Writing this blog used to be a leisurely affair for this hobbit. When he suffers from constipation, halitosis, ingrown toenail or insomnia, he will write a few words to expurgate the symptoms.

But it’s different now. SMC Judgements are coming so hard and fast it’s hard to keep up with them and their absurdity. This hobbit has mouths to feed and feet to shave and consent to take (that complies with the Modified Montgomery Test).

If you thought the Lim Lian Arn (LLA) case was bad, then this one involving psychiatrist Dr Soo Chuenn Chiang (SSC) takes the cake.

Background

There are some very interesting facets of this case that need to be pointed out:

1. Dr SSC was deceived by the patient’s brother who pretended he was the patient’s husband.
2. Apparently, this imposter has not been punished so far for his act of pretending to be someone else.
3. Dr SSC was fined $50,000 for writing and giving a memo to this imposter free-of-charge (At least, presumably, Dr LLA got paid for his H&L injection). In other words, there was NO pecuniary or any other self-interest for Dr SSC to issue the memo.
4. The imposter told Dr SSC the patient was apparently suicidal and needed to be admitted to IMH against her will under the Mental Health (Care and Treatment) Act. IMH is the only hospital facility that can do this, not NUH, where Dr SSC worked.
5. By the Disciplinary Tribunal’s own admission, there was no clear evidence that the memo from Dr SSC led to the patient being issued a Personal Protection Order (PPO) even though admittedly the patient suffered emotional distress from the memo.
6. The SMC lawyers asked for a $20,000 fine and made it amply clear they were not asking for suspension. Dr SSC’s lawyers asked for a fine of $5,000.
7. The DT gave the fine of $50,000 after taking guidance from the Wong Meng Hang case even though BOTH the SMC lawyers and Dr SSC’s lawyers said the sentencing matrix as given in the Wong Meng Hang case did NOT apply to the current case. The Wong Meng Hang case refers to the case where the doctor was struck-off after he caused the death of his patient while performing liposuction.
8. When it came to sentencing, the DT’s starting point was the MAXIMUM fine of $100,000, and after considering the mitigating factors, they came up with $50,000.
9. Dr SSC’s main sin was that of failure to verify the imposter’s identity and authorisation. It is important to reproduce here the entire paragraph (para. 30) from the Grounds of Decision (GD):

We also note that the preventive actions (i.e. verification of identity and authorization) to be taken were not onerous. As submitted by Counsel for the SMC, the steps to be taken by Dr Soo were simple. We could only conclude that the failure of Dr Soo to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to the patient’s medical confidentiality.

At this point, I need to catch my breath because the absurdity herein is nothing but breathtaking. In case you may have missed the point – This DT fined Dr SSC $50,000, a figure far exceeding what both sets of lawyers asked for, taking guidance from a case precedent/case law that both sets of lawyers had stated did not apply in this case. Breathtaking, isn’t it?

Verification

Let us first talk about verification. Is it really “not onerous”? Verification really involves at least two steps, each of which is onerous:

1. Verification of Identity and Relationship
2. Verification of Authorisation (whether general or specific authorisation)

To verify this person’s identity, the person will have to at least produce his NRIC and marriage certificate (as husband). Many case notes do not have next-of-kin information like name, NRIC or handphone number. A verification on the phone is not good enough in this case, bearing in mind that the imposter is the patient’s brother and may have much of the personal information of the patient and her husband anyway. To be fool-proof, you need to conduct a physical “in-person” verification.

Even after the doctor has verified the identity and relationship, there is still the need to verify whether he is authorised by the patient to know the relevant information in question. An example is the spouse asking for an update of the patient. This sounds reasonable but the spouse may be undergoing separation or divorce proceedings with the patient. You will almost always have to counter-check with the patient. Verification of authorisation is practically impossible in this particular case because the patient is not physically present to express authorisation and even if physically present, is she of sound mind to give the authorisation? A memo of authorisation signed by the patient is also not good enough because you never know if the memo is fake or the patient is of sound mind to issue such a memo.

