Fitness to Practise Panel
8-11 SEPTEMBER 2008
7th Floor, St James’s Buildings, 79 Oxford Street, Manchester, M1 6FQ

Name of Respondent Doctor:       Dr Endre Zs TOTH

Registered Qualifications:            MD 1995 Albert Szent- Gyorgyi Orvostudodomanyi Egyetem

Area of Registered Address:        Hungary

Registration Number:                    6158530

Type of Case:                                New case of impairment by reason of: misconduct and deficient professional performance 

Panel Members:                            Mr Ralph Bergmann, Chairman (Lay)
                                                      Mr Roger Creedon (Lay)
                                                      Dr Chinekwu Davies (Medical)

Legal Assessor:                             Mr Alan Evans       

Secretary to the Panel:                    Mrs Zaheda Khan

Representation:
GMC: Mr Darryl Allen, Counsel, instructed by Field Fisher Waterhouse Solicitors
Doctor: Not Present and Not Represented

Allegation

“That being registered under the Medical Act 1983

  1. At all material times you were registered as a Medical Practitioner under the Medical Act 1983, as amended; Found Proved
  2. Between 15 February 2007 and 20 July 2007, you were employed as a Locum Consultant Histopathologist by the Carmarthenshire NHS Trust based at Prince Phillip Hospital, Llanelli; Found Proved

    Schedule 1

  3. Your findings in relation to each individual slide listed in Schedule 1 were
    1. incorrect, Found Proved
    2. inappropriate, Found Proved
    3. not in the best interests of the patient; Found Proved


    Specimen S,07.0002830.N

    1. On or about 26 June 2007, you examined this specimen and reported that the features were compatible with primary lung carcinoma, Found Proved
    2. You did not recommend any further investigations, Found Proved
    3. This specimen in fact showed:
      1. an inflammatory reaction with a reactive mesothelial hyperplasia, Found Proved
      2. no evidence of primary bronchial carcinoma; Found Proved
    4. Your findings as set out at paragraph 4(a) were
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved
    5. Your failure to recommend further investigations as set out at paragraph 4(b) was
      1. inadequate, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0002643.S

    1. On or about 14 June 2007, this specimen was submitted for examination. The examination request form included the following information:
      1. “Specimen: Skin biopsy”, Found Proved
      2. “Clinical history: Slow growing lesion right lower lid.  ? BCC.  Suture at lateral edge”; Found Proved
    2. On or about 14 June 2007, you examined this specimen and reported your findings in the following terms, “Sections show skin with subacute dermal inflammation. No evidence of in situ or invasive carcinoma”, Found Proved
    3. When performing your examination and producing your findings you knew       or ought to have known of the clinical context as set out at paragraph 5(a), Found Proved
    4. This specimen in fact showed a benign chalazion, Found Proved
    5. Your findings as set out at paragraph 5(b) were:
      1. inadequate, Found Proved
      2. not in the best interests of the patient; Found Proved
    6. When producing your findings you did not adequately consider the clinical context as set out at paragraph 5(a), Found Proved
    7. Your failure to adequately consider the clinical context as set out at paragraph 5(a) was:
      1. inappropriate, Found Not Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0002437.D

    1. On or about 5 June 2007, this specimen was submitted for examination. The examination request form included the following information
      1. “Specimen: Gastric biopsy, Duodena biopsy, Col.”,Found Proved
      2. “Clinical history: Iron deficiency anaemia.  Normal appearance”; Found Proved
    2. On or about 5 June 2007, you examined this specimen and reported your findings in the following terms, “A. Gastric mucosa with no active gastritis, Helicobacter or invasive carcinoma.  B. Duodenal mucosa with a moderate chronic duodenitis with wider villi and no giardia.  C. Colonic mucosa with no active colitis, adenomatous change or invasive carcinoma”, Found Proved
    3. When performing your examination and producing your findings you knew or ought to have known of the clinical context as set out at paragraph 6(a), Found Proved
    4. You did not comment on the possibility of the patient suffering from coeliac disease, Found Proved
    5. You did not recommend any further investigations, Found Proved
    6. Sample B within this specimen in fact showed villious atrophic changes which were strongly suggestive of coeliac disease, Found Proved
    7. Your findings in relation to Sample B of this specimen as set out at paragraph 6(b) were
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved
    8. In producing your findings you did not pay adequate regard to the clinical context set out at paragraph 6(a), Found Proved
    9. Your failure to pay adequate regard to the clinical context set out at paragraph 6(a) was
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0001765.B

    1. On or about 24 April 2007, this specimen was submitted for examination.  The examination request form included the following information
      1. “Specimen: Bladder tumour, Bladder Biopsy”, Found Proved
      2. “Post six week cycle of BCG”; Found Proved
    2. On or about 24 April 2007, you examined this specimen and reported your findings in the following terms, “A. Fragments of bladder mucosa with chronic inflammation and severe dysplasia.  No evidence of papillary tumour or invasive carcinoma.  B. Fragments of bladder mucosa with mild chronic inflammation.  No evidence of dysplasia or malignancy”, Found Proved
    3. When performing your examination and producing your findings you knew or ought to have known of the clinical context as set out at paragraph 7(a), Found Proved
    4. Sample A within this specimen in fact showed well differentiated papillary carcinoma, Found Proved
    5. Your findings set out at paragraph 7(b) were
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved
    6. When producing your findings you did not pay adequate attention to the clinical context set out at paragraph 7(a), Found Proved
    7. Your failure to pay adequate attention to the clinical context set out at   paragraph 7(a) was
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Prove


