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- [00:00]
A
Katie I'm Katie Page, CEO of Harvey Norman. Since 2018, Harvey Norman has been a key partner in the Australians investigative podcasts such as Sick to Death, Bronwyn Shandy's Story, the Teacher's Pet and the Night Driver. Harvey Norman are proud sponsors of the Australians podcast investigations and their award winning journalism.
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B
My name is Headley Thomas. Sick to Death is based on my book of the same name and it's the true story of Dr. Jayant Patel's lies and manipulation and the herculean effort it took to finally stop him. We've used voice actors throughout this series and on occasion the real people from this story have read their words for us. It is brought to you by me and the Australian foreign. The remarkable case of Dr. Jayant Patel has a long tail. We haven't quite got to the end of it yet. Let me explain. When I wrote my book Sick to Death, on which this podcast series is based, I didn't know what would happen next. When that book was released two decades ago, Patel was keeping his head down at his home in Portland, Oregon with his wife Kishoree. He had even been pretending to be his brother if Australian journalists called to seek an interview. But Patel had followed the train wreck in Queensland, which came after he was exposed by a Google search as a disgraced surgeon who had lied to obtain registration in Bundaberg. The public hearings in Brisbane, Townsville and Bundaberg of the Rollercoaster inquiry, where nurse, nurses, doctors, patients and health bureaucrats gave evidence about Patel and his infiltration of a sick health system were widely reported, including in his hometown of Portland. Patel must have feared what would happen next. As you heard in the previous episode, the inquiry's second commissioner, the retired Supreme Court of Appeal Judge Jeff Davies, made damning findings about Patel's conduct and the deaths and injuries of patients. Jeff Davies referred a lot of evidence for police investigation, and while the criminal justice system grinds its gears all too slowly, this was not just going to blow over. Patients and their advocates. Good people like Tony Hoffman and Beryl Crosby and the many lawyers who had become involved were not going to let it blow over. In the meantime, however, my publishers had a book to release. Sick to Death came out in early 2007, but there was something missing the extraordinary events that came after the book was published. Now in this podcast series, we can close the loop and provide that ending two final episodes in this series with new and archived interviews and fresh analysis looking at how Dr. Patel and the patients fared in the criminal justice system in Queensland. These episodes were developed in early 2026 with my friend and colleague, the former lawyer Corinna Berger. The style, content and the storytelling in these two final episodes are different to what you've experienced in the previous 16 episodes. Thank you for listening. Dr. Patel, last seen in April speeding away from our K2 news camera. Already, though, Queensland's premier is talking extradition from the United States. We're going to get on and do
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what needs to be done. We'll do everything we can within the
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law to bring Patel to justice. Those grabs from a report aired on Oregon's TV news channel K2 in early 2008, foreshadowed the state of play at that time in Australia. Police detectives on a special task force had converged on Bundaberg. There were dozens of formal interviews to do with patients and hospital staff. Some had given evidence at the public inquiry in 2005. But for any future criminal trial of Jayant Patel, every I needed to be dotted, every T crossed. Further investigations and statements were absolutely essential for the police to build a broad case spanning allegations of manslaughter, grievous bodily harm and fraud. Here's Tony Hoffman talking to me in 2026 and recalling the work of police detectives and the efforts to bring Patel back to Australia.
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D
The hospital was full of people that had come up from Brisbane to do all the investigations and try and make sense of what was going on. A huge amount of activity at the time they were in Bundaberg and I was concerned about what was going to be available to the prosecution in terms of the notes and things and about phone calls and conversations. One of the detectives, I remember saying to me they would be able to subpoena all of those records after all
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B
of the inquiries findings had been delivered. Did you have any concerns that the wheels of justice might fall off?
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D
Yeah, absolutely. I was very concerned about how the whole picture was going to be told. Most of the things that they were relying on in relation to the manslaughter cases were the notes. I mean, obviously we had the evidence from Dr. De Lacey and other doctors about what had actually happened to the patients, but we were relying on the patient's medical records and we knew that Patel's medical records were not correct. They didn't reflect what was actually happening with the patients, what was written. There was nothing true. So I was very concerned about that and about comments that we had heard along the way about certain patients, like they would have died anyhow.
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B
Were you being supported at the hospital through that period?
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D
All of the executive and everybody had been stood down or left. So there was lots of different people coming in to the hospital. We didn't get a lot of support at all. We were left pretty much to just continue doing our core business. But it was very much in crisis mode.
- [07:11]
B
As you heard in an earlier episode, Jayant Patel had engaged Stephen Howes, a hard hitting American lawyer in Portland, as well as a highly regarded solicitor in Brisbane, Damien Scattini. Damien is now a senior partner at a law firm in Sydney and he spoke to me recently about the Patel case.
- [07:33]
E
I generally am on the other side of these things. I tend to act in medical malpractice cases against doctors and hospitals. But I got a call out of the blue from Stephen Howes, his US lawyer, who said, I'd like you to work with me on the defence for Dr. Patel. And I said to Stephen, I think you might have the wrong guy. And he said, no, that's exactly why I want you to do it, because he'll understand the language. So it developed from there. And then arranged to go over to Portland to meet Dr. Patel and his wife and Stephen, obviously, which I did.
- [08:11]
B
When you went to the United states and saw Dr. Patel, how did he present? Was he strongly protesting his innocence?
- [08:19]
E
Yeah, he was, as you would expect. And he seemed from memory a bit perplexed about it all. That was my immediate impression. There was no indication he was looking to do a runner or anything. His wife seemed very nice. Stephen returned the favour. He came out to Brisbane to steer the lie of the land and kept the low profile here. So we didn't have people like you asking him questions.
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B
Damien spoke to me about how he and Stephen Howes, Patel's defence team, wanted the surgeon's return to Australia to unfold.
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E
We wanted to have an orderly process and that was the thinking. We thought it was in no one's interest, especially our client, for there to be a circus. You can imagine some tip off at the airport and then all the media's there and then there's the rush down the freeway. Well, all the things that go with that. And it was brilliant. Pretty plain even at that point that the publicity was against him. He was getting a lot of negative publicity, which was based on some ugly factors in many cases because of his race. And that seemed to me to be unfair. I was concerned that he wouldn't get a fair hearing and it would be on an unfair basis. Representing a client is not a popularity contest. You had at some point the Premier of the state describing Dr. Patel as a serial killer with a scalpel.
