August 2010


Duty of care

By Margaret Simons
Duty of care

In the last three months, dozens of women throughout our country and region have been told their life story has taken, without their knowledge, a dreadful twist. The locus of the twist, and the place where their separate narratives intertwine, is the Croydon Day Surgery, a bland medical building on a dual-carriageway road in an outer Melbourne suburb. Croydon is one of those places nobody ever goes unless they live there. Or, unless, like these women, they have to – or feel they have to.

Pluck an episode from the midstream of human life and it can be hard to glean meaning. Sometimes there is just senselessness and mess. If there is a theme to the events that have interrupted these women’s lives, however, it is surely care, and its opposite, carelessness. The principal actor is the 60-year-old anaesthetist Dr James Latham Peters, who, the evidence suggests, damaged these women, though not before he had damaged himself.

The Croydon Day Surgery is an abortion clinic. More than this, it is one of very few places in our part of the world that will perform late-term abortions for what are known as “psycho-social” reasons, where there is no severe abnormality of the foetus or risk to the mother’s health. Here, some foetuses are aborted past the time when premature babies can be born and stand a chance of survival.

Over the last few months, the public health team at the Victorian Department of Human Services has overseen the biggest exercise ever undertaken in Australia in tracking down past patients of a medical facility. The chief health officer, Dr John Carnie, has assembled a team of nurses and counsellors who have an awful task, and one that will continue for some time yet. They ring women, thousands of women, trying to catch them at home rather than in the workplace. They remind them of their visit to the Croydon Day Surgery, “something most of them would certainly have wanted to forget and put behind them,” Carnie acknowledges. They tell them that at the surgery, they may have contracted a serious communicable disease, hepatitis C. They will need to be tested and, if they are unlucky, they might need treatment.

If Dr James Latham Peters is one of the principal actors in this drama, then Dr John Carnie is the other. If one represents mess and damage, the other, with a troop of invisible public servants, is the unlikely hero. Dr Carnie’s career has not been in the glamorous areas of health – no open hearts or miracle cures for him. Rather, he is involved in public health: hygiene and wholesome food and positive habits. He is a small man and a bureaucrat, precisely spoken, willing to answer questions, clear about what is and is not his responsibility, and careful to stay within the boundaries. He oversees a quiet regimen of publicly funded watchdoggery that lies beneath our daily interactions, trying to keep us safe or at least to let us know when we have fallen. We know about Dr Peters because of the routines of Carnie and his team.

Hepatitis C is a quiet disease. Many of those infected have no symptoms for years. A lucky 25% defeat the virus unassisted. For the rest, over time, the virus inflames the liver and kills its cells. There is an escalation of symptoms: fatigue, nausea, bad breath, itchy skin, jaundice and bone loss. In the later stages, yet more can develop: easy bleeding, fluid in the abdomen, immune disorders, depression, anger and irritability and ‘foggy brain’ – even a kind of madness. Sometimes, there is cirrhosis of the liver and liver cancer, and, usually, shortened life. Treatment is available, but that too is a massive undertaking with horrible side effects and uncertain results. Only 50–80% of those treated will be cured.

Surely the phone calls Carnie’s team make must be horrendously difficult? Carnie nods quietly. That is why they have counsellors on hand, he says, and special arrangements so people can be tested and treated quickly. He will give no details, breach no confidentiality, tell no anecdotes. But it is a huge enterprise. Phone calls – many per day – bringing the worst kind of news.

The other first for Carnie is that he has gone to the police to request they investigate a doctor. “I never thought I would do that in my life,” he says. Yet the evidence seemed to tell a tale. Hepatitis C is a bloodborne disease. Women had been infected with the same strain of the disease that Peters carried. “I could not think of any way that could be done by accident, and without some strange behaviour,” says Carnie.

