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Director of Proceedings v Harman - Surgeon

Health and Practitioners Disciplinary Tribunal, Med06/37D

In a decision dated 31 May 2007 the Health Practitioners Disciplinary Tribunal found general surgeon John Harmon guilty of professional misconduct. The case concerned the care provided by Mr Harman to a patient (Ms A) who underwent a breast reduction, abdominoplasty (tummy tuck), and liposuction to the upper arms.

Prior to surgery Mr Harman failed to advise Ms A that in combination the procedures amounted to major surgery and failed to adequately advise her of the risks associated with the procedures. Post operatively Ms A experienced infection in the surgical sites relating to the breast reduction and the abdominoplasty. As a result Ms A lost her right nipple, lost sensation in her left nipple, and had permanent scarring on her breasts.

The Tribunal found that Mr Harman had failed to obtain Ms A's informed consent in regard to the procedures performed; failed to maintain adequate records; and failed to provide adequate post-operative information to her after infection had set in.

The Tribunal imposed the following penalty on Mr Harman:

(1)   A recommendation that the Medical Council of New Zealand consider whether to undertake a competency review of Mr Harman's practice;

(2)   A fine of $7,500.00;

(3)   Censure;

(4)   An order for costs incurred by the Tribunal and the Director of $25,000.00 each.

The Tribunal also declined an application seeking the permanent suppression of Mr Harman's name.

Appeal to the High Court
Following the release of the Tribunal's decision Mr Harman took an appeal to the High Court seeking to overturn the finding of professional misconduct, the penalties imposed by the Tribunal, as well as its decision to decline permanent name suppression.   The Director of Proceedings was largely successful in resisting the appeal, one finding in relation to a sub-sub-particular of the charge being set aside and the order for a fine of $7,500.00 being quashed and substituted with an order for a fine of $5000.00. In regard to the issue of publication the High Court found that the Tribunal's decision to decline permanent suppression of the practitioner's name was appropriate in the circumstances.

The case may be noted for its interesting discussion of "informed consent" in New Zealand where it confirms that while a health practitioner is not required to "ensure" that a patient understands the information they are given they must however "enable" a patient's understanding.

The Tribunal's decision and to the High Court judgment can be found at:

http://www.hpdt.org.nz/portals/0/med0637ddecdp070anon.pdf

http://www.hpdt.org.nz/portals/0/med0637ddecsupdp080anon.pdf

(John Edgar Harman v Director of Proceedings, (High Court Auckland, CIV 2007-404-003732, 12 March 2009, Wild J)).