So how could the DT arrive at the conclusion that “the steps to be taken by Dr Soo were simple”? Can we see the DT’s “action plan” to do so, in order that we simple people, the humble folks who practise medicine on the ground, can understand why it’s “simple”?

This hobbit is a simpleton. And even I cannot see why it’s “simple”.

As a doctor, every day, we have to balance between the need to do no harm, to do good and the need to respect a patient’s confidentiality. When analysing the ethical issues underlying a medical legal case, you cannot analyse one factor, such as confidentiality, in isolation while ignoring the others. Dr SSC is obviously trying to prevent harm from happening to the patient because she was apparently suicidal. Dr SSC was trying to do some good. In the course of it, he fell to a scam by an imposter. All this was given short shrift by the DT and he was given a $50,000 fine.

Sentencing and Penalty

When this happened, Dr SSC was an Associate Consultant. His take-home pay (including call allowance etc) then was probably about $10,000 a month. In other words, he took home practically nothing for five months and lived off his savings, all because he wanted to protect a psychiatric patient from harming herself by writing a memo to her ‘husband’ who turned out to be an imposter.

It is also interesting how the DT appears to come up with the figure of $50,000. Paras 16, 31 and 32 of the GD implies that they likened the old maximum fine of $10,000 to the new maximum fine of $100,000 (a factor of 10). Under the old fine regime, Dr SSC’s case would have warranted a fine closer to $5,000. Hence under the new fine regime, Dr SSC should be fined $50,000 (a factor of 10 also).

Firstly, if you read the parliamentary proceedings when the Medical Registration Act was amended and the maximum fine was raised from $10,000 to $100,000, it was raised to fill a gap:  The gap between $10,000 and the minimum suspension of three months. This was the intent of Parliament and MOH when the law was changed. This is clearly stated in Parliamentary proceedings of 11 Jan 2010. It is not a simple “everything x 10”.

But just to make things clear, this Hobbit does not think that Dr SSC is without fault. Medical confidentiality was breached, even though inadvertently and, probably out of some naivety to do good (Yes, trying to do good can be viewed as being naïve in today’s medico-legal climate). He needs to be advised, warned, or even censured. But a $50,000 fine?

General Deterrence

Again, we need to go back to the issue of deterrence. In particular, general deterrence, – so that other doctors are generally deterred from repeating Dr SSC’s mistake. There is also the need to uphold the public’s trust and respect for the medical profession. These are the usual reasons given when giving a deterring sentence, which the DT did give, and the SMC lawyers did ask for.

If someone actually thinks Singaporeans’ respect and trust for doctors is eroded because Dr SSC fell prey to an imposter and thereby breached medical confidentiality, that someone is insulting the intelligence of Singaporeans. Singaporeans are far more insightful and cleverer than that.

As for our doctors, you can bet your last dollar we are deterred big-time. Already, there are new circulars and work instructions issued in many hospitals and clinics stating that they no longer entertain telephone enquiries of patient’s condition by relatives. Also, all requests for memos by patients and relatives have to routed to the Medical Records Office (MRO) of hospitals who will process such enquiries (including verification of identity, relationship and authorisation, of course). These new work processes will take at least a few days and entail fees to be paid. Therefore, much more money and time are involved.

Weaponization

Let us now take a deeper dive into one of the underlying issues of the day behind both the LLA and SSC cases. Reading the GDs of these two cases, you will see that the DTs went to great lengths to take guidance from precedents, case law and the comments of Judges in other medico-legal cases before arriving at the judgement(s) and sentence(s) of the case at hand.

Case law and legal precedents are powerful features and tools of the Common Law System which Singapore adopts. But as this Hobbit sees it, there is a small problem that needs to be understood and addressed in the context of medico-legal cases. When senior judges (such as High Court Judges or Court of Appeal Judges) set precedents and case law, they are almost always interpreted and used by people almost as wise and acquainted with the Law as themselves – lawyers and other judges. They can see the nuances of each case law and to apply them precisely and with finesse. Precedents and case law are great tools for master craftsman of the law.