    Specimen S,07.0001728.L

    1. On or about 19 April 2007, this specimen was submitted for examination.  The examination request form included the following
      1. “Specimen: Gastro-oesophageal junction, Gastri”,
        Found Proved
      2. “Clinical History: ? lesion at gastro oesophagus junction”;
        Found Proved
    2. On or about 19 April 2007, you examined this specimen and reported your findings in the following terms, “A&B. Gastric mucosa with a mild superficial chronic inflammation.  No Helicobacter or invasive carcinoma seen”, Found Proved
    3. When performing your examination and producing your findings you knew or ought to have known of the clinical context set out at paragraph 8(a), Found Proved
    4. You did not recommend any further investigations, Found Proved
    5. Your findings as set out at paragraph 8(b) were:
      1. incorrect, Found Not Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    6. When producing your findings you did not adequately consider the clinical context set out at paragraph 8(a), Found Proved
    7. Your failure to adequately consider the clinical context set out at paragraph 8(a) was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient, Found Proved
    8. Your failure to recommend further investigations as set out at paragraph 8(d) was:
      1. inappropriate, Found Not Proved
      2. inadequate, Found Not Proved
      3. not in the best interests of the patient; Found Not Proved


    Specimen S,07.0001643.K

    1. On or about 16 April 2007, you examined this specimen and reported your findings as showing “Cervix – CIN 1”, Found Proved
    2. You did not recommend any follow up, Found Prove
    3. This specimen in fact showed CIN2/CIN3, Found Proved
    4. Your findings as set out at paragraph 9(a) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    5. Your failure to recommend any follow up as set out at paragraph 9(b) was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0001222.M

    1. On or about 14 March 2007, this specimen was submitted for examination.  The examination request form included the following information:
      1. “Specimen: Synovium”, Found Proved
      2. “Clinical History: ? rheumatoid arthritis”, Found Proved
    2. On or about 15 March 2007, you examined this specimen and reported your findings in the following terms, “Sections show fatty tissue with pigmented villonodular synovitis.  No evidence of rheumatoid arthritis or malignancy”, Found Proved
    3. When performing your examination and producing your findings you knew or ought to have known of the clinical context set out at paragraph 10(a), Found Proved
    4. This specimen in fact:
      1. showed mild chronic inflammation, Found Proved
      2. did not show pigmented villonodular synovitis, Found Proved
    5. Your findings as set out at paragraph 10(b) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    6. When producing your findings you did not adequately consider the clinical context set out at paragraph 10(a), Found Proved
    7. Your failure to adequately consider the clinical context set out at paragraph 10(a) was:inappropriate, Found Proved
    8. inadequate, Found Proved
    9. not in the best interests of the patient; Found Proved


    Specimen S,07.0001169.P

    1. On or about 12 March 2007, this specimen was submitted for examination.  The examination request form included the following information:
      1. “Specimen: Breast tissue”, Found Proved
      2. “Clinical history: Tender persistent lump following breast augmentation”, Found Proved
    2. On or about 13 March 2007, you examined this specimen and reported your findings in the following terms, “Right breast – benign excised pilar cyst”,  Found Proved
    3. When performing your examination and producing your findings you knew or ought to have known of the clinical context set out at paragraph 11(a), Found Proved
    4. This specimen in fact showed:
      1. fibrous tissue, Found Proved
      2. silicone material, Found Proved
    5. Your findings as set out at paragraph 11(b) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    6. When producing your findings you did not adequately consider the clinical context set out at paragraph 11(a), Found Proved
    7. Your failure to adequately consider the clinical context set out at paragraph 11(a) was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0002826.N

    1. On or about 26 June 2007, this specimen was submitted for examination.  The examination request form included the following information:
      1. “Specimen: Gastric biopsy, Gastric biopsy, Duod.”,
        Found Proved
      2. “Clinical history: Fe def anaemia. Area superficial ulceration body of stomach”, Found Proved
    2. On or about 26 June 2007, you examined this specimen and reported your findings in the following terms, “A. Gastric mucosa with a mild superficial chronic gastritis.  No Helicobacter or invasive carcinoma seen.  B. Gastric mucosa with glands showing low grade dysplasia.  No Helicobacter or invasive carcinoma seen.  C. Duodenal mucosa with a mild chronic duodenitis, no villi and no giardia”, Found Proved
    3. When performing your examination and producing your results you knew or ought to have known of the clinical context as set out at paragraph 12(a), Found Proved
    4. You did not report any findings with regard to the possibility that the patient was suffering from coeliac disease, Found Proved
    5. Sample B within this specimen in fact showed epithelial hyperplasia suggestive of reactive gastritis, Found Proved
    6. With regard to sample B of this specimen, your findings as set out at Paragraph 12(b) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    7. When producing your findings you did not adequately consider the clinical context set out at paragraph 12(a), Found Proved
    8. Your failure to adequately consider the clinical context set out at paragraph 12(a) was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient, Found Proved
    9. Your failure to report any findings with regard to the possibility that the patient was suffering from coeliac disease was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0002743.L

