An oral surgeon who admitted professional misconduct in the case of a Whanganui man has had his appeal against a $5000 fine dismissed.
Dr Peter Napier Liston, an oral and maxillofacial surgeon who worked as a locum in the dental unit at Whanganui Hospital, admitted professional misconduct at the Health Practitioners' Disciplinary Tribunal in December 2017.
Liston misread patient Keith Hindson's biopsy results. Hindson would have avoided such extensive surgery with a prompt diagnosis, the tribunal hearing in Whanganui ruled.
The tribunal ordered that a censure be placed on Liston's record for as long as he is alive. It imposed a fine of $5000 (the maximum being $30,000) and ordered Liston to make a contribution of $21,000 (30 per cent) towards the hearing costs.
Liston appealed against the $5000 fine at a hearing in the High Court at Wellington in July, contending it was excessive and unreasonable and imposed without sufficient regard to mitigating factors. Justice Karen Clark reserved her decision.
In her judgment of November 16, Justice Clark dismissed the appeal, saying negligence and malpractice had been established and human error did not account for Liston's repeated failure to respond to clear pathology results after Hindson underwent a second excisional biopsy.
Justice Clark said the tribunal had taken into account the likely monetary consequences to Liston from publication of his name and reduced by 20 per cent the contribution to costs he would otherwise be expected to make.
Liston's lawyer, Harry Waalkens, QC, submitted to the High Court that a fine, in addition to the other penalties, was punitive.
"It is widely accepted that disciplinary proceedings necessarily have a punitive effect notwithstanding the overarching purpose of the HPCAA (Health Practitioners Competence Assurance Act), which is the protection of the public," Justice Clark said.
"The tribunal was not intending to punish Dr Liston through the imposition of a fine. That is plain from its decision. The significant acts and omissions and misconduct were said to 'bring significant discredit' to the dental profession and 'there must be a deterrent factor built into the penalties ordered not only for Dr Liston but also for the whole of this profession'."
Justice Clark was satisfied that the fine was directed towards protection of the public, was intended to emphasise the importance of professional standards and was fair, reasonable and proportionate in the circumstances.
Liston had not shown that the imposition of a $5000 fine in the context of his professional misconduct lacked parity with comparable cases.
After the release of the judgment, Hindson told the Whanganui Chronicle he was angry and his health was deteriorating.
"I think the $5000 fine is more of an insult to me and anyone else injured," Hindson said.
"My condition is ongoing and I now have radiation fibrosis syndrome [as a result of radiation therapy]. I'm going backwards. A small portion of any food and drink I have is getting into my lungs now and I'll end up with aspiration pneumonia. I continually get cramp in my neck. They are some of the symptoms of radiation fibrosis.
"Everything I put in my complaint [about Liston] has been upheld. I'm a very angry person. He has ruined my life. I can't chew, I can't swallow properly. I can't go out to eat. I always have to take my own food if we go anywhere.
"I urge anyone with pain in their mouth to seek professional advice and get a second opinion if you need to."