Musing About Mistakes

Living With Mistakes

A letter to the Forum of The Straits Times that was published on 12 June 24 caught this hobbit’s eye. It was written by a young doctor, Dr Amreena Shamit, who purportedly works in a GP clinic. The letter was titled, “Doctors, don’t be too hard on yourselves when a mistake occurs”. It is a very well written letter, very encouraging and uplifting in tone and substance. She advises how we doctors should learn to live with the mistakes we make and move on so that we can help even more patients. She ends off by saying, “making mistakes is part of the risk of being in the healthcare profession. After all, for every mistake we make how many patients do we actually help? Maybe if we knew the answer, we might not give up so easily”.

But as this old coot of a hobbit is about to tell you, there are mistakes, and then there are mistakes. And while we can and should live with our mistakes and move on, not everyone shares that view. Put simply, mistakes come in all shades and sizes. Like beauty (and ugliness), mistakes often lie in the eye of the beholder. Some mistakes are unfortunately punishable and even career-ending.

Mistaken about Mistakes

There have been also people who have been mistaken about mistakes. The celebratory case of Dr Lim Lian Arn comes to mind. A patient had complained against Dr Lim for not informing her of the side effects of a hydrocortisone and lignocaine injection. Dr Lim pleaded guilty and the SMC Disciplinary Tribunal (DT) subsequently fined him the maximum amount of $100,000 for professional misconduct. The outcome was so unexpected that MOH then requested that SMC appealed against the decision of its own Disciplinary Tribunal. The Court of Three Judges (C3J) overturned the decision of the DT¹.

The C3J noted that not all mistakes amount to professional misconduct and are therefore punishable. The Judges noted “As we observed to Mr Chia (SMC’s lawyer) in the course of his submissions, there must be a threshold that separates relatively minor breaches and failures from the more serious ones that demand disciplinary action. Were it otherwise, doctors would find it impossible to practise in a reasonable way. For a medical practitioner to be charged and found liable under the MRA (Medical Registration Act), the misconduct must be more than a mere technical breach of the relevant standards”. (Para. 30 of the Judgment, SMC vs Lim Lian Arn, [2019] SGHC 172). This is a case where the C3J concluded that the DT and the lawyers of both SMC and Dr Lim were mistaken about the nature of Dr Lim’s mistake.

To Err (Even One-off) Is Human and Sometimes Punishable

We now move on to a more recent SMC case, SMC vs Yeo Khee Hong. The Grounds of Decision of the DT was only published on 27 May 24². Dr Yeo, a GP of 38 years’ experience, pleaded guilty and was suspended for one year for failing to diagnose a case of testicular torsion in a patient that was about 15 years old when the incident occurred. Due to the misdiagnosis of epididymitis and orchitis, the patient presented late to the hospital and had to subsequently undergo an orchidectomy.

This has led to some disquiet on the ground because everybody makes a misdiagnosis from time to time. If everyone can make the correct diagnosis 100% of the time, then he would most certainly be inhuman (or not a hobbit as well).

First, this hobbit would like to say that he is in agreement that the doctor should have been found guilty of professional misconduct and sanctioned to some extent. However, the grounds of decision (GD) did not address certain issues that may come back to haunt the profession later.

Para. 26 of the GD stated, “The ASOF (Agreed Statement of Facts) further states that the applicable standard of care is (a) to consider all (emphasis mine) acute scrotal pain as testicular torsion until proven otherwise, and (b) regardless of the duration of the patient’s symptoms or whether the patient had acute or intermittent testicular torsion, to refer the patient urgently (emphasis mine) to the A&E in a hospital or a specialist. The ASOF states that that testicular torsion cannot be conclusively excluded or eliminated on history-taking and physical examination alone….”

Para. 27 further states “The ASOF states that the Respondent failed to act as a reasonable and competent doctor would have done and was in breach of the applicable standard of care”. The same paragraph then when on to describe how the misdiagnosis of epididymitis and orchitis led to the serious consequences and harm to the patient which doctors already know too well.

Para. 28 of the GD then describes how Dr Yeo had breached Guidelines A1(1), A1(4) and A2 of the SMC ECEG, which amounted “to such serious negligence that it objectively portrayed an abuse of the privileges which accompany registration as a medical practitioner, and the Respondent is thereby guilty of professional misconduct under s 53(1)(d) of the MRA”.

This hobbit is not familiar with how the DT works, but one needs to ask, does the ASOF’s applicable standard of care apply to the whole profession henceforth? Already many GPs are saying arising from Para. 26, they have no choice but to refer urgently ALL cases of scrotal pain to the hospital or specialist urgently. And my A&E colleagues are also already shaking their heads at the prospect of being asked to urgently exclude the diagnosis of testicular torsion in geriatric male patients.

When we have an “Agreed” Statement of Facts (ASOF), we have to ask – who is agreeing to what here? Presumably the parties in agreement are the Respondent (Doctor) and SMC’s lawyers, but do what they agree to in an ASOF apply to the rest of the medical profession as a new, universal standard of care?

For example, do we now really regard acute scrotal pain in a 75 year-old man as a case of “testicular torsion until proven otherwise”? Or do we say yes, we regard every case of acute scrotal pain in a 15 year-old as testicular torsion until proven otherwise; but well, for a 75 year-old, testicular torsion may well still be a rare differential diagnosis, but the scrotal pain is more likely to be something else. In other words, would the DT still have suspended the doctor for a year if this was a rare case of testicular torsion in a 75 year-old with the same clinical presentation?