But with medico-legal cases, these tools end up at Complaints Committees (CC) and DTs, and they are manned mainly by doctors. These CCs and DTs see ethical issues as mainly simple black and white, not in many contextual shades and nuances. They are also not helped very much by lawyers who (understandably) want to win and win big in an adversarial legal system. Hence, case law, precedents and even the SMC Ethical Code and Ethical Guidelines (ECEG) get “weaponized” to secure a conviction. Put in harsh sentencing (without considering fully why you need harsh sentencing and the effects such harsh sentencing have on society at large) in the name of general deterrence and we get Weapons of Mass Ethics Destruction (WMED).

The fact is, doctors are not as clever as lawyers and judges. Lawyers and judges are of a higher plane than us lowly MBBSes. That is why lawyers are never named in obituaries. When a person dies, he may thank his pet dog, domestic helper, and doctors and nurses but NEVER lawyers.

Yup, we are in the same level as pets, and domestic helpers. Pretty down-to-earth folks. Like domestic workers, we have frequent interactions with bodily fluids and excreta and even occasional dalliances with pus. How can such people really and fully understand and use delicate tools like case law and precedents? What we can handle with our limited intellect is perhaps clear and detailed legislative laws and regulations to govern our medical practice. Brilliant legal stuff like the Modified Montgomery Test is probably only understood fully by MBBS (Honours) doctors and there are only a handful of such mutants every 10 years.

The last question that needs to be asked is perhaps the role of senior legal officers in the DTs. This has been so since 2010 when the MRA was revised, and after several controversial rulings by SMC Disciplinary Committees (precursors to DTs) in the preceding few years. The “lawyerization” of DT is supposed to address shortcomings in previous DCs and put DTs on a sounder legal footing; they are supposed to inject legal expertise, sound judicial thinking into the DTs, so as to prevent doctors on DTs from doing legally imprudent things, so to speak. But nine years down the road, as anyone can see, the problems and controversies with DT rulings have not diminished significantly at all. Someone should look into this.

Consentologists and Verificationologists

The joke on the ground is that with the LLA and this SSC case, you will need an army of “Consentologists” and “Verificationologists” to keep the system going. Maybe the SMC and SAB can introduce these as new specialties. This hobbit will sign up for the training. And so much for the Minister for Health saying the current rate of growth of the MOH Budget is “unsustainable” just earlier this week. It will become even more unsustainable with Consentology and Verificationology taking their vice-like grip on the day-to-day operations of healthcare services.

 

 

The practice of medicine must evolve with the times, and is necessarily ever-changing. How we change the practice of medicine is heavily dependent on new evidence gleaned from scientific discoveries as well as subjective factors such as patient expectations and even doctor’s expectations. These are not necessarily bad things

But change in medicine is never ever a good thing when the change is driven mainly by a change in medico-legal climate. Especially when these changes are fueled by fear and anger, whether they may be on the patients’ part or from the doctors’ perspective.

As we all know, fear and anger are two of the most powerfully evocative emotions in the gamut of feelings that the human race can muster. Fear and anger are two emotions that are often used by populist and irresponsible politicians to get more votes in election campaigning. Fear and anger, together, has a life of its own and spreads like wildfire.

But this is exactly what doctors are experiencing now in Singapore in the wake of the $100,000 fine by SMC on Dr Lim Lian Arn. Fear which has led to anger which in turn is feeding the original fear.

On 30 Jan 19, SMC issued a public statement of clarification of case, stating that “Doctors are not expected to inform patients of all possible complications”. This is helpful. But it is not enough. Let this Hobbit elaborate. We need to directly address:

• Fear and anger over what is expected of the doctor to obtain an effective informed consent
• Fear and anger over the magnitude of the fine ($100,000)

Fear and anger over what is expected of the doctor to obtain an effective informed consent

In short, the laundry list described in the charge and the Grounds for Decision was perceived to be setting a new standard of care. Thankfully, the 30 January 19 Statement by SMC has addressed this by saying a doctor doesn’t have to inform his patients of all possible complications. But it does say that “however, the DT indicated that it would be good clinical practice to document in the case notes that a patient had been informed and was agreeable to the injection, a proposition which no doctor would reasonably disagree with……; the Decision merely reminds doctors that they should document the fact that they have explained the treatment or procedure and the patient’s consent”.