    1. On or about 21 June 2007, you examined this specimen and reported your findings in the following terms, “A. Gastric mucosa with a mild superficial gastritis. No Helicobacter or invasive carcinoma seen.  B. Duodenal mucosa with normal villi and giardia.  C. Gastric mucosa with normal glands and glands showing high grade epithelial dysplasia.  No evidence of invasive carcinoma.  Gastric polyp – adenomatous change with high grade dysplasia.  D. Benign squamous epithelium and necrotic debris.  No evidence of dysplasia or invasive carcinoma”, Found Proved
    2. Sample A within this specimen in fact showed mild reactive gastritis with extensive intestinal metaplasia, Found Proved
    3. Sample C within this specimen in fact showed:
      1. a hyperplastic polyp, Found Proved
      2. no evidence of dysplasia, Found Proved
    4. Sample D within this specimen was strongly suggestive of herpes simplex oesophagitis, Found Proved
    5. Your findings as set out at paragraph 13(a) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0002210.W

    1. On or about 21 May 2007, you examined this specimen and reported your findings in the following terms, “Skin right upper arm – Benign excised junctional naevus”, Found Proved
    2. In your report you did not identify the possible differential diagnosis of dysplastic junctional naevus, Found Proved
    3. Your failure to address the possible differential diagnosis of dysplastic junctional naevus as set out at paragraph 14(b) was:
      1. inadequate, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0001721.W

    1. On or about 19 April 2007, you examined this specimen and reported your findings as showing “Liver – Chronic active hepatitis, grade 2, stage 2”,Found Proved
    2. You did not include adequate details as to your findings on examination of the special stains of this specimen, Found Proved
    3. This specimen in fact showed cirrhosis as well as chronic hepatitis C, Found Proved
    4. Your findings as set out at paragraph 15(a) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    5. Your failure to include adequate details as to your findings on examination of the special stains of this specimen as set out at paragraph 15(b) was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient; Found Proved


    Specimen S,07.0000782.Q

    1. On or about 16 February 2007, this specimen was submitted for examination.  The examination request form included the following information:
      1. “Specimen: Mole”, Found Proved
      2. “Clinical history: Lesion had become itching, increasing in size”,Found Proved
      3. the patient was a 29 year old female, Found Proved
    2. On or about 16 February 2007, you examined this specimen and reported your findings in the following terms, “Skin, thigh – Benign spitz naevus, epithelial type, completely excised”, Found Proved
    3. When conducting your examination and producing your findings you knew or ought to have known the clinical context as set out at paragraph 16(a), Found Proved
    4. This specimen in fact showed superficial spreading malignant melanoma, Found Proved
    5. Your findings as set out at paragraph 16(b) were:
      1. incorrect, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient; Found Proved
    6. When producing your results you did not adequately consider the clinical context as set out at paragraph 16(a), Found Proved
    7. Your failure to consider the clinical context as set out at paragraph 16(a) was:
      1. inadequate, Found Proved
      2. inappropriate, Found Proved
      3. not in the best interests of the patient, Found Proved
    8. You did not seek advice, assistance or expert second review in relation to this specimen, Found Proved
    9. Your failure to seek advice, assistance or expert second review as set out at paragraph 16(h) was:
      1. inappropriate, Found Proved
      2. inadequate, Found Proved
      3. not in the best interests of the patient.” Found Proved

And that by reason of the matters set out above your fitness to practise is impaired because of

  1. your misconduct; and
  2. your deficient professional performance.”

Determination on facts:

Mr Allen: Dr Zs Toth is neither present nor represented at this hearing. However, the Panel has previously decided to proceed in his absence and has given detailed reasons for this in the determination announced on 8 September 2008.

The Panel has given careful consideration to all the evidence adduced in this case and has taken account of your submissions on behalf of the General Medical Council (GMC).

The Panel has also accepted the advice given by the Legal Assessor in the following areas:

  • Separate consideration of each allegation.
  • Burden and standard of proof.
  • Expert evidence.

The Panel proceeds on the basis that the GMC brings the case against Dr Zs Toth and it is for the GMC to prove its case.  Dr Zs Toth need prove nothing.  Proof is achieved if the Panel is satisfied on the balance of probabilities that a fact is made out.  This means that a fact will be found proved if the Panel consider it is more likely than not to have happened.  However, the civil standard of proof is flexible in its application. The more serious the allegation, or the more serious the consequences for the practitioner, if the allegation is proved, the stronger the evidence must be. 

In relation to the expert evidence, the Legal Assessor advised the Panel that it must carefully consider the evidence of Professor A, Consultant Histopathologist, who was called by the GMC as an expert witness, but that ultimately all matters of determination were for the Panel alone.

The Panel found the evidence of Professor A to be credible and accepted his judgements as expressed both in his report, dated 6 July 2008, and in his oral evidence to this Panel.  The Panel has noted that Professor A has been able to review the documentation and the specimens. He has also taken into account Dr Zs Toth’s detailed response as set out in his letter to the GMC dated 6 January 2008. The Panel has accepted Professor A's analysis of the specimens submitted to him for examination.

The Panel has considered each paragraph of each allegation separately, applying the appropriate civil standard of proof.  It has made the following findings:

Paragraphs 1 and 2 have been found proved.

