About That $100,000 Fine for An Injection

So, this is how the practice of medicine, as we knew it, dies in Singapore.

Not quietly or softly in the arms of compassion and empathy, but throttled inadvertently by the hands of a $100,000 fine.

Interesting Points

There are many interesting points about the case.

Firstly, there is the patient who complained against Dr Lim Lian Arn. It is interesting how the incident of the H&L injection took place on 27 October 2014 but she only complained against Dr Lim on 11 January 2016, some 14 months later. Especially when she was purportedly unhappy with the adverse effects and complications which are quick to surface and temporary: – pain and inflammation, discolouration, paper-thin skin and loss of fat and muscle tissues. What took her so long to complain?

Secondly, the SMC lawyer asked for a 5-month suspension for Dr Lim. This is mightily interesting. The ill effects suffered by this patient are far less serious than the one suffered in the Eu Kong Weng case. In the Eu Kong Weng case, also a case involving informed consent, the patient suffered serious complications. Dr Eu was suspended for 3 months and he appealed to the Court of Three Judges. The Judges upheld the (minimum) 3 month suspension but commented that had the law provided for less than a 3-month suspension, then a shorter period would have sufficed. But since the minimum period was a 3-month suspension, then the Judges had no choice but to uphold the 3-month period since they felt a suspension was indeed warranted. If so, on what basis did the SMC lawyer from Drew and Napier ask for a 5-month suspension? This hobbit does not understand. I hope SMC President, Registrar and members understand at least retrospectively why a 5-month suspension was warranted to be asked for by their lawyer.

Thirdly, we come to the doctor himself and his lawyer. Faced with the SMC lawyer asking for a 5-month suspension, this Hobbit speculates that chief on their mind is that they want to avoid a lengthy suspension. So, they pleaded guilty at first instance and offered to pay the maximum $100,000 fine or the minimum 3-month suspension. This is perfectly understandable because for a senior and successful orthopaedic surgeon in private practice, he probably makes more than $100,000 in 3 to 5 months. A 5-month suspension would mean he has no income in that period and worse, he has to bear the fixed costs of running a clinic, e.g. the rent and the pay of his clinic assistants and nurses. A secondary concern (if they think far enough) is that should they offer something low like $5,000 or $10,000, and should the SMC Disciplinary Tribunal (DT) accept, there is no guarantee that the SMC lawyer will accept and instead, he may choose to appeal to the Court of Three Judges. In other words, in trying to avoid what they deem as undesirable consequences, Dr Lim Lian Arn has to make a generous-enough offer such that BOTH the DT and the SMC lawyer will accept. In his self-interest, Dr Lim did as he was supposed to do. Nothing wrong with that. Perhaps this Hobbit would have done the same, given similar circumstances.

Fourthly, we go on to the Disciplinary Tribunal (DT) itself. Faced with an offer of $100,000, they had three choices – they can either accept or lower the fine, or still suspend Dr Lim. Thankfully and rightly, they decided that Dr Lim should not be suspended. They certainly couldn’t raise the fine, since the $100,000 was already the maximum amount allowed under the law. It would look very strange if they decided to lower the fine since the defendant already offered $100,000 even though the DT thought the closest comparison to this case was that of Dr Eric Gan, in which Dr Gan was fined $5,000. So, as expected, they decided to fine Dr Lim $100,000, the amount that Dr Lim himself offered. This Hobbit does not think the DT did anything questionable up to this point.

What is indeed questionable is the appropriate standard of care that this DT promulgated for taking an informed consent for an H&L injection.

They said that for the patient to give an effective informed consent, she should have been told of

(a) post-injection flare, in particular, that:

(i) the Complainant may experience increased pain and inflammation in the area injected that can be worse than the pain and inflammation caused by the condition being treated;

(ii) the onset of the post-injection flare is usually within two hours after the injection and typically lasts for one to two days;

(b) the post-injection flare can be treated by rest, intermittent cold packs and analgesics;

(c) change in skin colour including depigmentation (loss of colour), hypopigmentation (lightening), and hyperpigmentation (darkening);

(d) skin atrophy (thinning);

(e) subcutaneous fat atrophy;

(f) local infection; and

(g) tendon rupture.