Questions from this (also reasonable) Hobbit for the genius who drafted this document:

• Must I document every “treatment or procedure” that I had explained to the patient and that he had consented? Treatment includes simple stuff like prescribing drugs, CRIB (complete rest in bed) and applying dressings. Every time you remove a urinary catheter, chest tube or drain, it is a procedure (let alone inserting one).
• How does a junior doctor in charge of say, half the ward (about 15 to 20 patients) do this and have time for lunch and go to the toilet? Remember, every drug is a treatment, and practically everything you do in a ward is a procedure other than bathing and feeding the patient and bringing the patient to the toilet.
• Does the person who drafted this understand what resources it entails just to achieve his one landmark sentence of “the Decision merely reminds doctors that they should document the fact that they have explained the treatment or procedure and the patient’s consent”?

Essentially, there are three “Categories” of activities a doctor prescribes or performs in vast numbers every working day:

1. Treatment and procedures that require written consent from the patient
2. Treatment and procedures that require documentation of verbal medical advice and patient consent in the casenotes
3. Treatment and procedures that do not require written consent or documentation

In the past, the vast majority of treatment and procedure belonged to the last Category. We don’t document that we had explained the possible complications of most simple procedures or drugs and that the patient had consented. Now it appears that the default option is Category 2 instead – we have to document almost everything.

Can someone in SMC have a discussion with the Ministry of Finance on how Singapore will fund the resources needed for this new level of documentation?

For the avoidance of doubt, this hobbit thinks a H&L injection should fall under Category 2. But most daily procedures and treatments actually should remain in Category 3 and not be pushed up to Category 2.

One should not make sweeping statements like “a proposition which no doctor would reasonably disagree with” unless one really understood the practice of medicine as it happens on the ground given the resources this country allocates to healthcare. This new standard of documentation may already have happened in Beverly Hills, California, but it doesn’t happen here often at all, and certainly not in the public healthcare system.

Experts and “Expertism”

Much has been said about the expert opinion in this case. The Complaints Committee (CC) and DT accepted the expert opinion of what is the standard of care to be applied. It has been said often that the CC and DT did not act without expert advice and opinion.

This hobbit believes:

• The answers you get depends on the questions you ask
• People behave differently when they are labelled as “experts”. They have to display behaviour befitting that of experts (I call this “expertism”).
• The SMC DT should concern itself with what constitutes basic or minimal behaviour that can be considered as NOT being guilty of professional misconduct, and not apply standards of good or best practice in disciplinary proceedings.
• The SMC lawyer should likewise concern itself with establishing that the doctor failed to meet minimal standards consistent with professional misconduct and NOT good or best practice

The laundry list of complications that appeared in the charge and the Grounds of Decision was that of good or best practice, but not minimal ethical standards. Were the experts asked to give minimal standards or good or best practice? Even if they were not so asked, did the experts feel inadvertently compelled to give good practice standards because they were asked as “experts” – i.e. they had to display “expertism” in their answers?

Perhaps, when next time an expert is consulted, it should be specifically stated he is being asked to give minimal standards, below which, the doctor should be considered to be guilty of professional misconduct.

We should take a leaf from licensing of healthcare institutions. MOH licenses healthcare institutions such as hospitals so that they can provide health services. These are minimal standards. If these hospitals want to do better, they can go for accreditation such as the JCI accreditation scheme. But the two are different and we should not conflate them. Licensing ensures a minimal standard, accreditation puts in place good or best practices. Similarly, doctors are licensed because they are fit to practice and they are fined or they have their practice license suspended or taken away because they fail to meet these minimal standards of ethics and competence, not for higher or aspirational standards.

Paradoxically, “expertism” is easier to put in place than setting of minimal standards. One doctor describes this as “Google Medicine”. An expert can search for the list of complications on the Internet and furnish it to SMC in a matter of minutes. It is actually more difficult to decide what are the minimal standards one must achieve to obtain and maintain licensing. A good comparison is that of a Head of Department assessing residents: It is easy to decide who are the good residents who regularly impress you, but it is difficult to decide whether you would want to sign up and pass a marginally or poorly performing resident or not.

