The Petition

Let’s cut to the chase: more than 1000 doctors signed a petition for a fellow doctor. That’s serious business. 1000 highly individualistic and opinionated doctors. Normally, it is hard to even get three doctors to agree on anything like what to eat for lunch, let alone 1000 on something so complex. And the 1000 included more than a 100 paediatricians. So, history has been made, in a way that well, may well unsettle a few people, as it was meant to be, this Hobbit supposes.

Yes, we are talking about the unsuccessful appeal of Dr Chia Foong Lin to the Court of Three Judges against a SMC judgment and the petition that followed which was signed by more than 1000 doctors.

The petition to MOH stated, “We respect the judgement but we strongly feel the punishment was too harsh”.

The background of the case was that a one year-old child was seen by Dr Chia four times and Dr Chia did not manage to diagnose Kawasaki Disease (KD) on no less than 4 (follow-up) occasions and did not do the necessary investigations to exclude or diagnose KD.

Para. 37 of the Grounds of Decision by the Disciplinary Tribunal (DT) stated “Given the clinical presentations of the Patient and the significant risks of adverse and severe consequences resulting from delayed or missed diagnosis of KD, it would be reasonably expected of the Respondent to order such tests during the course of the Patent’s hospitalisation at Gleneagles Hospital. The Tribunal was of the view that such a failure amounted to a serious negligence on the part of the Respondent”. KD is while not extremely rare, is also not a common disease in Singapore. About 50 to 80 cases are diagnosed in Singapore each year, going by estimates.

Having read the Ground of Decision by the DT and the Judgment by the Three Judges, this Hobbit feels that the management of the patient by Dr Chia was indeed suboptimal. There are a few legal tests and standards in force today in Singapore – the Bolam Test, the Bolito Addendum and now the Modified Montgomery Test are used to see if a doctor is guilty of professional misconduct.

The Hobbit, being totally untrained in the law and also congenitally stupid, uses a simpler test – it’s called the MBBS Final Exam test. If this patient was a long case in the MBBS Finals, would I have passed the final-year student and unleash him to be a house officer had he behaved the way the doctor did?

The short answer is probably “no”. If you are a particularly merciful examiner, you would have at best given a borderline pass to this student. This standard or test would apply to medical officers and GPs. But since this case actually involved a paediatric specialist, the answer is still “no” (held to a higher standard than a final year student taking MBBS final exams or a GP). That’s why specialists are called specialists and are better paid than GPs and medical officers.

But would that alone warrant a 3-month suspension? This Hobbit suspects this is the biggest question that is on the minds of most of the 1000 doctors that signed the petition. This Hobbit doesn’t think it warrants a 3-month suspension either. Maybe a censure and a fine or even a shorter suspension period of say, 2 weeks.

But wait, the Medical Registration Act (MRA) which empowers the SMC DT, doesn’t allow for anything less than 3 months [section 53(2) of the MRA allows for suspension of “not less than 3 months and not more than 3 years”].

This is the problem. And it has been noted to be so since 2011. But nobody who could amend the law did anything about it. Here are the facts: In another unsuccessful appeal case involving Dr Eu Kong Weng against the SMC in 2011, the Three Judges (which included the then Chief Justice) wrote in their Judgement

“We agree that a suspension is called for, and if we had the discretion, we would have imposed a shorter period of suspension. However, the law does not allow us to do that as the 3-month suspension is the minimum mandated by s 45(2)(b) of the Act”.

So, despite the Judges’ statements in 2011 which is on public record, nothing has changed since then. The law was not amended. If a doctor is suspended, it is for at least 3 months. It is noteworthy that in the Grounds for Decision for Dr Chia’s case, the DT did state in para. 65 “Accordingly, the Tribunal ordered that the Respondent be suspended for the minimum period prescribed by law” (emphasis mine). Had the law allowed for a lower minimum period of say, 2 weeks, would the Tribunal have also given the minimum period? And would 1000 doctors have signed the petition if the suspension was just for 2 weeks? All these are of course, speculative and we will never know the answer.

The other issue is with the conviction itself. Many doctors (as does this Hobbit) believed that Dr Chia committed what was essentially cognitive errors which led to suboptimal management of the patient. Should cognitive errors be classified as “serious negligence”? And since there is serious negligence, by logical inference, there must be “non-serious” negligence. This hobbit’s reading of the Grounds of Decision is that Dr Chia had at least 4 occasions to follow up and diagnose or exclude the differential of KD, which she did not. This is regrettable. But a few questions remain:

  • When does cognitive error cross over from “non-serious” negligence to “serious” negligence? What is the legal test for this, to separate the two groups of negligence?
  • Do all cognitive errors equate to serious negligence?
  • Does the disciplinary and appeal process involving the Complaints Committee, DT and Court of Three Judges even recognise this concept of cognitive error?
  • Of even more fundamental importance, is there any room for the realm of honest mistakes, of which cognitive errors is a subset of?

A secondary issue with this case is that of expert witnesses. Expert witnesses called by both sides were noted to be “eminently qualified”, “knowledgeable and objective”.  But the DT preferred the opinion of the expert witness from SMC in the end. The DT noted that the Respondent’s (i.e. the doctor’s) expert witness “took a more sympathetic and charitable view of the case at hand”.

This is a tough one. If an expert was abhorrent of what the doctor had done and was not at least mildly sympathetic and charitable, would the expert even agree to be an expert witness for the defending doctor in the first place? So, if being sympathetic and charitable discounts the expert’s witness weight in the eyes of the DT, then the doctor and his expert witness is already always off to a bad start.

Finally, what are the take-home messages from this case for the doctors on the ground seeing many patients every day? Here’s a few:

  • Investigate and exclude differentials promptly, especially differentials with potentially serious complications, as in KD with cardiac complications.
  • Repeated cognitive errors or repeated honest mistakes may amount to serious negligence.
  • We don’t really know what differentiates non-serious and serious negligence. Better err on the side of caution
  • The fact that the patient did NOT suffer any long-term complications (because the child was diagnosed and treated with intravenous immunoglobulin by another paediatrician a few days later) is NOT a mitigating factor.

Does this mean this Hobbit is advocating defensive medicine? Actually, I am not sure what is defensive and non-defensive medicine. It’s better to say this Hobbit advocates practising “survival medicine”. If my registration as a medical practitioner doesn’t survive, all other points are moot. So first and foremost, if I am to do any further good as a doctor in this country or just put bread on the table, I must first remain a registered medical practitioner. Being unregistered, temporarily or otherwise, is no good at all. Therefore, I just have to do what it takes to stay registered.

 

 

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