Thanks to Carnie’s actions Peters is now facing three investigations, one by Carnie’s team, one by police and another by the Medical Practitioners Board of Victoria, the statutory authority that, until July this year, was charged with two roles: looking after doctors on the one hand and protecting the public on the other. Some say the Croydon case proves a single body cannot be trusted with both jobs.

Peters is an anaesthetist; anaesthetists are meant to put us to sleep, to spare us from pain. Before them we are at our most vulnerable. But Peters was a damaged man. His lawyer refused to provide either information or comment for this story. We are left with the public record. Peters was subject to a scheme of arrangement under the Bankruptcy Act in the 1990s. In 1996 he was convicted and given a six-month suspended jail term after pleading guilty to forging prescriptions to keep up a supply of pethidine for himself and his wife, both of them addicts.

After his conviction Peters surrendered his right to practise and the Medical Practitioners Board put him on a regime of drug testing; at some stage, however, he was allowed to practise again, and released from the compulsory testing. In 2006, he began work at the dull-looking building in Croydon.

Just a month ago, on 1 July, the functions of the Medical Practitioners Board of Victoria passed to a new national body, the Medical Board of Australia. Its chair, Dr Joanna Flynn, acknowledges that medical boards have their roots in the idea of the brotherhood of the profession. Twenty years ago, she says, if you had asked those involved whether their primary duty was to the public or their colleagues they might have hesitated in answering. Today, she claims, there is no such confusion. Yes, doctors with drug problems are counselled, cared for and given a chance of rehabilitation. But, she says, medical boards understand their core duty is to the public.

And yet there is the case of Dr James Latham Peters, which makes evident the holes in the safety net.

There is more to his story. In 2009 Peters was charged with possessing child pornography, but nobody told the Medical Practitioners Board. Flynn says there are protocols in place under which the police should have informed them. Apparently, they failed. Under Victorian legislation, Peters was not required to notify the authorities until he was convicted, and that didn’t happen until March this year – weeks after he was suspended over the hepatitis C matter. He pleaded guilty to the pornography possession and was given a community-based order. He is still serving it out. Meanwhile, the crisis around him continues.

Infectious diseases are transmitted during medical treatment distressingly often. Perhaps it is a matter of chance that this latest case involves a practice that performs late-term abortions. It is impossible to tell this story without raising demons of judgement: the placard-wavers on both sides of the debate about life, death and the rights of women and their unborn children. Yet, in another sense, it cannot be mere chance. Those in the business acknowledge it is difficult to get medical staff willing to work on late-term abortions. It is hard to imagine more confronting work. Perhaps that is why a man like Peters was employed.

It should be noted, though, that most of the abortions conducted at the Croydon Day Surgery are conducted in the first trimester of pregnancy. Other gynaecological procedures, such as the fitting of IUDs, are also performed there. But women who went late in their pregnancies had not one but three encounters with the anaesthetist. And it is the late-term abortion that gives this story its particular air of nightmare.

This story came to me through a woman I know. Let’s call her Anne, which is not her real name. She is a professional, well educated and sharp. In March 2009, in her late forties, she discovered she was six-months pregnant. How could such a thing happen? It was, she says, a period in which she had not been “managing herself” particularly well. She was in a relatively new relationship with a man older than her. They were more than boyfriend and girlfriend, but not yet quite a couple. Neither of them wanted children. Anne thought she was menopausal, and in January and February she had bled heavily. She thought she had fibroids; she had suffered from them before and they had caused the same kind of irregularity and swelling. Then she felt movement – she felt the quickening of the foetus.

Anne’s medical records from the Croydon Day Surgery show she told the psychiatrist that having the child would be a “disaster”. The psychiatrist concluded that her “capacity to cope mentally with a late termination is greater than her capacity to cope with continuing the pregnancy to term”. This, together with an opinion from another psychiatrist, satisfied the requirements of the legislation and allowed for the ticking of a box: “Termination can be supported on these grounds.” But the forms don’t reveal the difficulty of the decision. When you are more than six months pregnant, there isn’t much time. Being the people they were – both professionals, both bookish – Anne and her partner spent a torrid few days googling, doing research. They surprised themselves by saying that perhaps, if they were ten years younger, they might do this thing: become parents together. Abortion, Anne thought, was “a really serious thing to do. A terrible thing to do.” But what swung her decision was that at their age the risks of abnormality in the child were very high.