To me, this is exactly the kind of “Information dump” that the Judges said should be avoided when they formulated the Modified Montgomery (MM) test for Singapore in 2017 in the Hii Chii Kok vs London Lucien Ooi case.

Fifthly, the MM Test itself, now obviously in full force in SMC trials, including this case.

The MM test replaced the Bolam-Bolitho (BB) test because the five Judges (in the Hii Chii Kok case) felt that in the provision of medical advice (which includes getting the patient to give an effective informed consent), the process must be patient-centric rather than doctor-centric. Nothing wrong with that in theory.

A few doctors, faced with disciplinary proceedings and medical negligence suits, relied on the Bolam test in their defence, almost to the point of abusing it. They would nominally come up with a few friendly “expert” opinions to justify their actions and pass the Bolam test.

This was the weakness of the Bolam test. But the Bolam test also had a strength – it provided for a reality check. The Bolam test required one to ask what was actually practiced on the ground by many doctors and took reference to such common practices.

This “reality check” element is somewhat missing in the MM Test. So, the DT accepted an information dump checklist as the required standard of care in giving medical advice when practically no one does this. The only reality check the DT was seen to undertake was that it accepted that it was not universal practice to get a written consent for a H&L injection.

Dr Lim Lian Arn was charged under the 2002 version of the SMC Ethical Code and Guidelines (ECEG). Many respected orthopaedic surgeons have been on the SMC as members since 2002. In fact, at least one of the current members is an orthopaedic surgeon. All the DT has to do is to ask these SMC-member orthopaedic surgeons if they routinely gave ALL such information to a patient going for H&L injection, and documented as such in the casenotes as well, to know what is the reality on the ground. This hobbit is quite confident that practically all orthopaedic surgeons who have been on SMC at any time since 2002 will fail this simple test. It’s just that none of their patients complained, unlike Dr Lim’s.

There is nothing in the published Grounds of Decision that suggests they did such a reality check. Indeed, the MM test itself does not include such an element of reality check except that it suggests that expert opinion could be taken into account when appropriate. The test of materiality (in deciding what information needs to be given) is solely from the patient’s perspective and nothing much about what was actually being practiced on the ground.

Nonetheless, the standard of care stated in the Grounds of Decision of the DT is Medico-Legal Reality.

What’s next

The H&L Injection

Lets’ get back to the procedure itself – H&L injection. This is a cheap, effective and common office procedure commonly done in the specialist and GP setting. But no more in the post $100,000 fine era. This hobbit would like to differentiate by calling the past the pre-LLA era and the current period as post-LLA era. (Dr Lim Lian Arn deservedly gets naming rights to such a momentous incident)

Ask any business school professor and he will tell you to price in the risk. Here is how you price in the risk:

Pre-LLA era price for a H&L injection by a GP – $50 to $150. Let’s take $100 as a reference price.

No of H&L injections you think you give before a patient complains: 100

No of complaint cases that will be successful (where you pay a fine of $100,000): 1 in 3

Estimate: 300 cases of H&L will result in 3 complaint cases, of which 1 will be successful

Economic cost: one $100,000 fine, AND estimated $200,000’ or about $70,000 a case of emotional distress, time lost, effort in preparing for the 3 cases of complaints etc.

Total price-tag for risk premium is $300,000 for 300 cases

Risk premium is therefore $1,000 a case

New Price for one H&L Injection: $1000 + $100 = $1,100

Conclusion 1: Price of H&L injection by a GP in the post-LLA era: ~$1100 (up from $100)

Of course, these numbers will only be significantly higher in the specialist setting. A H&L injection by a hand or orthopaedic surgeon may now cost $2000 to $4000 in the post-LLA era, after taking into account their own risk premiums.