The Panel notes document C1 which shows Dr Zs Toth’s registration details on the Medical Register. In relation to paragraph 2, the Panel notes the evidence of Dr B and indeed the response letter from Dr Zs Toth dated 6 January 2008, in which he admits that between 15 February and 20 July 2007, he was employed as a locum Consultant Histopathologist by the Camarthenshire NHS Trust.

Schedule 1

Paragraphs 3a, b and c have been found proved in relation to each of the slides listed 1-22 in Schedule 1.

In relation to slides 11 and 12, the Panel notes that although these were described by Professor A as category 3 cases (cases involving a minor discrepancy of disease categorisation likely to be of little clinical significance), it was inappropriate for Dr Zs Toth, given his qualifications and expertise, to make such incorrect findings.

In relation to slide 14, paragraphs 3a, b and c have been found proved in relation to sample D only.

In relation to slide 18, paragraphs 3a, b and c have been found proved in relation to sample A only.

Specimen S.07.0002830.N

Paragraphs 4a, 4b, 4ci, 4cii, 4di-iii, 4ei-iii have been found proved.

Specimen S.07.0002643.S

Paragraphs 5ai, 5aii, 5b, 5c, 5d, 5ei, 5eii, 5f, 5gii and 5giii have been found proved.

Paragraph 5gi has been found not proved.

In making this finding, the Panel took into account ProfessorA’s opinion that rather than being wrong, Dr Zs Toth’s report was unhelpful in that he failed to correlate the clinical features with those seen pathologically. It considered that the burden of this criticism was one of inadequacy rather than inappropriateness

Specimen S,07.0002437.D

Paragraphs 6ai, 6aii, 6b, 6c, 6d, 6e, 6f, 6gi-iii, 6h, 6i i-iii have been found proved.

Specimen S,07.0001765.B

Paragraphs 7ai, 7aii, 7b, 7c, 7d, 7ei-iii, 7f and 7gi-iii have been found proved.

The Panel’s findings in respect of 7ei-iii relate only to sample A at paragraph 7b.

Specimen S,07.0001728.L

Paragraphs 8ai, 8aii, 8b, 8c, 8d, 8eii, 8eiii, 8f and 8gi-iii have been found proved.

Paragraph 8ei has been found not proved.

The Panel’s finding is based on the fact that Professor A described Dr Zs Toth’s report as sparse. The Panel considers that Professor A’s criticism goes to what Dr Zs Toth omitted to do rather than what he did and that this criticism justifies its conclusion that Dr Zs Toth’s findings were inappropriate rather than incorrect.

Paragraphs 8hi-iii have been found not proved.

The Panel regards as unrealistic the criticism of a failure to recommend further investigation in a case where the error was no more than a minor discrepancy of disease categorisation likely to be of little clinical significance.

Specimen S,07.0001643.K

Paragraphs 9a, 9b, 9c, 9di-iii and 9ei-iii have been found proved.

Specimen S,07.0001222.M

Paragraphs 10ai, 10aii, 10b, 10c, 10di, 10dii, 10ei-iii, 10f and 10gi-iii have been found proved.

Specimen S,07.0001169.P

Paragraphs 11ai, 11aii, 11b, 11c, 11di, 11dii, 11ei-iii, 11f and 11gi-iii have been found proved.

Specimen S,07.0002826.N

Paragraphs 12ai, 12aii, 12b, 12c, 12d, 12e, 12fi-iii, 12g, 12hi-iii, 12i i-iii have been found proved.

Specimen S,07.0002743.L

Paragraphs 13a, 13b, 13ci, 13cii, 13d, 13ei-iii have been found proved.

The Panel’s findings in relation to 13ei-iii relate only to samples A, C and D in paragraph 13a.

Specimen S,07.0002210.W

Paragraphs 14a, 14b and 14ci-iii have been found proved.

Specimen S,07.0001721.W

Paragraphs 15a, 15b, 15c, 15di-iii and 15ei-iii have been found proved.

In relation to 15d, the Panel found Dr Zs Toth’s findings were incorrect and inappropriate in that he failed to record a critical finding of cirrhosis.

Specimen S,07.0000782.Q

Paragraphs 16ai-iii, 16b, 16c, 16d, 16ei-iii, 16f, 16gi-iii, 16h and 16i i-iii have been found proved.

Having reached its findings on the facts, the Panel will now invite you to adduce further evidence and make any further submissions as to whether, on the basis of the facts found proved, Dr Zs Toth’s fitness to practise is impaired.

Determination on impaired fitness to practise:

Mr Allen:  At this stage of the proceedings the Panel must decide, under Rule 17(2)(j) of the General Medical Council (Fitness to Practise) Rules 2004 whether, on the basis of the facts found proved, Dr Zs Toth’s fitness to practise is impaired by reason of his misconduct and/or his deficient professional performance.

The Panel has considered all the evidence, oral and documentary, placed before it, including the letter from Dr Zs Toth, dated 6 January 2008, as well as the submissions made by you, on behalf of the General Medical Council (GMC).

The Panel has taken into account the Indicative Sanctions Guidance (April 2005), in so far as it deals with the meaning of Impaired Fitness to Practise.  

The Panel has borne in mind throughout its deliberations that it has a duty to protect the public interest. This includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.