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B
The public perception of Dr. Patel being a dodgy doctor was all too close to home one evening when he telephoned Damien Scattini at his house in Brisbane. Damien's daughter Meg, who was then aged eight, picked up the phone. When he spoke to her from Portland, Oregon, Meg recognised the name Dr. Patel and she called out loudly to her father, dad, doctor Death is on the phone. There was an awkward moment when Damien started talking to his client.
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E
So it was really going off the rails and we just thought that we'd negotiate with the dpp to have the actual adults in the room try to come up with some process and some orderliness about it and so that we could just get on with the actual issues. We had what we thought was an agreement to arrange for him to come back and then for him to return to Portland and come back for his trial. We thought this was agreed and then all of a sudden it was not agreed in the lead up to the state election. Yeah. So they kiboshed the return because I presume that he was not welcome before the election.
- [11:03]
B
In an earlier episode, you heard about politics intervening in the offer by Patel and his lawyers that he ret returned voluntarily. The rejection by the Queensland government of the plan that Damien Scattini and Stephen Howes had come up with meant delay of about a year and a half. The red tape and the documents required for formal extradition slowed everything down. After some time, you stopped acting for Dr. Patel. Can you tell me why?
- [11:35]
E
As far as I can tell, Dr. Patel mistook his right to a fair trial to his right for a free trial. We just stopped at that point.
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B
Graham Walker of the Queensland Homicide Squad had vast experience when it came to murder investigations. But the then detective sergeant had never put together a brief of evidence quite like the one that was needed against Dr. Jayant Patel. Walker was no Robinson Crusoe in this regard. Surgeons were so rarely in the crosshairs of Walker homicide cops. The then Police Commissioner of Queensland, Bob Atkinson, was acutely aware that the huge amount of publicity about Battelle's case potentially posed a big problem in any eventual prosecution. I have absolutely no doubt that anyone in Queensland who goes before a judge and jury would receive a fair trial. He and Graham Walker resolved there would be very few public comments from police from now on, apart from stating the obvious, that it would be, as Walker put it, a long and complex investigation. Graham Walker would later receive an Australian Police Medal in the Queen's Birthday Honours List for his efforts in the Patel case.
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F
United States Marshals collected the doctor from a Portland prison. On Wednesday morning, they took him to Los Angeles, where he waited for the final paperwork to be signed. When he gets back in Queensland, he'll be taken to the Brisbane watch House.
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B
By July 2008, Patel's extradition to Brisbane was just days away. Graham Walker and another, more senior Queensland police detective, Daryl Johnson had agreed on certain protocols with United States law enforcement authorities. The plan was for Patel to be handed over by U.S. marshals to the Queensland detectives in Los Angeles International Airport. The surgeon would then be escorted by them for the flight to Brisbane. Journalists who had been tipped off started sharing information about the probable flight that the police and Patel would be on.
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F
More than three years after he left
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A
Australia, Jayant Patel is coming back.
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B
Reporters and camera crews crushed newsroom travel budgets to ensure they would be along for that ride. And it shaped as an exciting reporting assignment. But unfortunately, it passed me by. I had been to Patel's hometown of Jamnagar in India in 2005 to speak to his friends and fellow surgical classmates and their teacher. And I had gone to his United States home in Portland in 2006 to try to talk to him. I'd met medical board officials there and in New York to glean further information about his surgical and medical misdemeanours. But by July 2008, when Patel was about to be brought back to Brisbane to face justice, my career had detoured out of journalism. I had left newspapers to work for a resources company in Queensland. The new job meant writing carefully vetted communications about Coal Seam Gas and lng. After two years, I would return to journalism at The Australian. The 58 year old and his two homicide detective escorts were seated in row
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F
69 of the aircraft. I was seated almost in the next seat. Patel's party was quickly moved.
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B
That was Channel 10's reporter who boarded the Qantas 747 with Patel and more than 400 other passengers in Los Angeles on the night of July 19, 2008. The determination of the news crews to do their jobs, to film Patel in his economy seat in row 26 and perhaps justify the travel expenses became intense. It was matched by the determination of the airline's crew and police to stymie the reporters and camera operators. As one of them described it, we were warned that if we took a
- [15:50]
E
shot, if we used a camera on board, that we'd be detained and our gear would be taken off us.
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B
Here's the then ABC Media Watch host Jonathan Holmes describing some of the high jinks in what was a media circus, the very circus that Damien Scattini believed could have been avoided. The police and Qantas wanted minimal coverage. The media were determined to get the maximum and to beat their rivals in the process. With the real prize for pigheaded chutzpah goes to the Courier Mail, whose photographer, Nathan Richter, managed to snap Patel in his seat while QF176 was still on the apron in LA. Richter was determined to send the pic to his newsroom before the flight took off. Seven News's Darren Curtis describes what happened next. Police were called when a photographer from the Courier Mail ignored the warning and
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E
attempted to send his photos back to Brisbane.
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B
A Qantas spokesman chimed in.
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E
A passenger was offloaded in Los Angeles after repeatedly ignoring directions from the customer service manager.
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B
As a result, the flight was delayed
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E
for just under 1 hour 15 while the passenger's baggage was retrieved from the aircraft.
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C
After boarding a flight in Los Angeles yesterday, the former Bundaberg surgeon touched down in Brisbane early this morning.
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B
Media helicopters and news cars followed a convoy of police vehicles from the airport to the Brisbane watch house. Daryl Johnson, the senior detective who had flown across the Pacific to collect Patel, sounded relieved.
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C
It's very pleasing and it'll be the
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B
culmination of a long investigation again.
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C
He has to face court and natural justice will be seen to be done.
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B
Beryl Crosby spoke to reporters at the time, too.
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A
Obviously there's been a lot of hiccups along the way, a lot of setbacks, and we always held the faith that this day would come.
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B
With Damien Scattini and Stephen Howes no longer acting for Jayant Patel, he turned to another Brisbane solicitor, Aaron Ranegar, who stood next to his new client. Patel looked glum soon after his arrival in Brisbane.
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C
He will now start preparing his defence.