Many patients in the HDB heartlands cannot afford this thousand-dollar jabs and the neighbourhood GPs know this too. Most of these patients will then be treated conservatively with brace and medication, resulting in more unnecessary pain or suffering by the patient (and may cost more than $100 but less than $1100). Or these patients will be referred to the public sector. This is not to say that the public sector doctors can do a better job than private GPs with better outcomes and therefore attract less complaints. It is just a simple transfer of the risk premium to the public sector where much of the costs are subsidised by the taxpayer. The richer GP patients will be referred to the private specialists because they can afford to pay the prices charged by the private specialists. The private specialists too may refer their poorer patients to the public sector.

The patient that will complain to the private GP sector will also likely complain in the public sector or in the private specialist sector. In the former case, the state/taxpayer takes up the risk and in the latter, the risk premium is covered by higher private specialist fees.

Incidentally, fee benchmarks currently do not cover office procedures like H&L injections.

To summarise – there will be little demand for a $1,100 H&L injection in the HDB estates, and GPs are also unwilling to take up this new risk premium for a hundred dollars or so. In simple economic theory, the demand and supply curves do not cross and there will be little or no transaction (i.e no volume of work). Consequently, the standard of care given in the Grounds of Decision of the DT, while now is Medico-legal Reality, will also in all likelihood effectively become Virtual Reality in the HDB Heartlands. How interesting.

Conclusion 2: In the post-LLA era, not many HDB heartland GPs will offer H&L injections. H&L Injections will go the way of dodo bird in the heartlands

The expected repartee from people who are out of touch is that this is not about risk premium but about good consent-taking and documentation. If you take a good informed consent and document as such, you should be OK.

Frankly, not many doctors are interested in this spiel anymore. Certainly, after the Eu Kong Weng case, no doctor is really sure what will be deemed effective informed consent-taking under the scrutiny of SMC or the Courts. And if I have to take this kind of risk for a $100 job, I might as well not offer the service and refer to someone else to do the job (and take the risk).

This is probably the outcome that will take place in the next few months, if it has not taken place already. Please do not call this Defensive Medicine. As this Hobbit has said before, it is called Survival Medicine. It’s the only practical way to survive. For me at least.

But it’s not just about H&L injections. How about other simple everyday office procedures like Speculum Examination, Proctoscope Examination or Ear Syringing? The same principle applies and a heartland GP will transfer the risk premium to the public sector or the private specialists by referring to them.

Conclusion 3: In referrals we trust (to avoid taking on insufferable professional risks)

You may ask: How did we get to this situation?

Answer: because everyone behaved in a way that is expected of them

The Judges wanted to move from a doctor-centric to a patient-centric process when medical advice is provided. They promoted patients’ rights to autonomy through promulgating the MM test.

The lawyer wanted to do a good job as SMC’s lawyer by pushing for a deterrent 5-month suspension. He is defending a particular patient’s rights to autonomy as well as promoting patients’ rights in general by going for a deterrent sentence.

The SMC DT wanted to be seen to be defending/promoting patients’ rights as well by accepting Dr Lim Lian Arn’s offer of a maximum $100,000 fine. They also want to send a signal to all doctors that the standards (as they see it) as prescribed by the MM Test are well in force when they promulgated that long list of potential complications and side-effects for a H&L injection.

Dr Lim Lian Arn acted as he should, by offering to pay $100,000 or be suspended for only 3 months (Reasonable speculation: he wanted to avoid a lengthy suspension and also a possible appeal from the SMC lawyer should the punishment be deemed too low).

The patient-complainant is probably satisfied too that the doctor was fined $100,000. Whether she proceeds on to a civil suit or not, we don’t know.

Every party got what they wanted: The Patient, The Doctor, The SMC Lawyer, The Judges, and The SMC DT.

But this Hobbit cannot help but wonder if Singapore society deserves more.

Because the Likely End-Result is collectively, patients will find it either much more difficult to get a H&L Injection from a doctor or will have to pay significantly more for it. And the same goes for other common, cheap and effective office procedures. A situation of either scarcity of service providers and higher prices will result, leading to unnecessary higher healthcare expenditure.

Society will have to pay for this in the long run. Unless the politicians and senior civil servants step in soon with some form of tort reform for medico-legal cases, the practice of medicine, as we knew it, has truly died. And the biggest losers are the patients collectively and society. Not the doctors. I just earn a few hundreds less a month, but I’ll live. Don’t worry.