The Panel has heard that at all material times Dr Zs Toth was registered as a Medical Practitioner under the Medical Act 1983, as amended, and that between 15 February 2007 and 20 July 2007, he was employed as a Locum Consultant Histopathologist by the Carmarthenshire NHS Trust based at Prince Phillip Hospital, Llanelli.

The Panel found proved that Dr Zs Toth’s findings between 19 February and 21 June 2007, in relation to each of the 22 individual slides listed in Schedule 1 were incorrect, inappropriate and not in the best interests of the patient.

The Panel has also found proved that Dr Zs Toth examined and reported on a number of specimens from 16 February to 26 June 2007, the findings of which were incorrect, inappropriate and not in the best interests of the patient. The Panel has also found proved in a number of cases that, when producing his findings, Dr Zs Toth did not adequately consider the clinical context in the information given in the examination request form, which the Panel also found to be inappropriate, inadequate and not in the best interests of the patient. The Panel also found that in relation to two of the specimens, he did not recommend any further investigations or follow-up, which again the Panel found to be inadequate, inappropriate and not in the best interests of the patient. 

This case centres on allegations that relate to Dr Zs Toth’s conduct and performance between 15 February and 20 July 2007. The Panel heard evidence from Dr B, Consultant Histopathologist who was part of the interviewing Panel that appointed Dr Zs Toth. Dr B told the Panel that at the interview Dr Zs Toth appeared “capable” in histopathology in terms of his CV and references which were “good”. Dr B told the Panel that she gave Dr Zs Toth advice and guidance and ensured that she was always available should he require help or assistance. However, Dr Zs Toth never raised any difficulties with her. 

The Panel also heard evidence from Dr C who was Medical Director at the relevant time. Dr C told the Panel that on 10 July 2007 a Consultant Chest Physician came to see him to raise concerns in relation to two cases on which, in his opinion, Dr Zs Toth had inaccurately reported. Dr C told the Panel that he then spoke to Dr B and had informal discussions with other colleagues who told him that they were losing confidence in gaining accurate information from Dr Zs Toth.  Dr C met with Dr Zs Toth on 20 July 2007 and discussed the concerns that had been raised. Dr C told the Panel that Dr Zs Toth’s response to the concerns raised was that he did not think the errors he had made were that bad and that they would have been deemed acceptable in his home country [Hungary]. Dr C stated that Dr Zs Toth did not give an adequate explanation; he neither expressed any concerns to mitigate his actions nor did he indicate any wish or need to remedy his deficiencies. It was decided that his employment be terminated.

Following Dr Zs Toth’s departure, an audit of his work was conducted by Dr B. From a total of 1,261 cases that Dr Toth had reported on, a total of 43 cases were identified as cause for concern. Dr B explained to the Panel how she also sought an independent second opinion on the more complicated of these cases. Following the conclusion of the audit, the Trust contacted the GPs of every patient whose slides had been misinterpreted by Dr Zs Toth. The patients were re-called to the Hospital and re-assessed. Furthermore, a telephone helpline for patients was established to alleviate any concerns raised and to give help and guidance. 

The Trust informed the General Medical Council of the audit’s findings. The GMC then instructed Professor A, Consultant Histopathologist, based at Gloucestershire Royal Hospital, to review the 43 cases. The Panel was provided with a copy of Professor A’s written report and heard oral evidence from him. He had undertaken a histopathological review of the specimens available and had been   asked to deal with specific questions concerning the 43 cases. In his summary of findings and recommendations, he states that histopathological practice is not an exact science and that there is wide variation in its practice. He also explained that, using the Royal College of Pathologists system, he categorised the errors, which he found as follows:

  • Category 0 (no error or minor typographical and other errors of no clinical substance) = 4 cases
  • Category 1 (a diagnostic error, which would have a definite influence on clinical management and possible outcome) = 18 cases
  • Category 2 (a diagnostic misinterpretation or oversight, which has the potential to affect clinical management or outcome) = 15 cases
  • Category 3 ( a minor discrepancy of disease categorisation likely to be of little clinical significance) = 5 cases
  • Not Classifiable (slides not available)  = 1 case

Professor A informed the Panel that, based on a research paper by Furness and Lauder, major error rates should be less than 1 in a 1000. Professor A’s report reveals, taking the category 1 cases alone, that Dr Zs Toth’s error rate was 1.4%. When the category 1 cases are combined with the category 2 cases, the error rate is 2.6%. The latter equates to an error rate of 1 in 40 which Professor A stated was to be regarded as totally unacceptable. The Panel, whilst being assisted by the statistics that have been put forward in relation to error rates, has based its decisions on the evidence that has been adduced in relation to the 35 cases which are the subject of the allegations.

Dr A also made the following observations:

  • Many of Dr Zs Toth’s reports lack detail,
  • Dr Toth has shown a propensity to over call basal cell carcinomas whereas he has demonstrated a propensity to under call CIN disease in cervical pathology,
  • In many of his reports, Dr Toth has not correlated the pathological findings with clinical data.

In his oral evidence, Professor A told the Panel that the onus upon a histopathologist is not only to make an accurate diagnosis but to also be involved in the management of the patient. In his opinion, Dr Zs Toth appeared to consider that his role was limited to analysing tissue specimens. Professor A stated that there is evidence that Dr Zs Toth has made inaccurate diagnoses due to his failures to take into account the clinical context. Professor A’s conclusion is that the serious error rate that Dr Zs Toth has demonstrated is “wholly unacceptable”, and that “they demonstrate serious and persistent failures in his pathological practice.” 