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B
Once he has recovered from his sleep and gets a bit of rest, we ask that you respect his privacy and try and leave him in peace.
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A
And he won't be making any public
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B
statements or answering any questions until the trial is very well over. Jayant Macundra Patel's criminal trial finally got underway in the old Supreme Court of Queensland in Brisbane on the third Monday of March 2010. The building on George street was familiar territory for the journalists and a short walk from where the public hearings had been held for the Commission of Inquiry five years earlier. the other end of George street, the state's political leadership had changed. Peter Beattie no longer ran Queensland. He had decided to retire to leave politics on his own terms. The reins were handed to the state's first female premier, Anna Bligh. The long awaited trial of Dr. Patel would be overseen by the Supreme Court's Justice John Byrne. He had vast experience, having sat on the court for two decades. He had seen it all. He had heard gruesome evidence about some of the state's worst murderers and rapists. But Dr. Patel was neither. He was a highly educated surgeon, the sort of professional justice Byrne might have expected to meet over a gin and tonic in a private Brisbane club or in the business lounge of an international airport. Our colleague Sarah Elks recalls going down to cover the trial after the years of build up as police worked behind the scenes on the brief of evidence.
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G
I was a really new journalist. I only started as a journalist and at the Australian in 2007. So this was just a few years after I'd started. It was definitely the first big trial I had ever covered.
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B
Sarah in Brisbane shared her recollections with my Canberra based colleague Corinna Berger.
- [20:11]
G
I found my notebook from when I was covering the Patel trial. I've got handwritten notes of all of the exchanges between witnesses and then here and there I've got observations of what I saw in the court because I sat in the courtroom most of the time rather than in a media room. I've got that Dr. Patel, that's Patel's wife, who was also a doctor. She sat in the court behind her husband. They were both taking notes, both in black suits. I was able to go to every day of the trial. So not only was I there when the jury was there, but I was also there when the jury wasn't there. Which gave a lot of insight into what eventually was to go wrong. The editor of the newspaper at the time was Paul Whittaker. He said to me, don't just think about what the jury hears, pay particular attention to what happens when the jury is out of the room. Because at the very end of the Patel trial we want you to be able to deliver a comprehensive piece about what the jury didn't hear.
- [21:17]
F
Sarah, what was it like when the trial eventually got underway after so many years of preparation and waiting?
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G
It was certainly the focus of attention for the state's contingent of court reporters. And more broadly, it was so keenly watched by the medical profession. The potential for a flow on effect to the profession was extraordinary. They had one of the most senior judges in the state presiding. Ross Martin was the prosecutor. He went on to become the head of the Crime and Corruption Commission in Queensland.
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F
Queensland.
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G
Michael Byrne QC at the time was one of the most senior defence barristers in Queensland. It's quite Tricky to hear a lot of this evidence, not only because it's quite detailed and it might be a little bit confronting, but also because the medical terminology is pretty foreign to you. If you're a reporter or even a lawyer, I imagine we all got a bit of a crash course in various kinds of oesophageal and bowel related surgeries.
- [22:35]
B
The criminal charges against Patel arose out of the surgery that he had performed on four patients while working as a surgeon at the Bundaberg base Hospital between May 2003 and December 2004. Patel was tried for the manslaughter of three of those patients. Mervyn Morris died aged 75 after Patel had removed his sigmoid colon and attached a colostomy bag. James Phillips, 46, died after an esophagectomy. And Gerard Kemps died after having an esophagectomy following a cancer diagnosis. He was 77. Patel was also tried for unlawfully doing grievous bodily harm to the fourth patient, Ian Vowles, who had a history of cancer. When Vals was 57, Patel removed his large bowel on the basis that he had cancer again. But Vals did not have cancer. He survived the surgery, but it significantly impacted his life. He required a colostomy bag. The trial unpacked the details in the cases of each of those four patients. In my book and in this podcast series, Sick to Death, you heard a bit about those patients. Here's a reminder. Jerry Kempce's abdomen needed to be opened to permit access to the esophagus and the stomach. Suddenly, however, he became unstable with plunging blood pressure and a rising pulse rate. The heavy bleeding in the abdominal cavity was obvious to everyone. Dr. Behrens was worried. Apart from the blood loss, he could see that the director of surgery lacked the skill to be attempting such an operation. Patel's roughness around the heart and the vessels was all too obvious. Unless the blood stopped flowing, Kemps would surely die. To the amazement of Dr. Behrens and the theatre nurses, who were alarmed by the obvious and heavy bleeding, Patel gave instructions for Kemps to go to the icu. From that moment, it was inevitable that he would not survive. Patel operated on Ian Vals, a cabinet maker who had a polyp in the lining of his bowel. Instead of simply removing the fleshy growth, Patel opted for drastic action removal of the entire bowel. Patel told him, your bowel does not like your body.
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E
We will work it out. I've done a lot of these operations before. You'll have no worries whatsoever.
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B
The operation was entirely unnecessary. The polyp was benign. At the time Patel did the operation, there was nothing to suggest it might develop into cancer. There were serious post operative complications. His quality of life was never the same again. James Edward Phillips, 46, signed his life away on 10 May 2003, next to a handwritten asterisk on a consent form. Esophagectomy. An operation so complicated and risky it should only be attempted at major hospitals by the most adept specialists, preferably gastroenterologists. The operations were also hopelessly outside the expertise of Patel. Major surgery would be extremely dangerous in someone as ill as Phillips. For the last 45 minutes of his operation, there was no recordable blood pressure. By mid afternoon, Dr. Patel had put down his instruments and Phillips was wheeled into the intensive care unit in an extremely unstable condition. His pupils were fixed and dilated, indicating brain death. But while evidence to the public inquiry in 2005 touched on some of the circumstances surrounding the surgery and the outcomes for those four patients and many others, it was a relatively light treatment compared with the details that were exposed in the criminal trial in 2010, Dr. Patel was fighting for his freedom, for his life. His defence became paramount. Unavoidably, the trial was a long and difficult process and gruelling for many of those involved. Some 80 witnesses gave evidence, but Patel did not get into the witness box. He exercised his right to silence as an accused person.
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A
We're going back in my mind 16 years.
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B
Yes, to the trial.
