects of propofol and may also cause more pronounced decreases in blood pressure and cardiac output. Accidental overdose is likely to cause cardio respiratory depression.

613. A total of 17mg of midazolam and 140mg of propofol were

administered to the patient. 614. In the case of midazolam the respondent was taught that:

a. the main aim of midazolam is to relieve anxiety and that was best achieved through titration of small doses (1 to 2mg then wait 3 minutes to see if that has the desired effect and, if not, to give further doses);


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b. the total amount of midazolam required to sedate a normal person is 5mg or less. That is consistent with the instructions issued by the manufacturer, which are that a total dose no greater than 3-5mg is usually required.

c. If the amount of midazolam keeps increasing beyond the normal dose help should be obtained.

d. If the dose exceeds 10mg then it may be wise to abandon the procedure.

615. As Dr Alcaino, a fellow student of the respondent, explained,

“if more is required, [t]his may raise questions as to the interaction with alcohol or other drugs impeding effective sedation on the amount of sedation drugs used. If more than 5 mg is required this may raise the question of underlying problems if a patient appears fit and well.

616. The dose of midazolam alone was therefore more than three

times that required to sedate a normal person. Dr Padley said he would have expected a dose of up to 5 mg but a lower dose should have been employed when the drug was used in conjunction with an opioid. Dr Berne’s comment that 17mg was “above average” is an understatement. Dr Padley described it as “excessive and likely to cause significant decrease in the patient’s level of consciousness, particularly with relation to [sic] the other drugs that were given”. Dr Kaplan, another anaesthetist, who had administered sedation and anaesthesia for dental surgery (including implant surgery) since 1994, and who also gave evidence at the trial, said that the dose of midazolam alone was excessive, that only a maximum of 5 mg was usually required and that he had never used more than 8 mg and that was for a procedure lasting 4 to 5 hours. Dr Gilbett described the dose of midazolam as “very large” and one which “in most people would cause unconsciousness”. Dr Hardwicke said it would be rare to use 15 mls of midazolam and he would not normally use more than 10mls of midazolam and no more than 50mcg of fentanyl. What is more, Dr Gilbett said that he taught the students that if more than 10mg were required it might be wise to abandon the procedure in the rooms. Dr Hardwicke said they were instructed in the Westmead course that if more than 15mls of midazolam were required, the case should proceed under a general anaesthetic in a hospital.

617. Similarly, the dose of propofol given after the initial midazolam

(5mg) would also be sufficient to cause unconsciousness in many people and it would be an exceptional patient who would


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not be unconscious with the combination of drugs administered after 8.18am. Dr Vickers said that 140mg of propofol would produce general anaesthesia. In his view, even a small dose could lead to loss of consciousness. In a patient (like this one) who weighed 96 kg, 20mg would have an anaesthetic effect. Dr Padley said that the propofol should have been administered in small doses and with caution. He said that the combination of drugs would be likely to cause the patient to lose consciousness and be unable to rationally communicate during the procedure with the risk that the patient may suffer airway obstruction and decreased ventilation and so become hypoxic, leading to brain and cardiac damage and, if not treated properly, death.

618. The respondent was taught that propofol was “rarely used in

conscious sedation and when it is used that it be given towards the end of the procedure and at very low doses.” Although he told the judge in his criminal trial that he did not know that propofol could cause anaesthesia until after the death of [Patient G], the respondent admitted in these proceedings that what he told the judge was false; he knew that propofol could cause anaesthesia. He was in fact taught that propofol was “an anaesthetic agent that can depress respiration.” He admitted to the Tribunal that he knew it had to be used in a very controlled way.

619. Although some are of the view that propofol could be used in

conscious sedation in dentistry, propofol’s margin for safety between sedation and unconsciousness is too narrow in the situation of the dentist operator/sedationist.

620. Dr Jackson, a periodontist who had used intravenous sedation

for about 20 years, said that both the number and dosage of drugs administered in this case were excessive and would have rendered the patient unconscious. His view was that that was what caused the prolonged hypoxia in this case.

621. Dr Padley, an anaesthetist experienced in dental procedures,

also gave evidence in the criminal trial that the doses of both midazolam and propofol were excessive and sufficient to cause a loss of consciousness or bring about semi-consciousness in a 67-year-old man.

622. In his written statement Dr Kaplan said that, although the

drugs were given incrementally and taking into account individual variation, the amount of drugs that the respondent gave the patient would have made the patient “either deeply


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sedated or in fact unconscious”. He testified that the combination of midazolam and propofol had a synergistic effect with the propofol potentiating the effects of the midazolam. The position was accentuated with the use of the opioid, fentanyl, which also causes respiratory depression, and by the administration of the nitrous oxide, which is an anaesthetic gas. He described the overdosage of medications as “a significant failing” which led to the “significant hypoxemia which eventually resulted in the patient’s death”.

623. Dr Viljoen’s evidence was to the same effect. 624. Even Dr Berne testified that he did not agree with the

respondent’s sedation regime, although he wrongly blamed the University for it. Alone of all the experts he preferred significant propofol use, although his technique differed from that used by the respondent. Like the trial judge, this Tribunal should dismiss his evidence.

625. The respondent now acknowledges that his drug usage was

excessive. Professor Stewart’s evidence was that “there is no respectable body of opinion” that would support the high doses of Propofol in this case. Having regard to the risks involved, like Professor Stewart, the Tribunal would be severely critical of the respondent’s drug regime.




405. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent authorised the administration of excessive quantities of sedative and anaesthetic drugs to the patient contrary to the Australian and New Zealand College of Anaesthetists and Royal Australasian College of Dental Surgeons guidelines in P.21 Sedation for Dental Procedures.




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Particular (viii) – The Respondent adopted a technique of administration of the drugs that was inappropriate for simple (conscious) sedation in his rooms

HCCC Submissions re Particular (viii) 407. The HCCC made the following submissions with respect to this


626. The respondent administered midazolam and propofol alternately.

627. Professor Stewart described the patient’s technique as “totally

wrong”. Dr Viljoen referred to it as “unusual” and “potentially very likely to cause loss of consciousness with all the dangers associated with the unconscious airway”.

628. In the evidence he gave during his trial the respondent

testified he was taught that:

a. Propofol was an IV agent that was used in the use of treatment of conscious sedation and it was used as a medication used intravenously titrated to effect.

b. Propofol could be used at the same time as midazolam.

629. The evidence contained in Exhibit Volume 7 shows that this evidence was, at best, misleading and, at worst, dishonest.

630. As Professor Stewart said, the Faculty of Dentistry had never

taught such a technique and he had never heard of it before this case. He explained:

We would never teach that because of the risk of respiratory depression potentially leading to cardiac arrest.

631. In fact, what the respondent had been taught was that it was

appropriate to administer 1 mg of midazolam every two minutes until the patient is sedated. That dose could be supplemented by a small quantity of fentanyl with a maximum over the whole case of 100mcg. What is more, if propofol is given it should be administered only in pre-anaesthetic doses of 10mg at 5 minute intervals and only after the midazolam and fentanyl are used.

632. Dr Vickers, who had not undertaken the Graduate Diploma

course in Clinical Dentistry that the respondent completed (‘the diploma course’), was apparently provided with little information about what the students were actually taught, and was not asked to comment on the additional material upon


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which the complainant relies in these proceedings. At the time he testified he was also under the assumption (which was plainly incorrect) that the diploma course “mandated” the use of propofol.

633. Dr Ian Sweeney, who undertook the diploma course at the

same time as the respondent, confirmed that he was taught:

a. The terms of P21 should be complied with at all times in providing conscious sedation.

b. The purpose of conscious sedation is to relax the patient; pain is controlled by local anaesthetic.

c. Long or difficult procedures or patients with problematic medical conditions should be considered for general anaesthetic.

d. Propofol should be used in a very controlled way and only after Midazolam administration has ceased, as an adjunct towards the end of a procedure.

634. Like Professor Stewart, Dr Sweeney stated that he had never

seen a protocol like the one that the respondent followed in this case and could not understand the rationale for using it. He added that it did not reflect what he was taught during his training at Westmead.

635. Similarly, Dr Hardwicke said that he had never been taught

during the Westmead course that it was appropriate to administer Midazolam and Propofol alternatively during a procedure in the way that the respondent did in this case.

636. Dr Alcaino’s evidence was to the same effect. 637. In short,

The amount, combination and titration of drugs . . . is not consistent with what [Dr Gilbett] has always taught in relation to administration of drugs for conscious sedation provided by a dentist in the dentist’s rooms.

638. At the respondent’s trial Dr Viljoen said he had taken the

diploma course, graduating in 1994. He testified that he was taught that:

a. Base line sedation was established with fentanyl and

midazolam; No propofol is given initially. b. If a little short deepening of the sedation was required

“mostly later on in the procedure” a “sub-anaesthetic


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dose of propofol” could be given. However, it is given alone and not together with midazolam.

c. If you administer midazolam and propofol together there is a synergistic effect (namely, the effect of each drug is potentiated by the other – the effect is not additive but multiplicative), the effect is on the depth of sedation and loss of consciousness will “almost certainly” occur.

d. P21 was a practising guideline.

639. The respondent now admits that his technique was inappropriate for conscious sedation in his rooms and he admits that it was wrong in the way in which Professor Stewart indicated in his statement.

640. The respondent’s technique was a complete departure from

what he had been taught. It also follows that his statements to the opposite effect at his trial were untrue.

641. Having regard to the whole of the evidence, it is unlikely that

the respondent understood much, if any, of what he was taught. If he did, he failed to put it into practice. He is extremely fortunate that [Patient G] was the only patient to have died following one of his procedures.

642. Again, the respondent’s conduct fell significantly below the

standard reasonably expected of a dentist of his training or experience. In this particular respect, his conduct was seriously deficient.

Respondent’s Submissions re Particular (viii)


Tribunal’s Findings re Particular (viii)

409. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent adopted a technique of administration of the drugs that was inappropriate for simple (conscious) sedation in his rooms.


judgment possessed and the care exercised by the Respondent in the


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practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (ix) – The Respondent failed to take proper account of the patient’s oxygen saturation levels prior to commencing the procedure

HCCC Submissions re Particular (ix) 411. The HCCC made the following submissions with respect to this


643. Before the procedure started the patient’s oxygen saturation was 94%. That was at least 4 percentage points below the norm. The respondent knew that. He claimed that there were reasons that might explain that such as motion artefact, cold fingers and poor peripheral circulation, slippage of the finger probe and pressure on the finger causing reduced blood supply. He did not state what, if anything, explained the situation in the present case, nor whether he checked. However, in cross-examination he admitted that lung disease will reduce oxygen saturation and he said he concluded that the 94% oxygen saturation was likely to be related to the patient’s history of heavy smoking and that he had “some damage” to his lungs, “some degree” of compromised lungs or airways.

644. What is more, by the time the procedure started, the oxygen

saturation level had dropped to 86%. In the circumstances, it is difficult to understand why he went any further. The respondent was taught that sedation should not be administered if the patient’s oxygen saturation level was 94% at the commencement of the procedure but that the patient should be referred to his general practitioner for a full medical examination and lung function testing.

645. The other witnesses confirm Professor Stewart’s evidence. Dr

Alcaino stated that

a fit and healthy patient should present with oxygen saturation levels of 98-100%. Less than 95% is cause for concern. If the level is below 95% at assessment or commencement of the procedure further medical investigations should be considered.

646. Commencing sedation at 94%, let alone 86%, was conduct

that fell significantly below the standard reasonably expected of a practitioner of the respondent’s training or experience. This, too, is a lamentable error, attracting Professor Stewart’s strong disapproval.


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647. As the patient was 67, the respondent “had to expect that [he]

would have had some degree of cardiovascular compromise and therefore [that] extra care [would need] to be taken to avoid hypoxemia”(an abnormal deficiency in the concentration of oxygen in arterial blood). The evidence indicates that no such care was taken.

648. It is difficult to understand why the respondent elected to start

the procedure in all the circumstances. He had been taught about the oxyhaemoglobin dissociation curve. He knew that operating at above 95% oxygen saturation was the safe operating zone.

649. Dr Jackson said that the starting number of 94% concerned

him and he would have wanted to see whether it could be improved before starting the procedure. In such a situation, he testified at the manslaughter trial that he would warm the patient up and give him pure oxygen instead of room air to see whether he could get a better base line oxygen saturation before starting the procedure. Yet, the respondent was plainly content to start with the patient at 94% oxygen saturation and had fallen to 86% at the very time he proceeded to administer the first dose of midazolam.

650. Once more, and with every justification, Professor Stewart

strongly disapproved of the respondent’s conduct in commencing the procedure in all the circumstances. The Tribunal would be of the same mind.

Respondent’s Submissions re Particular (ix)


Tribunal’s Findings re Particular (ix)

413. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to take proper account of the patient’s oxygen saturation levels prior to commencing the procedure.




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Particular (x) – The Respondent set the pulse oximeter at an inappropriately low level

HCCC Submissions re Particular (x) 415. The HCCC made the following submissions with respect to this


651. The respondent set the pulse oximeter to sound an alarm when the patient’s oxygen saturation fell below 90%.

652. An oxygen saturation level of 90% is “not adequate” A 90%

oxygen saturation represents a reduction to about 60% in the actual partial pressure of oxygen in the tissues.

653. The respondent testified at his trial that he was taught that “the

pulse oximeter could be set at a reading of 90% as a minimum”. He said Professor Stewart had told him that it was his opinion that it was safe to operate at a reading over 90. Professor Stewart denied he had ever given any such indication, and it is highly unlikely he did.

654. First, all the pulse oximeters in the Department Professor

Stewart ran were set at a minimum of 94%. Secondly, 94% is the international standard. Thirdly, after that point there is a rapid steep descent on the oxygen-haemoglobin dissociation curve. Fourthly, he considered the patient is hypoxic below 90%. Fifthly, no other witness gave evidence that he set the alarm at such a low level.

655. In addition, the respondent’s testimony that he was taught to

set the pulse oximeter at 90% is directly contradicted by the evidence of Professor Stewart and of Dr Hardwicke, which the respondent elected not to challenge.

656. In the circumstances, the respondent’s account at his trial

cannot be accepted and it is highly unlikely to be true. 657. What is more, as he admitted at his trial, the respondent was

taught that operating above 95% oxygen saturation was a safe operating zone and it was important to work within a margin of safety. Dr Berne told the Court that if an event like a heart attack occurs, then the tissues in the body are depleted of oxygen and lack the reserve capabilities to survive putting the patient at a much higher risk of death. He continued:


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That’s why we like to have the oxygen saturation as high as possible. In the event of an untoward episode then there’s much more scope to recover.

658. In all the circumstances, the evidence the respondent gave at

his trial is almost certainly false. The more likely scenario is that did not actually alter the default setting on the machine. Ultimately, he could not remember whether he had.

659. In this respect, too, the respondent’s conduct fell significantly

below the standard and attracted the strong disapproval of the peer reviewer.

Respondent’s Submissions re Particular (x)


Tribunal’s Findings re Particular (x)

417. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent set the pulse oximeter at an inappropriately low level.



Particular (xi) – The Respondent failed to adequately monitor the patient or ensure that the patient was adequately monitored during the procedure

HCCC Submissions re Particular (xi) 419. The HCCC made the following submissions with respect to this


660. There is unanimity of opinion that the patient’s airway would have been difficult to manage for a variety of reasons, including his physique and his history of alcoholism. That required a high degree of vigilance in monitoring and caring for him during the procedure to ensure that he did not suffer airway obstruction. He was also at high risk of airway obstruction due to his smoking history. Yet, the respondent did not manage him with the necessary degree of vigilance.

661. The respondent maintained that every effort was made to

keep oxygen saturation over 90% although, even he conceded at that he had been taught that a safe operating zone was


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above 95% and at Westmead all procedures are carried out when the patient’s oxygen saturation levels are in the range of 97-100%.

662. Again, it is difficult to understand why the respondent behaved

as he did. At the time he knew that a fall from 100% to 90% oxygen saturation represented a severe fall of oxygen partial pressure. He knew that at 83% oxygen saturation the oxygen partial pressure in the blood is 50 mm of mercury or a loss of half the oxygen carrying capacity of oxyhaemoglobin. He knew that when administering intravenous sedation the oxygen saturation should be maintained as high as possible. He agreed he had been taught to look for trends in oxygen saturation. He agreed he had been taught that if oxygen saturation levels dropped from normal by two or three percent he should stop and investigate what was going on. Yet, he only stopped to investigate if the pulse oximeter sounded, and that only occurred when the oxygen saturation levels fell below 90%. Although he owned a copy of Professor Woods’s textbook – Guide to the Use of Drugs in Dentistry 12th edition - at the time he treated [Patient G], and had read the book before he treated him, and although he had read in the book that persistent lowering of oxygen saturation to less than 93% (even though corrected by oxygen supplementation) was an indication that the procedure should be terminated, he chose to ignore it.

663. In this respect, too, the conduct fell significantly below the

standard and was justifiably the subject of the strong disapproval of the peer reviewer.

Respondent’s Submissions re Particular (xi)

420. The Respondent submitted with respect to this Particular that ‘it was plainly open’ to him ‘contest’ this Particular, but he has ‘knowingly waived that right’. The Respondent submitted that this was demonstrative of contrition. The general submission made by the Respondent is set out above.

Tribunal’s Findings re Particular (xi)

421. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the


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Respondent failed to adequately monitor the patient or to ensure that the patient was adequately monitored during the procedure.



Particular (xii) – The Respondent failed to take adequate action when the patient’s oxygen saturations dropped to a clinically unacceptable level

HCCC Submissions re Particular (xii) 423. The HCCC made the following submissions with respect to this


664. The evidence indicates that the patient’s oxygen saturation was recorded as below 95% 18 times and below 90% 11 times and, as the alarm was set to sound at that point, it must have sounded on each of those occasions. Half the recorded figures fell below 90% and between 0835 and 0930 two-thirds were below 90%.

665. The respondent gave evidence that the oxygen saturation

levels became clinically unacceptable every time they fell below 90%and that he never continued operating on the patient until he was satisfied that the reading was over 90%.Yet, if a safe operating zone is above 95%, surely it was clinically unacceptable for the patient’s oxygen saturation to fall below 95%. The evidence of Drs Alcaino, Hardwicke and Sweeney (referred to above) supports such a conclusion. So does the evidence of Professor Stewart.

666. The respondent testified at his trial that Professor Stewart told

him that it was safe to operate at a reading over 90%. 667. No evidence was adduced from Professor Stewart at the trial.

In these proceedings Professor Stewart denies telling the respondent any such thing and he was not required for cross-examination. The Tribunal should find that the respondent’s evidence at his trial was false and that he should affirmatively have satisfied himself that it was safe to operate below 95% oxygen saturation and not just above 90%.

668. Dr Viljoen described a saturation level of 95% and above as

“normoxemic (a normal safe reading), 94% as mildly hypoxemic, 93-90% as moderately hypoxemic and below 90% as “an acute hypoxemic crisis”. In a version of the above table


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that appears in his report he notes that only four of the oximeter’s readings were “OK”, four “mildly hypoxemic”, four “moderately hypoxemic” and 11 “critically” so. He pointed out that, as the patient was in cardiac arrest at 0950, the reading at that time of 99% must be false.

669. Dr Kaplan wrote that the multiple episodes of hypoxemia and

the need for jaw support rendered it “prudent for the dentist to stop the procedure and allowed for the patient to recover”. He pointed out that the opportunity to do that arose when the respondent had completed the placement of the implants in the mandible. Continuing onto the maxillary implants, he said, demonstrated a lack of judgment.

670. Dr Vickers noted that the high blood pressure readings tie in

with episodes of desaturation and noted that after 8.50 am both blood pressure and oxygen saturation continued to be unstable. He attributes the instability partially to “hypoxia in the face of physical obstruction by blood clots in the airway or adding to the problem and over-sedation” (emphasis added). His exculpatory comment that “a general dentist does not have the training, study or experience to appreciate the situation Dr Pegios was getting himself into” is contradicted by the extensive evidence adduced in these proceedings about the nature of the training the respondent received in his diploma course and the evidence of his peers.

671. The most common causes of oxygen desaturation are

obstruction, partial obstruction and over-dosage of sedative drugs. All those conditions are “readily reversible” provided they are recognised early.

672. The respondent told the District Court that many times the

figures would have been related to artefact because the patient was moving his arms.

673. Whilst some of the readings could have been artefacts, it is

unlikely that so many of them were. As Dr Vickers said, practitioners rely on the readings from the machines and artefacts do not often occur. Further, you don’t tend to record artefacts. The correlation between high systolic blood pressure and low oxygen saturation readings at 8.35 and 8.50 indicate that the readings at this time were not artefacts.

674. Because both midazolam and propofol are respiratory

depressants and were given in such large doses, Dr Viljoen’s opinion that there is a high probability that consciousness was


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lost on many of the occasions the two drugs were given simultaneously is likely to be correct. It is supported by the account that Ms Gaudron gave of the patient having to be “constantly roused from unconsciousness” to be given further sedation. That, too, makes the chances of so many artefacts very low.

675. Because artefacts can occur, the practitioner is expected to

use a second monitor. Indeed, that is what he was taught. 676. If oxygen saturation levels consistently fall below the alarm

level, yet appear to return to an acceptable level and then fall again, sedation may be too deep or there may be another unidentifiable medical problem.

677. The respondent claims to have given the patient supplemental

oxygen. However, the Anaesthetic & Recovery Chart records that ventilation was “spontaneous” and the respondent conceded that had he given supplemental oxygen the patient’s oxygen saturation level would not have dropped from 94% (the measurement during the pre-anaesthetic consultation) to 86% (the measurement at the start of the procedure). Moreover, when the ambulance officers arrived the patient was not receiving supplemental oxygen. Failure to administer supplemental oxygen is significantly below the relevant standard and attracted Professor Stewart’s strong disapproval.

678. In the first half hour or 40 minutes the respondent said in

evidence at his trial that the patient exhibited agitation by moving his head around, grunting, moving his arm several times while he was cutting the gum.

679. There are four recognised stages of anaesthesia:

(i) Analgesia; (ii) Delirium and excitement; (iii) Surgical anaesthesia; (iv) Respiratory paralysis.

680. It is “of paramount importance” that anyone administering clinical sedation is able to readily identify the stage of anaesthesia reached. If the second stage (delirium and excitement, where the patient becomes excited or restless) is not recognised when the patient enters it, it is possible that the excitement is misinterpreted as insufficient anaesthesia or sedation and the practitioner then tries to increase the depth of sedation or anaesthesia causing the patient to slide into the


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third stage of surgical anaesthesia. It is more likely than not that this is what happened in the present case. Dr Jackson said the increasing restlessness of the patient is “a classic sign of hypoxia”.

681. The manifestations of midazolam overdose include confusion.

Propofol can cause involuntary movements. As Dr Vickers pointed out in his report, the chief cause of the restlessness the patient displayed, is hypoxia. In oral evidence at the trial he described it as “a classic symptom of hypoxia”. He also said that confronted with such a symptom you would want to make sure that the airway was clear and you would not administer further sedation until the hypoxia was “clear”. Hypoxia is “the number one concern”. Yet, repeatedly the respondent followed falls in oxygen saturation with additional doses of midazolam and propofol.

682. More likely than not the respondent misread or misjudged the

signs. He admitted that he knew before he treated [Patient G] that it was important to recognise that excitement might be incorrectly identified as insufficient sedation, although he denied that that is what he did. Despite his denial, it is likely that he incorrectly interpreted the movements of this patient in that way and the care, skill and judgment he should have exercised were seriously lacking.

683. When the patient lost consciousness, the respondent should

have allowed the patient to regain such a level of consciousness that would facilitate rational communication and maintain it and, if that were not possible, he should have abandoned the procedure.

