Health Practitioners Disciplinary Tribunal, HPDT 940/Den17/387D, (24 January 2018)
The Director of Proceedings filed a charge against Dr Liston (an oral and maxillofacial surgeon) in the Health Practitioners Disciplinary Tribunal (“the Tribunal”) alleging: failure to recommend and/or provide appropriate treatment to his patient, despite a diagnosis of squamous cell carcinoma in-situ; failure to provide adequate and/or accurate information about the patient’s diagnosis, biopsy results, and treatment options and/or to take appropriate steps to ensure the patient understood that information (therefore failing to gain the patient’s informed consent); and failure to keep clear, detailed, and/or accurate clinical notes of his consultations with his patient, and clear and/or detailed operative notes. Dr Liston admitted the particulars of the charge as misconduct warranting disciplinary sanction.
The patient was referred to Dr Liston by his GP regarding a painful tongue. Dr Liston saw the patient on 12 occasions over a period of two years. During the second year of consultation, Dr Liston performed an excisional biopsy of a lesion on the patient’s tongue. The patient was anxious about the possibility that the legion was cancerous or pre-cancerous. Although the biopsy result read “SQUAMOUS CELL CARCINOMA IN-SITU, INCOMPLETELY EXCISED AT 9 O’CLOCK MARGIN”, Dr Liston reassured his patient that his condition was definitely not cancer. Dr Liston incorrectly recorded that the pathology showed carcinoma in-situ clear of the margins, and he planned to review his patient in six weeks’ time. Due to the fact that a prompt re-excision was not performed, the opportunity for further excision of the patient’s tongue lesion was lost until the lesion reoccurred. Eight months after the first excisional biopsy, Dr Liston performed another excisional biopsy. The pathology results of this second biopsy read “SQUAMOUS CARCINOMA IN-SITU EXTENDING TO INVOLVE THE RIGHT EXCISION MARGIN”. Again Dr Liston incorrectly advised his patient that the biopsy showed “nothing nasty”. Dr Liston recorded that the pathology had shown carcinoma in-situ, and that he had advised the patient to use Manuka honey. Dr Liston recorded that he intended to review the situation in four weeks’ time. When Dr Liston saw his patient again one month later, he referred his patient to a specialist team at a nearby base hospital. The patient was advised by the specialist team that he required surgery for cancer. Shortly after this, the patient underwent surgery to remove a squamous cell carcinoma tumour from his tongue. The patient required subsequent radiation treatment.
While initially Dr Liston defended the charge, subsequently he admitted that his actions amounted to professional misconduct. The Tribunal considered the charge on the basis of the statements of evidence that had been provided, without requiring the witnesses to give evidence or be cross-examined, with the exception of a late witness called orally by Dr Liston, being a colleague of Dr Liston, whose evidence was considered in relation to penalty only.
The Tribunal was satisfied that each of particulars 1 (failure to recommend and/or provide appropriate treatment), 2 (failure to recommend and/or provide appropriate treatment), 3 (failure to recommend and/or provide appropriate treatment), and 5 (failure to provide adequate and/or accurate information) of the charge separately, and particulars 6 (failure to keep clear and/or detailed and/or accurate clinical notes of consultations) and 7 (failure to keep a clear and/or detailed note of biopsy procedures) cumulatively amounted to professional misconduct (as negligence, malpractice, and bringing discredit to the profession), and that the misconduct warranted disciplinary sanctions. Particular 4 had been withdrawn by the Director, and was not considered by the Tribunal.
In considering penalty, the Tribunal took into consideration the mitigating evidence of Dr Liston’s colleague regarding the pressures and stresses Dr Liston was under at the DHB, including the limitation of available resources; the busyness of the unit; and staffing shortages. The Tribunal considered that these, along with a deficiency in the support provided by the DHB, had contributed to the situation giving rise to the charge. The Tribunal also took into consideration that Dr Liston was the only oral and maxillofacial surgeon practising in that DHB.
Dr Liston submitted that this was a case involving an error of diagnosis (or misdiagnosis), accepting that he had misread and misinterpreted the biopsy results. Dr Liston submitted that misdiagnoses were not unusual in the medical field, and that this should be taken into account when considering penalty. The Tribunal rejected Dr Liston’s submission, commenting that the evidence provided in support of the submission was not on point, and that there was a significant difference between strict misdiagnosis on the one hand, and negligent reading of biopsy results and a failure to advise adequately on the other.
The Tribunal accepted Dr Liston’s submission that this was a “one off” situation. However, in doing so it recognised that there can be circumstances where a failure in respect of one patient can lead to other failures in relation to the same patient, and that the combined performance of the practitioner could be looked at as one whole. In this case, the Tribunal noted that there had been a sequence of negligent and malpractice acts on Dr Liston’s part.
The Tribunal ordered censure, a fine of $5,000, and 30% costs. The Tribunal did not consider this to be a case where an order for removal from the register, or suspension, should be considered, having consideration to the working situation Dr Liston found himself in, contributed to by the DHB. The Tribunal also discounted the need to place conditions on Dr Liston’s practice. The Tribunal considered the censure necessary to express its significant disquiet at the events and outcome giving rise to the charge, and the distressing consequences for the patient. The Tribunal also considered that the fine was necessary, as the charge admitted related to significant acts and omissions of misconduct that brought significant discredit to the dental profession. The Tribunal noted that there must be a deterrence factor built into the penalty ordered, both for Dr Liston and the profession as a whole.
The reduction of costs from a starting point of 50% to 30% reflected Dr Liston’s cooperation in admitting the charge, but also that the admission came at a late stage, after significant costs had already been incurred. Dr Liston did not apply for name suppression, and the costs ordered also reflected the consequences of that decision for Dr Liston.
The Tribunal also recommended that the DHB put into place such resources and facilities as it could to enable Dr Liston to have active engagement in the clinical audit and review processes within the surgical group in the DHB, and to have non-patient-contact time during normal working hours to review patient records, reports, and test results, and to ensure appropriate patient treatment and management.
The Tribunal’s decision can be found at: https://www.hpdt.org.nz/Charge-Details?file=Den17/387D
Dr Liston unsuccessfully appealed the Tribunal’s order that he pay a fine of $5,000, on the grounds that the fine was excessive and unreasonable and imposed without sufficient regard to mitigating factors (Liston v Director of Proceedings  NZHC 2981). Dr Liston sought to have the fine set aside. The High Court upheld the Tribunal’s order. The High Court considered the factors taken into account by the Tribunal and concluded that the Tribunal was correct in its approach and assessment of the seriousness of Dr Liston’s errors, and had: taken into account those mitigating factors raised by Dr Liston and given them appropriate weight; imposed the fine for the correct reasons and in the correct manner; and imposed a fine that was fair, reasonable, and appropriate in the circumstances, and consistent with comparable cases.
The High Court decision can be found at: http://www.nzlii.org/nz/cases/NZHC/2018/2981.html
Last reviewed February 2019