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A
Yeah. Long time ago, wasn't it? I was 55 and I'm now 70. It was a surreal time. But I can still see myself in the court. I can still see people up on the stand. I can still hear what the arguments were.
- [27:53]
B
You are hearing now from Beryl Crosby, her words and her voice. Beryl became a tireless advocate for the patients. When the Patel scandal first erupted in 2005, the Bundaberg Local was good at it. She was dedicated and fearless in taking on the bureaucrats and the health system. And 20 years later, she still is,
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A
and still going, helping people.
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B
I met Beryl while on assignment in Bundaberg in April 2005, when I was doing secret interviews with Tony Hoffman and other nurses just hours before the Google search revealed Patel's dark past. Beryl had been one of Patel's patients. He had wrongly diagnosed her with cancer. You heard a voice actor for Beryl Crosby during early episodes of Sick to Death. I asked Beryl about Dr. Patel's 2010 manslaughter trial. She had felt duty bound to be there on behalf of the patients.
- [28:59]
A
I used to update the patients on what was happening every day. My role then was to see justice done. That's what I wanted. I went every day. It was very intense, and I was listening to all the evidence I was writing, all the things that came up for me during that trial. Got to say, I probably know how to perform an esophagectomy. The trial brought home how he was allowed to get away with things for so long and how people were frightened of speaking out against him. People said we were frightened for our jobs. We had mortgages and we hid patients. It seems surreal. People sort of knew that he was operating on patients he shouldn't have operated on and they died. But he kept going because the hierarchy allowed him to. That stuck with me quite a lot.
- [29:57]
B
Did you talk to Dr. Patel?
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A
No, but I talked to his wife. I always had peppermints on me in the courtroom, and she would turn around and take a peppermint off me every day. Hearing all the evidence herself, I think was pretty harrowing for her, too. I think their cultures, you stand by your husband no matter what. I did feel sorry for her. Having to sit there and hear what her husband had done. That was really hard. When they talked about, he bled out on the floor. There was blood everywhere. It was pretty hard to listen to. She was nice and she hugged Judy Kemp's. It was very sad. People used to say to me, you must hate him. I never felt anything, Headley. I never felt anything for that man. I didn't go in there angry. I went in there with a purpose, and that was to see justice done. He was the person that we needed to help the patients get justice.
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B
What do you reckon your confidence level was about a conviction? As you listened to the evidence and watched the witnesses giving testimony, I was
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A
convinced that he would be convicted.
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B
Tony Hoffman was on tenterhooks before the start of the trial. She was a key crown witness. It had been five years since she last saw Dr. Patel. So much water had flowed under the bridge since the nurse risked her own career to talk to a journalist and a member of Parliament in early 2005 about her concerns over deaths and injuries. Was it important to you, Tony, that he be prosecuted and convicted, or were you happy for him just to face trial?
- [31:46]
D
It was important for me that he be prosecuted and convicted and that he was punished. But the most important thing for me was that he wouldn't be able to practice medicine any more. I knew how bad he actually was. What he did was Actually so horrendous, and it just completely floored me.
- [32:15]
B
For the trial, court officials set up a live link between the Brisbane Supreme Court and the Bundaberg courthouse. Here's a report from ABC Radio's PM program. At that time, for the first time
- [32:30]
C
in Australian legal history, a major trial is to be televised four hours north
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B
of the Queensland capital.
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C
His former patients and anyone who can squeeze into the Bundaberg courthouse will be able to watch a live telecast of the trial.
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B
With this link, staff from the local hospital could be sworn in to give evidence from Bundaberg instead of having to travel to Brisbane. And members of the community could come in to see and hear the proceedings beamed from Brisbane onto the screen in Bundaberg. But as a witness, Tony was not permitted to follow any of that evidence until she had finished giving her own evidence.
- [33:09]
D
Most of the nurses did do it via video link, but you couldn't see very well. And the prosecutor, David Meredith, I didn't recognise him in his robes, so I asked could I please give my evidence in Brisbane? I didn't want to give it from Bundaberg, so I went down to give it.
- [33:31]
B
Two Crown prosecutors were in the original trial. Ross Martin was the senior counsel and he was assisted by another Crown Prosecutor, David Meredith. Were you scared?
- [33:43]
D
Oh, I was terrified, absolutely terrified. And I guess terrified because of the unknown. I remember having a really good look at the jury when I walked in, but you don't know what the jury is going to think. The things I remember about this are really strange. Headley. There was a man sitting at the back with a paper bag on his head.
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B
Why?
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D
I don't know. But, like, nobody challenged him or anything. They just let him sit there with the bag over his head. And then when I was called to give evidence, I got into trouble within the first five minutes from the judge and got told off. They were trying to get me to say that Peter Lech, I think it was Peter Lake or Darren Keating, one of them didn't know about the Clinical Services Capability Framework, which is the document that says what the hospital is capable of doing. And I said to them, to the defence, I'm not going to answer that question. And the judge, Judge Burns, said to me, Ms. Hoffman, I will decide what questions are answered in my courtroom. And these scared me so much I had to answer the question. But I still couldn't answer the question because as far as I'm concerned, if you were the district manager or the director of medical services, you should have been very familiar with the Clinical Services Capability Framework.
- [35:13]
B
And did you see Dr. Patel?
- [35:15]
D
Yes. Yeah, I saw him sitting there just before I went in to give evidence. I remember sitting outside with the police and I saw him walking with his solicitor through the Supreme Court. And I just remember taking my breath away because that was obviously the first time I'd seen him in the flesh since he'd been in Bundaberg.
- [35:44]
B
Did he acknowledge you?
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D
No.
- [35:47]
H
No.
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B
Did you ever feel that he just wanted it to end and you felt sorry for him, or.
- [35:55]
D
No, I never felt sorry for him at all.
- [36:00]
B
The death of James Phillips was one of three fatalities which prosecutors alleged was caused by Jayant Patel's negligence. Tony Hoffman agreed.
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D
I remember Mr. Phillips because he was the first patient that came in that I put the first complaint in about. He was only 46 years old, but he had a lot of medical problems. He was on dialysis and we had staffed the ICU with extra nurses for that shift, for when he'd be coming back from theatre because it was such a big surgery to be being done in Bundaberg. Plus he would be requiring dialysis when he came back. And he came back to ICU after having no recordable blood pressure in theater for the previous 20 minutes, he was actually brain dead. And Dr. Patel was describing him as being stable.