The Panel notes that Professor A had taken Dr Zs Toth’s response to the allegations into account when preparing his report. Dr Zs Toth’s response was in a letter dated 6 January 2008 to the GMC in which he first states that he has been working as a consultant histopathologist since 1999 and that he has written approximately 20,000 reports with no complaints prior to these.

In making its judgement on whether Dr Zs Toth’s fitness to practise is impaired, the Panel has taken into account the following paragraphs of The Indicative Sanctions Guidance under the heading ‘The Meaning of Fitness to Practise:

  1. To practise safely, doctors must be competent in what they do....

55. …, the public is entitled to expect that their doctor is fit to practise, and follows the GMC’s principles of good practice described in Good Medical Practice. …

56.     Most doctors measure up to these high standards but a small number fall seriously short and thereby put patients at risk, cause them serious harm or distress or undermine public confidence in doctors generally. …

57. All human beings make mistakes from time to time. Doctors are no different. While occasional one-off mistakes need to be thoroughly investigated by those immediately involved where the incident occurred and any harm put right, they are unlikely in themselves to indicate a fitness to practise problem. Good Medical Practice puts it this way:

‘Serious or persistent failures to meet the standards in this booklet may put your registration at risk’.

58. A question of impaired fitness to practise is likely to arise if:

  • A doctor’s performance has harmed patients or put patients at risk of harm;
  • A doctor has shown a deliberate or reckless disregard of clinicalresponsibilities towards patients’;

The Panel first considered, on the basis of the facts found proved, whether Dr Zs Toth’s fitness to practise is impaired by reason of his misconduct. The Panel has already determined, in relation to the facts found proved, that Dr Zs Toth’s findings and failures in relation to numerous matters were inappropriate, inadequate and not in the best interests of patients and therefore not in accordance with the principles of the GMC’s Good Medical Practice booklet (2006).

In reaching its decision, the Panel has considered the fact that Dr Zs Toth’s failings commenced from the second day of his employment at the Trust and continued until his departure some five months later. The Panel considers that the seriousness and volume of errors made by Dr Zs Toth over the period of his employment at the Trust amount to wholly unacceptable medical practice. The Panel notes the wide ranging and serious impact that Dr Zs Toth’s inaccurate reporting had on patients and the Trust.

The Panel is in no doubt that Dr Zs Toth’s conduct fell seriously short of the standards that the public and patients are entitled to expect from registered medical practitioners and is therefore satisfied that his actions were not in the public interest.

Accordingly, the Panel has determined that Dr Zs Toth’s fitness to practise is impaired by reason of his misconduct.

The Panel next considered, on the basis of the allegations found proved, whether Dr Zs Toth’s fitness to practise is impaired by reason of his deficient professional performance.

The Panel notes the opening paragraph of Dr Zs Toth’s letter dated 6 January 2008, in which he states, ‘I think, everyone can make mistakes, we are all humans.’ The Panel considers that the mistakes made by Dr Zs Toth were repeated, serious and persistent.  Furthermore, the scale of the errors as highlighted in Professor A’s report reveals an unacceptably low level of performance for the entire period that he was employed by the Trust. The evidence of Professor A was that Dr Zs Toth was dealing with “bread and butter” pathology work and therefore it is expected that a consultant should be more than capable of performing these basic duties.

On the basis of the evidence it has heard, the Panel is in no doubt that Dr Zs Toth’s professional performance was deficient. The Panel is concerned by the very many serious errors, especially the misdiagnoses of cancer, which did have a serious impact on the patients concerned.  Of particular concern to the Panel is the fact that a significant number of Dr Zs Toth’s major errors occurred within a very short time span of less than one month, between 31 May and 26 June. The Panel has concluded, in light of all the evidence presented at this hearing, that the errors demonstrate basic fundamental failings in Dr Zs Toth’s practice and which had put patients at risk of harm.

Having considered all the evidence, the Panel has found that Dr Zs Toth’s fitness to practise is impaired by reason of his deficient professional performance.

The Panel will now invite submissions from you as to the appropriate sanction, if any, to be imposed on Dr Zs Toth’s registration.  Submissions on sanction should include reference to the Indicative Sanctions Guidance, using the criteria set out in the guidance to draw attention to the issues which appear relevant in this case.

Determination on sanction:

Mr Allen: The Interim Order currently imposed on Dr Zs Toth’s registration is hereby revoked.

Having found Dr Zs Toth’s fitness to practise to be impaired by reason of his misconduct and deficient professional performance, the Panel has considered the appropriate sanction, if any, to be imposed upon his registration. It has considered carefully the evidence adduced during this hearing and your submissions. You have submitted on behalf of the General Medical Council (GMC) that this case should be concluded with at least suspension.

In reaching its decision, the Panel has taken into account the GMC’s Indicative Sanctions Guidance. It has borne in mind that the purpose of sanctions is not to be punitive, though they may have a punitive effect. The Panel has applied the principle of proportionality and has balanced Dr Zs Toth’s interests with the interests of patients and the public interest. The public interest includes the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

Given the extensive and wide-ranging nature of Dr Zs Toth’s failures, and his serious departures from the principles and standards set out in the GMC’s Good Medical Practice, the Panel has determined that it would be wholly inappropriate to conclude this case without imposing a sanction.