Within days of feeling that first movement in her belly, she was checking in to the Croydon Day Surgery and paying $5000, none of which would be claimable on Medicare. The nurses were matter-of-fact. She sensed dedication, a loyalty to delivering a necessary service. She was told the risks – perforation of the uterus was possible but rare – and that the owner of the clinic, Dr Mark Schulberg, was particularly skilled and experienced.

Anne didn’t know it, but Schulberg has something of a reputation as a flamboyant doctor, a provider of the abortions nobody else will do. A newspaper article from April 1998 described him as turning up for an interview “dressed in blue surgeon’s uniform, but with black biker boots and a thick gold chain around his sun-tanned neck”. In 2008, the year in which the Victorian parliament passed the most liberal abortion laws in the country, the media reported that Schulberg was performing 2000 abortions per year, the majority being first trimester and only a few “rare and extreme” cases occurring at over 24 weeks. Schulberg was, depending on your point of view, a saviour – the doctor of last resort for desperate women – or, for the anti-abortion crusaders, a killer.

Schulberg isn’t talking to the media anymore. He did not return calls asking for comment for this article. This is not the first time his practice has landed him in trouble. Seven months before he saw Anne, Schulberg was found guilty of unprofessional conduct: in 2005 he had performed an abortion on a mentally disabled woman who was 25 weeks pregnant. The abortion was organised by the woman’s father, who was later jailed for her rape. In cases like these, authorisation for the abortion has to come from the courts, but Schulberg, apparently unaware of the law, failed to wait. He was reprimanded and ordered to have counselling.

Those who know him say that after this he thought about giving the whole thing away. It was too hard to do what he did. People did not appreciate the service he provided. Although there is queasiness in the medical establishment about what Schulberg does, there is also angst about what will happen if he stops: then there would be nowhere for women to go.

Late-term abortions are a three-day procedure. Anne and about seven other women were put up at a three-star motel neighbouring the surgery, at the cost of $90 per night. Anne had taken some work to do and a book to read. It was The Slap, Christos Tsiolkas’ excoriation of middle-class Australia. Three times over three days, she went under anaesthetic. On the first and last occasions, Peters was the anaesthetist.

The first time, rods were put into her cervix. Made of seaweed, they expanded the cervix slowly. The foetus was then killed with an injection to the heart. The next day, she was anaesthetised again and more rods were put in. It wasn’t painful so much as uncomfortable at that stage. There was a flood when her waters broke. Afterwards, she sat in her motel room and worked and read. Her partner visited. Then there was the third day, the final procedure, and that was horrendous.

The women lay on reclining chairs in a room together, feet in the air. They were sombre. Nobody spoke. They didn’t meet each other’s eyes. They were injected with a drug to bring on contractions. Within an hour, the pain began. It got worse. Anne clung to The Slap. Around her, women were screaming out. One screamed at a nurse, “you bitch, you bitch”. It occurred to Anne, struggling not to do the same, that perhaps they were being punished. They had been promised pain relief. It was primal. Vaguely, Anne was aware that one of the women had soiled herself. She heard talk of another woman who had run away – the rods still in her cervix – and who was being searched for. “I hated those other women. Because we had to take turns. All we wanted was to go in and be injected, to be knocked out and freed from the pain. And I wanted it to be me next.” The irony, of course, is that the man they were looking to for relief was Peters.

Then she was through the door. She focused, not on the anaesthetist, but on what he had in his hand. The blessed injection.