- [36:57]
B
Do you recall why they didn't have many more, or were you told, look, we only need these ones. We don't have to do every case?
- [37:06]
D
I was told that they chose the patients that they thought they would have the best chance of getting a conviction for. I know that Mr. Johnson, who was one of the first patients that died after having Whipple's procedure done, who ended up not having pancreatic cancer but dying from the surgery, he had been buried. Obviously, I don't know the reasoning why they chose the patients they.
- [37:38]
B
Are you Suggesting, Tony, that Mr. Johnson would have been a very good case to go with?
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D
Yeah, Mr. Johnson was one. Because he died so unnecessarily, because Patel didn't do things like any staging CTs or biopsies or anything like that. He just made a decision and went straight to surgery. And Mr. Johnson, I think he was only 56, he'd only just retired.
- [38:08]
B
Mr. Johnson didn't actually have cancer, but he'd been diagnosed with cancer and Patel had operated on him as if he had cancer. But the surgery that wasn't necessary in the first place killed him.
- [38:21]
D
Yes, that's correct.
- [38:23]
B
And do you recall why he wasn't one of the manslaughter cases?
- [38:28]
D
No, we were told absolutely only what was Totally necessary to be told. I would love to have asked them. There were some other things that I would have liked to have focused on or understood better as well.
- [38:44]
B
Are you talking about the police detectives or the prosecutors or both?
- [38:49]
D
Both.
- [38:51]
B
My colleague, the former lawyer Corinna Berger, has been looking closely at the different legal cases involving Patel. I asked her to explain in layperson's terms what the prosecution was arguing in this remarkable case.
- [39:07]
F
The prosecution's case at the trial was based on Patel breaching or not complying with a section of the Queensland criminal code, section 288. This section creates a legal duty for people performing dangerous acts in particular medical or surgical treatments. And that's why this section was relevant to Dr. Patel. As a surgeon. The duty requires the person so here Dr. Patel to have reasonable skill and to use reasonable care in administering treatment. In Patel's trial, the prosecution argued that the standard of care he provided to the four patients was so low that he had breached that criminal duty. And if the prosecution was correct about that, then section 288 deemed Patel criminally responsible for any consequences to the life or health of any person.
- [40:02]
B
When we talk about the Queensland Criminal Code, that's just the title for the law of the state of Queensland, isn't it?
- [40:10]
F
Yeah, that's right, Hedley. The Criminal Code is Queensland's main criminal law and it's set out in a schedule to a Queensland Act. It's really common for doctors to be sued for negligence in civil cases, and we will all have heard about those types of cases. But the difference in the Patel trial was that he was being prosecuted for criminal medical negligence. And the court heard in his trial that no one had ever been successfully prosecuted in Queensland under that section of the criminal code before. Because the charges against him were criminal charges, they had to be proven to the criminal standard beyond reasonable doubt. The key issue to be determined at the trial was whether Patel's conduct was so far below the objective or reasonable standard expected of a reasonably competent surgeon that Patel had committed gross or criminal negligence and should be punished as a criminal.
- [41:07]
B
Initially, the prosecution alleged that he had been generally incompetent and grossly negligent in three respects. Firstly, in recommending the surgical procedures, then in the manner in which he carried them out, and finally, in what was called the post operative treatment which he supervised. But as the trial progressed, it became obvious that the evidence showed the surgeries had apparently been performed competently enough, as the trial and judge put it, which must have been a bit of a head scratch for everybody. Who had followed events and read about Patel's past appalling surgery in the US as well.
- [41:52]
F
It must have come as a surprise to everyone who'd sat through and read about the evidence from the public inquiry and the testimony of the surgical experts in that inquiry, like Dr. De Lacey. Here's a reminder of what he said during the inquiry.
- [42:09]
H
One of the points that I'd like to make, if I could, was that I'm not certain that the magnitude of his errors, the number of problems that he's had, the number of deaths that he's had, has ever been sort of appropriately compared to what we might have expected him to have. They're not 10 times what you might expect. They're more like a hundred times what you might expect. I've looked after complications in the last four months that I've never seen before. I've had an opportunity to sort of assess his decision making both preoperatively, intraoperatively and post operatively, and it was terrible. My opinion now is that the real story of what was going on there was worse that the number of patients was, you know, 10 to 100 times more than I thought there would be, and that the type of complications that were allowed to happen there were gross by comparison to what I was expecting. There must have been somebody dying on the surgical ward or all of the time, and there must have been horrendous complications physically being managed on the surgical ward all of the time.
- [43:07]
F
The way the evidence came out in Patel's trial presented a major problem, though, because the expert evidence suggested that at least three of the four operations were performed with reasonable care and skill. This meant that Patel would not have breached the duty he owed to the required criminal standard.
- [43:28]
B
Our colleague Sarah Elks, who covered the long trial, shared interesting insights into the expert evidence when Corinna spoke to her.
- [43:36]
G
Patel's legal counsel were really skilled. Every time they got a witness in the witness box and they were doing their cross examination of particularly experts, they would get these expert doctors in who had just before told the prosecution that this surgery was done incompetently, it should never have been done at all. Patel was well below the standards, but Patel's lawyer, very senior barrister at that time, Michael Byrne, what he did was break down every step to the most granular detail of Patel's decision making from the moment that he saw the patient. The witnesses found it very difficult to not agree that each tiny step was. Was reasonable. They might have said that they wouldn't have done the same thing in the situation, but Overwhelmingly, they said, yes, that was a reasonable decision for Patel to make.
- [44:34]
B
Here's Corinna again.
- [44:36]
F
And so, because of the way the evidence came out in the trial, the prosecution just wasn't going to be able to prove some aspects of its case. And to respond to this major conundrum, the prosecution changed course significantly on day 43 of the trial and substantially narrowed its case. The focus of the new narrowed prosecution case was on whether each surgical procedure should have been undertaken in the first place, rather than on the way that the surgery had been conducted.
- [45:11]
B
So it's at this point that the senior prosecutor from the Queensland office of the DPP fundamentally alters the prosecution strategy. Is it a bit like moving the goalpost during the game?
