Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

The Director of Proceedings charged Dr Harman acted in such a way that amounted to professional misconduct in that he undertook to remove an approximately 2-3 cm non-specific mass in the patient's right axilla without obtaining her informed consent and/or acted in breach of Right 5 and/or Right 6(1)(b) and/or Right 7(1) and/or Right 7(7) of the Code of Health and Disability Commissioners' Rights.

The particulars were as follows:

1. Dr Harman failed to inform or adequately inform the patient about her impending surgery to remove an approximate 2-3 centimetre non-specific mass in the right axilla ("the lump") or give her sufficient information on which to base her decision about removal of the lump.
2. He failed to inform the patient of the expected risks or side effects of the surgery.
   AND/OR
3. He failed to explain to the patient that surgery to remove the lump was likely to also include removal of one or more lymph nodes.
   AND/OR
4. He removed lymph nodes during the surgery against the express instructions of the patient.

The charge also contained detail about the additional information that ought to have been provided to the patient (please see 0058d findingsreasonslaw).

Background: 

The charge laid against Dr Harman relates to his care and treatment of a patient after she was referred to him by her general practitioner for specialist advice and assessment of a lump which she had detected in her right breast.

The patient was injured in a car accident and as a result later had implants inserted in both breasts. Both implants were replaced in November 1992 as the implants had ruptured. In October 1995 the patient suffered a fall and badly bruised her arms and upper chest. As a result of various tests and 'to be on the safe side' the patient's right implant was replaced in 1996. A diagnostic report confirmed there was no malignancy.

In mid 1997 the patient detected a lump in the right breast. In the first instance, a 'wait and see' approach was decided upon. However after the patient noticed some changes, her GP referred her to Dr Harman.

When the patient attended for her first appointment Dr Harman was not available and she was seen by a breast physician (Dr B) who worked for him. As the patient had been referred for an ultrasound in the first instance, Dr B examined the patient and carried out the ultrasound examination. An ultrasound confirmed the presence of a 4-5mm lump. It's features were not worrying but Dr B was of the opinion it should be remedied. She suggested the patient should see Dr Harman the following week.

On 8 October 1997 the patient saw Dr Harman. He had no concerns regarding the lump detected by the patient and confirmed by Dr B. However he detected another lump of about 2-3 cm.

The patient was adamant that she did not want her lymph nodes removed, and she instructed Dr Harman accordingly. Her sister had recently been diagnosed with breast cancer and her treatment had involved surgery, chemotherapy and radio therapy. Her surgery had apparently included an axillary clearance of her lymph nodes.

The consultation concluded on the basis that the patient would consider Dr Harman's advice that the lump should be removed. She notified Dr Harman's office that she would go ahead and have the lump removed. The lump was removed under general anaesthetic on 16 October 1997. The lump was biopsied and the diagnostic microscopy reported that it consisted of four benign lymph nodes, which were consistent with Sims histiocytosis secondary to rupture of a previous breast implant.

The patient attended for her post-operative check on 22 October 1997. Dr Harman was again unavailable and she was seen by Dr B. The patient complained of numbness under her right armpit and down her right arm. Dr B advised her this was temporary and that it would go away over time. However, since the operation the patient has suffered extensive swelling in her right arm extending to her fingers, neck and face which has prevented her from playing sport and carrying out normal personal and domestic tasks.

Finding:

The Tribunal found Dr Harman was not guilty of professional misconduct.

The Tribunal discussed the role of the Code and found that a breach of the Code is not necessarily a disciplinary offence. The Tribunal agreed that conduct which is determined to be in breach of the code may well ultimately also be determined to constitute a professional disciplinary offence and warrant the sanction of an adverse finding in the Tribunal. However, the Tribunal considered that it did not follow that because a medical practitioner's conduct is determined to be a breach of the Code, it is automatically also a professional disciplinary offence.

The Tribunal found particulars 1 and 2 were not established. On the facts the Tribunal found Dr Harman did provide the information required to ensure the patient was able to give informed consent to the surgery.

When considering particulars 3 and 4 the Tribunal considered that the issue of the removal of lymph nodes as opposed to the removal of a lump was an irreconcilable dispute between Dr Harman and the patient. The Tribunal found to the extent Dr Harman may have misunderstood the patient's instruction not to remove lymph nodes, on the basis that she did not want to go through what her sister had, he made an error. The Tribunal was satisfied that this error did not warrant the sanction of a disciplinary finding.