Respondent’s Submissions re Particular (xii)


Tribunal’s Findings re Particular (xii)

425. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to take adequate action when the patient’s oxygen saturations dropped to a clinically unacceptable level.


judgment possessed and the care exercised by the Respondent in the


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practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

Particular (xiii) - The Respondent failed to terminate the implant procedure in a timely manner

HCCC Submissions re Particular (xiii) 427. The HCCC made the following submissions with respect to this


684. The failure to terminate the procedure when the oxygen saturation levels repeatedly fell to clinically unacceptable levels was also significantly below the relevant standard and the subject of strong disapproval.

685. Dr Viljoen disapproved of the procedure continuing beyond

8.35 from which time he considered the patient was “mostly hypoxemic”. By 0900 he thought he would have lapsed into unconsciousness as a result of the excessive administration of the combination of drugs the respondent had given him.

686. Dr Jackson said the procedure should have been terminated

after 0840 and certainly should not have continued after 0900. Both Dr Padley and Dr Kaplan considered that the respondent should not have proceeded after 0900.

Respondent’s Submissions re Particular (xiii)


Tribunal’s Findings re Particular (xiii)

429. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to terminate the implant procedure in a timely manner.




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Particular (xiv) – The Respondent failed to ensure that the resuscitation of the patient was appropriately carried out

HCCC Submissions re Particular (xiv) 431. The HCCC made the following submissions with respect to this


687. When the patient’s oxygen saturation level had hit 63% the situation was certainly critical. At that point every effort should have been made to resuscitate the patient and if the situation continued for three or four minutes an adverse outcome is almost guaranteed. But the respondent continued with the surgery for another five minutes and the resuscitation efforts were seriously deficient.

688. The respondent administered no reversal drugs. If CPR had

indeed commenced, it had ceased by the time the ambulance officers arrived. The patient’s airway was not then supported. There was no oxygen being supplied to him beyond normal room air and no-one was administering external cardiac compression. Yet, the defibrillator showed that his heart was at a standstill.

689. Dr Padley reported that the arrest was “poorly managed”. He

thought the self-inflating bag should have been available in the same room as the patient and considered it was of concern that the dental assistant was asked to ventilate the patient.

690. Dr Padley also wrote:

The patient was in asystole which is a non shockable rhythm and trying to defibrillate this rhythm was a waste of valuable seconds or minutes. The treatment of asystole due to hypoxia requires the establishment of an airway, adequate ventilation, external cardiac compression, adrenaline and atropine. None of these treatments were occurring until the arrival of the ambulance officers.

691. Similarly, Mr Thompson, the ambulance officer, said he would

have expected the respondent to have administered adrenalin once the patient was in cardiac arrest. Before the defibrillator was used, he said, that could have been ascertained by checking that the patient was unconscious, not breathing and had no central or carotid pulse. At that point the priority would be to apply the debrillator, confirm that it is a non-shockable rhythm and immediately commence CPR and provide adrenalin.


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692. If the bag had been attached to the oxygen cylinder it would

have delivered 100% oxygen to the patient. 693. What is more, Mr Thompson told the coroner that there was

no indication that the upper airway was being properly managed. If so, the patient would have been in a more supine position. In the position in which the officers found the patient it would be nearly impossible to manage the upper airway.

694. When he was performing laryngoscopy, Phil Parry, the other

ambulance officer, found blood both above and below the vocal cords. He mentioned the presence of fresh blood below the vocal cords to his colleague, Mr Thompson. Mr Thompson said that he found it “remarkable” that the blood was below the vocal cords, “because reflex would usually prevent this”. That finding was indicative of the fact that the patient had lost his gag reflex, a strong reflex that normally prevents any fluid going that far past the vocal cords and into the lungs.

695. The fact that blood was found in the airway indicates that the

patient’s cough reflex had been obtunded (blunted) and shows that the patient’s airway had not been adequately protected. Yet, as Dr Vickers told the Court, maintaining the airway is paramount in sedation.

696. It was the dental assistant who was asked to “hold onto the

mask and do the pumps” not long after 0945 when the patient’s oxygen saturation had fallen to 63%. It was inappropriate for a dental assistant to manage the airway of an unconscious patient with extremely low saturation levels by herself.

697. The respondent was taught that the person most skilled in

resuscitation should be in charge of the airway and maintaining it, which will require emergency bagging equipment if the patient is not ventilating. Dr Alcaino confirmed this. Leaving the airway to the nurse and taking on the cardiac compressions as he did is not consistent either with what he was taught. Dr Viljoen’s evidence at the trial was to the same effect.

698. Further, the respondent was taught to use reversal drugs.

However, no reversal drugs were administered until the ambulance officers arrived, but by then it was too late. Yet, “part of the chain of survival that the Australian Resuscitation Council recognizes that advanced cardiac life support is


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provided in a timely manner”. Professor Stewart described the respondent’s failure to use reversal drugs as “incomprehensible” and significantly below the standard reasonably expected of a dental practitioner of the respondent’s training or experience. As he explained, the patient’s oxygen saturation levels had dropped and he was unresponsive. Standard practice in those circumstances is to reverse the likely effects of the sedative agent and the opioid.

699. Dr Ken Harrison, who taught the respondent about these

matters in the diploma course, also said that he taught the students to look for signs of breathing by feeling for air entering and leaving the nose or mouth using either fogging on a clear mask or feeling it on his wrist by holding his wrist near the patient’s nose or mouth. Yet, the respondent used a stethoscope to determine signs of life. He also looked at the ECG but does not state that he checked the patient’s pulse to determine the presence or absence of circulation. Yet, he was taught to do that, too. In an emergency, it is important to know whether the blood is circulating in the body and that knowledge is acquired by determining whether the patient has a pulse.

700. The other students confirmed the teaching in their statements. 701. These were serious omissions. Dr Kaplan’s opinion was that if

adequate resuscitation had taken place continuing hypoxemia would not have occurred and the patient’s life may have been spared.

702. When the respondent was questioned about this issue,

despite his admission and despite the weight of the evidence against him, he was unable to identify what he had failed to do.

Respondent’s Submissions re Particular (xiv)


Tribunal’s Findings re Particular (xiv)

433. The Tribunal finds there is more than sufficient evidence to support the admission of the Respondent with respect to this Particular. The Tribunal accepts the submissions of the HCCC set out above as to the factual summary. The Tribunal is reasonably satisfied that the Respondent failed to ensure that the resuscitation of the patient was appropriately carried out.


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434. The Tribunal finds the conduct demonstrates that the judgment possessed and the care exercised by the Respondent in the practice of dentistry was significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience.

HCCC’s Summary with respect to Complaint 7A and 7B

435. The HCCC provided a summary of the evidence with respect to Complaint 7 in paragraphs 703 – 710 (footnotes omitted):

703. From the first consultation with this patient to his last dealings

with him the respondent’s conduct revealed serious shortcomings, some more serious than others. The tragic outcome was entirely avoidable. All that was necessary was that the respondent put into practice what he was taught. Considering that he had completed the diploma course in clinical sedation, the details of which are well described in the evidence and which are not challenged, his conduct is inexplicable. The evidence shows that in numerous respects the way the respondent conducted himself was in defiance of what he had been taught. The evidence he gave at his trial to the contrary must now be rejected, save to the extent that it reflects adversely on the respondent’s credit.

704. Dr Padley and Dr Vickers considered that the patient was only

“an acceptable candidate for light conscious sedation, with especially vigilant monitoring and care”; he received neither. Dr Vickers thought that “conscious sedation was actually contra-indicated in oral surgery and most forms of dental implantology because so much noxious stimulae is produced”.

705. Only Dr Berne defends the respondent’s conduct. However,

his view is at odds with all the other evidence in this case. Much of the evidence upon which the complainant relies was not brought to his attention. Indeed, he was not briefed with any of the material relating to the [Patient G] complaint that came into existence after the trial. That included the statements from the teachers and fellow students. His opinion should be rejected. Even the respondent, himself, by his admissions, has eschewed reliance on it.

706. Dr Vickers was misled by the false assumption that “the

sedation was performed in conformity with the technique taught to Dr Pegios by the Sydney University Dental School.”

707. The weight of evidence shows that, given the patient’s low

oxygen saturation readings before the procedure started and the likelihood of airway disease, the respondent should never


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have embarked upon the procedure in the first place, especially without a full report on the patient’s medical history. The respondent’s cursory attention to the medical history in the case of a patient with [Patient G]’s profile is reprehensible. The quantity of drugs he used and the technique of administration flew in the face of what he had been taught, as did his decision to use 90% oxygen saturation as his baseline. Even his resuscitation technique was defective and ignored what he had been taught. In fact, every aspect of his conduct fell significantly below the standard reasonably expected of a dental practitioner of his training or experience. He conceded that he is guilty of unsatisfactory professional conduct. He also conceded that his practice in relation to this case was dangerous. His conduct attracted the strong disapproval of Professor Stewart, who supervised his training. Professor Stewart was strongly critical of every aspect of the respondent’s conduct. He concluded that:

Dr Pegios did not conduct himself to the standards required of safe practice in this case. I believe that the case should have been terminated very early due to the low oxygenation saturations. In fact, I would not have commenced the treatment without a cardiology report and a haematology report (coagulation studies etc). Dr Pegios was taught how to assess a patient and when it is safe to proceed during his candidature in the Graduate Diploma in Clinical Dentistry (Conscious Sedation & Pain Control), the University of Sydney. In multiple respects Dr Pegios did not meet the acceptable standard of care as accepted by his peer group and I can attest this in my position as the President-elect of the International Federation of Dental Anaesthesiology Societies and Honorary Secretary of the Australian Society of Dental Anaesthesiology. I strongly disapprove of Dr Pegios’s standard of care. The unfortunate outcome could have been remedied well before this incident by pre-operative medical examination and recognition of the relevance of low oxygen saturations. I also must remark from the evidence that he did not seem to understand the rudimentary elements of crisis resource management. I have no doubt that my colleagues of good repute and competence would share my opinions.

708. The respondent declined to cross-examine Professor Stewart.

In those circumstances, the Tribunal should not give any weight to the opinion to the contrary from Dr Berne.


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709. What makes matters worse is that when he was called to

account for his handling of this case first at his trial and then to the Health Care Complaints Commission, he was neither frank nor honest about it.

710. The Tribunal would be reasonably satisfied that the

respondent’s conduct of this case amounts to professional misconduct in that it is of a sufficiently serious nature to justify his suspension from practice or the cancellation of his name from the register.

Respondent’s Summary Submissions.

436. The Respondent’s submissions regarding this Complaint have been set out above.

HCCC submissions in reply

437. At paragraphs 33 to 43 of the submissions in reply, the HCCC made the following submissions with respect to this Complaint:

33. The submission first made (at p 23) that the respondent

sought to “narrow the matters in issue by conceding the validity of the District Court’s finding that he was guilty of professional negligence” is disingenuous. The deficiencies in the respondent’s management of this case were many and varied; they covered every aspect of the patient’s treatment. Many were not the subject of evidence in the criminal proceedings. Much of the evidence presented to the Tribunal was not available to the District Court. And the respondent had misled the District Court into making its finding.

34. Although it is true that ultimately the respondent admitted all

the particulars, it soon became apparent that many of the admissions were hollow.

35. The respondent seeks to mitigate the seriousness of the

deficiencies in his conduct in relation to his conduct with respect to [Patient G] by pointing to what is characterized as:

a. the unforeseeable and unimaginable (to any dentist)

conduct of the patient in concealing his true medical conditions and medications (indeed, that he would lie about them); and

b. the respondent’s lack of medical competence to handle the emergency that developed, although the legislation permitted and continues to permit medically-incompetent practitioners to act as operator/sedationists.


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36. The respondent’s allegation that [Patient G] concealed his true

medical conditions and the medications he was taking ignores the evidence of Professors Klineberg [Ex Vol 7.30] and Stewart [Ex Vol 7.10] and does not deal with the submissions of the complainant at paragraphs 572 – 580. In effect, the respondent advances the absurd proposition that a patient should be able to ascertain what information the practitioner needs to know. [Patient G] did not conceal his medical conditions or his medications; he had no reason to hide the information. It is preposterous to suggest that he lied to the respondent. The Tribunal should expressly find that there is no basis for such a conclusion. The respondent was at fault for not eliciting the full history. To again blame the patient in these circumstances undermines the respondent’s contention that he has learned from his mistakes.

37. As for the argument that it is the law that was at fault, and not

the respondent, the respondent held himself as competent to take on the dual roles of operator and sedationist. He was at the time an experienced practitioner, who should have ensured that he had the skill, knowledge and equipment to handle any foreseeable emergency. Similarly, his support staff should have had the expertise to fully discharge their responsibilities in such a situation. Bearing in mind that he was not medically trained, the respondent had an obligation to scrupulously adhere to what he was taught. If he had done so, this tragedy could have been avoided. It should be of considerable concern that he seeks to minimize his responsibility by reference to the fact that he was not acting illegally.

38. The submission made at page 24 that the respondent

demonstrated his contrition by choosing not to contest certain particulars is flawed. Contrition might have been evidenced if admissions to that effect had been made well before it became obvious that the complainant could prove its case. By the time the respondent made these admissions the evidence against him was overwhelming.

39. It is important to remember that the evidence before the

Tribunal in relation to many aspects of the respondent’s conduct in this case is much more extensive than it was in the criminal proceedings. The unchallenged statements of those teaching and undertaking the diploma course refer to the wide range of issues covered and the cautious approach to sedation advocated because the students were not medically


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trained. That evidence (to which the respondent does not even refer in his submissions) exposes the weaknesses of the respondent’s arguments.

40. At page 26 the respondent refers to the statutory definitions of

unsatisfactory professional conduct and professional misconduct and submits that there are four degrees of deficient professional conduct to be considered in any dental disciplinary inquiry:

a. conduct that is below the relevant standard; b. conduct that is significantly below the relevant

standard; c. conduct that is so significantly below the relevant

standard as to justify suspension; and d. conduct that is so significantly below the relevant

standard as to justify deregistration.

41. The complainant accepts that ultimately the Tribunal must determine whether the respondent is currently fit to practice dentistry. However, the submission that “the Tribunal does not inquire into these complaints in order to judge the respondent’s knowledge, skill, judgment or care in the period between August 2002 and August 2005” is completely wrong. That is precisely what the Act requires of the Tribunal. Any failure on the part of the Board to suspend the respondent has no bearing on whether the respondent is guilty of professional misconduct, just as any decision on its part that he was guilty of professional misconduct could not bind the Tribunal. There may be many reasons, some legitimate some less so, why the respondent has not been suspended. This Tribunal must make a determination about the complaint based upon the evidence before it.

42. The respondent does not concede that his conduct in this case

amounts to professional misconduct. He submits that it is properly characterized as unsatisfactory professional conduct. He observes that the delay in consideration of his conduct for such an unconscionable period:

lies with the professional bureaucracy, which has never conducted itself as if there were any need for alacrity, much less urgency, in determining whether Dr Pegios had so conducted himself as to warrant intervention at any earlier time. Plainly, whatever the seriousness of the 2002 events, they are cast into a totally different light some seven years later. There is a clear analogy with the legal


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doctrine of estoppel: the complainant has condoned, by its conduct, the situation where Dr Pegios has been held out to the community as a competent practitioner. If his past conduct was such as to justify his disqualification, why has the public interest not been acted upon until now? (page 27)

43. The submission is also disingenuous. First, it is obvious why

there was a delay in bringing these matters before the Tribunal. The [Patient G] complaint was received on 31 March 2003 during the police investigation. It took three years before the inquest was held and the trial did not conclude until 23 June 2008. The complaint was filed in the Tribunal only two months later. What would the respondent have said if the complainant had chosen to prosecute this complaint while the inquest was pending or he was awaiting trial? It was scarcely unreasonable of the complainant to await the outcome of those proceedings. What is more, the sheer number of complaints and the statutory processes in which the Board and the complainant were bound to follow no doubt also contributed to the delay. The analogy with estoppel is misconceived. This is a protective jurisdiction. The Tribunal is not bound by anything the Board or the complainant may have done or not done.

Tribunals Findings re Complaints 7A and 7B (Patient G)

438. The Tribunal notes the Respondent’s opening submission with respect to consideration that should flow from the effluxion of time since the incidents complained of occurred. The Respondent indicated this submission as generally applying to all of the Complaints, in particular to Complaints 6 and 7. The Tribunal repeats its view that the effluxion of time does not influence the characterisation of the conduct; rather it is a factor that may be considered in the second stage of this Inquiry. The Tribunal accepts the submissions in reply made by the HCCC (see particularly paragraphs 4, 7 and 8) with respect to this matter.

439. Also on page 3 of the Respondent’s submissions in this initial section

dealing with the Complaint relating to Patient G, the Respondent makes reference to the ‘experts’ joint report’ in the context of indicating acceptance of a finding of unsatisfactory professional conduct said to have been made by the ‘experts’. The Tribunal notes that the Expert Conclave did not consider the Complaint with respect to Patient G at all. It is therefore not possible for the Respondent to have accepted the view of the ‘experts’ joint report’.

440. The Respondent’s submissions regarding the delay in bringing this matter to the Tribunal as indicating any intervention was unwarranted is rejected. This Tribunal has dealt with the matter expeditiously after


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referral. The Tribunal has no control over the process pre-referral. Thereafter the Tribunal has fulfilled its obligation and the matter has thereafter been scheduled substantially around Counsel’s availability.

441. The Tribunal notes that in the intervening period there has been a criminal prosecution of the Respondent and a coronial inquiry into the circumstances of Patient G’s death.

442. The Tribunal notes with respect to the delay in this matter reaching the

Tribunal, that Ebsworth & Ebsworth solicitors, acting on behalf of the Respondent, wrote to the Registrar of the Board on 15 May 2003, noting that the subject matter of Complaint 7 was being investigated elsewhere and stated ‘Accordingly, we respectfully submit procedural fairness dictates that the Board agree to stay its investigation pending the outcome of the Coronial investigation’ (exhibit volume 12, tab – 8).

443. The main thrust of the balance of the Respondent’s submissions with

respect to this Complaint was that the failings of the Respondent in treating Patient G:

…. were certainly serious, and amounted to unsatisfactory professional conduct, but do not satisfy the test of professional misconduct.

444. The Tribunal notes the Respondent initially made the following

admission (exhibit R11A) with respect to this Complaint: ‘That he was guilty of professional negligence in his treatment of the patient, as found by Murrell J in the matter of DPP v George Pegios.’

On 1 April 2009, the Respondent repeated this last admission and added:

‘…further, the respondent admits that he was guilty of unsatisfactory professional conduct within the meaning of section 41 of the said Act…’

In the Admission provided to the Tribunal on 20 April 2009 (exhibit R11B) the Respondent stated that he:

‘…admits the allegations of facts made in particulars (i) to (xiv) inclusive of Complaint 7A’.

445. The Respondent submitted that it was ‘unforeseeable and unimaginable (to any dentist) conduct of the patient’ to conceal ‘his true medical conditions and medications’. However, the Tribunal has


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found several failings in the Respondent’s conduct with respect to obtaining and recording the medical history of this patient. The Respondent’s own documentation, the ten page ‘Consent Form’ clearly states that it as ‘an absolute necessity!’ to obtain a medical clearance. The form then went on to state ‘We will request medical clearance from your medical doctor’. Further in his evidence, the Respondent conceded that at the time he gave the forms to Patient G he had no intention of obtaining medical clearance from his doctor. Dr Fleming noted that there is no signed record of the patient’s details, medical or dental history. The Respondent agreed that he had provided these forms to the patient (T771-2):

446. In evidence before the Tribunal, the Respondent stated that he

provided the ‘Implant Comments form’ was part of the ‘Consent Form’ to patients in order to provide them with information for the purpose of obtaining informed consent. The Tribunal notes that the pages of the form are numbered consecutively. Despite the wording of the ‘Consent form’ under the heading ‘Medical Examination’ the Respondent stated that he only obtained medical clearance for some patients, and for none of the patients subject of the current Complaints before the Tribunal, and denied that this conduct was deceitful. (T771 – 773)

447. The Respondent also submitted that the Tribunal should consider the

‘respondent’s lack of medical competence to handle the emergency that developed’ as a mitigating factor. The Tribunal notes that the Respondent gave evidence that he considered the RN Gaudron to be ‘medically trained’ and therefore he was able to delegate the task of completing the pre-anaesthetic assessment to her (contrary to the teaching in the Diploma course).

448. The report of Prof Stewart (exhibit volume 7 – tab 10 at page 8 (xiii))

detailed the nature of the information provided to students of the Graduate Diploma of Clinical Dentistry (Conscious Sedation & Pain Control) course. The Tribunal notes the Respondent’s academic transcript for this course is at exhibit volume 8 – tab 19, records the Respondent undertook four courses titled ‘Basic Life Support and Resuscitation’ as well as courses on the theory and practical aspects of sedation.

449. Apart from RN Gaudron holding qualifications as a registered nurse,

documents before the Tribunal also indicate that the Respondent, RN Gaudron, the receptionist, Ms Carla Cattanach, and another staff member, Ms Suzie Bockaroska all completed a course in cardiopulmonary resuscitation in accordance with the guidelines of the Australian Resuscitation Council in 2001. Ms Bockaroska also held First Aid qualifications. The Respondent confirmed in oral evidence


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that he had organised such trainings as part of his ordinary in-service trainings for the employees of his practice.

450. The Respondent also held a certificate in Cardiopulmonary

Resuscitation and Semiautomatic Defibrillation dated 1999. 451. Commencing at line 22, page 235 of volume 11 – tab 5, the

Respondent is recorded as giving the following evidence to the District Court:

….I was taught through the Diploma course to have certain emergency drugs and equipment available, and I undertook – and I had my staff undertake – regular update advanced CPR courses on an annual basis, privately conducted in my own practice.

452. The Respondent then gave evidence that the courses involved the use

of mannequins to practice handling different emergency scenarios. 453. Applying the Respondent’s criteria as to ‘medical training’ and noting

the training of the Respondent as outlined above, the Tribunal does not accept that the Respondent did not have the relevant ‘medical’ competence to handle the emergency that developed.

454. As to the submission made by the Respondent that the ‘legislation

permitted and continues to permit medically-incompetent practitioners to act as operators/sedationists’ the Tribunal notes this is a matter that has been determined by the NSW Parliament. Obviously the Parliament considers that the requirements stipulated in the Regulations provide sufficient ‘medical’ knowledge’ to allow these procedures to be undertaken in the prescribed manner. Clearly, the Parliament does not consider that these procedures are solely to be undertaken by ‘medical’ practitioners. Further, it is the professional obligation of every registered dentist to practise within their own areas of competency. This basic responsibility applies to all registered health care practitioners.

455. As to the Respondent’s submission (at page 26 of the submissions) with respect to the ‘four degrees of deficient professional conduct’ that are considered in ‘a disciplinary inquiry’, the Tribunal, noting that it exercises a protective jurisdiction, agrees that it must consider whether conduct is established, then whether it is below the relevant standard, then whether it is significantly below the relevant standard. The Tribunal then considers whether the conduct is significantly below the relevant standard so as to justify either a suspension or deregistration. The question of whether suspension or deregistration is appropriate is a matter subject to further consideration by the Tribunal as to what is appropriate in the circumstances.


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456. The Respondent’s submissions continue at page 26 and 27 with the

assertion that there must be a consideration of the Respondent’s current fitness to practice when making a finding of professional misconduct and to take care not to act punitively (rather than in a protective role). The Tribunal agrees that it does not have a punitive role, the role is protective. The characterisation of the conduct does not however relate to current fitness to practice. Considerations of this nature are clearly part of the second stage of this Inquiry.

457. The Respondent submits that the Tribunal should take a view consistent with that expressed by the Board when it imposed conditions on the registration of the Respondent on 25 November 2008. The Respondent submitted that the Board was satisfied that those complaints ‘separately established that inadequate treatment constituted unsatisfactory professional conduct’ and made of finding of ‘a significant lack of knowledge and skill’.