The Panel then considered whether it would be sufficient to impose conditions on Dr Zs Toth’s registration. The Panel has concluded that the imposition of conditions would neither address the serious concerns in this case nor be sufficient or in the public interest. In any event, Dr Zs Toth has shown no commitment to take remedial action and, by not attending this Fitness to Practise hearing, has also demonstrated that he is not willing to engage with his professional body.

The Panel then considered whether to suspend Dr Zs Toth’s registration.  Paragraph 27 of the Indicative Sanctions Guidance (April 2005) states that:

“Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour…It is likely to be appropriate for misconduct that is serious, but not so serious as to justify erasure (for example where there may have been acknowledgement of fault and where the Panel is satisfied that the behaviour or incident is unlikely to be repeated)”.

The Panel regards Dr Zs Toth’s misconduct and deficient professional performance as very serious breaches of Good Medical Practice and detrimental to the public interest. Further, paragraph 28 states that suspension may be appropriate where there is evidence that a doctor has gained insight into his deficiencies. In addition the doctor must not only be prepared to undergo a rehabilitation programme, but must also have the potential to be rehabilitated.  The Indicative Sanctions Guidance at page S2-4, paragraph 19 states:

“This ‘insight’ - the expectation that a doctor will be able to stand back and accept that with hindsight, they should have behaved differently, and that it is expected that he or she will take steps to prevent a reoccurrence - is an important factor in a hearing.”

The Panel has been presented with document C10, which is an e-mail from Dr Zs Toth, dated 4 October 2007 to the GMC, in relation to his IOP hearing scheduled for the following day (5 October 2007). Within this e-mail, Dr Zs Toth says he feels bad and is sorry about his mistakes. However, he makes no comment or commitment about any requirement for re-training to remedy his deficiencies, either in that e-mail or in his letter of 6 January 2008. The Panel cannot be satisfied that Dr Zs Toth’s behaviour and errors are unlikely to be repeated. The Panel found in its determination on impairment basic fundamental failings in Dr Zs Toth’s practice which it considers demonstrate an unacceptable level of competence. Although Dr Zs Toth has made some limited recognition of the fact that he made errors, there is no evidence before the Panel that he has any insight into the seriousness of those errors, their impact on patients, nor that they require remedial action on his part.

The Panel has already announced that it considers that the matters found proved against Dr Zs Toth constitute repeated, serious and persistent failures on his part arising out of numerous acts and omissions over a period of time. In all the circumstances of this case, the Panel concludes that whilst a period of suspension would afford a degree of protection for patients, it would not be sufficient either to maintain public confidence in the medical profession or to declare and uphold proper standards of conduct and behaviour.

The Panel considered the words of Lord Bingham, Master of the Rolls, in the case of Bolton v The Law Society and adopted in the case of Dr Gupta.

“The reputation of the profession is more important than the fortunes of an individual member.  Membership of a profession brings many benefits, but that is part of the price.”

Paragraph 39 of the ISG gives examples of misconduct where the Privy Council has upheld decisions to erase a doctor despite strong mitigation because it would not have been in the public interest to do otherwise given the circumstances concerned. One example of these most serious areas of concern is failing to provide an acceptable level of treatment/care.

Paragraph 46 states:

“Cases in this category are ones where a practitioner has not acted in a patient’s best interests and has failed to provide an adequate level of care, falling well below expected professional standards. … A particularly important consideration in such cases is whether or not a doctor has, or has the potential to develop, insight into these failures. Where this is not evident, it is likely that conditions on registration or suspension may not be appropriate or sufficient.“

In arriving at its decision on the appropriate sanction to be imposed, the Panel has approached its task in ascending order. However, in this particular case, the Panel is satisfied that erasure is the only appropriate sanction in its own right. The GMC’s Indicative Sanctions Guidance states, at page S1-15, that erasure is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves any of the following:

  • Serious departure from the relevant professional standards as set out in Good Medical Practice.
  • Doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients.
  • Persistent lack of insight into seriousness of actions or consequences.

Dr Zs Toth’s behaviour, as detailed in the Panel’s determination on impairment, is fundamentally incompatible with his being a doctor. His misconduct and deficient professional performance were serious and persistent. They involved extensive departures from the relevant professional standards and the Panel considers that Dr Zs Toth is a continuing risk to patients.

In this case, the public interest, including the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour heavily outweighs the interests of the doctor. Accordingly, the Panel directs that Dr Zs Toth’s name shall be erased from the Medical Register.

Having determined that Dr Zs Toth’s name shall be erased from the Medical Register, the Panel is minded to impose an immediate order of suspension on

Dr Zs Toth’s registration and will invite submissions in that respect.

Determination on immediate sanction

Mr Allen: Having determined that Dr Zs Toth’s registration should be erased, the Panel has now considered in accordance with Section 38(1) of the Medical Act 1983 as amended, whether his registration should be suspended immediately.

The Panel has considered your submissions on behalf of the GMC on the matter of Dr Zs Toth’s registration being suspended immediately.

The matters identified in the determination which necessitated the erasure of Dr Zs Toth’s registration are of sufficient concern that the Panel has decided it is necessary for the protection of the public, is in the public interest and is in Dr Zs Toth’s own interests that his registration should be suspended with immediate effect.

