Melbourne jaw surgeon may face legal action from second patient alleging negligence
A Melbourne surgeon is facing potential legal action from a former patient three years after an investigation by the medical regulator found he failed to warn her that she may be left with nerve injuries, and failed to obtain informed consent before major surgery on her jaw.
The patient, Jordan*, alleges that in 2018 she had both her temporomandibular joints replaced with the OMX TMJ prosthesis while under the care of Dr George Dimitroulis. The temporomandibular joint, or TMJ, connects the jaw to the skull, with one on each side of the head.
A writ filed to Victoria’s supreme court in April by the law firm Slater and Gordon alleges that Dimitroulis, the company Maxoniq, which he founded and which manufactures the device, and St Vincent’s hospital in Melbourne were all negligent and breached their duty of care in their treatment of Jordan, who has allegedly suffered injury, loss and damage.
Dimitroulis is not required to respond to the claim until after the writ is served on him, which must occur within 12 months of filing if the case is to proceed, and until after a statement of claim has also been filed.
Guardian Australia reported in February that Dimitroulis was being sued by a different former patient, Bianca*. She alleged in her statement of claim he did not disclose his commercial interest in Maxoniq, or that he was a director of that company.
Dimitroulis established the company Maxoniq in 2016 to commercialise the OMX prosthesis, a device he helped to design, according to Maxoniq’s website.
Bianca alleged she was not fully informed of the risks of complications, and was left with life-changing injuries after having both TMJs removed and replaced by the Maxoniq prostheses.
In his defence filed to the supreme court of Victoria, Dimitroulis said he had advised Bianca of his involvement in the design and creation of the prosthesis at their first meeting, and otherwise denied her allegation that he did not advise that he had a commercial interest in the company or that he was a director of Maxoniq. He denies any of her injuries are due to negligence.
The matter remains before the courts.
Three surgeries in a week
In 2018 Jordan made a complaint to the Health Complaints Commissioner in Victoria and to the hospital, after allegedly experiencing multiple complications from her surgery that she says Dimitroulis failed to take seriously or resolve. The complaint was referred to the Australian Health Practitioner Regulation Agency (Ahpra) in 2020.
Jordan said she first saw Dimitroulis in May 2017 because she was experiencing pain in her jaw, which was locking in place up to twice a fortnight.
She alleged in her complaint to Ahpra that Dimitroulis advised her that her issues were caused by the discs in her TMJ displacing, and that she would need both discs removed.
Related:Melbourne surgeon sued over jaw operation that patient claims left her with life-changing injuries
She was put on the public patient waiting list at St Vincent’s, where Dimitroulis was the head maxillofacial surgeon. But by the time of a second pre-surgery appointment in August 2017, Jordan’s condition had deteriorated and Dimitroulis told her she needed both TMJs replaced with the OMX TMJ prosthesis, she claimed in her complaint.
In his response to Ahpra, Dimitroulis alleged that it was Jordan who requested the TMJ replacement, given the likelihood that she would need further surgery if she simply had the discs removed. But Ahpra found none of these details were recorded by him.
In her complaint to the hospital, Jordan said she underwent the surgery on 19 March 2018, but X-rays taken two days later revealed the right prosthesis had dislocated, and she was told further surgery was needed to repair it. She underwent the second surgery on 21 March.
X-rays taken after the second surgery showed both TMJ devices were close to dislocating, the complaint said, and she was told she would now need a third surgery to have four screws and rubber bands inserted to hold her jaw in place.
This surgery took place on 24 March.
Ahpra found the operation report and the discharge summary for the initial surgery named Dimitroulis as the operating surgeon. However, Dimitroulis told Ahpra he did not perform the surgery. He said he examined Jordan before the conclusion of the surgery.
Ahpra found that nevertheless Dimitroulis “ought to have ensured that the final postoperative occlusion or function of the implanted devices was recorded adequately”.
He also failed to attend, supervise or carry out the third surgery, “in circumstances where he was involved in the treatment planning and oversight of two previous surgeries which resulted in complications”, Ahpra found.
By October 2018 Jordan had sought a second opinion from another surgeon, and advice from the Victorian medical ombudsman. Based on their advice she told Dimitroulis she was not happy with her treatment, her Ahpra complaint stated.