The clue to this may also lie in para. 25, which stated “According to the ASOF, based on the Patient’s history of left testicular pain, the Patient’s profile and age (emphasis mine), and the Respondent’s physical examination finding that the Patient’s left testis was enlarged and tender, the Patient was at risk of testicular torsion on 27 March 2019. A reasonable and competent doctor in the Respondent’s position would have considered the possibility of intermittent testicular torsion as a differential diagnosis without first referring the Patient to the A&E of a hospital or a specialist such as a urologist or paediatric surgeon for urgent surgical assessment or exploration”.

Unfortunately, years from now, people may not understand or realise that para. 26 may have been crafted under the context given in para. 25. This hobbit thinks para. 26 could have been worded in a better way, or paras 25 and 26 could have been merged into one paragraph. Not only must we be careful with our words, we have to be careful with our paragraphing as well. The lone Para. 26 as it stands now, can lead to unnecessary referrals to A&E or specialists if not defensive medicine.

It is also important to note that Dr Yeo was found guilty of professional misconduct under the second limb of the landmark Low Cze Hong case, which is “where there has been such serious negligence that it objectively portrays an abuse of the privileges which accompany registration as a medical practitioner”.

Here, it is important to revisit again the C3J’s Judgment of the Lim Lian Arn case, in particular para. 38 of the Judgment, “Serious negligence portraying an abuse of the privileges which accompany registration as a medical practitioner would generally cover those cases where, on a consideration of all the circumstances, it becomes apparent that the doctor was simply indifferent to the patient’s welfare or to his professional duties, or where his actions entailed abusing the trust and confidence reposed in him by the patient. On the other hand, it would not typically cover one-off breaches of a formal or technical nature where no harm was intended or occasioned to the patient or where harm was not a foreseeable consequence; nor would it ordinarily cover isolated and honest mistakes that were not accompanied by any conduct which would suggest a dereliction of the doctor’s professional duties”.

Interestingly, in para. 66 of the DT’s GD for Dr Yeo’s case, it was stated that this incident was “one-off” and “out of character” for him. Also, in para. 68, the DT considered this to be “an isolated incident”.  There was no mention that the doctor was “indifferent to the patient’s welfare or to his professional duties”. While harm was “occasioned”, it was certainly not “intended”. Perhaps the strongest point made in the GD against the Respondent was that missing a diagnosis of testicular torsion would lead to a “foreseeable consequence” of orchidectomy, significant pain, suffering and morbidity.

Would therefore an “isolated” breach of Guidelines of A1 and A2 that was “one-off”, “out of character” for the Respondent amount to serious negligence/professional misconduct and a suspension of one year? The GD described how it arrived at the one-year sentence, but did not clarify how the doctor’s act crossed the threshold of serious negligence, which was unfortunate, especially when there are countervailing factors such as “isolated”, “out of character” and “one-off”.

Perhaps the SMC can follow up with an effort to explain these points so that the entire profession can learn clearly from this incident on how an isolated incident of what is largely of a technical nature can cross the threshold to be considered as serious negligence/professional misconduct.

Make Mistakes When You Are Young(er)

This hobbit would also like to make the observation that seniority is not a mitigating factor when you make mistakes. In fact, according to the Courts and SMC, age or seniority is an aggravating factor. In other words, under the same set of conditions, a more senior or eminent doctor may be punished with a heavier hand than a more junior one.

This was established in the appeal to the C3J in the Ang Peng Tiam vs SMC case ([2017] SGHC 143³). This was stated clearly in para 93 of the Judgment for this case, “Seniority and eminence are characteristics that attract a heightened sense of trust and confidence, so that when a senior and eminent member of the profession is convicted of professional misconduct, the negative impact on public confidence in the integrity of the profession is correspondingly amplified”. The logic for this, as given by the C3J, is that the main aim of disciplinary proceedings is “general deterrence”, i.e. to deter the rest of us doctors from doing things in a similarly bad way. This is a concept that this hobbit has always found it hard to wrap his halfling mind around, but it is what it is. You don’t have to agree, you just have to know that it applies to all of us doctors – seniority sucks when it comes to disciplinary proceedings.

This position was also adopted by the DT in the aforementioned case involving Dr Yeo. The GD stated in para 66, “We accepted that the seniority of the Respondent is an aggravating factor. As noted in the Sentencing Guidelines, there is an overarching need in medical disciplinary cases to uphold the standing of the profession and prevent an erosion of public confidence in the trustworthiness and competence of its members. Against this consideration, we took into account the fact that the Respondent has a long unblemished track record and good professional standing. The present offence was one-off and out of character. In our view, he is unlikely to re-offend”.

Given the fact that the older you get, the higher the stakes are for you when you make a mistake as a doctor, it would be interesting to study if such a medico-legal climate foments an environment whereby more senior doctors are more predisposed to practising defensive medicine than more junior ones. That would make a fascinating study for health policy and medical ethics researchers, don’t you think?

Finally, to be absolutely clear, this hobbit really likes the letter written by Dr Amreena Shamit. It encourages us to take mistakes in our stride, to learn from them and to move on as better doctors so that more patients can benefit.

But it also important to know that for serious mistakes amounting to professional misconduct, there are circumstances and conditions that do not permit us to move on.

¹https://www.elitigation.sg/gd/s/2019_SGHC_172

²https://www.healthprofessionals.gov.sg/smc/home/Announcements/Index/the-grounds-of-decision-of-the-disciplinary-tribunal-inquiry-for-dr-yeo-khee-hong-has-been-published

³https://www.elitigation.sg/gd/s/2017_SGHC_143