458. Not only is the Board exercising a different function to the Tribunal when considering the imposition of conditions on registration, under the current legislative scheme the Board does not have a finding of professional misconduct available to it. Such matters have to be referred to the Dental Tribunal, only the Tribunal can make a finding of professional misconduct. Further, when consideration is made of the de novo nature of an appeal from a decision of the Board to the Tribunal, it is quite clear that the Tribunal cannot be bound by any decision or view of the Board.

459. Submission 1 made by the Respondent at page 27 is rejected. It is the appreciation of the objects of the Act, and the whole legislative scheme and the findings based on the evidence that lead the Tribunal to characterise the conduct as professional misconduct. The Tribunal accepts the submissions made in reply by the HCCC at paragraphs 33 to 43 as set out above.

460. As detailed above, the Tribunal has made findings with respect to each of the Particulars of this Complaint that the conduct is significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience. The conduct found in Particulars (i) to (vi) inclusive, considered together, is of such a serious nature as to justify the suspension or removal of the Respondent’s name from the Register. Further, when the conduct detailed in Particulars (vii) and (viii) are considered together, the Tribunal is of the view it is of such a serious nature as to justify the suspension or removal of the name of the Respondent from the Register. Similarly Particulars (ix) to (xiv) inclusive are also found by the Tribunal to be of such a serious nature to justify the suspension or removal from the register.


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461. The Tribunal finds Complaint 7A established. 462. Complaint 8 therefore does not have to be considered by the Tribunal

as it was pleaded in the alternative. Further Submissions made by the HCCC 463. The HCCC made a submission dated 2 August 2009 and submissions

in reply dated 7 September 2009. 464. In the submissions dated 2 August 2009, the HCCC set out the

changes to the relevant Act as follows (paragraphs 7 to 12 – footnotes omitted):

7. The complaint was made to the Tribunal on 19 August 2008.

However, the conduct in question occurred before and after 15 August 2004, the day of commencement of the Dental Practice Act 2001. On that date the Dentists Act 1989 was repealed (section 160). Schedule 7 of the Dental Practice Act (‘2001 Act’) provides that the regulations may contain provisions of a savings or transitional nature consequent on its enactment and, that if the regulations so provide, such a provision may take effect from the date of assent of the Act or a later date. However, to the extent that such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, it does not operate in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person as they existed before the date of publication or to impose liabilities on such a person in respect of anything done or omitted to be done before that date.

8. There is only one savings provision. That appears in

regulation 39 and it provides: Any act, matter or thing that, immediately before the repeal of the Dentists (General) Regulation 1996 had effect under that Regulation continues to have effect under this Regulation.

9. The question then arises whether conduct that predated the

commencement of the 2001 Act is caught by the terms of that Act or the earlier Act.

10. Clause 16 of Schedule 7 of the 2001 Act provides that:

A complaint or investigation may be made under this Act with respect to conduct or any other matter or thing that


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occurred before, or partly before and partly after, the commencement of the provisions of this Act under which the complaint or investigation is made.

11. Thus, it does not matter that some of the conduct in question

in this case pre-dated the commencement of the 2001 Act. What matters is when the complaint was made to the Tribunal.

12. On any view the 2001 Act applies.

465. The Tribunal accepts this submission. 466. The HCCC make submissions regarding the definition of unsatisfactory

professional conduct and professional misconduct in paragraphs 13 to 36 inclusive. These paragraphs are reproduced in Annexure C hereto because of their total length.

467. The Tribunal accepts the submissions made by the HCCC at

paragraph 36. 468. The HCCC make submissions regarding the standard by which the

Respondent should be assessed at paragraphs 37 and 38. The Tribunal notes that the statutory definition of unsatisfactory professional conduct makes reference to the standard that can reasonably be expected from a dentist with an equivalent level of training and experience.

469. Paragraphs 37 and 38 of the HCCC’s submissions read:

37. The respondent has no university-based training in implant surgery. However, he boasts significant interest, experience and expertise in the field. It is against his own standards that he should be judged.

38. Implant and veneer dentistry is complex and involves many

high-risk areas. It also commands high fees. The public is entitled to expect high quality service.

470. The Tribunal notes that implant dentistry is not a restricted area of

practice within dentistry. There is no recognised specialty in implantology and there are no statutory or regulatory restrictions currently on this area of practice. As for the administration of sedation, the Tribunal notes Sub-clause 34(2) of the Dental Practice Regulations 2004 provides:

(2) A registered dentist must not administer simple sedation

by the intravenous route unless the dentist: (a) has received appropriate training in techniques of


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intravenous sedation and resuscitation, as approved by the Board, and

(b) is assisted by another person who is either: (i) a registered nurse (within the meaning of the Nurses and Midwives Act 1991) who has received training in intensive care or anaesthesia, or (ii) a registered dentist, appropriately trained in the observation and monitoring of sedated patients and in resuscitation, whose sole responsibility in so assisting is to monitor the level of consciousness and cardio-respiratory function of the patient and to administer resuscitation where necessary. Maximum penalty: 5 penalty units.

471. The Tribunal notes that the Respondent holds a qualification approved

by the Board as satisfying (2)(a). The Respondent has the appropriate training and experience relevant for the work undertaken.

472. In paragraphs 39 to 48 the HCCC made submissions regarding the

onus and standard of proof. Once again, these paragraphs are reproduced in Annexure C hereto.

473. The Tribunal has already made comments elsewhere regarding the

use of expertise by Tribunal members. 474. The HCCC made submissions regarding the Respondent’s credibility

from paragraphs 86 to 128 which are reproduced in Annexure C hereto.

475. The Tribunal accepts the HCCC submission that the Tribunal ‘should

be wary about accepting the respondent‘s account unless it is corroborated by independent evidence’. For the best part the findings made herein rely upon admissions made by the Respondent and examination of evidence such as the clinical records and radiographic evidence relating to the patients.

476. In paragraphs 129 to 133 of the submission, the HCCC detail criticisms

of the evidence of Dr Berne. The HCCC make no criticism of the evidence of Dr Ho.

477. With respect to Dr Berne the HCCC submitted (paragraphs 130 – 133

– footnotes omitted):

130. Despite his denial that he went out of his way to look at the respondent’s conduct in the most favourable light, his report shows him to be little more than an apologist for the respondent. He had long held the view that there was a


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conspiracy to get him. The fact that he had assumed the role of mentor to the respondent suggests, at least, that by the time he was asked to provide his reports, he was too close to him to provide an objective opinion.

131. There is also an issue about Dr Berne’s credit. He was

frequently argumentative in cross-examination, not just in these proceedings but also in the trial.

132. He maintained that he did not take up the role of mentor until

after he had written his report for the Tribunal. However, he conceded otherwise when shown a copy of the respondent’s email to him of 10 February 2009. He claimed not to have asked the respondent about why the Board wanted him to have a mentor.

133. His evidence should not be accepted save where it is

supported by the evidence of the other members of the conclave.

478. As evident from the findings above, the Tribunal has carefully considered the evidence of the Expert Conclave. The Tribunal found the articulation of the test applied by Dr Berne to be of the most assistance in determining the weight that should be apportioned to his evidence. The Tribunal makes no comment as to the manner of Dr Berne when he gave evidence during the criminal trial. The Tribunal records that there were aspects of the manner in which Dr Berne gave evidence before the Tribunal that were not entirely satisfactory or consistent with an impartial expert witness. In particular, the role of Dr Berne as a mentor to the Respondent certainly clouds the issues.

479. The HCCC submitted that the Respondent should pay its costs. The Tribunal defers consideration of this matter until the conclusion of the Inquiry.

Further Submissions made by the Respondent 480. Also as noted above, the Respondent provided written submissions

dated 21 August 2009. This document has been read and considered in its entirety by the Tribunal. There are a number of issues that the Respondent clearly misconceives concerning the role of the Tribunal, and in these regards the Tribunal prefers the submissions of the HCCC set out above.

481. On page 6 the Respondent makes a submission under the heading

‘The effluxion of time since the conduct under Inquiry’. The Respondent submitted that there was no evidence that the Respondent has conducted himself in an unsatisfactory manner in the last four years and ‘Indeed, there is unchallenged evidence of his


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practising at an extremely high level of competence’. This is a question that the Tribunal will consider when making appropriate Orders after the next stage of the hearing. It is not a matter that plays a role in the Tribunal’s consideration and findings of the Particulars or Complaints.

482. On page 7 the Respondent makes a submission that the Tribunal is a

‘fully judicialised tribunal’. The Tribunal rejects this submission. This Tribunal has significant inquisitorial powers embedded in the statute that creates the Tribunal. The Tribunal ‘is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit’ (Clause 1 – Schedule 5 of the Act). Parliament has prescribed that the Inquiry process is to be different from the judicial paradigm. The Inquiry process is to have an inquisitorial character. A further point of distinction between a judicial process and the proceedings of this Tribunal is the power of the Tribunal to add or substitute complaints, call witnesses and summons documents (Schedule 5 of the Act). As to it being appropriate for the Tribunal’s use of ‘its own expertise when making a judgment about which body of expert evidence it prefers when opinions proffered to it are in conflict’ see for example, Solomon v The Psychologists Board of Western Australia (Supreme Court of Western Australia, Murray J, 6 December 1996, BC9606031, at page 12), Jacobsen v Nurses Tribunal and Anor (Supreme Court of ew South Wales, Dunford J, 3 October 1997, BC 9705032, Jager v Medical Complaints Tribunal (Supreme Court of Tasmania, Blow J, 11 June 2004, BC200403487), Tai v Dental Board of Tasmania (Supreme Court of Tasmania, Evans J, 13 May 2005, BC200503031).

483. The Tribunal does however adhere to firmly and agrees that the rules

of procedural fairness apply to tribunals exercising a protective jurisdiction.

484. The Respondent also submits at page 7:

It is not strictly correct to characterise the Dental Tribunal as an expert tribunal. While two of its members are required to be practising dentists, their expertise may only be employed in drawing inferences from expert evidence that has been adduced and tested by the parties. The Tribunal may not use the opinions of its dental members as a substitute for evidence, and neither the complainant nor the respondent may be placed at a disadvantage by being deprived of an adequate opportunity to comment on material relevant to the Tribunal’s decision if it is gleaned from an outside source or in the course of any Tribunal member’s own investigations, or evidence given in earlier cases.


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485. However, the Tribunal notes on page 10 of the Respondent’s submissions that the Respondent suggests that the task of the Tribunal is to consider the particular failings of the Respondent ‘with the guidance of the expert members of the Tribunal’.

486. At pages 7 to 9 the Respondent makes submissions essentially

relating to the interpretation of the statutory test in section 41 of the Act as follows (formatting retained):

The crucial wording of the Dental Practice Act in the present

inquiry is its reference to this Tribunal’s role in ensuring that

dentists are fit to practise dentistry. In other words, the inquiry

focuses on the present tense: Dr Pegios’s current knowledge,

skill and judgment and the care he currently exercises in the

practice of dentistry. While it is conceivable that unsatisfactory

professional conduct dating back as much as seven years may be

relevant to an appreciation of Dr Pegios’s present professional

capacity, it would be quite impossible to argue that that could be

the case here, where the evidence in favour of the respondent’s

present capacity is unchallenged, and the authorities, with

contemporaneous knowledge of the subject matter of all the

elements of the present complaint, have positively condoned his

continuing to practise, with the only conditions applied to his

registration being those imposed on 25.11.08 (dealing with

mandatory development of treatment plans and their approval

prior to commencement of such treatment – Ex Vol 1 Tab A) which

unfailingly have been complied with.

The complainant bears the onus of proof in this matter, and it is of

fundamental importance that the Tribunal should apply the proper

standard of proof to the complainant’s case: while it is certainly the

case that the criminal standard (proof beyond reasonable doubt)

does not apply to disciplinary proceedings, what the High Court

explained in Briginshaw v Briginshaw 60 CLR 336 was that the

‘balance of probabilities’ does not warrant a simplistic ‘more likely


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than not’ interpretation: ‘reasonable satisfaction’ is to be preferred

as the test, and represents:

a variable standard that rises as issues become more

serious, the consequences of an adverse finding more

onerous, and the allegations less probable, but it never quite

reaches the criminal standard. Clearly, the standard of proof

in a tribunal dealing with a serious matter should be higher

than a mere balance of probabilities ... The criminal and civil

standards of proof are not always far apart. Proof that entitles

a plaintiff to succeed in a routine accident case may be quite

insufficient when a civil claim implies ... professional

negligence. While it may be perfectly reasonable to fine a

professional footballer for foul play in the light of certain

information, much stronger evidence may be needed before

a professional person is publicly disgraced. (Forbes, Justice

in Tribunals, 2nd Edn 2006 para 12.23)

The Tribunal may recall an exchange between the respondent’s

counsel and the learned Chairperson, in which counsel made the

(correct) point that Briginshaw’s case dictates that a ‘sliding scale’

applies to such proceedings as these, requiring (given the

seriousness of the allegations) proof to a standard tantamount to

that applying in a criminal trial. Thus the Tribunal would fall into

error if it held itself to be satisfied of any fact in relation to which

the complainant bears the onus of proof, unless the evidence

were such as to eliminate any substantial doubt. The mere

balance of probabilities is not enough.

487. As noted above, the parties requested the Inquiry be conducted in a

staged approach. Currently the matters being considered by the Tribunal are the findings with respect to each of the Particulars of Complaint and the characterisation of that conduct. There will be a


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further stage of the Inquiry to allow the parties to place further evidence before the Tribunal. The parties will then have an opportunity to make submissions regarding the appropriate orders to be made.

488. The Respondent makes submissions regarding the application of

Briginshaw. For clarity, the Tribunal notes it never put into doubt the application of Briginshaw to the current proceedings. The Tribunal accepts the submissions of the HCCC as accurately setting out the standard to be applied by the Tribunal, including the comments made in the HCCC’s submissions in reply.

489. At page 9 and 10 the Respondent makes submissions regarding the

manner in which the HCCC conducted the case as follows:

Plainly, the complainant has cast itself in the role of prosecutor in

this inquiry, failing to address the sole operative issue – Dr Pegios’s

current fitness to practise - and instead has chosen to conduct its

case as if the issue were the appropriate punishment for ‘offences’

that have long been stale and whose relationship to the central

issue has not been established.

One egregious example of the misconceived approach of the

HCCC to its case has been its abject refusal to acknowledge the

impropriety of moving into evidence the reports of Dr Stolz – whose

bias was patent, had been spelt out to the complainant in a long

and detailed analysis of some (but not all) of the incontestable

defects in the Stolz reports, and which bias was eventually admitted

and apologised for (time and again) by the ill-chosen and

inadequately-briefed expert when confronted in cross-examination

with instances of his improprieties. Dr Stolz would explain his

transgressions as the product of inexperience as a court expert, but

the fact is indisputable that the reports are replete with what

amounts to personal malice (not limited to his use of sarcasm and

defamatory denigration).

Further, the inconceivably lengthy, repetitive and unhelpful cross-


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examination of Dr Pegios was directed at anything but the central

issue. Instead of seeking to explore the capacity of the respondent

and the efficacy of the changes in his attitude and to his modalities

of practice, the complainant contrived an approach where the

Tribunal had to sit through five days of misdirected and aggressive

zeal, aimed at the minutiae of the precise dates on which the

respondent made admissions or concessions, or failed to do so –

blithely ignoring the difficulties and conflicts he faced by reason of

his obligations to his insurer, his position in then current litigation,

the unimaginable personal pressures he has suffered, and in

attempting to answer the incomplete and much-revised form of the

complaint, amended complaint, and further amended complaint as

it evolved into its final form. It would appear that the complainant is

wedded to a politically-correct concept of flogging the dead horse of

‘insight’ – a trendy buzzword, and all but meaningless – when the

Tribunal’s duty is better described as assessing whether Dr Pegios

sincerely acknowledges, understands and appreciates the gravity

of the errors he made as long ago as the period between late 2002

and mid-2005, has learned from them, and will be a better dentist

as a result. The criticisms of Dr Pegios made at paras 86 – 128

inclusive (at extraordinary length, but consistently with the

complainant’s defiance of any commonsense approach to this

issue) cannot be sustained: certainly, Dr Pegios is not a

professional witness, and lacks the glib insouciance that the

complainant would appear to mistake as the characteristic of an

‘impressive’ witness. Of course he was uncomfortable under cross

examination – how could it have been otherwise? – but not evasive.

He was doing his best. The Tribunal will accept, it is submitted, that

Dr Pegios’s evidence was sincere. To accuse him of dishonesty

(para 92) is untenable.

The Tribunal cannot fall into the same error as the complainant: it is


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quite clear that its task is to consider (with the guidance of the

expert members of the Tribunal) the particulars of the significant

failings by Dr Pegios insofar as they cast light on his present

professional capacity, and only for that purpose. This inquiry is not

about punishing Dr Pegios for past errors. If the evidence

establishes that Dr Pegios is, today, unfit to practise, the Tribunal

must suspend him, at the very least. But if the public interest – the

interest of his present and future patients – does not mandate such

draconian action, then the decision the Tribunal makes must be

directed at community protection by the imposition of such

conditions as are necessary to ensure his fitness to practise

dentistry.

490. The Tribunal notes that the reports of Dr Stolz were admitted into evidence by the Tribunal after each party had an opportunity to make submissions. This decision has not been the subject of an appeal by the Respondent.

491. The Tribunal cannot see how it is the obligation of the HCCC to take

into consideration the ‘difficulties and conflicts’ faced by the Respondent ‘….by reason of his obligations to his insurer, his position in then current litigation, the unimaginable personal pressures he has suffered….’. It is unclear on what factual basis the HCCC could have acted with respect to these issues. Even if they were demonstrated to be in some way relevant, these are not matters which are properly regarded by the Tribunal with respect to this stage of the Inquiry.

492. The Respondent continues the general submission by reference to the

amending of the Complaint. The Complaint was amended on a number of occasions. In this regard the Tribunal again notes that the amendments were allowed by the Tribunal after the parties had an opportunity to make submissions and after careful consideration by the Tribunal. The amendments were relatively minor in nature and included the withdrawal of Particulars. However, it does appear from page 29 of the Respondent’s submissions (as detailed above) that some of the deleted Particulars are still dealt with by the Respondent at that late stage (i.e. after the evidence with respect to the Complaints was completed), which is unfortunate.

493. As recorded above, on page 10 of the Respondent’s submissions,

there is reference to ‘insight’ as ‘a trendy buzzword’. Insight has been


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referred to in numerous cases as a relevant consideration to the question of what Orders may be appropriate to make in light of findings of either unsatisfactory professional conduct or professional misconduct. Consideration of matters such as insight, remorse, contrition, likelihood of recurrence of the conduct are among the matters to which the Tribunal will properly have regard in the next phase of the hearing.

494. Commencing on page 12, the Respondent made extensive

submissions regarding bias and assessment of expert witnesses. The submissions are detailed and the Tribunal will not attempt to summarise them, rather they are set out in full as follows (formatting and fonts retained):

The courts, particularly in New South Wales, have in recent years

become gravely concerned about the quality and impartiality of

expert evidence adduced in a wide range of proceedings, leading to

a number of reforms. One of those reforms has been the

articulation of the Expert Witness Code of Conduct, which is to be

found in Schedule K to the Uniform Civil Procedure Rules (NSW)

and of which a copy is annexed to the letters of instruction that

were provided to the respondent’s witnesses – but not, regrettably,

to those retained by the complainant.

In HG v The Queen 197 CLR 414 at 427, Gleeson CJ explained

that if evidence tendered as expert opinion does not conform to the

clear principles, it may be merely

a combination of speculation, inference, personal and

second-hand views as to the credibility of the (respondent)

and a process of reasoning which goes well beyond the field

of expertise… Experts who venture ‘opinions’ (sometimes

merely their own inferences of fact) outside their field of

specialised knowledge may invest those opinions with a

spurious appearance of authority, and legitimate processes

of fact-finding may be subverted.


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The paramount duty of the expert witness, it can be seen from the

Code and as a matter of natural justice, is to assist the tribunal

(whether a court of law or a tribunal such as the Dental Tribunal of

NSW) impartially on matters relevant to the expert’s area of

expertise. The expert is not permitted to act as an advocate for a

party, must exercise independent professional judgment, and must

include in any report: the reasons for each opinion expressed,

identification of the literature or other material relied upon, and a

statement of any qualifying factor affecting the completeness or

accuracy of the report.

Plainly, an expert witness may not be biased. This is the case

whether or not the bias is patent in the expert’s evidence – but, in

the present case, not only is bias undeniable on the face of Dr

Stolz’s reports, but he also admitted to it and apologised for it,

repeatedly, once it was exposed in cross-examination. He is thus

unacceptable as an expert witness, having offended against the

rules of fairness that apply to his duty.

The respondent’s experts:

Dr Berne: Unlike the complainant’s experts, Dr Berne was (as was

Dr Ho) made aware of the Expert Witness Code of Conduct, and

undertook to conform to it: Ex 18 is made up of the three letters of

instruction pursuant to which Dr Berne’s reports were written.

Further, the complainant’s attempt to dilute the effect of Dr Stolz’s

undeniable bias (see post) by suggesting that Dr Berne was a

mentor, and otherwise sympathetic to Dr Pegios’s position and thus

not independent, was doomed: Dr Berne 949: Q. You were questioned at great length about


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your relationship, your imputed relationship, with Dr Pegios and about your use of the word "sympathy". Could you imagine anyone not having sympathy with a colleague known personally to them, who had endured the death of a patient, the coronial inquest, the ex officio indictment, the criminal trial and this inquiry? … WITNESS: No, there is no question. How could anyone not have sympathy for what's going on? Q. Whoever the colleague was? A. Absolutely. Q. Were opinions you have expressed here and in the joint meeting of experts in any way biased in favour of Dr Pegios because of any sympathy you may have for his plight? A. None whatsoever. I have no reason to be biased in favour of him. He is a colleague and if anyone was in the same situation I would comply. I was asked to be an expert witness and I have taken that obligation very seriously. I never at any time talked about the procedures with him and so I'm happy to - I sent all those e-mails off which I had with him. It would have been - if I thought I had something to hide I could have easily deleted them and said they weren't there. I didn't do that … and I wouldn't. The complainant’s submission at paras 132-3 is insupportable.

Dr Ho’s reports were also completed in compliance with the

Experts’ Code (see Ex R6), and it is notable that no criticism of Dr

Ho’s objectivity is raised by the complainant, despite evidence of

his prior relationship with Dr Pegios. Dr Condon endorsed Dr Ho 317: Q. You have spent time in intense discussion with (Dr Ho)? A. I have. Q. He is a serious, honourable young man, isn't he? A. He is. Q. Did you know that when he wrote his report


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and when Dr Giblin wrote his report they were bound by the expert witness code of conduct? A. I didn't know that. The operative maxim is omnia praesumuntur rite et solenniter esse

acta (all acts are presumed to have been done rightly and regularly)

because that presumption applies to any expert bound by the

Code, and a fortiori does it apply to any expert who is unchallenged

in his evidence that he did in fact comply with his obligations.

The complainant’s experts: By contrast, neither of the

complainant’s experts was made aware of his obligations of

impartiality, nor of the need to substantiate opinions reported. This

was a serious defect in the complainant’s approach.

Mr Currenti’s statement (Ex Vol 30) constitutes evidence of bias

against Dr Stolz. Ex facie, the complainant purported to rely on a

witness whose conduct, if established, would make him quite

unacceptable – he spoke at a professional meeting of Dr Pegios

wishing to “steal” Victorian dentists’ patients. Dr Stolz’s attempt to

deflect the criticism was hardly convincing:

413: Q. It's highly likely you did make a statement though, you admit, about Dr Pegios? A. Absolutely. Q. Highly likely? A. Highly likely Q. You accept that you did make a statement referring to him then? A. Yes. Q. And it was a derogatory one, wasn't it? A. No, it was not derogatory. Q. Then what did you say, sir? A. I don't know what I said, sir. Q. Then what is the effect of what you said?