Her complaint alleged that he never fully informed her of the potential risks. She told him she had lost confidence in him and the hospital, and she subsequently made the complaints to the ombudsman and the hospital. The ombudsman referred the complaint to Ahpra, and Ahpra ultimately handled the investigation.
What the investigation found
The Ahpra investigation found Dimitroulis failed to obtain informed consent for the major surgery; that he failed to keep any record that he had given her treatment options, although he claimed that he always did so for such procedures; that he did not detail all the potential risks from surgery including nerve injury; did not keep adequate medical records; and failed to adequately address post-surgical complications.
The investigation led to “a reasonable belief that Dr Dimitroulis’ performance is below the standard expected and amounts to unsatisfactory professional performance” and that “there is an ongoing risk to the health and safety of the public”.
“Dr Dimitroulis failed to identify the importance of open disclosure [the open discussion of adverse events that result in patient harm] in a patient who suffered multiple complications of TMJ total joint replacement surgeries, and this is supported by [Jordan’s] distressing account of the post-operative consultations,” the investigation found.
Neither scarring nor nerve injuries were listed as potential risks on the consent form Jordan signed on 30 August 2017, and there was no evidence Dimitroulis explained the limitations of the OMX device to her, which Ahpra found was “particularly concerning”.
Ahpra found in relation to the third surgery on 24 March that Dimitroulis’s performance fell below the standard expected in relation to “failing to attend, supervise or carry out the procedure … in circumstances where he was involved in the treatment planning and oversight of two previous surgeries which resulted in complications”.
Overall it found he “erroneously deflected his professional responsibilities and standards onto other practitioners in circumstances where he was involved in [Jordan’s] treatment … at every interval”.
‘I can’t really chew’
At her post-surgery checkup in July 2018, Jordan asked Dimitroulis why she could no longer bite properly, her complaint to Ahpra alleged. Jordan claims she was not informed before the surgery that her jaw movement would be so limited.
In her complaint to Ahpra, Jordan said she told Dimitroulis that she didn’t want a perfect bite, only to be able to eat and speak properly.
Ahpra made no specific finding on this claim, but found there was “sufficient evidence to substantiate that Dr Dimitroulis’s “open disclosure … during post-operative consultations was inadequate, in particular the consultation of July 2018”, referring also to Jordan’s “distressing account”.
Dimitroulis told Ahpra he did not record details of his review of Jordan because this was the responsibility of “junior staff doctors”.
“Whilst this may be so, it does not detract from the supervising consultant’s responsibility to ensure his review is recorded accurately, in particular as a supervisor of ‘junior staff doctors’,” Ahpra found.
Jordan told Guardian Australia she now lived with “constant” nerve pain whenever she tried to eat or drink, while other parts of her face were numb.
“I can’t really chew,” she said. “I choke on saliva that builds up because of the placement of my jaw.
“I cannot open my mouth more than about 3cm, cannot move it side-to-side to grind, and cannot extend my bottom jaw forward at all, making it extremely hard to eat with cutlery, or even form certain sounds.”
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Ahpra told the Guardian that as a result of its findings it had imposed conditions in 2021 on Dimitroulis continuing to practise, including that he receive education about obtaining consent and submit his practice to an audit within three months, allowing regulators to examine his record-keeping practices.
A spokesperson for Ahpra said that in 2021 Dimitroulis was required to undergo further education about maintaining adequate clinical records and obtaining informed consent particularly with high-risk procedures, working in multidisciplinary teams and open disclosure.
He was also required to submit a report to Ahpra reflecting on the issues leading to disciplinary action and lessons learned.
Dimitroulis complied with the conditions, which were removed from the Ahpra public register in October 2021.
Jordan is now under the care of a different maxillofacial specialist, who told her she was likely to need to have her TMJ replaced again.
“The thought of going through all this again frightens the hell out of me,” Jordan said.
“My speech has changed – I now have a lisp. I am often misunderstood when I speak, and have to strain to be heard in a crowded room.
“My confidence has really been shaken by all of this, I really don’t socialise much any more, and I cannot even imagine any future relationships, due to the embarrassment, self-consciousness, anxiety, and the ongoing pain and restrictions.”
Dimitroulis did not respond to a detailed request for comment on either the Ahpra complaint and findings, or the writ that has been lodged.
St Vincent’s hospital said it was “aware of a legal matter involving a former employee”, but declined to comment further.
*Names have been changed to protect sensitive medical information
• Do you know more? Contact melissa.davey@theguardian.com