- [45:26]
F
Yes, you can definitely look at it like that, Headley. The prosecution significantly narrowed its attack on Patel. And listeners won't be surprised to hear that the next day, day 44 of the trial, the defence made an application to discharge the jury on the ground that Patel could not. To secure a fair trial, the defence team, led by barrister Michael Byrne, unsuccessfully argued that a lot of the evidence put forward to try to prove the prosecution's original wider case was prejudicial to Patel and was now irrelevant on the prosecution's narrowed case.
- [46:04]
B
Well, it's sounding like a train wreck at this point.
- [46:07]
F
Yeah, you definitely wouldn't want to be in the prosecution's shoes at this point in the trial. The other really interesting thing was that at various times during the trial, the trial judge, Justice Byrne, and the defence counsel, Michael Byrne, described the prosecution's case as a mudslinging exercise in which every little piece of mud was thrown at Patel in the hope that some would stick. When he summed up to the jury, Justice Byrne described the allegations about the four operations like this.
- [46:38]
C
The prosecution contends that the operations were unnecessary or inappropriate. Removal of Mr. Morris's sigmoid colon is said to have been inappropriate, mainly because the bleeding problem that the surgery was to address was sourced in his rectum. The surgery on Mr. Vowles is said to have been inappropriate because, contrary to to what the accused supposed, Mr. Vowles did not then have colon cancer. With both Mr. Phillips and Mr. Kemps, the primary contention is that the patient's health was too precarious for an esophagectomy.
- [47:20]
B
Here's Beryl Crosby again.
- [47:22]
A
There was many setbacks through that trial where they argued points of law, and that's when I started to panic. It was all getting very messy, but they didn't take in the fact that he wasn't supposed to do it anyway. They'd argue the medical case rather than the fact that he was struck off from doing it.
- [47:42]
B
Here Beryl is referring to Patel dishonestly obtaining registration to practice as a doctor in Queensland. You'll recall that he was banned from performing certain surgeries in the United States. Tony Hoffman put it this way.
- [47:58]
D
There was things that weren't focused on, like, I thought they should have been focused on.
- [48:04]
B
You mean during the prosecution?
- [48:06]
D
Yeah, during the prosecution. He was gaining consent from patients to do the surgery. That consent was not valid. How could that have been a valid consent when he was asking people to consent to surgery under false pretenses?
- [48:24]
B
Beryl Crosby made a similar point.
- [48:27]
A
It used to frustrate me because I wanted to yell out, yes, but he wasn't supposed to touch them anyway. It came back to that for me all the time. He wasn't supposed to do it. Like, even with Jerry Kempster's case, like, Jerry and Judy wanted that operation because they thought it would be a better quality of life for him. But he should never have been operated on by anybody. Of course, he would have lasted longer if he hadn't had that operation. But Patel had convinced them that he could do it, and of course he didn't.
- [48:58]
B
From watching the trial.
- [49:00]
A
Yeah.
- [49:01]
B
What sort of a picture did you see being painted of Dr. Patel?
- [49:09]
A
I really did see a bad picture painted of him. It was both, because then you'd get some doctor up there that would defend his skill, someone that had come in and say, it's feasible that this would happen.
- [49:25]
B
While Beryl was dedicating long days to the trial in Brisbane, her father was in hospital in Bundaberg.
- [49:33]
A
The last few weeks were harrowing for me as I was worried about my dad and he was dying and he said, you go get him. You get him, love. You need to see it through. Because my dad wanted me to go down to the trial. I was on the train on the way home and my dad died. I never made it back.
- [49:53]
B
Oh, dear.
- [49:54]
A
I knew that he wanted me to be there and he told me to go. But it was hard for me because I lost my dad at the same time.
- [50:12]
B
This podcast is made possible by subscribers to the Australian and our principal sponsor, Harvey Norman. Since late 2017, when I started pursuing Chris Dawson for the 1982 murder of his wife, Lynn, Harvey Norman has been a loyal backer. It began with the teacher's pet, and Harvey Norman and its CEO Katie Page's support has continued for over eight years. I'm proud to have had Their backing on all of mine and the Australians investigative podcasts. The Night Driver, Shandy's Story, Shandy's Legacy, the Teacher's Trial, the Teacher's Accuser, Bronwyn, and most recently, the Sick to Death Podcast. For more information on this podcast, go to theaustralian.com. As the trial came to a conclusion, you were watching it from Bundaberg. You were trying to understand as much as possible about what was happening. Did you have a sense about how it was going?
- [51:34]
D
You just don't know. So many times we watch and listen to things that seem so obvious to us that someone has murdered someone or killed someone or done something that they shouldn't and then they get off that you just didn't know because we waited ages for the decision to come back. I think it was about five days or something. It was a really long time and my heart was beating so fast for the whole time. And I got home and it was about 6 o' clock and it flashed on the TV.
- [52:12]
F
Surgeon Jayant Patel has been found guilty of unlawfully killing three patients at Bundaberg Hospital and causing grievous bodily harm to a fourth.
- [52:21]
D
And I was just sitting down to have something to eat and Rob messenger phoned me and said, where are you? And I said, I'm at home. And for some reason, even though the courthouse was closed and everything, people had gravitated towards the courthouse. And I said, I'm on my way down to the courthouse now. And I went down to the courthouse. There was some media there and there was some patients there and Vicky from the nurses union was there and Rob messenger was there. So everybody was really happy and relieved that he had been found guilty on those charges.
- [53:01]
B
In late June 2010, the jury found Jayant Patel guilty of the manslaughter of Maurice Phillips and Kemps and of unlawfully doing grievous bodily harm to Vals. The former surgeon was convicted in each case on the basis that his decision to operate was criminal. Here's Corinna with Sarah again.
- [53:25]
F
You wrote this amazing article which I think you described yourself as behind the scenes court drama. And it really was just like you were a fly on the wall providing all of that intelligence that the general public and the jury just didn't know about until you could write about it.
- [53:43]
B
Here's Sarah Elks again, sharing a few sentences from her analysis piece, the one made possible because her then editor, Paul Whittaker, asked her to take notes on the whole case, including the vigorous legal arguments that ensued when the judge had told jurors to leave the courtroom.