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A. It would have barely caused a ripple within the circles of implant dentists in Melbourne. … Q. What do you say were words to the effect of those you spoke? A. I cannot recall exactly what I said but the information that I would have conveyed was that there was a Sydney dentist who was planning to set up a practice in Melbourne. Q. With no comment whatever? A. I don't know, Mr Littlemore. Dr Condon was asked about Dr Stolz’s frankness: 320: Q. Did (Dr Stolz)tell you it had been alleged he made a remark about Dr Pegios at a professional conference? A. I don't recall that he did. Q. He didn't disclose that at all, did he? A. I don't recall it. … Q. Did he say anything to you about Dr Pegios seeking patients in Victoria? A. Yes, I think that was something that he said at the meeting. I didn't pay much particular attention to it. This was just as we were starting. Dr Ho had this to say on the Currenti statement: 863: Q. I want you to assume that the words attributed to Dr Stolz about Dr Pegios “coming to Victoria to steal your patients” are true. Just assume they in fact were spoken. Do you recall you were asked some questions by the Chairperson about if you had known Dr Stolz and Dr Pegios had had some discussion about a cooperative venture, assuming that to be true, would that knowledge have had any impact at all on the way you approached Dr Stolz's views in the conclave? A. I think there may have been some possible bias if that's the case, with Dr Stolz saying that “Dr Pegios is coming to steal your patients.” There may have been possibly some bias associated with that and Dr Stolz and how he dealt with Dr Pegios. Q. Would you have wished to know about that


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before you went into the conclave with him? A. It probably would have been good to know that. Dr Berne on the Currenti information: 875: Q: … Were you provided in advance of the conclave with a statement by Mr Currenti reporting what he said were remarks made by Dr Stolz at a conference in Melbourne? A. I believe I was beforehand, yes. Q. When you went into the conclave did your knowledge of that document affect in any way your approach to Dr Stolz's opinions? A. I guess it just confirmed what I thought of his reporting. I believe his reporting showed a significant degree of hubris. His reporting was very pejorative in numerous matters, and it smacked to me (of) a lack of impartiality in a lot of areas, and I thought that was a bit disturbing. Dr Berne was absolutely right. It is submitted that the complainant

was (or should have been) aware at all times, and certainly not later

than upon reading the first of the Stolz reports, that his grasp of the

responsibilities of an independent and impartial expert was quite

inadequate, and that he should have been replaced. The inference

is inescapable that the complainant set its face against qualifying

another witness because it was already seriously in default of the

Tribunal’s timetable for service of its reports, and could not arrange

to replace Dr Stolz in the time available, the matter having been set

down for hearing. If that inference is correct, it does the

complainant no credit.

Turning to some instances of Dr Stolz’s fundamental errors: one

can begin with his illegitimate presumption of guilt: 417: Q. Dr Stolz, you obviously seriously believed at the time you wrote the report of 9th February this year the fact that a dentist had been


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complained against counted against him, didn't you? A. No. Q. Then why on earth would you say, as you do, that the fact that there are undetermined complaints "indicate a poor track record"? This would be a presumption of guilt, wouldn't it? A. Not necessarily. Q. I see. You would not say for one second, would you, that a dentist who has a complaint made against him is guilty until proven innocent? A. No. Q. Although that's the way any objective reader would take your general report, don't you agree? A. If you say so.

Whenever Dr Stolz was caught dead to rights, as he too frequently

was, he made a habit of retreating into repetition of that very

mantra of “If you say so” or “As you say” both of which expressions

were tantamount to abject surrender. Next in the catalogue of his

unacceptable errors as an expert witness, he suffered badly from

his failure to support the hyperbolic opinions he had been pleased

to express in his written reports: 420: Q. Were you not told that an expert report is something that, when it expresses an opinion, is bound to state the basis for the opinion, the factual basis? Were you not told that? A. Yes, I could have done that Mr Littlemore. Q. Were you not told that? Would you answer my question please? A. I read the guidelines. Q. Were you told that or not? A. Verbally? Q. In any form? A. Yes. Q. Thank you. Why didn't you do it then? A. I apologise if I departed from that standard.


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421: Q: … When you're asked whether there were consistently deficiencies in practices revealed by these cases, you see on the next page (of the report of 9.2.09), page 3, that's Question 2 in relation to treatment planning, you then offer the opinion that the Respondent was guilty of sloppiness and overconfidence, don't you? A. Yes. Q. Both loaded words, aren't they? Not the words of an objective, scientific person, “sloppiness” and “overconfidence”? … Q. Do you acknowledge that those are emotional and loaded unscientific terms? A. Yes, but I can substantiate. Q. But you don't, do you, in this report? A. No, I do not. It transpired that Dr Stolz was well aware of the respondent’s

objections to his reports as being unacceptably biased: 457: Q. Were you ever told that Dr Pegios's legal representatives had written a seven page letter to the Health Care Complaints Commission objecting to your reports as patently biased? A. Yes. Q. You were told. Were you asked to rewrite them? A. No, I was not. Q. It was never discussed with you that you should re-form them in an impartial expression, is that right? A. No. Q. Never suggested to you? A. No. Q. When one goes on in that paragraph (of the [Patient F] report)you say this … having set out Dr Pegios's claims that all options were explained to the patient … "There is no record that this is the case so I see this claim as unsubstantiated".


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Did you think it was your role to rule on whether claims made by Dr Pegios were substantiated or unsubstantiated? A. No, it's probably not my role, Mr Littlemore, but the lines become blurred when you are writing reports as long and as comprehensive as this. Q. One might suggest to you, sir, that the lines do not become blurred if you comprehend the role of the independent impartial expert. What would you say to that? A. You are quite right, Mr Littlemore. Next, the Tribunal must consider the significance of Dr Stolz’s

improperly pejorative language, which is incontestable evidence of

a lack of impartiality: 426: Q: … As the factual basis for your criticism (in the omnibus report) that the post-prosthodontic care was inadequate, you state that these patients were asked to take time to get used to the appliances, having voiced their concerns, right? A. Dr Pegios asked the patient to take some time. Q. Yes, and you say that proves the care was inadequate? A. I don't know where it says that proves the care is inadequate. Q. Well, look at it. Look at that sentence - “The post-prosthodontic care was inadequate in that the patients were asked to take some time.” That's what those words mean, isn't it? Did you not express what you intended to express? A. I probably expressed it poorly. Q. Is that what you intended to express, that that was the fault, that was the inadequacy? A. No, I should have expanded on that. Q. So you have said something in your report you just didn't intend to say? A. It would appear so, Mr Littlemore. Q. Certainly. That certainly would be no basis for an allegation of inadequacy, would it?


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A. No. 427: Q. (Y)ou say he didn't believe it was necessary to rectify the problem. What's the factual basis for that accusation? A. That's a difficult answer for me to come up with. Q. It certainly is, isn't it? You don't mind making unsubstantiated accusations against Dr Pegios, do you? A. If you say so, Mr Littlemore. Q. Do you want to agree with that or disagree with it? A. I would like to disagree with it. Q. But you have no basis upon which you could do so, is that right? A. Absolutely. Dr Stolz did not hesitate to offer opinions beyond his field of

knowledge, which an expert is not permitted to do: 428: Q. You say that the patients suggest that Dr Pegios refused to acknowledge the extent of the problem, do you, or do you say (that is) your interpretation of what they claim? A. My apologies. My interpretation of what the patients said was that Dr Pegios had not acknowledged the extent of the problem. Q. You see, that's not a dental expertise you are employing there, is it? A. Well, I apologise Mr Littlemore, if I am wrong. Q. Do you agree it is not a matter of dental expertise when you say “I infer from what the patients are saying, such and such”? A. I just did, Mr Littlemore. Q. Thank you. You see, quite simply, that passage in particular is not the report of an expert who understands his role, I put to you? A. I agree with you, Mr Littlemore. Dr Stolz’s sarcasm (which ought not to be employed by an


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advocate, much less an impartial expert) is unacceptable, as he

well knew: 433: Q. What I'm putting to you is that when one reads your reports, they are replete with bias, sir. Replete with it? A. Well in my mind, Mr Littlemore, you haven't substantiated that. … Q. …You'd agree, wouldn't you, that there is no place in an expert's report for sarcasm? A. No, it is inappropriate. Q. Page 11, paragraph 4, "A number of the courses Dr Pegios attended and recorded so painstakingly required him to have achieved, et cetera." “Recorded painstakingly”, that's a sarcastic remark, isn't it? A. The remark was made as a counterpoint to the poor records that Dr Pegios had made, had kept. And yes, it is sarcastic and I apologise again for that. 438: Q. On page 19 Question 15 is asked. You know you have already answered questions about this from Ms Katzmann but about six lines from the bottom you begin a sentence "conveniently he has not recorded how many implants had failed". Would you describe the use of that adverb as sarcastic, ironic or advocacy? A. Factual, in fact. Q. Why did you include an adverb at all? A. To provide colour, I guess, Mr Littlemore. Q. Colour? A. And if that was inappropriate, once again I apologise to the Tribunal. Dr Stolz was also guilty of hyperbole – asserting that the

respondent’s treatment plan was ‘ridiculous’, and then recanting:

444: A: … It is only under the circumstances of the patient insisting on not going down the orthodontic pathway that I believe that this


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treatment plan could be countenanced. Q. And if it could be countenanced in those circumstances, it wouldn't be ridiculous, would it? A. The end result indicated that Dr Pegios did not have the skills to be able to bring it to a satisfactory conclusion. Q. You're avoiding the question, aren't you? Do you want to answer the question or not? A. You're right, Mr Littlemore. Q. You don't want to answer it? A. No, you're right. CHAIRPERSON: Q. I'm sorry, I don't understand the question. As in you're right you were -- A. The question was: “Then it's not ridiculous, is it?” And I agree, it is not ridiculous. MR LITTLEMORE: Q. Do you wish you hadn't used that word? A. It's probably a very unfortunate choice and I apologise. Dr Stolz and the silver bullet – more unacceptable advocacy: 457: Q. And you do know what a silver bullet is, don't you? You were asked questions about that yesterday, yes? A. Yes. Q. A silver bullet is that which will kill a werewolf, isn't it? A. Not in the context in which I used it. Q. That is where the expression comes from though, isn't it? A. Yes. Q. And in common parlance a silver bullet is a magic cure, isn't it? A. Yes. Q. And do you seriously say that as an independent impartial expert (that) you were able to form the view from facts before you that Dr


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Pegios believes in a magic cure? A. Based on the information that I viewed in this case it appeared so. Q. It would have been possible for you to express that sentiment in a respectful and un-rhetorical way, wouldn't it? A. And if I failed to do that I apologise. Q. There is no question that you failed to do that, is there? A. Now that you have pointed it out, Mr Littlemore, no there isn't. 459: Q. You chose to go beyond expression of the simple expert view you had that the treatment plan was flawed. That wasn't enough for you. You wanted then to be the advocate, didn't you, and say not only do I think it is flawed but I challenge him to find any support for what he has done; correct? A. That is correct. … Q: (You write)"Dr Pegios seems to have an ability to engender trust and confidence in his patients without giving them detailed information about any of the treatment, its risks and probable outcomes". Do you say a perception as to his ability to engender trust is a matter of your dental expertise? A. That was a judgment I made based on the complaints of the patients. Q. Will you acknowledge it is inappropriate, the way you have expressed it? A. The sentiment I don't withdraw but the expression of it. Q. You do withdraw? A. Yes. Dr Stolz and his tendentious assumptions: 460: Q. Then you go on: “Dr Pegios obviously wanted to carry out this treatment plan and this is why he sold it so forcefully to the patient.” (emphasis added)


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A. Yes. Q. Will you withdraw that? A. Not at all Mr Littlemore … That is the sort of language that one would expect in a commercial environment. Q. And you assumed the patient was telling the truth, didn't you? You haven't qualified your opinion at all, have you? A. No. Q. It would make a vast difference to your opinion if that were not the truth, wouldn't it? … A. No, you're right. There are innumerable places at which Dr Stolz demonstrated

egregious bias. The scandalous and highly defamatory allegation of

forgery was just one: 436: Q. What right did you have when you reported on the [Patient A] matter to make a speculation that Dr Pegios may have acted dishonestly (by)doctoring a photograph? A. None at all. Q. It's an outrageous inclusion, wasn't it? A. I apologise for that. Q. Demonstrates bias, doesn't it? A. There is precedent within the implant lecture circuits, or all lecture circuits, that was established in the late 1990's, that declaration had to be made by lecturers as to whether or not photo manipulation had occurred. The reason that requirement was placed was because it occurred frequently within the lecturing community. I have no basis on which to make that opinion apart from the fact that the differences between the photograph that Dr Pegios took and the one that Dr Selby took were stark and I apologise for the inference that Dr Pegios may have doctored that photograph.

The Tribunal would have difficulty in counting the occasions on


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which Dr Stolz felt constrained to apologise for his inappropriate

and even outrageous conduct in formulating the reports upon

which, quite obviously, the particulars of these complaints were

based.

The consequence of Dr Stolz’s remaining in the inquiry as a

purported expert witness is that, wherever his opinion does not

coincide with those of by the other experts, it must be rejected. It is

not, with great respect, “a matter of weight.” No weight at all may be

given to the biased opinions of a witness who is in breach of his

duty to the Tribunal.

495. As indicated elsewhere in this document, the Tribunal has taken care when considering the views expressed by the Expert Conclave.

496. The Respondent drew the Tribunal’s attention to the fact that the

HCCC did not raise criticisms as to Dr Ho’s objectivity when it did so with respect to Dr Berne. It was the evidence of Dr Ho that although he was unaware that the Respondent had listed him as one of the dentists from whom he received referrals, Dr Ho had in fact only referred one patient to the Respondent. It is therefore unsurprising that the HCCC made no criticism of the objectivity of his evidence particularly when consideration is given to the direct manner in which Dr Ho gave evidence before the Tribunal and his demeanour. This contrasted with the Tribunal’s observations of Dr Berne (see comments above).

497. On pages 87 to 89 the Respondent sets out submissions supporting

the following submission:

Submission 8: There can, by the standards that applied at the relevant time, be no valid criticism of the respondent’s written treatment plans.

498. The submissions made in support of ‘Submission 8’ are as follows

(formatting and fonts retained):

The Tribunal does not and shall not form its opinion on acceptable

treatment planning without having regard to the benchmark that

applied at the relevant time. The complainant did nothing to adduce

evidence of the appropriate standard, leaving it to the respondent to


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fill the gaps. He did so by adducing, in cross-examination of the

complainant’s experts, evidence of their own practices at the

relevant times, and presently. Dr Fleming On his own treatment plans 203: A. For the more detailed cases, a written treatment plan is given to the patient which is fully discussed in a treatment planning session and a letter is often then sent to them to which they then sign a consent to those procedures. In the cases in question, with regards to [Mrs F], (and) the other two cases, this has not been done and I must admit in probably the majority of cases it's not that amount of detail. Q. Well that's very fair of you. In other words, you would say if Dr Pegios can be criticised for his 2002 consents as general, so can you, wouldn't you? A. You can. (emphasis added) 212: Q. You were asked by the terms of the summons that was served upon you for a copy of a treatment plan from 1996? A. That's correct. Q. You have not been able to produce one? A. I have not. Q. Did you have such things in 1996? A. Yes, I did. Q. And in fairness, were they different from those you had in 2002? A. The treatment notes? Q. The treatment plan? A. Treatment plan, it may have differed a little. Q. In 2009 are they more detailed than they were in 1996, your treatment plans, in terms of the document itself? A. And what's presented?


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Q. Yes? A. Maybe some changes, yes. Q. You refine all aspects of your practice as you go on, don't you? A. Yes. Dr Condon also admits his 1996 and 2002 treatment plans (Ex

R18) would not pass muster: 294: Q: … There's failure to properly plan the treatment and there is quite separately from that failure to record that plan, right? A. Correct. Q. Now the more important one is failure to plan the treatment, isn't it? A. Correct. Q. The other one, sure, it's a deficiency in record keeping and the like but it's of little significance compared with a failure properly to plan treatment? A. Correct. 300: Q: … you were asked to produce a treatment plan for 1996 and you did, correct? A. Correct. Q. That's very sketchy and really consists of items and item numbers, doesn't it? A. It does. Q. And is that the way you still produce treatment plans, or have you changed? A. Subsequent to the introduction of the computer program that has changed somewhat… lengthier… Q. More detailed? A. Yes. Q. Narrative? A. Yes. Q. In 1996 that was the standard of your treatment plan recording? A. That was the standard for my treatment plan


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recording for that patient. Q. A bit sketchy? A. For that patient. Q. A bit sketchy? A. Yes. 302: Q. Just going through your other documents, this is a 2002 treatment plan pre-computerised? A. Yes. Q. Sketchy? A. Yes. … MR LITTLEMORE: Q. This document is still - this is not what my learned friend would call fulsome? A. It is not. Q. It is sketchy as well, isn't it? A. Yes. Q. It is a mere description and an item number and a price? A. Yes. Q. You saw Dr Pegios's records which are very much of the same character? A. Yes. Q. Would you acknowledge that this falls below the appropriate standard? A. Yes. Q. But you would say not significantly below? A. Not significantly.

These are, of course, admissions by dental practitioners in good

standing, who are relied upon by the complainant as exemplars of

dentistry at the highest standard – but without anticipating that the

respondent would cause to be disclosed Dr Condon’s comparable

treatment plans and clinical records, or that Dr Fleming would be

able to produce no such documents. The consequence is that the

criticisms of Dr Pegios are somewhat hollow, if not hypocritical on

the part of the HCCC.


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499. The HCCC made the following submissions in reply regarding the

submission (set out above) made by the Respondent on the issue of treatment planning at paragraphs 86 to 94 (footnotes integrated):

86. The respondent’s ultimate submission on this issue is at page

89 of his submissions and is in the following terms:

There can, by the standards that applied at the relevant time, be no valid criticism of the respondent’s written treatment plans.

87. The submission ignores the fact that on occasions the

respondent had no written document that could fairly be characterized as a written treatment plan.

88. In the case of [Patient E] (complaint 5) the respondent admits

that he failed to prepare and retain a written treatment plan [See the complainant’s submissions in respect to this complaint at paragraphs 374 to 390, especially the criticism of Drs Stolz and Ho].

89. In the case of [Patient B] (complaint 2) counsel for the

respondent accepted on his client’s behalf the decision of the expert conclave that his conduct was below the requisite standard. His client denied the majority view that it was significantly below the standard and his only response to the majority’s view that his conduct fell significantly below the standard was to make the erroneous submission that a division of opinion was incapable of providing the necessary level of proof [T5 and T555] (as to which see the complainant’s submissions at paragraphs 190-1). Moreover, nowhere in his submissions does the respondent deal with the evidence that Dr Berne gave (to which the complainant refers at paragraphs 191-2) about his misconception of the meaning of ‘significantly’, which was at odds with the respondent’s own submission about what the term meant [T551/42].

90. In the [Patient F] case all the experts concluded that the

treatment plan was neither appropriate nor adequate [See complainant’s submissions paragraphs 459 to 468]. The respondent ultimately accepted the view of the conclave after previously asserting in his affidavit that there was nothing wrong with his treatment planning.

91. Despite the respondent’s assertion to the contrary, there was

no ‘benchmark’ at the relevant time that can be ascertained


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from examining the treatment records of any expert who gave evidence in this inquiry.

92. The standard must be ascertained from determining

objectively what was required for adequate treatment planning having regard to the dental work that was contemplated. For example, the treatment planning for a simple single tooth extraction cannot be equated with that required for the extraction of all teeth and their replacement with implants.

93. The complainant adduced evidence, as it was obliged to do, in

support of each particular alleging inadequate treatment planning by the respondent. It was not obliged to adduce evidence of a notional ‘benchmark’ because what is adequate will vary according to the nature of the proposed treatment.

94. The importance of a written treatment plan was emphasized

by a number of expert witnesses. It was pointed out that frequently it is necessary to change or modify treatment as it progresses. It is important to have a record of what was done in order to make sound decisions about the further course of treatment. That is unarguable.

500. The Tribunal notes the view of the Expert Conclave with respect to

Particulars relating to treatment plans. They were unanimous that the Respondent had failed to devise an appropriate and adequate treatment plan in each case. Further, they expressed the view that the conduct was (at least) below the standard reasonably expected of a dentist. The Tribunal notes that there are only three Particulars that touch on treatment planning -Complaint 2 – Particular (iii), Complaint 5 – Particular (iii), Complaint 6 – Particular (ii).

501. The Tribunal repeats the view expressed elsewhere, that ultimately it is

for this Tribunal to determine standards, having due regard to the entirety of the evidence before it.

502. The Tribunal notes that in the matters where a Particular of Complaint

is made with respect to treatment planning there is nothing in the clinical notes that may be described as a treatment plan. Generally it has not been a matter of making an assessment of a document and considering the adequacy thereof, rather it was the absence of the documents. It is difficult to see how such a matter warrants the extensive submission set out above.

503. The Tribunal does not accept ‘Submission 8’ made by the Respondent

as it has made findings contrary to this Submission above.


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504. The Respondent made a similar set of submissions regarding the provision of information to patients ‘for informed consent’. The Respondent makes a submission, Submission 9, in this regard as follows:

Submission 9: There can be no valid criticism of the respondent’s

provision of information to his patients. 505. The Respondent sets out submissions at pages 90 to 93 to support

Submission 9 as follows (formatting and fonts retained):

A very similar picture emerged from the evidence, and notably that

adduced in cross-examination: that, by the standards of the

relevant period, Dr Pegios’s provision of information to enable his

patients to consent to treatment was normal, or better than normal. Dr Fleming On provision of information to patients – generally 199: Q. You are in good standing, aren't you? A. To be honest, I can't answer that. You would have to ask other members of my profession. Q. You have been given university roles? A. Yes. Q. You sit on expert bodies? A. Yes. Q. You consult as an expert in litigation? A. On the very odd occasion. Q. You teach? A. I have done. Q. Are you content with your own consent protocols as you use them? A. Yes. Q. Including as at 2002? A. Yes. Q. You don't think they can be improved in any way? A. That's why we did improve them as at 2006, I think it was.


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Q. So what improvement did you make in 2006 to your consent protocols? A. In that we allowed more detail with regards to the patients' primary complaints. Q. Well, when one looks at your consent protocol, it is a very small part of the initial patient information form, isn't it … When one looks at your consent form please don't be insulted about this, it is about much more than money, isn't it? A. No, I disagree. Q. It consists of two very short paragraphs doesn't it? A. No, it doesn't Q. “This is to certify that I, the undersigned”, right, have you got that? A. Mm-mmm. Q. That's one paragraph, right? The second paragraph begins: "I understand that Dr Hugh Fleming uses the Credit Reference Association."? A. That's correct. Q. That is two short paragraphs, isn't it? A. Mm-mmm. … Q. Thank you. I'm asking you about obtaining the patient's consent. That is a boxed part of the form consisting of two short paragraphs, one of which is exclusively about money, correct? A. Correct. Q. And the other has two elements to it, one about money and the other in terms that could not be more general. Do you agree? … A. It's general. Q. It could not be more general, could it? A. Yes. Q. How could it be more general than that? A. I (admit)it's general. … Q. You see, you make a criticism of my client that his consent form is general, right? A. Sorry, I made a criticism. I actually didn't see the medical consent form.