Anne’s medical records show that, having been admitted that day at 7 am, she was wheeled to the recovery room asleep at 1.20 pm. She woke 20 minutes later. She remembers the quiet and the other women around her. The screaming was a memory, the pain was gone, their stomachs were newly slack. For the first time they began to talk, even to laugh a little. It was, Anne remembers, “like those stories people tell about war. We were all in shock, and weirdly calm.” A 17-year-old girl told Anne she had been on the long-acting hormonal contraceptive Depo-Provera, which makes it hard to know whether you are pregnant because you do not bleed. Another had had an IUD, which clearly hadn’t worked. One woman confided that she and her boyfriend had had to get the money from his parents for this procedure, telling a lie about the purpose. All these women seemed to Anne to be young and powerless. One was either Chinese or Vietnamese, and spoke no English. In the months to come, it would be this – feeling that with her education and professionalism she was the best placed to draw attention to issues of public policy – that would motivate her to tell me this story.

The women’s lives were waiting to reclaim them. Anne’s partner picked her up and they went home. Over the next few days her breasts swelled and went hard. She had antibiotics to prevent mastitis. She was miserable for weeks. She found it hard to look at babies or young children. She felt she had done a terrible thing, yet also the right thing. She did not regret her decision, but there was no room for righteousness or complacency. In fact, there was no easy way to feel.

Life resumed its normal course. She had missed only a few days of work.

It was seven months later, just before Christmas 2009, that members of Dr John Carnie’s team alerted him to an apparent problem at the Croydon Day Surgery. Hepatitis C is a notifiable disease, meaning that any doctor who diagnoses a case must tell the public health authorities. There are about 2000 notifications per year in Victoria. Most have contracted the disease from intravenous drug use – sometimes many years before. Some get it from tattoo parlours where proper procedures have not been followed. These are the most common means of infection, but there are others. One woman, whose survivor’s story is in the standard support group literature, got it from her husband when he was beating her up and there was an exchange of blood. She left him, but lives with his legacy.

The Department of Human Services staff can’t investigate all cases, so they concentrate on those where the disease is in its first stages, suggesting recent transmission. They crossmatch the data, searching for clusters – risk factors that suggest a source of infection.

Carnie’s staff informed him of three cases that had been found with one risk factor in common: treatment at the Croydon Day Surgery. Two days before Christmas, a team descended on the clinic to examine its systems and procedures. They were met with total co-operation. Staff submitted to blood testing. Procedures were examined. The team found nothing to suggest how infection might have occurred, and when the blood tests came back, they were all negative for hepatitis C. One member of staff – Dr Peters – was overseas in the US. Carnie insisted that he be contacted and tested. The results came back in late January. They were positive.

The hepatitis C virus is a tricky beast. There are six main genotypes, or strains, and each contains numerous subtypes. To confirm that the women infected had received the same strain as that carried by Peters, there were laborious three-stage tests. First was the confirmation of infection. Then, the genotype was determined. And finally, segments of the virus were laid out under magnification and compared, like bar codes. “It is painstaking, slow work,” says Carnie. It was February before he knew that the women had acquired the disease from Peters.

Peters was interviewed. He claimed he hadn’t known he had the disease. He openly discussed his past drug use, but could not explain how he might have infected the women under his care. On 15 February, Carnie went to see the Medical Practitioners Board. Later that day, after an urgent telephone conference, Peters was suspended. Fortunately, he hadn’t practised since he left for the US in early December.

By this stage, Carnie’s team had a list of patients going back to 2008 and had begun the process of contacting and testing them. They found another nine cases, making 12 women in what was now a hepatitis cluster. How many more were to come? Peters had treated about 3500 women since he began work at the surgery in 2006. As well as many living interstate, there were 55 from New Zealand and others from further afield. Somehow, the ground had to be prepared for those horrible phone calls, and for the largest exercise of its kind in Australian history.

Carnie decided to go public.

