Surgeon who left patient on the table loses race discrimination case

An employment tribunal last week published the findings of a case for race discrimination brought by ear, nose and throat surgeon Anthony Owa against Barking, Havering and Redbridge University Hospitals Trust.

Mr Owa, who has worked as a consultant at the trust for 16 years, said he had been victimised and, because of his race, treated less favourably than other medics.

Mr Owa was clinical lead for day surgery from 2007 to 2010. He was made clinical lead again in April 2012 but resigned the position five months later “due to difficulties in his working relationship with Mr [Gabriel] Sayer, the then clinical director”.

The judgment said Mr Sayer had found the claimant’s requests for leave to be “excessive” and in 2014 raised allegations that Mr Owa had an “undeclared conflict of interest in relation to clinical commissioning group healthcare business work”.

In November 2015 Professor Kotecha, clinical lead in ENT from 2012 to 2017, complained about the claimant’s time-keeping and attendance “where on one occasion consultations for 12 patients on a list had to be cancelled.” In April 2016 Professor Bhik Kotecha, raised a complaint with counter fraud saying the surgeon had undertaken private work whilst off sick.

In October 2016 Mr Owa raised grievances against Mr Sayer and Professor Kotecha for bullying, “systematically” preventing him from keeping his skills up to date and denying the same opportunities to care for unwell family members as were afforded to other staff.

He also alleged a junior member of staff had in the course of a discussion “raised her voice and called him a cheeky monkey”.

On December 22 2016 Mr Owa left an operating theatre without completing the procedure on the patient, and he was reported by the anaesthetist and divisional director of surgery present Dr Oluremi Odejimni. The trust’s then medical director Nadeem Moghal reported Mr Owa to the National Clinical Assessment Service.

Mr Owa later said that he had left because there was no experienced nurse available to operate a laser used in the procedure and that continuing would have been unsafe.

The patient’s procedure was completed by Dr Kumar, who was asked by the trust’s investigators to provide his version of events.

A trust disciplinary hearing later found Mr Owa had “failed to attend the briefing where planning of lists would have been discussed including the need for trained laser nurses to be available throughout the procedure”.

Judge Burgher made significant criticism of the trust’s handling of disciplinary procedures.

He said Valerie Davis, head of employee relations, “gave evidence that she had three assistants at various times though the disciplinary appeal process all of whom have left the trust and that she had not been copied into all the relevant emails.

“The tribunal is surprised that the respondent seemingly does not have a central case management system to efficiently record and signpost its disciplinary and grievance requirements for matters raised.”

Grievances raised in 2018 by Mr Owa were not upheld in a hearing with interim chief executive Chris Bown, and an appeal was dismissed after a hearing chaired by a non-executive director.

In rejecting Mr Owa’s claims of race discrimination the tribunal concluded: “It is evident that the leadership of the trust did not have the confidence, fortitude or professional HR support to properly address the serious relationship difficulties between the headstrong and uncompromising individuals in the ENT department. This allowed for feelings of resentment and discontent to fester between those concerned.

“The claimant has not been able to establish the cornerstone of his allegations that the treatment towards him was deliberate on the grounds of his race or that there was an underlying racially discriminatory or unlawful victimising conspiracy against him by senior officers of the respondent against him.

“In making a number of the allegations the claimant has seemingly discounted the obvious contextual background, that he was working with other equally headstrong and uncompromising individuals who simply did not accept his behaviours or his view of things.”

Mr Owa is still employed by the trust.

Interim chief executive Chris Bown last week said in a statement to HSJ: “We were very pleased with the findings of the employment tribunal panel in this case; in particular that all allegations and claims of race discrimination, victimisation and unfair wage deductions were not upheld.

“We have waited for the written judgement from the tribunal before considering our next steps. Mr Owa is currently working within our ENT department.

“It’s important to note that the judgement clearly states that the relationship between Mr Owa and senior members of staff at our trust has broken down, and if this remains unchanged, the damage will be irreparable.

“Following receipt of the written judgement, we are currently seeking advice and guidance on how to proceed in this matter.”

In its judgment the tribunal said the trust’s medical director had been “drawn into becoming the unwilling arbiter of an increasingly dysfunctional ENT department”.

HSJ contacted Mr Owa for comment but he said he was out of the country and would need to speak to his legal team first.

Dr Moghal left the trust in 2018,

A report from Deloitte in Septmeber 2018 said: ”The culture of the consultant body is a significant outlier relative to other trusts with which we have worked and is in urgent need of modernisation.”

Professor Kotecha

The tribunal ruled that Professor Kotecha had “changed the content” of an email sent by Dr Kumar’s after he had stood in for Mr Owa.

The original email referred to Mr Owa not ”closing” the case. Professor Kotecha changed this so it appeared Dr Kumar was accusing Mr Owa of ”abandoning” the case.

The judgment also said Professor Kotecha “added the following words” to Dr Kumar’s email: “Unfortunately after finishing the case I had to go to and complete my clinic and therefore the registrar was left to complete the theatre list unsupervised which is not satisfactory to say the least”.

Employment judge Benjimin Burgher said in his judgment: “It is obvious that Professor Kotecha changed the content of Dr Kumar’s email recording the incident of December 22.

“His consistent denial of recollection that he [sic] did so was incredible and the tribunal is unable to accept his evidence in this regard”.

One of the grievances raised by Mr Owa was about Professor Kotecha doing private work on NHS time. The tribunal found that Dr Mohgal’s successor as medical director Magda Smith’s subsequent questioning of Professor Kotecha about this was “simplistic”. It added: “on the face of it [his] explanation about working during stated [supporting professional activities] times sessions should have warranted a referral to counter-fraud for their consideration. This was not done.”

The tribunal ruled that a referral was not undertaken because Professor Kotecha had left the trust - and not because he had been reported by Mr Owa.

HSJ has approached Professor Kotecha for comment.