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Q. Well then why did you criticise it? A. Because it's nonexistent, because I haven't seen it. I was of the understanding that all the records I obtained from the Dental Board were the complete records of the practitioner at hand. 212: Q. You were also asked for documents provided to patients about the nature and potential outcomes of treatments? A. That's correct. … The first document headed ‘crowns and bridges’ is an ADA pamphlet? A. That is correct. Q. The second document ‘Treatment of Gum Infections’, is an ADA pamphlet? A. That is correct. Q. The third document ‘Root Canal Treatment’, is an ADA pamphlet? A. That is correct. Q. And then there is an advertisement for something called Cerec? A. There is a brochure for Cerec. Q. Insofar as you have provided documents to patients in 2002, are these all 2002 pamphlets or available as at 2002? A. I believe so. Q. They are not dated in any way that I can pick up. They're not individualised in any way, are they? A. But they also explain the procedures and some possible side effects and complications. Q. How? A. And these are also expanded upon within the treatment plan session consultation with the patient. Q. Perfectly happy with that, but you would say, wouldn't you, that you acted in a conscientious and informative way by giving these ADA brochures to patients as documents informing them about the nature and potential outcomes of your treatment?


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A. That's correct. Q. And you wouldn't criticise another dentist for taking the same course, would you? A. No. Dr Condon proved to adopt precisely the same means of

information provision as Dr Pegios:

303: You were also asked for documents provided to patients about the nature and potential outcomes of treatments and what you have provided us from 2002 are ADA pamphlets? A. Correct. Q. Crowns and bridges, or only one pamphlet? A. Yes. Q. Perfectly adequate? A. For that patient. Q. And perfectly adequate to tell any patient about crowns and bridges? A. Yes. 306: Q. You don't feel, do you, that there is one clear and indisputable way of getting informed consent? A. No. Q. The question is the adequacy of the information that is given to the patient and the comprehension the patient has of that information, isn't that right? A. Bearing in mind the complexity of the treatments that are planned for the patient. Q. Well, of course. You have got to disclose to the patient what it is you are proposing should be done, right? They have got to know what you propose to do to them in such detail as they require, correct? A. Correct.

506. The Tribunal has assumed that the particulars referred to by the

Respondent as relating to ‘informed consent’ are Complaint 1 – Particular (i), Complaint 2 – Particular (ii), Complaint 3 – Particular (iii),


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Complaint 6 – Particular (iii), Complaint 7 - Particular (i). Putting aside the distinction between consent and informed consent, the Tribunal notes that the Respondent admitted Complaint 1 – Particular (i), was found to be below the standard expected by the Expert Conclave with respect to Complaint 2 – Particular (ii), admitted and was found by the Expert Conclave to been significantly below standard on Complaint 6 – Particular (iii) and admitted Complaint 7 - Particular (i). As set out above there was some difficulty encountered by the Expert Conclave with respect to the wording of Complaint 3 – Particular (iii), however that Particular has been found by the Tribunal to be below the standard expected of a reasonable dentist.

507. The Tribunal does not accept Submission 9 made by the Respondent.

No such general statement needs to or can be made in light of the evidence and findings in this matter.

508. The Respondent makes general submissions regarding Consent

Forms. The Respondent makes a submission, Submission 10, in this regard as follows:

Submission 10: There can be no valid criticism of Dr Pegios’s

consent forms. 509. The Respondent sets out submissions at pages 93 to 96 to support


Yet again, it emerged that Dr Pegios was significantly ahead of the

field. Plainly, Dr Fleming (for one) expected to be able to criticise

the respondent without his own practice standards being examined: Dr Fleming 210: Q. You say in your report that Dr Pegios's patient consents are somewhat badly worded? A. Correct. Q. What's the bad wording? … A. I can't allude (sic) you to specific words but I can allude (sic) you to the format of the document in that yes, it is very generalised. It speaks about several types of implant systems. I'm aware that the practice of dentistry and dental surgery is not an exact science and I acknowledge that no guarantees have been made… Page 2 of the document. Paragraph 3 just as an example.


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Q. Yes. What's badly worded in there? A. Well, it covers everything and anything in a very general sense. Q. That's the pot calling the kettle black, isn't it? A. If you'd like to present it that way, yes. (emphasis added) Dr Stolz 423: Q. Now, you (wrote)"while I believe the generic consent form is adequate" - you confirm that, do you? A. Yes. Q. You say “that form must be accompanied by a detailed discussion”, right? … A. Yes. Q. Do you say you are in a position to assert that the generic consent form, as you call it, was not accompanied by a detailed discussion? A. No, I'm not, but the fact that it did not appear in the records leads me to that conclusion. Q. You then go on in that sentence to say "which is recorded in the patient's record", about the specific management of the case and its risks and complications et cetera. Now, the only thing you know there adverse, you would say, to my client is that there is no record of his detailed discussion that went along with the generic consent form, right? A. Quite so. Q. When we summonsed from you your consent forms from this period of time, you were able to produce nothing, correct? A. Correct. Q. And should the Tribunal assume from that, that you didn't have consent forms in August of 2002? A. Yes, the Tribunal can assume that I did not have consent forms in 2002. 440: A. I already explained earlier, Mr Littlemore, that I did not use written consent forms in 2002.


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Q. And this (Stolz document produced on summons) is the only written information you gave this patient (Pina) about her procedure? A. Yes. Q. Read this as one might, one finds a discussion of orthodontic treatment with no mention whatever of risks or complications, do you agree? A. I don't believe it is my job to describe the risks and complications of orthodontics. I would leave that to the specialist that was going to be involved. (emphasis added) Q. So you wouldn't give a patient any information about something that you proposed as a treatment option in terms of its dangers? A. Yes, I would, if I was going to be carrying out that treatment. Q. Well, you did propose to carry out the treatment of eight crowns on the upper front eight teeth, didn't you, item 2 on the letter? A. Yes. Q. No mention of any risks of dangers from that procedure in your written information, are there? A. No, none at all. Q. No mention of possible complications? A. No, and there were none, Mr Littlemore. Q. There were no possible complications of crowns? A. No, there were no complications with that patient. Q. Well, was there any risk of complications? A. Of course there was. Q. Why didn't you write it? A. I gave the information verbally to the patient. I did not have written consent forms. A written consent form should have included a list of possible complications. I didn't have that. I'm guilty. Had I had a complaint lodged against me I would have had no recourse. … Q. Can you take me then to the record in your clinical notes of where you advised this lady of


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the risks and complications? A. No, I can't. Q. Would you admit then that your record keeping was deficient, if you really did advise her of those things? A. I probably should have recorded that I gave her advice about those complications. Dr Stolz had no consent forms at all at the relevant time: 4812 Q. And do you these days provide patients with a consent form? A. I do. Q. When did you make that change? A. About two years ago. Q. As late as that? A. As late as that. Q. Why did you do that? A. Because I wasn't aware of what my requirement was there. Q. And how did you learn what your requirement was? A. I don't recall. Q. Was it at a conference? A. It was more likely to be in discussion with other colleagues. Q. And you had been practising as a dentist for how long before you ever gave anybody a written consent form? A. As a dentist? Q. Yes? A. 27 years. 27 years, yes.

510. In short, it is the Respondent’s use of the Consent Form that was the

subject of the Particulars of Complaint in this matter, not the quality of the Forms per se. Submission 10 is not relevant to the determinations of this Tribunal.

511. Submission 11 made by the Respondent was as follows:

Submission 11: The shortcomings in Dr Pegios’s record-keeping were such as other dentists in good standing were making at the same period.


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512. The Respondent sets out submissions at pages 96 to 98 to support


Dr Fleming 209: Q. Your record keeping in respect of initial consultations and so on, and item numbers, is from 2002 done on the same computer program as Dr Pegios's, isn't it? A. I believe so, yes. Q. The difference is that you, having listed the initial comprehensive examination and the item numbers that follow will often go into detail about what you have found on a subsequent page? A. That is correct. I will put my notes into that particular area of treatment, or in some cases conditions or whatever. Q. Have you seen other dentists use that same program from 2002? A. I used to work with a group of dentists who used the same program. Q. Have you looked at the way they did their notes on that same program? A. In some cases, yes. Q. Were they more like Dr Pegios's or more like yours? A. I think probably some would be like myself, others would be very brief. Dr Condon 307: Q. And had your attention been drawn to the deficiencies in (your own)documents by Ms Katzmann? A. I was well aware of the deficiencies in those documents but also Ms Katzmann did draw that deficiency to me. Q. How bad do you think your failings were in that regard? A. They would have met the requirements of the New South Wales regulations, not of the ADA guidelines. … Q: … When you talk about “this is inadequate


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record keeping, this is an inadequate treatment plan”, the task is then to see well, what is an adequate treatment plan as at the relevant date? What is an adequate clinical record? That's pretty hard to do, isn't it? A. It is. Q. And then one goes to yourself and Dr Stolz and says well, can we see (yours)from 2002? And if one adopted that process, as we've done, it can be a bit embarrassing, can't it? A. Yes, it is. Dr Stolz 481: Q: … You produced documents in answer to a summons originated by my instructing solicitor, didn't you? A. Patient documents? Q. Yes. A. Yes. Q. Going back to 2002, correct? A. Yes. Q. One of them is a confidential medical history update, right? One of the documents you produced is a medical history. At the top are written the words confidential medical history update, right? A. Yes. Q. Is this still the form - I don't know if you can recognise it from where you are sitting, but is that still the form you are using today? … A. No. Q. In what way have you changed it? A. It's more comprehensive. Q. When did you change it? A. 2004. Q. And do you remember I asked you some questions yesterday about your letter of information to the patient, apparently a woman who lives at Highton, whose name probably is Pina, do you remember I asked you some questions about that yesterday where you set out the treatment options, orthodontics, eight crowns and


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am occlusal splint? A. Yes. Q. In which there is no mention of risks or complications. Do you still write that kind of letter without mention of risks or complications? A. No, the letters are more expansive these days. Q. Why did you change? A. I guess I attended a couple of meetings after that time which drew the attention to what our requirements were. Q. Do you remember when you made that change? A. That would have been about 2004.

513. The HCCC made submissions in reply regarding the Respondent’s

submission on the topic of record keeping at paragraphs 98 to 103 as follows:

98. The respondent submits that the “shortcomings in Dr Pegios’s

record-keeping were such as other dentists in good standing were making at the same period”(submission 11 page 98).

99. The complainant does not submit that the Tribunal should

apply a counsel of perfection when assessing the adequacy of the respondent’s records. However, it is no defence to an allegation of inadequate record keeping, or having records that do not comply with the relevant Regulation, to say that other dentists were also making inadequate records.

100. The adoption of the approach for which the respondent

contends would ultimately undermine proper clinical practice, expose members of the public to sub-standard treatment and render meaningless the regulation of this area of practice. The complainant’s submissions refer at paragraph 291 to the passage in the judgment of the Court of Appeal said in HCCC v Litchfield (1997) 41 NSWLR 630 at 638C. That is a complete answer to the respondent’s submission.

101. As Dr Ho pointed out when discussing the importance of

making notes:

It is so you have a recollection of what you’ve done to the patient because you cannot remember everything that you've done for all your patients. It’s also a note for other practitioners that may have to take care of treatment when


317

you're away or you have an emergency. Also, I guess, I think it just gives you a comparable guideline of what you've done for the patient so that you can be aware of how treatment progressed because it is very difficult to remember all your patients’ treatment, every single one of them, without having records. (Complainant’s submissions paragraph 156.)

102. On pages 44 to 47 of his submissions the respondent returns

to the issue of record keeping and identifies relevant passages from the transcript of his evidence about his record keeping since 2004. He submits:

These passages of evidence as the relevant material for the Tribunal’s consideration in every instance where it is admitted that the respondent’s record-keeping was deficient. There were serious shortcomings, but they have been rectified. His present record-keeping is, plainly, faultless. (page 47.)

103. The state of the respondent’s record keeping since the events

the subject of these complaints has nothing to do with the issues the Tribunal is considering. It has no bearing on whether at the time of the conduct the subject of the complaints the conduct amounted to unsatisfactory professional conduct or professional misconduct. The Tribunal is only concerned at this point with the admittedly serious shortcomings. Doubtless the respondent’s record keeping has improved. Whether it is now good enough remains to be seen; it is one of the issues to be considered after the conclusion of the second stage of the proceedings.

514. The Tribunal notes that the Respondent admitted the Particulars

relating to record keeping and for the best part the Expert Conclave found the conduct was below that standard expected and in some cases significantly below. The Tribunal also notes that the members of the Expert Conclave did not have access to the entirety of the clinical notes as the Respondent produced some records during the course of the hearing. The Tribunal notes however that it would be extremely unlikely that access to the records produced by the Respondent would have, due to their paucity, resulted in any more favourable comments from the members of the Expert Conclave.

515. The Tribunal has also taken care when considering the evidence

regarding the standard of clinical notes of other practitioners. Regard must be made for a number of factors such as the nature of the work undertaken. While the Tribunal has relied upon the experience and expertise of the professional members of the Tribunal to some extent


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in providing the reasons set out herein as to why the record keeping standard of the Respondent falls below what is expected, the Tribunal has not disregarded the contrary evidence.

516. The Tribunal has made comments above with respect to the

fundamental importance of record keeping to the profession, particularly the legislative force that has been given to this area of practice by the making of Regulations. The actions of other practitioners cannot be the sole determinative factor with respect to professional standards. All dentists are required to meet the standards prescribed in the Regulations.

517. The Tribunal accepts the submissions of the HCCC set out above

regarding this issue. The Tribunal rejects the general submission made by the Respondent as Submission 11.

518. Submission 12 made by the Respondent was as follows:

Submission 12: The respondent presently demonstrates a high degree of diligence in communications with his patients’ medical practitioners, and – at the relevant time – his practice was unexceptionable by the then-applicable standard. His present practice is unexceptionable.

519. The Respondent sets out submissions at pages 98 to 100 to support


The Tribunal will not regard this area as a counsel of perfection.

The real world of general dentistry proved to be far from the ideal

contended for by the complainant – even in 2009. Dr Fleming On consulting patients’ medical practitioners 228: Q. Don't you seek the report of a (medical) practitioner where your patient is going to undergo certain procedures? A. … a medical practitioner, rarely so. Q. Why not? A. It is not an everyday occurrence that I need to do that. However, if I have a patient, for example, that has undergone say cardiac surgery or valve replacement, or knee replacement, or those sorts of things, I may refer to the GP to see if we need antibiotic prophylaxis or if we need to take them off antibiotic prophylaxis or


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blood thinners before I do surgery on them. I may refer them to their GP to see if that is only at that point in time. I may refer them to a medical practitioner, yes. … Q. If you had a diabetic patient would you want a report from their general medical practitioner before you performed general surgery on them? A. In some cases if I thought the filling may be compromised or if the patient is unsure as to their medications and current stability of their condition, I may say is it okay to talk to your GP to see you are healthy enough to undergo this procedure … I would do it in the case where I thought it was necessary. Q. How many times have you done it this year? A. This year? On memory, three. Q. How many patients have you treated this year? A. Couldn't tell you. Q. Hundreds? A. Could be. I sorry, I don't have that information on me. Q. Now one of your patients in the records you made available to us had a cardiac condition, didn't she? A. I'm not sure, which patient. … Q. A heart murmur? A. Which patient are we referring to? CHAIRPERSON: I think it was [Mrs F]. … Q. You were taken to two (medical histories)one 2008 and one 2002, in both of which she told you she had a heart murmur? A. Mm-mmm. Q. You didn't send for any report from her GP, did you? … A. There's no record of it, no. Q. Well, why not? A. Because we covered her condition with a prophylactic antibiotic. …


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Q. You prescribed what? A. 3 grams of Amoxil one hour prior to treatment, providing the patient is not allergic to penicillin. Q. Did you know what antibiotic she was on? A. She wasn't on antibiotic. Q. So how do you know that? A. Because at the time we do the medical history she filled out, and I would have also asked her what medications are you taking or tablets regularly and she's indicated in 2008 Inderal. … Q. And she says she's taking Inderal for her blood pressure and she has high blood pressure? A. That's correct. Q. Now even given that, you would say it's unnecessary for to you consult her treating doctor? A. Well for the treatment I was doing, that's correct. Q. You did you not regard it as unreasonable, your failure to seek a medical report was not unreasonable? A. Correct. Q. And you would say it was of the normal standard of the average dentist? A. Correct. … Q. What sort of thing would a patient have to have before an alarm bell went off, that you would say well, I'm not doing anything till I've got a report from a treating doctor? A. If they presented in a severely immuno-compromised state, if they had uncontrolled diabetes which affected greatly their healing, there could be quite a few conditions. If they presented to me after undergoing recent traumatic or extreme coronary surgery and were on a whole list of medications, some of which they were a bit unsure about, I'm just listing possible alternatives, possibility. Dr Pegios 1301: Q. I am having handed to you three referrals for


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patients to their treating general medical practitioners, as I understand it? A. Yes. Q. Is that what they are? A. Yes. Q. And are these the ones - I think they are dated variously - one is dated February 2006, one is May 2006 and the most recent is May 2007? A. Yes. Q. The third of those, the May 2007, is that the one you are currently using? A. Yes. (Documents tendered, marked Ex R15) MR LITTLEMORE: Q. Do you make that request of every patient's treating doctor? A. No. Q. Does your anaesthetist make that request, to your knowledge, of every patient's treating doctor? A. No. Q. In what circumstances is the request made? A. If there are any complex medical issues or the treatment itself is deemed complex.

520. The HCCC made submissions in reply regarding the Respondent’s submission on the matter of consulting with the patient’s medical practitioners as follows (paragraphs 96 and 97):

96. The respondent’s submissions completely miss the point. The

criticism of the respondent did not relate to his failure to contact the patients’ medical practitioners, it related to his dishonest assurance to his implant patients that he would be consulting their doctors and that he would not operate without “a medical clearance”. The precise terms of his assurance are set out in paragraph 116 of the complainant’s submissions. The evidence of Dr Fleming is beside the point.

97. The submission at page 100 about the respondent’s current

practice and the evidence on the question extracted on that page is also irrelevant. The veracity of his assertions may be further explored during the second stage of the proceedings.


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521. As referred to at several places above, this Tribunal is concerned about the characterisation of the conduct at the time it occurred. Considerations regarding the intervening practice of the Respondent and his current standards are relevant to, and will be considered in, the next phase of the hearing.

522. The Tribunal repeats the comments also made in several places

above, that what may have been the practice of other dentists is not necessarily determinative of the standard to be applied by this Tribunal.

523. More importantly, this submission does not go to the subject of any of

the particulars of any of the Complaints being considered by the Tribunal. Submission 12 is not relevant to the current deliberations of this Tribunal.

HCCC submissions in reply generally 524. On 7 September 2009 the HCCC provided submissions in reply. The

introductory submissions deal in a general nature with the submissions made by the Respondent as follows (footnote incorporated):

2. The respondent’s submissions fail to distinguish the discrete

issues that the Tribunal must determine, ignore evidence that does not suit the points he makes and fail to engage with most of the complainant’s arguments.

3. The focus of the Tribunal’s inquiry at this point is on the

substance of the complaints and whether they amount to unsatisfactory professional conduct or professional misconduct. For this reason all the submissions about how the respondent has behaved since the time the subject of the complaints are premature and apt to mislead.

4. Where the respondent’s conduct is at its worst, he seeks to

deflect attention from it by pointing to the time that has lapsed since it occurred and he makes a general submission relating to the effluxion of time.

There is no evidence to suggest that in the four years since the last conduct that could even arguably be contended to be unsatisfactory, Dr Pegios has treated any patient in any deficient way or that he lacks the knowledge, skill, judgment or care of a dentist of equivalent training or experience. Indeed, there is unchallenged evidence of his practicing at an extremely high level of competence. In other words, there is no basis upon which the Tribunal could be satisfied – and certainly not to the very high


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standard dictated by the rule in Briginshaw v Briginshaw – that Dr Pegios is not fit to practice dentistry at a very high level of competence. (page 6)

5. This point is reiterated specifically with respect to the cases of

[Patient G] and [Patient F]. (See pp 3 and 4). 6. This submission should be rejected. 7. First, the respondent completely misconceives the test for

professional misconduct. The respondent’s conduct in the last four years has nothing to do with whether he is guilty of unsatisfactory professional conduct or professional misconduct. The test of professional misconduct does not depend on whether his suspension or the cancellation of his registration is “now” justified. Rather, the gravity of his conduct is to be assessed at the time it occurred. Present fitness is relevant to what orders should be made. The Act contemplates a three stage process. The first involves the determination of whether the practitioner engaged in unsatisfactory professional conduct. The second involves considering whether the degree of unsatisfactory professional conduct is sufficiently serious to justify cancellation of registration or suspension. Only at the third stage is the Tribunal called upon to assess present fitness.

8. Secondly, the Court of Appeal has repeatedly stressed that

effluxion of time, of itself, is irrelevant. In HCCC v Litchfield (1997) 41 NSWLR 630 the Court of Appeal quoted with approval the following passage from the judgment of Walsh JA in Ex parte Tziniolis Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461:

Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. In such cases, it has been frequently said that a heavy onus lies on the applicant. In such a case, adverse findings on the facts relating to an earlier period when he was already mature in years make it difficult to come to a conclusion that he is now of good character at this later time. There can, of course, be no


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universal rule on such a question. Each case must depend on its own facts and circumstances.

9. The respondent goes further, however. At page 6 counsel

submits that “there is no evidence to suggest that in the four years since the last conduct that could even arguably be contended to be unsatisfactory . . .” and “there is unchallenged evidence of his practicing at an extremely high level of competence”.

10. This submission is an audacious one. The parties had an

agreement (with the Chairperson) that there would be a further hearing on the question of orders to avoid any prejudice to the respondent from an exploration of his conduct over the last four years [T532-3]. The respondent should not be permitted to exploit that agreement to his advantage. The submission at point 6 on page 6 and at page 100 (styled ‘submission 12’) should be withdrawn. If the submission is pressed, the complainant seeks leave to reopen the inquiry to deal with the additional matters and to challenge the factual assertions in the submission.

525. The Tribunal makes no finding with respect to this submission made by

the HCCC. 526. The Tribunal notes the comments made above that the submission

made by the Respondent regarding the effect of the effluxion of time have been rejected by the Tribunal. As indicated above the Tribunal did not consider Submission 12 to be relevant to the matters currently considered.

527. Noting that the Respondent does not address the primary submissions

made by the HCCC in paragraphs 39 to 48, the HCCC makes the following submission with respect to the standard of proof that appears to have been applied by the Respondent in submissions as follows (at the first paragraph numbered 13 located on page 3 of the submissions in reply footnotes incorporated):

The submissions the respondent makes are contrary to authority. As Powell JA said in Arvind v Walton [1995] NSWCA, 23: So far as the first of Mr Byrne’s submissions in relation to this ground of appeal is concerned, it seems to me, with respect, that it is ill- founded. In saying that, I do not overlook the fact that in recent decisions of this Court in such matters (see, for example, Kirumba v Walton, McBride v Walton), there may be found statements to the effect that in such cases as this “the


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complainant is required to prove the case to a very high level of satisfaction”. That fact, however, does not establish that in matters such as this the standard of proof to be attained is one higher than the ordinary civil standard - it is merely an acknowledgment of the fact that the degree of satisfaction for which the civil standard of proof calls varies according to the gravity of the fact to be proved.

528. The Tribunal accepts this submission made by the HCCC regarding

the standard of proof and refers back to the comments made in this Reasons document at paragraph 472.

529. The HCCC reply to the submissions made by the Respondent

regarding the manner in which the HCCC conducted the case at paragraphs 12 – 20 is as follows:

12. The respondent contends that the complainant has failed “to

address the sole operative issue - Dr Pegios’s current fitness to practise - and instead has chosen to conduct its case as if the issue were the appropriate punishment for ‘offences’ that have long been stale and whose relationship to the central issue has not been established”.

13. The evidence advanced in support of this contention is:

a. relying upon the evidence of Dr Stolz when his bias was patent, and his reports replete with malice, and

b. an “inconceivably lengthy, repetitive and unhelpful cross-examination of Dr Pegios [which] was directed at anything but the central issue”.