Anne was at work on Friday, 9 April when her partner rang to ask if she had seen the news. She rang the helpline number provided in the media stories, not expecting the worst. “I had this notion of myself as one of those lucky people to whom things like this don’t happen.” Should she be concerned, she asked the woman on the other end of the line? “Most certainly,” came the reply. That was a cold shock. She was tested later that day; the results would take weeks.

She and her partner spent another weekend googling, working out risk factors, imagining life with ‘foggy brain’ and other horrors. She felt vulnerable. What would happen to them if she had the disease? What if he had been infected through sex with her?

Again she wondered if she was being punished. How had this happened? One possible explanation is that for the addicted anaesthetist, an easy way of getting a hit is to share the drug intended for the patient. It is far from unknown in the world of doctoring. A bit for me first, the rest for you. Whether that’s what happened in this case might eventually be for the courts to decide.

Carnie’s team, meanwhile, was dealing with the “deluge” of women who contacted the department as a result of the publicity. Soon the lawyers moved in. The firm Slater & Gordon, known for its pioneering work on class actions and medical negligence, was soon representing a group of women considering suing Peters, the surgery, Dr Schulberg and, in what could be a first, the Medical Practitioners Board. “These women, without a doubt, have a right to feel aggrieved,” says the firm’s medical law expert, Paula Shelton. “They have been betrayed.”

There are many potential obstacles in the women’s path. If Peters is convicted of a crime, his medical indemnity insurance could be invalidated, meaning the women would get little or no money even if their claim is successful. Peters’ insurer, Invivo, has a standard clause in its policies that excludes liabilities arising from transmission of a contagious disease when the doctor “knew, or should have reasonably known” that they were carrying it.

Should the Medical Practitioners Board have kept a better eye on Peters? Should he have been able to practise at all? And is it possible for a single body to have the dual function of looking after doctors with problems and protecting the public from them?

“These are all legitimate issues that need to be discussed,” says Carnie. Meanwhile, the board, perhaps understandably given its current situation, refuses to comment. Instead, I am referred to the chair of the new Medical Board of Australia, Dr Joanna Flynn. She is also a former member of the Victorian board.

Flynn says that drug-addicted doctors whose problems come to the attention of the board are typically subjected to a thrice-weekly testing regimen. They have to attend at a pathology provider and give blood under supervision. Once they have been clear for a designated period, they can move to a random regime, where they will be called without notice and told to attend for testing the next day. If the board believes the addiction has been overcome, the regime can be lifted and the doctor allowed to practise again. This is what happened with Peters, but the Victorian board will not say when, or why, his registration was reinstated. It says it must safeguard Peters’ privacy.

Doctors in some areas of surgery – where it is necessary to delve into the close and crowded parts of the human body – are obliged to know their hepatitis C status, because there is a high risk of needle-stick injuries or the snagging of flesh on bone. But no such requirement applied to Dr Peters.

Perhaps, Flynn acknowledges, all doctors should be required to know their infectious diseases status. And, given the high rate of relapse among drug addicts, perhaps all doctors identified as addicts should be subjected to continuous random checks – for life if necessary. Will this be done? Flynn will not commit. Procedures and protocols for the new national body, she says, are still being devised. This case will help sharpen them.

So far, 44 women treated at the Croydon Day Surgery have tested positive for hepatitis C, at least half of whom appear to have contracted the virus from Peters. The phone calls continue. The teams remain at work. They will probably find more cases.

Anne got a phone call about a week after she went in for testing. It was good news. She does not have the virus. She thinks of the other women – some of them so young – and wonders what happened to them. Are they sick? Have they had their phone call? Are they among those represented by Slater & Gordon? She will probably never know.

Margaret Simons

Margaret Simons is an author, journalist and journalism academic. She has written numerous books, articles and essays, including the Quarterly Essay Cry Me a River: The Tragedy of the Murray–Darling Basin.


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