This means that Dr Zs Toth’s registration will be suspended from the date that notice is served upon him. The substantive direction for erasure, as already announced, will take effect 28 days from the date when notice is deemed to have been served upon him, unless he lodges an appeal in the interim.  If Dr Zs Toth does lodge an appeal, the immediate suspension will remain in force until the substantive direction takes effect.

That concludes this case.

Confirmed

11 September 2008
Chairman

 

Schedule 1.

 

No.

Date

Specimen

Your finding

Actual finding

1.     

On or about 16.03.2007

S,07.0001251.N

Basal cell carcinoma

Benign tumour of sweat gland origin

2.     

On or about

26.03.2007

S,07.0001402.C

 

Basal cell carcinoma

“Anal intra-epithelial neoplasia” or “AIN”

3.     

On or about

05.06.2007

S,07.0002436.R

 

Sections show alveolar lung tissue containing invasive small cell (oat cell) carcinoma

Typical features of a carcinoid tumour of the broncho-pulmonary system

4.     

On or about

11.06.2007

S,07.0002557.D

 

Showing “Cervix - HPV and chronic inflammation”

Squamous dysplastic change, CIN2 disease, HPV

5.     

On or about

04.06.2007

S,07.0002435.V

Showing “Cervix – CIN1 and HPV”

Wart viral involvement; squamous dysplasia; CIN2

6.     

On or about

30.05.2007

S,07.0002359.Q

A. Foreskin with balanitis xerotica obliterans.  No insitu or invasive carcinoma seen.  B. Sections show prostate tissue with a benign nodular hyperplasia.  No evidence of malignancy

Changes merely those of chronic inflammation

 

7.     

On or about

23.05.2007

 

 

S,07.0002276.S

Foreskin with balanitis xerotica obliterans.  No in situ or invasive carcinoma seen

Changes merely those of chronic inflammation

 

8.     

On or about

18.05.2007

S,07.0002197.Q

Sections show skin with an excised benign viral wart

Dysplastic change;

parakeratosis of hypertrophic actinic keratosis

9.     

On or about

17.05.2007

S,07.0002176.G

Sections show fragments of skin with a benign viral wart

Dysplastic change suggestive of actinic keratosis

 

10.            

On or about

09.05.2007

S,07.0002070.T

basal cell carcinoma

In-situ squamous neoplasia suggestive of Bowen’s disease

11.            

On or about

01.05.2007

S,07.0001917.H

Foreskin with balanitis xerotica obliterans.  No evidence of in situ or invasive carcinoma

Chronic inflammatory changes

 

12.            

On or about

23.04.2007

S,07.0001769.N

Foreskin with balanitis xerotica obliterans.  No in situ or invasive carcinoma seen

Chronic inflammatory changes

 

13.            

On or about

23.04.2007

S,07.0001768.G

Cervix – HPV + CIN1

Squamous dysplastic change; CIN2 disease; HPV

14.            

On or about

12.03.2007

S,07.0001147.Q

All four samples [A, B, C and D] within specimen showed basal cell carcinoma

Sample D - in-situ squamous neoplasia

15.            

On or about

08.03.2007

 

 

S,07.0001100.F

Foreskin with balanitis xerotica obliterans.  No insitu or invasive carcinoma seen

Non-specific chronic inflammation; did not show balanitis xerotica obliterans

16.            

On or about

21.06.2007

S,07.0002757.R

A&B. Sections show prostate tissue with no invasive carcinoma

Evidence of adenocarcinoma

17.            

On or about

19.06.2007

S,07.0002690.W

Sections show fragments of endometrium with simple hyperplasia and atypia. No evidence of invasive carcinoma. Simple endometrial hyperplasia

Proliferative endometrium; no evidence of inflammation, polyp formation, hyperplasia, atypia, malignancy

 

18.            

On or about

31.05.2007

 

 

 

 

S,07.0002371.C

A. Right – prostate tissue with no invasive carcinoma.  B. Left – prostate tissue with a focal chronic inflammation.  No invasive carcinoma seen

Sample A (right prostate) shows adenocarcinoma

19.            

On or about

24.05.2007

 

S,07.0002282.Q

Basal cell carcinoma

Benign basal cell papilloma; no evidence of basal cell carcinoma

20.            

On or about

02.05.2007

S,07.0001944.T

Skin with keratoacanthoma which is present at the deep margin.  There is no evidence of invasive carcinoma.  Skin left temple – Keratoacanthoma, incompletely excised

Squamous cell carcinoma

 

21.            

On or about

01.05.2007

 

S,07.0001903.P

Skin with an ulcerated inflamed keratoacanthoma 1mm from the lateral margin and present at the deep margin.  No evidence of invasive carcinoma.  Skin, nose – Keratoacanthoma incompletely excised

Squamous cell carcinoma

 

22.            

On or about

19.02.2007

 

S,07.0000790.C

A. Papillary transitional cell carcinoma with moderate differentiation and invasion of the lamina propria.  No muscle tissue is present to assess.  B. Bladder mucosa with chronic inflammation and odema.  No invasive carcinoma seen.  Bladder – TCC, pT1, G2

Did not show transitional cell carcinoma; did show benign metaplasia

 

 

 

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