14. The allegation of bias against Dr Stolz is dealt with elsewhere

in this submission. 15. The first thing to be said is that current fitness to practise is

irrelevant to the issues the Tribunal is currently considering. The Tribunal is bound to make findings of fact and determine whether the complaints are proved. Any agreement reached by the parties may make that task easier, but it does not mean that the Tribunal is relieved of its obligation. Section 130 of the Dental Practice Act imposes a statutory obligation on the Tribunal to conduct an inquiry into any complaint. The only circumstances in which no inquiry is necessary is “if the dental care provider who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal”. Numerous facts relating to all the complaints remain in dispute. Importantly, the respondent has always denied that


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he is guilty of professional misconduct in relation to any of the matters where such a complaint is made and he denies unsatisfactory professional conduct in two of them. Moreover, as this is a protective jurisdiction the respondent’s admissions had to be tested in order to determine whether they were genuinely made and what they actually reflected. It would be a rare case indeed in which a disciplinary authority would be discharging its functions appropriately before a tribunal if it were to accept without testing them self-serving statements made by a practitioner desirous of retaining his right to practice.

16. The submissions on pages 9-10 betray a fundamental

misunderstanding of the nature of the first stage of the inquiry which was, by agreement between the Tribunal and the parties, to concentrate on whether the complaint was established. In particular, the submission that the particulars of the respondent’s significant failings are only relevant “insofar as they cast light on his present professional capacity” is misconceived for the reasons given above.

17. The suggestion that the respondent was inhibited in giving full

and frank evidence because of his obligations to his insurer, his position in then current litigation, the personal pressures he may have suffered or due to the complaint being amended should be dismissed. First, there is no evidence that his obligations to his insurer prevented him from giving full and frank evidence. Indeed, one would be astonished if that were the case. Secondly, the connection between personal pressures and honesty is obscure. Thirdly, the amendments to the complaint never prevented the respondent from making full and frank early disclosure of the full nature and extent of his wrongdoing. Neither do they excuse the untruths he told the District Court. What is more, despite the amendments, the respondent has known the substance of the complaint for a long time. The obligation for candour (or “full and frank disclosure”) is fundamental to membership of professions such as law and medicine. (See, for example, Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [43] and at [44] where the Court of Appeal observed that the privilege against self-incrimination would not entitle a practitioner to make untruthful or misleading statements.)

18. The respondent makes a curious submission that:

It would appear that the complainant is wedded to a politically-correct concept of flogging the dead horse of


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‘insight’ – a trendy buzzword, and all but meaningless – when the Tribunal’s duty is better described as assessing whether Dr Pegios sincerely acknowledges, understands and appreciates the gravity of the errors he made as long ago as the period between late 2002 and mid-2005, has learned from them, and will be a better dentist as a result. (pages 9-10)

19. The complainant contends that insight is an important matter

for the Tribunal to eventually consider. The difference between us may only be a semantic one. However, the passage extracted at page 3 in which the respondent answered ‘no’ a series of leading questions scarcely demonstrates that he has any understanding of the errors of his ways. The issue, in any event, is for another day.

20. The criticisms of the complainant’s conduct of the proceedings

are unfounded and should be rejected. 530. The Tribunal has already made comments on the submissions made

by the Respondent (see paragraphs 473 - 475 of this decision above) on this issue and, in essence, has rejected the criticisms made therein.

531. With respect to the Respondent’s submission regarding the ‘buzzword’

‘insight’, the Tribunal notes the comments already made at paragraph 477 this decision.

532. At paragraphs 21 to 31 the HCCC submissions in reply deal with the

Respondent’s submission that the evidence of Dr Stolz should be disregarded by the Tribunal unless it coincides with the evidence of another expert. The HCCC submission at paragraphs 21 to 31 reads as follows (footnotes incorporated):

21. Under the heading of “Bias and the assessment of expert

witnesses”, the respondent makes a sustained attack on Dr Stolz culminating in the submission that “wherever his opinion does not coincide with those of by the other experts, it must be rejected”.

22. The Tribunal’s procedures are not governed by the Uniform

Civil Procedure Rules (NSW). Thus, there is no requirement for an expert witness in a Tribunal inquiry to have read and adopted the Expert Code of Conduct in Schedule K to these Rules. The Expert Guidelines that the complainant gave both Dr Stolz and Dr Condon serve a similar purpose [see T 24 and T362]. That said, the principles in HG do apply.


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23. An expert, in contrast to a lay witness, is entitled to give evidence of opinions and to draw inferences from proved or assumed facts. The limitations of expert evidence are discussed and summarized in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

24. The submission of the respondent that “neither of the

complainant’s experts was made aware of his obligations of impartiality, nor of the need to substantiate opinions reported” is wrong. The Expert Guidelines explicitly impressed on each of them that they were “to provide a balanced, objective and considered opinion” and they were also required to draw to the attention of the complainant any personal, financial or professional connection with the respondent. It is not now in dispute that Dr Stolz did make a disclosure to the complainant of his contact with the respondent. The fact that they may not have read the Expert Code of Conduct does not mean they were unaware of their general duty to act impartially and substantiate their opinions, and they both did their best to fulfil their obligations.

25. It is notable that the submissions do not challenge the

substance of most of Dr Stolz’s opinions. 26. In paragraphs 50 to 85 of its submissions the complainant

explains why the Tribunal should reject the allegation of bias against Dr Stolz. Nothing in the respondent’s submissions detracts from the complainant’s argument.

27. A close examination of the criticism of Dr Stolz reveals that it

rests upon largely peripheral matters. The allegations fall into two categories:

a. The Currenti allegation.

The respondent has not identified any basis for suggesting that Dr Stolz had antipathy towards him. His explanation of the comments that formed the basis of the allegation was straightforward and credible: see paragraphs 51-53 of the complainant’s submissions.

b. The written reports, especially the final report dated 9 February 2009. The complainant observed in paragraph 54 of its submissions that:


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Although the language Dr Stolz used in his last report, in particular, was at times infelicitous, the Tribunal would not find that he bore any animosity towards the respondent or prejudged his guilt. The last report, it must be remembered, was written after he had considered his opinions in relation to six complaints of professional misconduct and when the magnitude of that conduct had been fully revealed.

28. The respondent’s submissions are full of hyperbole. Dr Stolz

did not admit to bias and none of the extracts from the transcript included in them support the contention. The statement, for example, at page 40 that “Dr Stolz’s malice was undeniable” is not at all borne out by the passage that appears below it. Dr Stolz made reasonable concessions in cross-examination. A witness who makes reasonable concessions in cross-examination is usually well regarded for doing so, not vilified.

29. Moreover, the extracts relied upon by the respondent do not

accurately reflect the general tenor of his evidence. The complainant’s submissions at paragraphs 55 to 82 identify many instances of the fairness and impartiality of the evidence of Dr Stolz. He testified in a very measured way. The cross-examination focused on language, rather than substance.

30. The Tribunal had plenty of opportunity to assess his reliability

and his expertise and would doubtless have regard to the whole of his evidence before reaching its conclusions. Overall, Dr Stolz gave the impression of an honest, fair-minded and impartial witness, whose occasional use of imprudent language was merely illustrative of the extent of his well-founded criticism.

31. The submission of the respondent that the evidence of Dr

Stolz should be rejected unless it coincides with the evidence of the other experts is not sustainable. The contention that Dr Stolz was biased against the respondent should be rejected.

533. The Tribunal accepts the HCCC submission regarding the evidence of

Dr Stolz. The Tribunal has set out above details with respect to the approach adopted to the evidence of the Expert Conclave, particularly with respect to the fact that the Tribunal had additional evidence, not available to the members of the Expert Conclave, the relationships between the experts and the Respondent unknown to the other members of the Expert Conclave and the insufficient time available to the members of the Expert Conclave to consider the Respondent’s Statement.


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Summary of findings re Complaints 534. The Respondent is a qualified and experienced dentist. He possessed

training considered sufficient to undertake implant work and sedation. 535. As noted above, the Respondent has made staged admissions. The

first admissions (dated 11 March 2009) were received by the Chairperson of the Tribunal just prior to the meeting of the Expert Conclave (25 March 2009). Since that point admissions have been changed, added and withdrawn. The benefit that may flow from such matters correctly form part of the matters to be considered in the second stage of this Inquiry and are not proper considerations going to the characterisation of the conduct.

536. The Tribunal having found the Respondent guilty of professional

misconduct and unsatisfactory professional conduct as recorded above will reconvene on 26 October 2009 to consider evidence and submissions as to appropriate protective orders in accordance with section 71.

Publication A copy of this Reasons for Decision document is to be forwarded by the Registry to: 1) The Dental Board of NSW; 2) The Respondent and his legal advisers; 3) The HCCC; and 4) as the Board sees fit. Dated: 2009

___________________ Joanne Muller ___________________ Keith Lester ___________________ Bruce Edelman OAM ___________________ Sandra Everett Annexure A – Schedule of documents in evidence Annexure B - Expert Conclave Report Summary Annexure C – Extract from the HCCC submissions 2 August 2009 Annexure D – Schedule of names suppressed (Only annexed to original and copies provided to parties – NOT TO BE COPIED)


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ANNEXURE A

HCCC V PEGIOS

INDEX OF DOCUMENTS IN EVIDENCE

Volume One Complaint concerning Patient A

A Complaint dated 19 August 2008

B Certificate of Registration

Certificate issued by the Dental Board dated 30 March 2009

Patient

1 Letter from Patient A to the Dental Board dated 29.3.2005 enclosing: • Treatment plan dated 23.12.04 • Treatment plan dated 21.12.04 • Treatment plan dated 1.3.05 • Tax invoice/receipt dated for treatment date 7.12.04 • Tax invoice/receipt dated for treatment date 27.1.05 • Tax invoice/receipt dated for treatment date 4.11.03 • Tax invoice/receipt dated for treatment date 23.12.2004

2 Statement of Patient A dated 27.6.2006

Correspondence between Dental Board and Dr Pegios

3 Letter from Registrar to Dr Pegios dated 1.4.2005

4 Letter from Dr Pegios to Registrar dated 14.4.2005

5 • Letter from Registrar to Dr Pegios dated 10.5.2005

• Letter from Chairman, Dental Care Assessment Committee to Dr Pegios dated 20.7.2005

• Letter from Dr Pegios to Chairman, Dental Care Assessment Committee dated 1.8.2005



• Letter from Registrar to Dr Pegios dated 29.11.2005

Reports / Records other practitioners

6 Letter from Chairman Dental Care Assessment Committee to Dr Ajaje dated 23.5.2005

• Report of Dr Phillip AJAJE for the Dental Care Assessment Committee dated


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3.6.2005 7 Letter from Chairman Dental Care Assessment Committee to Dr van Vuuren

• Letter from Dr Van Vuuren to the Dental Care Assessment Committee 8 Letter from Chairman Dental Care Assessment Committee to Dr Selby dated 24.6.2005

• Report of Dr Alex Selby for the Dental Care Assessment Committee dated 1.7.2005

Correspondence between HCCC and Dr Pegios

9 • Letters from Commission to Dr Pegios dated 2.3.2006 and 8.5.2006 • Letter from Dr Pegios to the Commission dated 22.5.2006 • Letter from Commission to Dr Pegios dated 5.6.2006

10 Letter from Dr Pegios to the Commission dated 13.6.2006 attaching, inter alia, report about Patient A and colour photographs

11 Letter from Commission to Guild Legal dated 3.10.2006 (s40)

12 Letter from Dr Pegios to the Commission dated 30.10.2006

Peer Review

13 Letter from the Commission to Dr Condon dated 10.7.2006 with annexure entitled “Expert Guidelines”

14 Peer report of Dr Condon dated 22.9.2006

15 Letter from the Commission to Dr Stolz dated 23.10.2008 including annexure

16 Peer report of Dr Stolz dated 11.12.2008

17 Referral letter from Dr Pegios to Dr Christopher Ho dated 16 October 2006

18 Records of Dr Christopher Ho re Patient A

Volume Two Complaint concerning Patient B

Patient

1 Letter of complaint by Patient B dated 1.1.2006 enclosing photograph of implant

2 Statement of Patient B dated 14.6.2006


3 Patient records from Dr Pegios under cover of letter to the Dental Board dated 10.3.2006


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• Out line of treatment • Patient progress notes • History sheet • Correspondence • Treatment plan • Clinical photographs • Pre –treatment – x-rays • Upper 8 implants, upper provisional implants, lower finished implant re-

construction – x-ray • Consents • Pre-anaesthetic assessment • Anaesthetic and Recovery chart • Implant log-book • IV sedation records • Appointment records • Radiographs


4 Patient records held by the Dental Clinic at Concord Hospital, under cover of letter dated 13.6.2006 from Mike Wallace, Chief Execute SSWAHS

5 Dr Glen Wiley dated 5.9.2006 CV of Dr Glen Willey


6 Letters from the Commission to Dr Pegios dated 13.4.2006 and 8.5.2006 Letter from Dr Pegios to the Commission dated 22.5.2006 Letter from the Commission to Dr Pegios dated 5.6.2006

7 Letter from Dr Pegios to the Commission dated 13.6.2006 enclosing inter alia report on Patient B and additional photographs

8 Letter from the Commission to Guild Legal dated 3.10.2006 (s40)


Peer Review

10 Letter from the Commission to Dr Condon dated 10.7.2006 11 Peer report of Dr Condon dated 22.9.2006

12 Letter from the Commission to Dr Stolz dated 23.10.2008

13. Peer report of Dr Stolz dated 11.12.2008

Volume Two A Dental Appliance - Patient B Volume Three Complaint concerning Patient C


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Patient

1 Letter of complaint by Patient C to the Dental Board dated 25.4.2005, enclosing • ‘Letter No 1’ from Patient C to Dr Pegios • Letter dated 18.3.2005 from Dr Pegios to Patient C • ‘Letter No 2’ dated 22.3.2005 from Patient C to Dr Pegios • Letter dated 8.4.2005 from Dr Pegios to Patient C • ‘Letter No 3’ dated 22.4.2005 from Patient C to Dr Pegios • Invoice/Receipts • ‘ADA Pamphlet’

2 Statement from Patient C dated 1.6.2006

3 Photographs of Patient C taken 19.4.2005 and 25.4.2005

Correspondence between Dr Pegios and the Dental Board

4 Letter from Dr Pegios to the Dental Board enclosing patient records for Patient C: • Computer print out of treatment • Handwritten notes • Timeline computer and written records • Photographs • X-rays • Pictures of moulds

Reports/Records other Practitioners

5 Letter from Dr Michael Tam dated 20.6.2006 enclosing: Report (dated 19.6.2006 ) and patient records CV of Dr Michael Tam


6 • Letters from the Commission to Dr Pegios dated 2.3.2006 & 8.5.2006 • Letter from Dr Pegios to the Commission dated 22.5.2006 • Letter from the Commission to Dr Pegios dated 5.6.2006

7 Letter from Dr Pegios to the Commission dated 13.6.2006 enclosing inter alia report on

Patient C and colour photographs of patient and of moulds

8 Letter from Commission to Guild lawyers dated 3.10.2006 (s40)


Peer Review

10 Letter from the Commission to Dr Condon dated 10.7.2006



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Volume Four Complaint concerning Patient D

Patient

1 Letter of complaint by Patient D to the Dental Board dated 31.8.2002 (sic – should be 05) enclosing receipt from Dr Pegios

2 Statement of Patient D dated 21.6.2006


3 Patient records provided by Dr Pegios to the Board, received 17.10.2005: • “Explanation of Treatment Notes for Patient D” • Computer Treatment Notes • Appointment Treatment Notes • Implant Log Book Notes • Correspondence to Patient • Consent Form • IV Sedation Consent Form • E-mails from Patient • Photographs • Pre-Operative OPG • Post-Operative OPG • Anaesthetic & Recovery Chart • Copies of Medical Chart

4 Records from Dr Lydia LIM:

• Letter from Dr Lydia LIM to Dr Rekha Halasagi dated 4.7.2000 • Letter from Dr Lydia LIM to Dr Rekha Halasagi dated 18.7.2000 • Letter from Dr Lydia LIM to Dr Stephen Travis dated 23.9.2005 • Case notes for 21.9.05 • X-ray • Letter from M Darmody to Dr Lydia LIM dated 20 March 2009 • Letter from Dr Lydia LIM to M Darmody dated 23 March 2009 • Copy of CT scan dated 7 October 2007


5 Letter from Dr Glen Willey to Patient D dated 8.9.2005 5.1 Letter from Dr Glen Willey to HCCC dated 21.10.08 and HCCC letter dated

08.10.08

6 Report for Dr Alex Selby for the Dental Care Assessment Committee dated 11.11.2005 6.1 Letter from Dr Alex Selby to HCCC dated 13.10.08 and HCCC letter dated

08.10.08 CV of Dr Alex Selby


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7 • Letters from the Commission to Dr Pegios dated 2.3.2006 and 8.5.2006 • Letter from Dr Pegios to the Commission dated 22.5.2006 • Letter from the Commission to Dr Pegios dated 5.6.2006

8 Letter from Dr Pegios to the Commission dated 13.6.2006, enclosing inter alia, report

on Patient D, photographs and copies of x-rays

9 Letter from the Commission to Guild Legal dated 3.10.2006 (s40)


Peer Review





Volume Five Complaint concerning Patient E

Patient

1 Letter of complaint to the Dental Board dated 5.9.2005 attaching Medical Certificates

2 Statement of Patient E dated 6.6.2006


3 Patient records provided by Dr Pegios to the Dental Board received 1.11.05, including: • Operation report • Explanation of Treatment • Treatment Notes • Appointment Notes • Consent Form • Pre-Anaesthetic Assessment • Anaesthetic & Recovery chart • Communications • Photographs • Peri-apical Radiographs • OPG



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4 A 4 B

• Report of Dr Hogan dated 12.7.2004 • Letter from Dr Hogan to Patient E dated 2.5.2006 enclosing estimate of fees

dated 1.5.2006 • Letter from Dr Hogan re Patient E dated 22.5.2006

CV of Dr Paul Hogan

5 Report of Dr Ajaje to the Dental Care Assessment Committee dated 201.2006

6 Report of Dr Alex Selby to the Dental Care Assessment Committee dated 30.11.2005 enclosing photographs & X-ray



8 Letter from Dr Pegios to the Commission dated 13.6.2006 enclosing inter alia report on

Patient E and colour photographs of patient



Peer Review





Volume Five A Dental Appliance Patient E

Volume Five B Dental Appliance Patient E

Volume Six Complaint concerning Tony DE-VAL (Patient F)

Patient F

1 Letter of complaint to the Dental Board dated 5.9.2005 enclosing • Tables prepared by Mr De-Val re his treatment • Treatment Plan


338

• Invoice/Receipts

2 Statement of Mr De-Val dated 10.7.2006


3 Letter from Board to Dr Pegios dated 5.9.2005 Patient records from Dr Pegios, received by the Dental Board on 18.10.2005:

• Explanation of treatment notes for Tony De-Val • Computer print out • Appointment notes • Communications • Consents • OPG Pre-operative • OPG Following removal and graft of posteriors • OPG provisional bridgework • OPG Final abutments, crowns • Pre-operative intra and extra oral photographs • Intra Oral and Laboratory photographs of provisional prosthesis • Series of Try-in and issue appointments (photographs) • Impression of lower arch • Series of Try-ins of full arch prostheses • OPGs • Letter from Dr Leung to Dr Pegios dated 1.7.2002

4 X-rays provided by the Dental Board


5 Report of Dr Lydia Lim to the Dental Care Assessment Committee dated 21.12.2005 CV of Dr Lydia Lim

6 Report of Dr Hugh Fleming to the Dental Care Assessment Committee dated 13.2.2006 CV of Dr Hugh Fleming

7 Report of Adj Associate Professor Richard Chan to the Dental Care Assessment Committee dated 20.3.2006 CV of Dr Richard Tam



9 Letter from Dr Pegios to the Commission dated 13.6.2006 enclosing inter alia report


339

on Mr De-Val and colour photographs of patient



Peer Review





17

Redacted version of Report dated 14 June 2007 by Dr T Walton CV of Dr T Walton

18

Affidavit of Attempted Service of Stephen Hobbs Sworn on 6 April 2009 re Patient F

Volume Seven Patient G

Volume Eight Coronial Brief of Evidence

Volume Nine Transcript of Coronial Inquiry

Volume Ten Trial Exhibits

Volume Eleven Trial Transcripts Volume 12 Further Documents

Dental records/files

1. Colour odontograms from dental records for Patients A - F.

2. Colour Joint Vibrational Analysis documents from dental records of Patient A.

3. Progress notes for Patient F (from documents produced by Respondent under summons issued 22 October 2008).

4. Medical History for Patient C (from documents produced by Respondent under summons issued 22 October 2008).


340

5. Folder of documents with letter addressed to Patient E (from Dental Board file).

6. Statements of account for Patients A - F (from documents produced by Respondent under summons issued 22 October 2008).

