An oral surgeon whose delayed diagnosis forced a patient to go through extensive surgery for invasive tongue cancer is appealing a $5000 fine for professional misconduct.
Dr Peter Liston admitted the professional misconduct at the Health Practitioners' Disciplinary Tribunal late last year, after he misread patient Keith Hindson's biopsy results.
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Hindson would have avoided such extensive surgery with a prompt diagnosis, the tribunal hearing in Whanganui ruled.
Liston attended the High Court at Wellington this morning for an appeal against the punishment handed down to him by the tribunal.
His lawyer, Harry Waalkens, QC, said Liston had been under a large amount of stress and pressure at the time of the misdiagnosis, which led to the "mental block" which caused him to misread the results.
Liston was the only oral surgeon working at the Whanganui District Health Board, for a population of more than 63,000 people. He was travelling to Whanganui twice a week from New Plymouth to treat patients.
"It's an onerous task," Waalkens said.
"Dr Liston did misread and misdiagnose the patient and the tribunal was right to note that it appeared that there had been something akin to a mental block in the way that this had been managed."
But this should be seen through the lens of the pressure Liston was under at the time, he said.
"It was not necessary for the tribunal to fine Dr Liston on top of what it had already done."
Liston earlier admitted three charges of failure to recommend and/or provide appropriate treatment, failing to obtain his patient's informed consent to treatment, and failing to keep clear and detailed or accurate notes of his consultations with Hindson.
The tribunal ordered a censure be placed on Liston's record for as long as he is alive, fined him $5000, and ordered him to pay $21,000 towards the hearing costs.
"He is an honest, good, earnest practitioner doing all this work that others might not be that keen to do, because it's not attractive work. The adverse finding made by the tribunal does carry a very real stigma and one that's very keenly felt by him," Waalkens said.
Waalkens said the adverse finding as well as the costs order and the fact that Liston's name was allowed to be made public was a "significant penalty", and further penalty in the form of a fine was not necessary.
Liston was working in a "grossly understaffed" environment with no proper support and a "piranha-fest" of patients, and the tribunal should have made "significant allowance" for this.
But Lisa Preston, who prosecuted the initial case, told the court it was "artificial" to say punishment is no part of the process before the tribunal.
She said the tribunal considered the matter on the "nature of the facts of the error".
This was not a case of just a misdiagnosis, but was a "very straightforward and very fundamental failure to either accurately read and in both occasions to act on very clear evidence of what the diagnosis was".
The judge reserved her decision.
Hindson told the Herald his life has been ruined by the mistake. His saliva glands and his jaw muscles have been "fried" by radiation, meaning he doesn't have the strength to chew food properly nor enough saliva to swallow without choking.
"He can walk out of court and resume life as normal. I, on the other hand, have little or no saliva, and am unable to swallow food without copious quantities or gravy or sauce."
He and his partner, Gloria Rigg, cannot go on any big overseas trips, go out to restaurants, or enjoy their retirement.
Hindson asked if Liston had considered the cost to the taxpayer from his two plastic surgeries, 30 sessions of radiation, travel to and from appointments, and ongoing doctor visits.
"He expects to walk away scot free and not have to pay a paltry $5000 fine ... the world is full of people saying 'wasn't my fault'."