- [54:02]
G
From day one of the trial, Judge John Byrne highlighted a possible flaw in the prosecution's case against the surgeon. The issue of consent. Much to Justice Byrne's expressed frustration, the history making trial just sailed on.
- [54:20]
B
Another problem identified by the judge was at the heart of the surgery. As Sarah Elks wrote in The Australian
- [54:28]
G
in 2010, the evidence wasn't falling exactly as prosecutors expected. Instead of the experts criticising the way Patel performed in the operating room during surgery, many said he had performed competently. Most were agreeing the surgeries should not have been performed at all. Could a surgeon be held criminally responsible for wrongly deciding to operate on a patient who consented to the operation but later died? The future of the trial was hanging by the slightest of threads, with the jury and the general public none the wiser. Eventually, Justice Byrne decided the trial should continue. He acknowledged that discharging the jury would be extraordinary and that was not needed to secure a fair trial. But the saga is not over yet. Now that Patel has been convicted, his legal team is trying to take the fight to the Court of Appeal for a ruling on the correct statutory route to convict a surgeon of manslaughter. The trial may be over, but the minefield that is the law governing the state's and the nation's doctors is just beginning to be revealed.
- [55:38]
F
He'll be sentenced on Thursday, although his legal team's considering an appeal.
- [55:43]
B
ABC journalist Lee Sayles broadcast the breaking news.
- [55:47]
F
The Supreme Court trial has been one of the longest in Queensland's history, and former patients say tonight's verdict can bring closure to a dark chapter in their lives. From Bundaberg, Kieran McKechnie reports.
- [55:59]
G
The gasps went out across the courtroom in Bundaberg as former patients watched the verdict on a live telecast. After six and a half, half days of deliberation, the jury decided Jayant Patel was guilty of three counts of manslaughter. After three patients died in his care.
- [56:16]
D
Patel was also found guilty of grievous bodily harm.
- [56:20]
G
His victim, Ian Valves silently wept as the verdict was delivered.
- [56:24]
B
I just get on with me life now. Take the worry of it out of me mind yet. The ABC 7:30 Report presenter Kerry O' Brien crossed to reporter John Taylor, who was standing outside the Supreme Court in Brisbane.
- [56:39]
C
What sort of sentence does he now face?
- [56:42]
B
He faces life in jail. I mean, he's gone from high calling a surgeon to a convicted criminal. This is unprecedented in Queensland. It's unknown if there's ever been a doctor convicted of criminal medical negligence in this state. When the verdict was read out tonight, he was very stoic. He bowed his head, but he said nothing. And as I understand, because of the
- [57:05]
E
landmark nature of this case, the unprecedented
- [57:08]
B
nature of this case, that this will
- [57:10]
C
automatically go to appeal to the Queensland Appeal Court.
- [57:15]
B
Very much so, because no one ever envisaged that this area of the criminal code would be used in such a circumstance. And so it is destined to go to the Court of Appeal because this is a first, this is a landmark case. Here's Beryl Crosby reflecting. Sixteen years after that verdict.
- [57:36]
A
It was the result I was expecting. He was convicted, so relieved that it was all over.
- [57:43]
B
Two days later, Justice John Byrne sentenced Patel to concurrent terms of seven years imprisonment for each of the three manslaughter offences and three years of imprisonment for the gun grievous bodily harm offence. He was given a non parole period of three and a half years. In sentencing Patel, Justice Byrne said the
- [58:07]
C
verdicts of the jury establish your guilt on charges of the unlawful killing of Mervyn Morris, James Phillips and Gerardus Kemps and of unlawfully doing grievous bodily harm to Ian Vowles. Earlier events have significance for the sentence.
- [58:26]
B
At this point, Justice Byrne set out Patel's notorious history in the United States. This included the surgeon having consented to an order by the Oregon Board of Medical Examiners that required him to get second opinions for certain complicated surgical cases.
- [58:46]
C
The order and your surgical misadventures in Oregon gave you good reason to reflect before commending major surgery to Bundaberg patients on pertinent deficiencies in your knowledge, judgment, aptitude and experience. Yet you told no one at Bundaberg about the order. Not the hospital administrators, not other medical practitioners such as anaesthetists who were to assist at the four operations. And most importantly, not the patients you persuaded to submit to major surgery. And you did not seek a second opinion from a surgeon before performing the four procedures with which the charges are concerned.
- [59:34]
B
Justice Byrne then set out the circumstances of Mr. Mervyn Morris treatment and death
- [59:41]
C
before remarking the sigmoid colectomy was performed competently. The prosecution case, however, was that the procedure was unnecessary. The jury has concluded that your decision to operate on Mr. Morris both caused his death and involved criminal negligence. That is such a great falling short of the standard to have been expected of a surgeon and showing such serious disregard for the patient's welfare that you should be punished as a criminal. In other words, that your decision to operate was so thoroughly reprehensible involving such grave moral guilt that it should be treated as a crime deserving of punishment. The other three surgical procedures were also performed competently enough. It is not how you carried out the procedures that matters. What matters is your judgment in deciding to commend the surgery to the patient and having obtained the patient's consent in taking him to theatre to perform it. Most importantly, three lives were lost and Mr. Vowles will suffer for the rest of his life. Victim impact Statements from members of the families of Mr. Morris, Mr. Phillips and Mr. Kemps speak of the great distress which the untimely deaths of their loved ones have wrought. Mr. Vowles has succinctly described the complications in his life and for his wife because of the condition in which he is left. Had you sought a second opinion on whether to proceed with the operations, the indications are that another surgeon would have advised against them all. In Mr. Morris's case, because the bleeding point had not been identified and other non invasive treatments were available. In Mr. Phillips's case, because he was too frail and had too many complications for an oesophagectomy in Bundaberg at any rate, in Mr. Kempster's case, because the oesophageal cancer was too far advanced and other palliation treatments were preferable. And in the case of Mr. Vowles, because the biopsies were benign and the polyp in his colon could have been removed without surgery, the court must make it clear that the community acting through the court denounces your repeated serious disregard for the welfare of the four patients. The charges do not involve an intention to cause harm in each of the four cases. However, the jury has found that your judgment in deciding to take the patient to surgery was so thoroughly reprehensible involving such grave moral guilt, that you should be punished as a criminal.