Correspondence and material re Dental Board/Supreme Court proceedings

7. 1 Letter from Dental Board to Respondent dated 17 February 2006 and attachments (Dental Care Assessment Committee Reports (DCAC) for Patients A, C -E and complaint of Patient F)

3 Letter from Dental Board to Guild Legal dated 22 February 2006

18 Letter from Guild Legal to Dental Board dated 2 March 2006 and attachments

8. 1 Letter from Ebsworth & Ebsworth to Dental Board dated 15 May 2003

3 Letter from Dental Board to Ebsworth & Ebsworth dated 19 May 2003

4 Letter from Dental Board to Ebsworth & Ebsworth dated16 June 2003

5 Letter from Ebsworth & Ebsworth to Dental Board dated 25 June 2003

6 Letter from Dental Board to Ebsworth & Ebsworth dated 18 July 2003

7 Letter from Dental Board to Respondent dated 22 October 2004

8 Letter from Guild Legal to Dental Board dated 28 October 2004 and attachment (letter of Dr Lilley dated 27.10.04)

11 Affidavit of Respondent dated 27 October 2004

64 Affidavit of Respondent dated 28 October 2004

66 Letter from Crown Solicitor’s Office to Guild Legal dated 18 November 2004 and attachment.

68 Summons to Dental Board returnable on 29 October 2004 69 Summons to Dental Board returnable on 29 October 2004 70 - 88 Affidavit of Dr George Pegios sworn 28 October 2004 including

annexures A to E (18 Pages)

9. 1 Letter from DCAC to Respondent dated 20 July 2005 re Patient A

2 Letter from DCAC to Respondent dated 30 August 2005 re Patient C

3 Letter from Respondent to Dental Board dated 15 September 2005 Patient C

4 Letter from Respondent to Dental Board dated 22 September 2005 re patient C

5 Letter from DCAC to Respondent dated 28 October 2005 re Patient C

6 Letter from Dental Board to Respondent dated 29 November 2005 re Patient D

8 Letter to Dental Board from Patient D dated 13 March 2006

9 Letter from Dental Board to Respondent dated 29 December 2005 re Patient E


341

11 Letter from Dental Board to Patient E dated 8 March 2006

12 Letter from Dental Board to Respondent dated 13 April 2006 re Patient F and attachment (DCAC report)

16 Letter from Dental Board to Patient F dated 23 May 2006

10. S72 Inquiry reasons for decision dated 3 March 2006

Other Documents

11. ADA Code of Ethics & Conduct Guidelines (as at April 1997 and amended October 1998)

12. AND NSW Branch Ltd Newsletter Vol 47 No 10 November 1998 pages 12-13.

13. Journal Article “A review if selected dental literature on evidence –based treatment planning for dental implants: Report of Committee on Research in Fixed Prosthodontics of the Academy of Fixed Prosthodontics” Melanie R Wood and Stanley Vermilyea, Journal Of Prosthetic Dentistry, November 2004, page 447. (referred to in report of Dr Selby Vol 4 tab 6 pg.4)

14. Transcript of Today Tonight broadcast dated June 2002

15. Curriculum Vitae of Dr Gerard Condon (updated)

16. Supplementary Statement of Patient E dated 13 March 2009 and attachments.

17. Letter of Dr Patrick Dalton to HCCC dated 16 March 2009-03-23

(a) Letter from HCCC to Dr Dalton and attachments 12.03.09

18. (A) Respondent’s Admissions to amended Complaint dated 11 March 2009

(B) Respondent’s updated Schedule of admitted facts dated 24 March 2009

(C) Respondent’s Admissions to Amended Complaint dated March 2009

(D) Respondent’s Further Admissions to Amended Complaint dated 1 April 2009

(E) Respondent’s Second Further Admissions to Amended Complaint dated 6 April 2009

19. Report produced following meeting of experts on 25 March 2009:

(A) Notes of Dr Condon (B) Notes of Chairperson (C) Agreed Transcript of the Report

20. (A) Letter from the HCCC to Guild Lawyers dated 26 March 2009 (B) Letter from Guild Lawyers to the HCCC dated 27 March 2009


342

21. Bundle entitled “Documents provided to Experts” dated 25 March 2009

22. Report by Dr Timothy Stolz dated 9 February 2009

23. Australian Dental Association Guidelines for Good Practice on Consent for Care in Dentistry 1999

24. Letter from Dr Alastair Stevenson to Dr P Hogan dated 15 October 2007 re Patient E

25. (A) Photograph 1 produced by Patient E on 31 March 2009 (B) Photograph 2 produced by Patient E on 31 March 2009

26. Handwritten notes of Ms Amanda Hadley re interview with Patient E

27. File Note by Ms Amanda Hadley dated 23 May 2006 re Patient E

28. Documents relating to Patient C: - Affidavit of Service - Summons to Appear and give Evidence - Letter from Patient C to Mr Darmody dated 13 March 2009 - Letter from Dr B dated 12 March 2009 - Pathology report for Patient Ca dated 26 February 2009 - Undated letter from Patient C - Letter from Dr B dated 31 March 2009

29. Letter from HCCC to Dr Condon dated 20 February 2009

30. Dental Board of NSW documents: - President’s Message to the Profession 1998 Presented in Board’s Newsletter (dated 20 August 1997) - President’s Message to the Profession 1999 Presented with the Annual Renewal Forms September 1998 - President’s Message to the Profession Issued with the Annual Renewal Forms September 1999 (dated 3 September 1999) - President’s Message to the Profession Issued with the Annual Renewal Forms September 2000 (dated 30 August 2000) - President’s Message to the Profession Issued with the Annual Renewal Forms September 2001 (dated September 2001) - President’s Message to the Profession issued with renewal of registration (dated September 2002) - President’s Message to the Profession issued with the Annual Renewal Fee (dated September 2003) - President’s Message to the Profession (dated 24 September 2004) - President’s Message to the Profession (dated 15 September 2005

31. File Note headed “Pegios 25.9.08”

32. Statement of Mr Cerrenti dated 23 February 2009

33. Three sets of notes produced by Dr Stolz in answer to Summons: Set 1 – Referred by Dr P Robins


343

Set 2 – Referred by W. Sanders Set 3 – First entry: 12.08.02 by Dr Rockerfeller

34. - OPG dated 26 August 2005 re Patient F - Radiograph dated 23 March 2005 re Patient F

- Radiograph dated 10 July 2003 re Patient F

35. Report of Loretta Elkins, psychologist, dated 6 April 2009 and report of Dr Easter Villena dated 6 April 2009 re Patient D

36. Bundle of documents produced by Dr Fleming of various dates, provided under cover of a letter from Dr Fleming dated 15 April 2009

37. DVD of the ‘Today Tonight’ program and a transcript of the telecast

38. Two entries in the Yellow Pages for Dr George Pegios for 2000

Volume 13 Original Patient File: Patient E Volume 14 Original Patient File: Patient B Volume 15 Original Patient File: Patient F Volume 16 3 sets of Clinical Notes Produced by Dr Flemming (including

summons) Volume 17 Original Patient File: Patient D Volume 18 Original Patient File: Patient C Volume 19 All-on-4 CD presentation Volume 20 PowerPoint presentation by Dr Stolz Volume 21 Dental Board File with respect to the complaint made by P Volume 22 Dental Board File with respect to the complaint made by Patient B Volume 23 Dental Board File with respect to the complaint made by Patient C Volume 24 Dental Board File with respect to the complaint made by Patient D Volume 25 Dental Board File with respect to the complaint made by Patient E Volume 26 Dental Board File with respect to the complaint made by Patient F Volume 27 Dental Board File with respect to the complaint made by Mrs G re

Patient G Volume 28 Documents from the original patient files, not previously produced

to the HCCC


344

Volume 29 Documents produced by Dr Pegios with respect to the Summons returnable on 20 March 2009, in relation to items 1 and 2 of the schedule – Volume 1

Also includes Missing Documents Table behind the Summons Volume 30 Documents produced by Dr Pegios with respect to the Summons

returnable on 20 March 2009, in relation to items 1 and 2 of the schedule – Volume 2

Volume Thirty-one

1 Four pages from the website www.idimplants.com.au

2

Email from Dr Pegios to Dr Berne dated 10 February 2009

3

Email from Dr Pegios to Dr Berne dated 29 January 2009

4

Email from Dr Pegios to Dr Berne dated 24 March 2009

5

Email from Dr Berne to Dr Pegios dated 12 June 2008

6 Handwritten Note by Dr Edelman prepared on 29 April 2009

7 Email from Dr Pegios to Dr Lilley dated 13 September 2006 and email from Amanda Giaimo to Dr Pegios dated 8 December 2008

8

Original file of patient H (including progress notes - MFI 22)

9

Original file of Patient I (including progress notes – MFI 21)

10 Emails produced by Dr Pegios re Patient D

11 Schedule of documents produced by Dr Pegios in response to Summons returnable on 20 March 2009, Item 8

12 Exchange Of Letters between The Healthcare Complaints Commission and Detective Senior Constable Nuttall

13 Exchange Of Letters between The Healthcare Complaints Commission and Detective Sergeant Meagher

14 Letter From Assistant Registrar Of The Dental Board Dated 23 April 2009

Volume 32 Documents produced by Dr Pegios with respect to the Summons

returnable 20 March 2009, in relation to items 1 and 2 of the schedule produced on 22 April 2009 (missing appointment records)

RESPONDENT’S EXHIBITS

(Updated 20 May 2009)


345

Description

Exhibit Volume

Transcript Location

(a) Report of Dr Christopher Ho re Patient C dated 22 February 2009

(b) Curriculum Vitae of Dr Ho

(c) Letter dated 23 February 2009 - Frank Currenti

R1

Report of Christopher Ho re Patient F dated 5 March 2009

(a) In original bundle

(b) provided on 25 March 2009

R2

Report of Dr Christopher Ho re Patient B dated 22 February 2009

in original bundle

provided on 25 March 2009

R3

Report of Dr Christopher Ho re Patient A dated 5 March 2009 R4

Report of Dr Christopher Ho re Patient D dated 5 March 2009 R5

Report of Dr Christopher Ho re Patient E dated 5 March 2009 Three letter of instruction to Dr Ho dated 8 December 2008, 23 December 2008 and 23 February 2009

R6

19/05/09 pg 1316

Report of Dr John Giblin dated 14 March 2009 R7

Report of Dr Berne dated 20 March 2009 Report of Dr Berne dated 24 March 2009 Report of Dr Berne dated 30 March 2009 and letter from Guild Lawyers to Dr Berne dated 19 March 2009 Patient File Relating to Dr Berne's Report Of 30 March 2009 (Patient J) Three letters of instruction to Dr Byrne, dated 8 December 2008, 23 December 2008 and 5 March 2009

R8 (A)

R8 (B)

R8 (C)

R8 (D)

R8

23/04/09 Pg 868 lines 26, 28, 30 and 45 respectively 19/05/09 pg 1316

Curriculum Vitae of Dr George Pegios (as provided to expert witness conclave on 25 March 2009)

R9 20/04/09 Pg 570, line 1

George Pegios Statement 25 March 2009

Affidavit of George Pegios dated 20 April 2009

Study in dogs:

Guided Bone Regeneration and grafting

Influence of Bio-os Collagen on healing

R10


346

Admissions made by George Pegios

(a) 11 March 2009

(b) 24 March 2009

(c) 31 March 2009

(d) Consolidated Admissions

R11

Extracts from “Implant News and Views” entitled “A Visual Essay” R12 19/05/09 pg 1285

List of Articles from the website: www.ncbi.nlm.nih.gov (PubMed Articles)

R13 19/05/09 pg 1289

Medical chart and consent form with respect to Patient PW R14 19/05/09 pg 1299

Three Patient Referrals dated 24 February 2006, 22 May 2006 and 22 May 2007

R15 19/05/09 pg 1302

List of Courses for which Dr Pegios has enrolled 2009 R16 19/05/09 pg 1313

Letter from the Dental Board dated 29 April 2005 R17 19/05/09 pg 1315

Dr Condon's Clinical Notes And Treatment Plans From 1996, 2002 And 2009

R18 19/05/09 pg 1316

Dr Fleming's Treatment Plan Dated 7 August 2002 And Patient Information Dated 4 June 2002, including CV

R19 19/05/09 pg 1317

Expert Report Of Dr Peter Gregory Vickers, Dated 9 June 2008 R20 19/05/09 pg 1317

Two Reports Of Dr Berne together with Letter of Instructions from Guild Legal

R21 19/05/09 pg 1317

Deed of release made 10 June 2006 between Patient E and the Respondent in relation to her claim in the Consumer Tribunal

R22 19/05/09 pg 1318

Bundle Of Original Material From The Coroner's Court including xrays and two study moulds

R23 19/05/09 pg 1319


347

ANNEXURE B

HCCC V PEGIOS

Expert Conclave Report Report produced following meeting of experts Dr T Stolz, Dr G Condon,

Dr J Berne and Dr C Ho on 25 March 2009

Complaint 1

Treatment of Patient A

Particulars

Between about 17 October 2003 and 7 March 2005 the dentist provided dental treatment to patient A in three stages. On 10 November 2003 the first stage implant surgery was undertaken to replace a missing front top tooth. On 7 December 2004 the second stage implant surgery took place. On 7 March 2005 the third stage of the surgery, which involved connecting the implant abutment and applying a porcelain bond to a metal crown, was carried out.

Did the dentist:

(iii) fail to provide sufficient information both orally and/or in writing to the patient about the nature and potential outcomes of the implant procedure before the procedure was undertaken and to record what information he gave him in the patient record?

Admitted If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience?

Yes If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience?

No

(iv) fail to make and retain adequate clinical records in relation to his treatment of the patient and the advice or information he gave him contrary to the


348

requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association?



No

Complaint 2

Treatment of Patient B

Particulars

Between June 2002 and November 2005 the dentist provided dental treatment to Patient B. The treatment involved the replacement of three lower teeth and four upper teeth with implants.

Did the dentist:

(x) fail to carry out any, or any adequate, assessment of whether the patient was a suitable candidate for implant therapy or the type of implants used given his long term history of smoking, insulin dependent diabetes, bone quantity and quality and/or poor oral hygiene?

Yes. Not adequately assessed. Type of implant not relevant. If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience?


No

(xi) fail to provide sufficient information both orally and in writing to the patient about the nature and potential outcomes of the implant therapy, and failed


349

to address the particular risks for the individual patient in his advice to the patient about the nature and potential outcomes of the implant therapy or provide adequate warning of the level of risk in his particular case?

Yes If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience?


No

(xii) fail to devise an appropriate and adequate treatment plan?



Yes: 3; No: 1 (Dr Berne)

(xiii) fail to counsel the patient adequately or at all about oral hygiene before the implant began to fail?

No If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience? If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience?

(xiv) unreasonably delay the installation of permanent implants or, alternatively, failed to adequately communicate with the patient in respect to the time it would take to obtain the final implant teeth?

No


350

If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience? If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience?

(xv) exhibit a lack of adequate care or failed to exercise an appropriate level of skill in his treatment in relation to the patient’s upper jaw?


Yes If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience? Yes:3; No:1 (Dr Berne)

(xvi) fail to refer the patient to an appropriately qualified specialist within an appropriate time after the failure of the treatment of the upper teeth?


No

If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience?

No

(xvii) fail to provide adequate post-procedure care following the breakdown of the upper implants?

Conclave not clear as to stage to which question refers (final prosthesis

stage or when 5 implants began to fail). Not fully discussed.

If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience?


351


(xviii) fail to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 23 of the Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association? Admitted

Complaint 3

Treatment of Patient C

Particulars

Between 13 January 2005 and 14 March 2005 the dentist provided dental treatment to Patient C. The treatment involved placing porcelain veneers on five teeth, installing a crown and performing root canal therapy.

Did the dentist:

(vi) fail to seek, or to advise the patient to obtain an orthodontic opinion?



No

(vii) plan and carry out an inappropriate course of treatment?

No If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience?

No If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience?

No


352

(viii) fail to take adequate care or exercise an appropriate level of skill in the installation of the veneers?

Yes



No

(ix) fail to provide sufficient information to the patient to enable him to give informed consent to the various procedures?

Sufficient information for veneers and crowns. Not sufficient information for orthodontic and other options.



No

(x) fail to show the patient a preview of his veneers before permanent cementation to enable him to evaluate and approve their appearance?

Yes



No


353

(xi) fail to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association?



No

Complaint 4

Treatment of Patient D

Particulars

Between 19 April 2005 and 20 May 2005 the dentist provided dental treatment to Patient D. The treatment involved six (6) implants in the maxilla, bone grafts in the mandible and a fixed upper denture attached to the implant.

Did the dentist:

commission and/or install an upper denture that could not be properly cleaned, predisposing the patient to infection and/or bone loss?

Yes



Yes: 2 (Dr Condon, Dr Stolz); No: (Dr Ho; Dr Berne)

promise the patient a fixed denture she could easily clean when he could not fulfil the promise?


354

No but he could have made cleansable denture had he been given time to

adjust it further but it may not have fulfilled the patient’s other requirement of

facial support.


incorrectly inform the patient in his letter of 22 March 2005 that there was no radiographic evidence of tooth decay or root canal filling when there was?



No

falsely advise the patient that on 20 May 2005 he performed a bone graft at site 34 on the mandible or, alternatively, fail to make an entry in his clinical notes for the patient to the effect that he had performed a bone graft at site 34 on the mandible?



Yes

fail to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in clause 33 of the Dental


355

Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association.



No

Complaint 5

Treatment of Patient E

Particulars

Between 1996 and 4 November 2004 the dentist provided dental treatment to Patient E. The treatment involved firstly, the installation of thirteen coverage crowns and secondly, the removal of all her upper teeth and the fitting of implants for a fixed implant denture.

Did the dentist:

(viii) fail to refer the patient to a periodontist?



No

(ix) use ball abutments and O-ring attachments for the patient’s maxillary implants when they were contraindicated?

No



356


(x) position the implants inappropriately,

No If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience?


(xi) install a poor quality prosthesis?

Admitted



No

(xii) fail to properly plan the treatment provided to the patient and fail to prepare and retain a written plan relating to it?

Admitted



Yes: 1 (Dr Stolz); No: 3


357

(xiii) fail to provide adequate post-procedure care?



No

(xiv) leave a tooth root in situ without the consent of the patient?

Yes



Yes

(xv) fail to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association?

Admitted



No

Complaint 6 - Treatment of Patient F


358

Particulars

Between August 2002 and August 2005 the dentist provided dental treatment to Patient F. The treatment involved the extraction of all his teeth and their replacement with implant supported teeth.

Did the dentist:

(xi) fail to undertake an adequate assessment, including a full periodontal assessment, of the patient, or to refer the patient to a specialist periodontist for an opinion, before proceeding to extract all his teeth?

Yes



Yes

(xii) fail to devise an appropriate and adequate treatment plan for the patient or undertake an adequate pre-surgical work-up?

Yes



Yes

(xiii) fail to provide sufficient information to the patient or to obtain his informed consent before he proceeded to remove any of his teeth?

Yes


Yes


359


Yes

(xiv) remove all the patient’s teeth and replace them with 28 implants and crowns when such a course was not clinically indicated?

Admitted



Yes

(xv) in the alternative to (iv), if such a course were indicated, fail to adopt an appropriate method of extraction that would reduce the risk of complications?

Not now relevant


(xvi) graft the posterior sockets at the time of extraction?

Yes



No


360

(xvii) fail to take adequate care or exercise appropriate skill in the installation of acrylic resin bridges or the free-standing single tooth restorations?

Yes



Yes

(xviii) install fixed provisional acrylic appliances that were unsatisfactory and leave them in place for longer than was necessary?

No



No

(xix) fail to allow for adequate healing time to enable adequate bone regeneration to take place before the placement of the posterior implants?

Yes:2 No:1 (Dr Berne) (Dr Condon abstained)


Yes:2 No:1 (Dr Berne) (Condon abstained)


No: 3 (Dr Condon abstained)

(xx) incorrectly position or angle the implants and/or the titanium framework?


361

There was no titanium framework.

Re implants: No



No

(xxi) place the implants in an unstable bony base?

No If so, was that conduct below the standard reasonably expected of a dentist of an equivalent level of training and experience? If Yes to the last question, was that conduct significantly below the standard reasonably expected of a dentist of an equivalent level of training and experience?

(xxii) fail to refer the patient to an appropriately qualified specialist after the treatment began to fail?



Yes

(xxiii) fail to make and retain adequate clinical records in relation to his treatment of the patient contrary to the requirements outlined in the clause 23 Dentists (General) Regulation 1996 and/or clause 33 of the Dental Practice Regulation 2004 and in the Guidelines for Good Practice on Patient Information and Records of the Australian Dental Association?

Admitted


362



Yes


363

ANNEXURE C

HCCC V PEGIOS

EXTRACT FROM THE HCCC SUBMISSIONS

Unsatisfactory professional conduct defined 13. ‘Unsatisfactory professional conduct’ is defined in s 41 of the Act to

include: any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the dentist in the practice of dentistry is significantly below the standard reasonably expected of a dentist of an equivalent level of training or experience a contravention of a provision of the Act or the regulations . . . (h) any other improper or unethical conduct by a dentist in the course of the practice or purported practice of dentistry.

14. The expression ‘significantly below’ is not defined in the Act. 15. Whatever it means it certainly does not mean what Dr Berne thought it did,

namely, “of such a departure from the standard as to warrant severe reprimand and possible impeachment, to coin a phrase, of such a significant departure from standard as to be totally unacceptable”.1 Such an interpretation is closer to professional misconduct and would arguably equate the expression with misconduct in a professional respect under the Medical Practitioners Act 1938.2 And it could not be correct in circumstances where the Act entitles the Tribunal to make orders far less punitive than ‘a severe reprimand’, let alone ‘impeachment’.

16. Neither does it mean what Dr Ho thought, that is that “there is no

justification” for the conduct.3 17. ‘Significant’ is an ordinary English word and should be given its ordinary

English meaning. The Shorter Oxford Dictionary defines it as ‘important, notable, consequential’.4

1 T887 2 See, e.g. Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 3 T829/10-13 4 Shorter Oxford English Dictionary, 2002, Volume 2


364

18. The Medical Tribunal has held in relation to the same expression in the Medical Practice Act 1992 that, “as a general principle”, “significant” can be taken to mean “not trivial, of importance, or substantial”.5

19. Thus, conduct will fall significantly below the standard if it is more than an

inconsequential or unimportant transgression or shortcoming. 20. This interpretation reflects the history of the provision, which replaced the

earlier definition of professional misconduct (there was no concept of ‘unsatisfactory professional conduct’) in which any lack of adequate care, skill, judgment or knowledge sufficed.6

21. Neither “improper” nor “unethical” is defined in the Act. Black’s Law

Dictionary defines “improper” as “1. incorrect, unsuitable or irregular; 2. fraudulent or otherwise wrongful” and “unethical” as “not in conformity with moral norms or standards of professional conduct”.7 This accords with the ordinary English meanings of the words. The Macquarie Dictionary defines “improper” relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and “unethical” as “contrary to moral precept; immoral; 2. in contravention of some code of professional conduct.”8

22. In R v Byrnes (1995) 183 CLR 501, a case concerning the offence of an

officer of a corporation making improper use of his position to gain advantage, at 514-515 the High Court said:

Impropriety does not depend on an alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender's knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.

5 In Re A Medical Practitioner and the Medical Practice Act, 3 September 2007, Freeman DCJ presiding 6 See Dentists Act 1989 s 5 7 Black’s Law Dictionary, 8th edition, 2004 8 Macquarie Dictionary, 1981


365

23. In Cranley v Medical Board of Western Australia (WASC, 21 December 1990, unreported) Ipp J upheld the approach taken by the Western Australian Medical Board that “improper conduct” is conduct which is something less than serious professional conduct but which would reasonably be regarded as improper by professional colleagues of good repute and competency. The decision Ipp J reached was based on the test in medical negligence set down in Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582, which is not now part of the Australian common law. See Rogers v Whitaker (1992) 175 CLR 479 and Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 where the High Court departed from Bolam and held that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. The Court held that the standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.9

24. Rogers v Whitaker concerned a case of negligent advice (a failure to issue

a warning about a material risk). In Naxakis v Western General Hospital (1999) 197 CLR 269 this principle was applied to a case of misdiagnosis. Thus, as Pullin J has held in the Western Australian Supreme Court,10 Cranley would not now be followed and, while the Tribunal must take into account medical opinion about whether a practitioner’s conduct met the required standard, it is for the Tribunal to make the decision about whether the conduct satisfies the statutory test.11

25. In the context of the Dental Practice Act the question is whether the

dentist engaged in conduct that did not accord with the standards of proper conduct or that did not conform to what would reasonably be expected of a person in his position, whether based on what he knew or ought to have known.

26. On the other hand, as Ipp J said in Cranley, in a passage not called into

doubt by the later High Court decisions, a practitioner is not guilty of improper conduct merely because she or he employs a method of treatment different from other practitioners. Cf. Qidwai v Brown.12

27. “Unethical” is defined in the Macquarie Dictionary as:

1. contrary to moral precept; immoral, 2. in contravention of some code of professional conduct.

28. There is no reason to suppose that the word should be given a different

meaning in the Dental Practice Act.

9 See (1992) 175 CLR at 487. 10 SRNA v The Medical Board of Western Australia [2004] WASCA 198 11 See [41]-[46]. 12 [1984] 1 NSWLR 100 at 102


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Professional misconduct defined 29. ‘Professional misconduct’ is defined in s 40 of the Dental Practice Act to

mean ‘unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the dental care provider's registration’.

30. There is no comprehensive exploration in the case law of when

‘unsatisfactory professional conduct’ will be sufficiently serious to justify such a sanction.

31. A purposive approach to the construction of the section is required. The

purpose of the section is to protect the public. The question is not whether conditions or some other order would satisfactorily protect the public for that is a question to be considered at the next stage of the proceedings. The question is whether the conduct at the time it occurred was sufficient to warrant suspension or cancellation of registration. In Law Society v Foreman Giles JA said:

The public is protected by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.13

32. These remarks were made in the context of what orders are appropriate.

However, they are also relevant at this point in the enquiry. 33. Authorities on professional misconduct in the Court of Appeal like Pillai v

Messiter14 and Qidwai v Brown15 are of some utility in interpreting the section as the Medical Tribunal observed in In re Sood:

Although, strictly speaking, the statutory definition of professional misconduct makes it unnecessary to turn to common law definitions, the common law approach may give content to the statutory meaning (cf. Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [46].) At

13 (1994) 34 NSWLR 408 at 470G-1C C.f. Mahoney JA at 440G-441C 14 Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 15 [1984] 1 NSWLR 100


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common law, before a doctor's name was removed from the Register, proof was needed of "conduct which would reasonably be regarded as disgraceful or dishonourable" by one's peers.16 It is inconceivable that a tribunal would consider removal from the register or suspension to be justified in any case where there was no evidence of disapproval by any peer. Indeed, as the Tribunal remarked in Furey17 (23 December 2002), it has regarded as a prerequisite for a finding of professional misconduct, a finding that the practitioner has conducted himself or herself in a way that attracts the severe or strong disapproval of "peers of reputable standing" or, at least, that his or her conduct is "so obviously wrong that a peer who did not strongly disapprove would not be thinking reasonably": Davis (2 December 1994).18

34. On the other hand, as the Tribunal went on to say:

It would be wrong to superimpose on the legislation a requirement that the conduct be disgraceful or dishonourable before a finding of professional misconduct could be made”. Nonetheless, there is no doubt that “reckless indifference or gross negligence in a professional respect would be regarded as disgraceful and dishonourable conduct by professional brethren of good repute and competency”: Basser v Medical Board of Victoria [1981] VR 953.19

35. Even where gross negligence is isolated and not accompanied by

indifference or any abuse of the privileges accompanying the right to practice, it may amount to professional misconduct: see, for example, Health Care Complaints Commission v Dr Arthur Garry Gow (Medical Tribunal of NSW, 21 October 2006, unreported).

36. It is submitted that:

a. On any view “mere negligence” would not suffice.20 However, unless the negligence were significant it would not qualify as unsatisfactory professional conduct under the current Act.

b. A deliberate departure from, or indifference to, accepted standards could qualify.21

16 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [36]ff. 17 23 December 2002, unreported 18 [2006] NSWMT 1 at [18]-[19] 19 In re Sood [2006] NSWMT 1 at [18]-[19] 20 See Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 at 200 per Kirby P 21 Ibid at 201


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c. So, too, will the conduct be sufficiently serious to warrant suspension or cancellation of registration where the knowledge, skill, care or judgment of the provider demonstrated by the conduct the subject of the complaint fell so far below what was reasonably expected of a provider of equivalent training or experience as would reasonably incur the strong reprobation or disapproval of practitioners of good repute and competence.22

>>>>>>>>>>>>

Onus and standard of proof 39. The onus of proof of all matters rests with the complainant. As these are

civil proceedings, the standard of proof is the civil standard of the balance of probabilities. That is so even when criminal conduct or fraud is alleged. On the other hand, the strength of the evidence a tribunal of fact will require to be satisfied on the balance of probabilities will be affected by what is sought to be proved. The test is not as counsel for the respondent put it in his opening – satisfaction to “an extremely high level of certainty” - and the additional submissions of counsel for the respondent at T570-1 are also wrong.

40. Submissions of this kind were rejected in Bannister v Walton23 and Arvind

v Walton24 where Powell JA, with whose judgment Meagher and Handley JJA agreed, said:

acceding to that submission would require this Court to ignore not only the decision of the High Court in Briginshaw v Briginshaw, but also the decisions of the High Court in Helton v Allen and Rejfek v McElroy, the former of which established that proof in civil proceedings of facts amounting to the commission of a crime has only to be made upon a balance of probabilities, while the latter laid down that the decision in Helton v Allen was binding on all courts unless and until there is a precise decision to the contrary by the High Court or - at that time - by the Privy Council.25

41. It is important to bear in mind that

[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal

22 Qidwai v Brown [1984] 1 NSWLR 100 at 105-6 23 (1993) 30 NSWLR 699 at 712; special leave refused 9 November 1993. 24 NSWCA, unreported, 21 February 1995 25 See also Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635D


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charge: see Helton v Allen (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ (1940) 63 CLR, at p 714.26

42. To similar effect Mason CJ, Brennan, Deane and Gaudron JJ said in Neat

Holdings Pty Ltd v Karajan Holdings Pty Ltd & Others:27 The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct…. There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.

43. As Dixon J, himself, put it in Briginshaw v Briginshaw28

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a

26 Rejfek v McElroy (1965) 112 CLR 517 at 521 27 (1992) 110 ALR 449 at 449-50 28 (1938) 60 CLR 336 at 362


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particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

44. Similarly, in civil penalty proceedings where ASIC sought a pecuniary

penalty of up to $200,000 and orders disqualifying the individual defendants from managing corporations Gzell J observed:

The seriousness of the nature of the cause of action and the gravity of the matters alleged must be taken into account in deciding whether facts have been proved on the balance of probabilities (Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 at [146]-[148]). This means that, ordinarily, the more serious the consequences of what is contested in litigation, the more a Court will have regard to the strength and weakness of evidence before it in coming to a conclusion (CEPU v Australian Competition and Consumer Commission [2007] FCAFC 132, (2007) 162 FCR 466 at [30]). That means that if inferences are to be drawn, ASIC has to establish that the circumstances appearing in the evidence give rise to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability (CEPU at [38]).29

45. Neither is the test one of “comfortable satisfaction”. As the Court of Criminal Appeal has emphasised:

The ‘Briginshaw standard’ is often spoken of quite loosely and as if it is a third standard of proof sitting somewhere between the balance of probabilities and beyond reasonable doubt. This is wrong. As Dixon J points out the civil standard of proof is proof on the balance of probabilities requiring the relevant party to prove the elements of its case to that standard . . . To say that a court must be ‘reasonably satisfied’ (Briginshaw per Dixon J at 362) or ‘affirmatively satisfied’ (Kantor per Buchanan and Phillips JJA at [54]) is one thing, but to say as did Puckeridge DCJ that the court must be ‘comfortably satisfied’ is another thing altogether. His Honour appears to have been implying that proof

29 Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287


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to a higher standard than the balance of probabilities was required. If so, he was in error.30

46. There is no doubt that these principles apply to an inquiry into the

professional conduct of a health professional. See, for example, Bannister v Walton31 and Health Care Complaints Commission v Litchfield32 and Arvind.33

47. During his opening counsel for the respondent submitted that where the

conclave was divided (even 3-1 against his client) the Tribunal could not be satisfied “to the very high standard mandated by the rule in Briginshaw”.34

48. This submission misconstrues the principles expounded in Briginshaw.

First, the standard is not very high for the reasons given above. Secondly, the Tribunal is not bound to accept the opinion of any witness, least of all one who is at odds with the evidence of all others. Not even in a criminal case is a jury bound to accept the evidence of a witness. Where one expert witness proffers an opinion that differs from the opinions expressed by other expert witnesses the Tribunal needs to consider the assumptions he made to reach his opinions, weigh his opinions against the opinions of the others, consider whether there are factors at play, which may have influenced the opinions he reached, and assess his credit. If, having undertaken that process, the Tribunal is reasonably satisfied on the balance of probabilities that the majority view is the correct one then it is bound to accept it.

>>>>>>>>>>>>> The respondent’s credibility

86. The respondent was not an impressive witness. He was often evasive, not answering questions or not answering them directly.35 Although by the time he gave oral evidence he had made admissions that in numerous respects his conduct fell below or significantly below the relevant standard, when invited to explain the basis for the admissions he was frequently unable to do so or to do so in any convincing way. That was particularly the case in relation to the [Patient G] complaint (complaint 7). That appears most starkly at T615-6 where he was asked about the admission he first made that he was “guilty of professional negligence in his treatment of the patient as found by Murrell J” in his criminal trial. That admission, he explained, was an admission that he had been found guilty,

30 Gianoutsos v Glykis [2006] NSWCCA 137 at [49]-[51], special leave refused: Glykis v Gianoutsos [2007] HCATrans 6 (31 January 2007) 31 (1993) 30 NSWLR 699 at 712 32 (1997) 41 NSWLR 630 at 635D 33 Supra 34 Counsel’s opening T555/40 35 For example, see T1162/20-21, T1166/21-28, 1175/12-25


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not that he was in fact guilty.36 He first admitted to ‘negligence’ with respect to the dosages of the drugs and “monitoring”, quickly withdrew his admission that there was anything wrong with his monitoring, then, when reminded of the judgment of Murrell DCJ that he was negligent in his monitoring, said he agreed that there was a problem with the monitoring. His claim at T616/20 and 616/40 that he could not remember the judge’s finding is difficult to believe.

87. He appeared to be uncomfortable answering any questions about the

[Patient G] complaint. When he did respond to questions he appeared to have a studied or practised response. His affidavit evidence was sparse and it was not reconcilable with the admissions he ultimately made. When pressed to explain some of those admissions, he was often unable to do so, giving the impression that his admissions were generally hollow. At times he even denied making admissions.37 This is a matter to which we will return during the second phase of these proceedings.

88. In numerous respects the respondent presented as an unreliable witness

and his honesty is questionable. 89. This evidence was led at the criminal trial:

Q. Do you now have a view about whether sedation should ever be administered by non-anaesthetists? A. I have a very strong view that it should not be performed by a non-anaesthetist. Q. Since the end of 2002 have you performed further sedation procedures? A. With an anaesthetist, yes. Q. And only with an anaesthetist? A. Correct.

90. The respondent maintained that position in his affidavit38 where (at

paragraph 71) he stated that soon after [Patient G] died he stopped providing treatment as a sedationist/practitioner. “Soon after” meant “a few weeks after” so that he told the Tribunal that he last provided IV sedation for a patient in either December 2002 or January 2003.39

91. The evidence in these proceedings showed that the evidence given at the

trial and in his affidavit was false. The complainant was able to show that the respondent administered intravenous sedation and conducted the procedures on a number of occasions after January 2003, such as on 10 February 2003 and 6 June 2003 (in the case of Mr De-Val).

36 T614/44 37 For example, T1173/22 but contra T1173/53-1174/7 38 The contents of which the respondent adopted on his oath at T572/19-21 39 T722/23-27


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92. He sought to minimise the extent of his dishonesty. 93. He told the Tribunal that “obviously I did perform some sedations but only

in the first few weeks of 2003.” That was in spite of his admission that he had done so on 6 June 2003.

94. The respondent was ultimately forced to concede that the statements he

made at his trial and in his affidavit was false,40 although he denied it was deliberately false.41 Despite his denial the Tribunal would be reasonably satisfied that he knew at the time he made both statements that they were false. If he had only done so once or even twice, it is conceivable he might have forgotten. However, the evidence disclosed otherwise.

95. It soon became clear that there were a number of cases in which the

respondent had both administered the intravenous sedation and conducted the procedure. He conceded that he administered intravenous sedation to other patients during 2003 but said he had “no idea how many”. 42 Without a thorough audit of his records neither could the Tribunal.

96. In [Patient H’s] case he did so on 17 April and 18 March 2003.43He was

also the sedationist as well as the proceduralist for [Patient I] on 14 March 2003 and 12 June 200344 although initially in both these cases he prevaricated, suggesting that his employee, Dr Johnson Chou, may have been the sedationist,45 despite the fact that the progress notes recorded that he (the respondent) had administered the sedation and had charged the patient for doing so46 and although the evidence is that Dr Chou was not authorised to administer intravenous sedation until 6 February 2004.47 The respondent contended that Dr Chou qualified as a sedationist in November or December 2002, after having completed the Westmead course.48 He also suggested that the note in the progress notes could be misleading because “the staff would sometimes bill certain procedures through me because they were costs incurred by the practice, so that billing code doesn’t necessarily reflect who actually performed the procedure”.49That was an extraordinary suggestion in the light of his responsibilities for record keeping under the Dental Practice Regulation.

40 T727/19 –T727/23 41 T727/25-27 42 T729/22-29 43 Ex Vol 31 Tab 8 44 Ex Vol 31 Tab 9 45 T731/22-40 46 Ex Vol 31 Tabs 8, 9 47 Ex Vol 31 Tab 14 48 T734/ 5-11 49 T734/47-53


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97. The respondent acknowledged that it was an important part of the way he presented himself to the judge at his trial that he was generally competent, prudent and honest,50 and that one way of demonstrating that was to show that he had learned a lesson from what had happened in [Patient G’s] case. He also acknowledged that one way he sought to achieve that purpose was to assure her that he had performed no procedure administering IV sedation since the end of 200251 He agreed that he had a similar purpose in mind when he gave similar evidence to this Tribunal and that he also wished to present himself as a person whose word could be trusted.52 Yet, the evidence showed that his word was not to be trusted.

98. The fact that he continued to administer intravenous sedation and to work

as a sedationist/practitioner for at least months after his patient died suggests that his professed distress is more likely to be related to his own circumstances than the plight of the patient. This conclusion is reinforced by the account he gives in his affidavit.53

99. Although he asserted in his affidavit that he had always been willing to

concede that he had acted in an unsatisfactory manner in all these cases the respondent’s correspondence with the patients, the Board and the Health Care Complaints Commission demonstrates otherwise. Even to this Tribunal the admissions were slow in coming and piecemeal. In the [Patient G] case the first admission was really no admission at all.

100. Moreover, the evidence he gave in his trial shows the opposite in

the [Patient G] case. That is highlighted by the following exchange: Q “Now, it is alleged in this case, Dr Pegios, that you were negligent in your treatment of [Patient G], is that right or wrong?" A “That’s very wrong”. Q "Were you in any way in your treatment of [Patient G] careless?" A “Absolutely not.’54

101. A little later in his evidence at the trial he denied any incompetence

in his treatment of [Patient G].55 102. The cross-examination on this subject gave rise to an objection

that, as he was on trial, he had “every right to defend himself and not to be frank and cooperative”.56 The objection was misconceived. As the Court

50 T728/44-51 51 T729/5 52 T729/10 53 Ex R10 - Respondent’s affidavit [73]-[77] 54 Ex Vol 11 p 255/30 55 Ex Vol 11 p 255/43 56 T619/24-38


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of Appeal observed in Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [45] the privilege against self-incrimination does not entitle a practitioner to make untruthful or misleading statements.

103. The respondent ultimately conceded (in effect) that the evidence

extracted above was at odds with the statement he made in his affidavit.57 104. He also gave evidence at his trial that he did not know that propofol

could cause anaesthesia until after the death of [Patient G].58But he admitted in these proceedings that he knew as much before he administered the drug to [Patient G]. The only conclusion the Tribunal could draw is that his evidence at his trial was false. His reluctance to admit as much59 reflects poorly on his candour in these proceedings.

105. The respondent told his solicitors that since early 2003 it has been

his practice to obtain the written consent of the patient’s medical practitioner before embarking on any procedure under IV sedation and that this protocol had been in place since 2003, advancing that ‘fact’, amongst others, as a basis for the Board removing his conditions.60 The respondent had intended to convey by his solicitor’s statement to the Board that in every case he obtained the written consent of the patient’s medical practitioner before embarking on any procedure under IV sedation.61 However, the reality has been otherwise. In the case of [Patient D], who underwent IV sedation in 2005, there is not even a record of the patient’s medical history or a note of who her medical practitioner was, let alone a written consent from him or her before IV sedation is carried out. In the case of Tony De-Val, where IV sedation was administered on 11 February 2003 and also in June 2003 and again there is no written communication with the medical practitioner. Neither is there in the cases of [Patient H] and [Patient I].62 The Board was entitled to conclude that he would continue to maintain that practice at least until the conclusion of these proceedings.

106. His statement, made through his solicitors, at the very least was

misleading and his reluctance to concede as much63 also reflects poorly on his honesty.

107. In his affidavit the respondent declared that since November 2002

he “routinely obtain[s] from [his] patients’ medical practitioners reports on whether there may be any issue related to their medical health that may require consideration and accommodation when contemplating oral

57 T622/53 58 Ex Vol 11 p 266 59 T1168/6 60 Letter from Guild Legal to Dental Board 28 October 2004 Ex Vol 12 Tab 8 p 8 61 T1282 62 See Ex Vol 31 Tabs 8 and 9 63 See T1281-2


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surgery or dental implant placement”. 64 Yet, in none of the cases before the Tribunal where the patients had oral surgery or dental implant placement did he do so. He sought to excuse his behaviour by saying that he sometimes relied upon Dr Lilley, the anaesthetist to undertake medical examinations.65 However, that does not explain the unequivocal statement made to the Tribunal in his affidavit. It was obviously false and he must have known that.

108. Similarly, he told the Tribunal that after the death of [Patient G] he

learned some valuable lessons, one of which was not to rely on what the patients told him but to make further inquiry including of their medical practitioners.66 In view of the evidence in this case the Tribunal would be entitled to conclude that that statement was also false.

109. In his affidavit the respondent contended that he had always been

willing to accept the imposition on his registration of conditions that would serve the purpose of enhancing his skills and ensuring the protection of his patient’s interests.67 However, the facts suggest otherwise. When the Board first imposed conditions on his registration he moved the Supreme Court to have them set aside.68 There is little doubt that the purpose of those conditions was to protect the interests of the respondent’s patients. Yet, the respondent maintained otherwise.69 If he had always been willing to have conditions imposed as he protested, even if the process by which they were imposed were flawed, he could have accepted them, or proposed other conditions. Neither is it to the point that he gave undertakings in lieu. Undertakings, unlike conditions, are not imposed on his registration. Thus, if a patient or a fellow practitioner were to examine the register, he or she would be unaware of them.

110. The respondent not only misled the Tribunal; he also misled his

patients. In some cases he actually lied to them. He informed those patients to whom he gave consent forms for them to sign that “medical examination was an absolute necessity” and promised them that “we will request medical clearance from your physician”.70 Yet, in none of the cases before the Tribunal did he do that and, although he claims to have done so in some cases71 he has provided no evidence to support his claim.

111. When cross-examined about this issue, at first he was

disingenuous. 64 Ex R10 - Affidavit of respondent [72] 65 e.g. at T716/49-53 66 T716/3-14 67 Affidavit of respondent [87] 68 Ex Vol 12 Tab 8 69 T671/6-14 70 T771/ 52-54; T772/ 1-2 71 T772/5


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Q. And is the Tribunal to understand that you, in 2002 at least, presented all of your patients who were having implant surgery and IV sedation with this form?

A. Yes. Q. Would you turn to page 6 of the document? What's the

second last heading on the page? A. Medical Examination. Q. That contains an unequivocal assurance, doesn't it, to

your patients that you were going to request medical clearance from the patient's medical doctor who would verify the patient's general health and provide recent examination results, including blood tests and urinalysis?

A. Yes. Q. That the medical practitioner would indicate drug allergies and/or alternative recommendations? A. Yes. Q. And that you wanted the medical practitioner to be aware of the surgical treatment you were planning and the medications that you might prescribe? A. Yes. Q. You didn't do as you told your patients you were going to do? A. No. Q. So the basis upon which they gave you consent to

operate was seriously flawed, wasn't it? A. No, because the section we're referring to, the further

section called Implant Comments, it wasn't part of the consent form document itself.

112. Then, the following passage appears. It reeks of dishonesty.

Q. Do you honestly tell the Tribunal that it was no part of the basis upon which these patients gave you consent to treatment that you had assured them that you would request a medical clearance from their medical practitioners?

A. Sorry, I don't understand the question sorry. Q. Do you honestly tell the Tribunal that it was no part of

the information upon which the patients gave their consent to you that you assured them that you would be requesting a medical clearance from their medical practitioners?

A. Yes.72

113. Then this exchange occurs, demonstrating the dishonesty in the previous answer:

72 T771/6-18


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Q. But you provided this document entitled Implant Comments to the patients with the consent form, didn't you?

A. Yes. Q. For the purpose of informing them of all the relevant

information that you felt they needed in order to give you informed consent?

A. Yes.73

114. When the proposition was put to him that he was deceiving his patients, his response was to laugh.74

115. When pressed for an answer, he came up with a different story:

…No there was no attempt at being deceitful. As I’ve said before, if there were any issues that I was genuinely concerned about, I would seek the doctor’s prior approval.75

116. Yet, that was not what he told his patients. His evidence flies in the

face of the plain words of the document: Medical Examination This is an absolute necessity! We will request medical clearance from your medical doctor. He or she will verify your general health and provide recent examination results including blood tests and urinalysis. He or she will indicate drug allergies and/or alternative recommendations. We want to be sure you are healthy and will heal well. We want your medical doctor to be aware of the surgical treatment we plan and of the medications we may prescribe.76

117. His cavalier approach to this issue also raises serious concerns

about the consent process. 118. He conceded that at the time he gave the document to [Patient B]

and to [Patient G] he had no intention of requesting a medical clearance from their doctors.77 Yet, he denied he was deceiving the patients.78 It is difficult to see what other construction could sensibly be placed on his behaviour. He was certainly attempting to do so.

119. The repeated objections and the speeches that accompanied them

did nothing to enhance the respondent’s credit. The submission, for example, that there was no basis for the proposition that the respondent was deceiving [Patient B] because there was no evidence that he had

73 T771/20-28 74 T771/41 75 T771/48-50 76 See, for example, Ex Vol 2 Tab 3, Consent form p 6 77 T772/30-46 78 T773/17


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read the form79 is difficult to reconcile with the respondent’s case that the patient had given informed consent. The patient had signed the form. That was surely prima facie evidence that he had read it. Irrespective of the position in that case, however, there could be no doubt that [Patient D] had read the form. Her questions are all over it.80 Yet, in that case, too, no request for medical clearance was made.

120. [Patient D] indicated in the medical chart that she was or had been

an alcoholic and that she had or was having psychiatric treatment.81 Yet, the respondent failed to follow this up. This was potentially serious omission. Alcoholism is a factor that may make a patient unsuitable for dental implants.82 As Dr Ho explained:

A patient who is an alcoholic, I would have reservations in the patient being able to look after the restorations that you produced for the patient.83

121. Similarly, the evidence is that some psychiatric conditions, such as

schizophrenia and bipolar disorder, may also interfere with the success of treatment. If a patient informed the practitioner that she had or had a history of alcoholism and psychiatric treatment, as Dr Ho’s evidence indicated, it is important to follow it up.84

122. However, when questioned about this, the respondent first said he

did not think it necessary to ask the patient who her psychiatrist or medical practitioner was although she had given him details of where she had attended for medical treatment “because [he] did not really think that it would impact on her treatment.”85 On the subject of alcoholism he was asked:

Q Alcoholism was unquestionably a factor that might have impacted on the success of the treatment, wasn’t it?

A. Perhaps, not greatly.86

123. One is driven to ask why bother inquiring of the patient whether she has a history of psychiatric treatment or alcoholism if it was irrelevant to treatment.

124. The description of this patient’s medical history as being ‘within

normal limits’87in the face of positive responses to these questions is at

79 T774/7 80 Ex Vol 5 Tab 3 81 Ex Vol 5 Tab 3 82 T812/35-43 83 T812/40-43 84 T813/10-27 85 T709/31 86 T709/45 87 T714/54


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best misleading. The attempt by counsel to justify it88backfired when the respondent conceded that a history of alcoholism was “not normal”,89although it took some time before he was prepared to make the concession.90

125. He wrote to Tony De-Val on 22 July 2002 informing him that

“detailed notes [were] taken at the time of your examination”. 91 Yet, the first consultation (which is the only one preceding that letter) shows up in the progress notes as “comprehensive oral Exam” and nothing more and there is no handwritten note for that consultation.

126. In others he was plainly incorrect, for example informing [Patient D]

that there were no signs on x-ray of tooth decay or root canal fillings when there clearly were.

127. The respondent was not frank in his dealing with the Board. His

failure to produce all his records when asked cannot be explained away as an administrative failure. The Tribunal should conclude that his failure to produce to the Board or the HCCC all the emails between him and [Patient D] but only those in which he was praised was an attempt to protect himself. His failure to produce the original of the [Patient A] file is unexplained. The respondent speculated that it might be with the Dental Board92 but the Dental Board records do not include it.

128. The Tribunal should be wary about accepting the respondent’s

account unless it is corroborated by independent evidence.

88 T710/25-35 89 T714/51 90 T714/24-51 91 Ex Vol 6 Tab 3 92 T574/24