- [62:37]
B
Next, before handing down the sentences, Justice Byrne listed some mitigating factors.
- [62:45]
C
First, this is your first criminal offence. Secondly, incarceration is likely to be more than usually difficult for you. You are 60. More significantly, your family resides overseas and will not be here to support you through the ordeal of imprisonment, except for an occasional visit. Your notoriety will also make prison life stressful. Thirdly, you have already spent time in prison in connection with these and other offences. Slight credit is allowed for the circumstance that you're nearly two years on bail. Reporting three times weekly has been difficult because of abuse experienced in going about in public.
- [63:33]
B
He was convicted, he was sentenced and did life kind of return to something approaching normal for you then?
- [63:43]
D
Life hasn't returned to anything approaching normal for me since I still live with it. Every day it was horrible because of the damage that was done to patients. And when you looked back at the damage, as you well know, it was things that he'd been convicted of doing or accused of doing 20 years earlier back in Buffalo or Portland or wherever, sewing patients colostomies up backwards so the faeces came out of the patient's mouth.
- [64:22]
B
As expected, Patel appealed to the Court of Criminal Appeal against his convictions and he applied for leave to appeal against the sentence. Here's Corinna with Sarah again.
- [64:36]
F
Did it feel to you throughout the trial that it was ultimately going to fail, that an appeal was inevitable and the way that the trial had been conducted was just so fraught with problems.
- [64:50]
G
Even as laypeople, journalists, we could tell that there were serious legal issues being determined because the judge continued to issue these warnings. John Byrne was, even at that stage was a very senior judge. He was pretty frank and he, he would send the jury out and he would say to the lawyers, there are problems here. And they were continually trying to grapple with those problems. It was pretty dramatic to be in the room with no jury and to listen to the judge hearing these arguments about whether or not the trial should even continue. And so much was at stake. I think an appeal was inevitable regardless of what happened. It was such an unusual case. The Criminal Code was at that stage 111 years old. And section 288 of the Criminal Code had never been successfully invoked in Queensland. You would hope that the state's brightest legal minds would have sorted this out before we got to the courtroom, but perhaps is that the very nature of a jury trial? Is that the very nature of not knowing exactly how witnesses are going to describe their evidence in the witness box? You can probably do all the pre trial research and interviews, but still things are going to surprise you as prosecutors or as defence lawyers as the trial unfolds.
- [66:17]
B
Tony Hoffman dropped in to hear some of the legal argument in Brisbane. She recently told me what happened next.
- [66:24]
D
I happened to be down in Brisbane for something else and I went along to the appeal and I got in the lift and I was in the lift with John Allen, who was the barrister for the nurses. And Ken Fleming was in there, who was Patel's lawyer. And I just said, Where's Dr. Patel? Because he wasn't at the appeal. And someone piped up, oh, he's in jail. And I laughed and Ken Fleming got stuck into me and said, you think this is funny? There's a good man, a perfectly good man in jail for no reason. And Blah, blah, blah. He really got stuck into me.
- [67:08]
B
Do you recall how you responded?
- [67:10]
D
Well, I was shocked. I think I said, no, I don't think it's funny because I wasn't laughing at that. I was laughing at what the other person said. And John Allen said, I'll give it up, Ken, or something like that.
- [67:27]
B
Yeah, he's a nice bloke, John. He's a district court judge now.
- [67:31]
D
Yeah, he was very good to us, the nursing staff.
- [67:36]
B
Here's Corinna Berger, who studied the judgement from that first appeal.
- [67:41]
F
I've been reading up on the case and I can break Patel's legal arguments down like this. Patel argued a miscarriage of justice had occurred in his jury trial because of the prosecution significantly changing its case against him on day 43 of the trial. This change was the narrowing of the prosecution case so that only Patel's decision to operate was said to be the criminal conduct. Patel argued this change was unfair to him because a lot of the evidence the prosecution had put on was relevant to the conduct of the surgeries and the conduct of the surgeries wasn't in question anymore. The evidence was graphic, inflammatory and highly prejudicial to Patel. It was also irrelevant to the prosecution's narrowed case.
- [68:29]
B
Another ground of Patel's appeal was that the trial judge had misinterpreted Section 288 of the law, the Criminal Code of Queensland, and that that had caused the trial to miscarry.
- [68:43]
F
Patel argued that the prosecution case did not come within that section at all because he said it only applied to the conduct of surgery and did not apply to a surgeon's decision to operate or to recommend surgery to a patient. And to add another issue to the mix of issues before the Court of Appeal, the Attorney General of Queensland appealed Patel's sentence. In a nutshell, the attorney argued that the trial judge was far too lenient in his sentencing of Patel and that he got off far too lightly.
- [69:16]
B
Three judges of the Court of Appeal delivered a joint judgment in April 2011. The Court of Appeal dismissed Patel's appeal against his conviction and the court also dismissed the Attorney General's appeal against sentence. The judge made no error. Victims and their families were relieved that Patel would stay behind bars. But their relief was short lived. In the next episode, another roller coaster for the patients, the nurses, doctors and of course, Jayant Patel. Sick to Death is written and presented by me, Headley Thomas, the Australian's national chief correspondent. Claire Harvey is the Australian's editorial director. Audio editing, production and music have been done by Jasper Leake with assistance from Leah Samaglou and Neil Sutherland. Our producer is Kristin Amias, Production management by Stephanie Coombs Artwork by Sean Callanan. Thanks to Ryan Osland, Matthew Condon, Corinna Berger, Ellie Dudley, David Murray, Dominique McDermott, Zach Skulander and all our family, friends and colleagues who helped in this series and contributed voice, acting and special thanks to Tony Hoffman and Rob Messenger. Subscribers to the Australian Hear new episodes of Sick to death first@sicktodeathpodcast.com and on Apple Podcasts. You can get exclusive access to photographs, videos, timelines, and more at the website.
- [71:21]
C
Foreign.
- [71:26]
B
This podcast is made possible by subscribers to the Australian and our principal sponsor, Harvey Norman. Harvey Norman has provided unwavering support for my investigative podcast since 2018. For more information on this podcast and on our entire Investigative catalogue, go to theaustralian.com.