Fear and anger over the magnitude of the fine of $100,000

In this hobbit’s first column on this matter, he failed to mention a very important fact – statutory fines, such as the $100,000 fine by SMC, are not covered by medical indemnity schemes. Whether the fine is $1000 or $100,000, the doctor has to pay the full amount to SMC. A $100,000 fine is painful for even the richest doctor in Singapore, but it is financially crippling to many junior doctors such as residents and junior specialists.

Don’t get me wrong, fines should be punitive in nature. That’s why they are fines and the threat of this fine drives a person to behave correctly. But when the amount is so large such that it becomes an existential threat to the professional and the risk-reward ratio doesn’t makes sense to the professional, then a different type of behavior ensues.

In a market economy like ours, what options does any rational person do when he is faced with a financial penalty that is so large it becomes an existential threat? Let’s take the H&L injection as an example –

1. He tries to insure it away. As aforesaid, this is impossible, and he has to pay the fine out of his pocket
2. He tries to price-in the risk. The correct risk premium is probably out of reach of at least 70% to 80% of Singaporeans. For doctors in the public sector, they have no pricing power, because prices are set by the hospital or polyclinic administrators and doctors are paid a fixed salary and not paid for office procedures. The only people who can price in the risk and who have patients who are willing to pay the risk premium risk are the private specialists, who probably only serve the top 20 to 30% of Singaporeans. H&L injections will continue to be offered in this limited segment.
3. He avoids the risk by not offering this service altogether. This is probably what has happened and most Singaporeans will find it more difficult to get a H&L injection nowadays than compared to a few weeks ago.

In case people in power do not understand (because they are probably the most well paid people in this country, let this hobbit state clearly – a $100,000 fine is an existential threat to a medical officer or resident, a GP or even an Associate Consultant.

The vast majority of people living on this island will now be deprived of a simple procedure  that is effective, very safe and was cheap.

Frankly, if I were still a young polyclinic Medical Officer with student loans to pay, I would stop giving H&L injections because a $100,000 fine would bankrupt me. It doesn’t matter if the $100,000 fine was for lack of informed consent or lack of documentation of getting an informed consent. The fact is, I cannot take the risk. Ask any professional risk management consultant and he will tell you that assessing any risk is not just about assessing the probability of incurring punishment but also related to the severity of the consequence (in this case, the punishment of $100,000).

The same goes for other junior doctors who perform all these high-risk procedures in the wards on a day-in, day-out basis. Fortunately, our junior doctors continue to display high degree of professionalism and dedication to their patients.

But the bottom line is – when the penalty is cripplingly great and the reward remains small, (because you cannot price-in the risk), most doctors (and most human beings actually) want CERTAINTY of avoiding the penalty. This is basic and rational behaviour. And the only certainty is not to offer the service. Any human being with average intelligence will come to this conclusion.

The fact is the Lim Lian Arn case has set a new standard for penalties. This issue has not be addressed at all by the 30 January 19 Statement by SMC.

It is interesting to note what Finance Minister Heng Swee Keat wrote today in the major newspapers “(a Zaobao reader) is right to caution against creating a public service culture where “Doing more means making more mistakes, doing less means making fewer mistakes; and if we do nothing we will make no mistake”. That would be the most serious mistake we could make”.

This is probably what has already happened in the ‘medical’ service culture now with regard to H&L injections given what has happened in the Lim Lian Arn Case: Do nothing, and so make no mistake.

Externality Effect

That brings us to  the issue of externality effect or “externalities” in short. This is a commonly-used term among policy wonks and economists. Wikipedia describes externality the cost or benefit that affects a party who did not choose to incur that cost or benefit.

We are where we are today because of the Externality Effect. If everything that happened in the Lim Lian Arn case only applied to Dr Lim, no one would be flustered. But in the Common Law system that we inherited from the British, precedents and case law matter a lot to all of us. While SMC is not exactly a court, but their Grounds of Decision serve as precedents and “case law of sorts” for future SMC cases.

Therefore these aspects of the LLA case have externalities (whether cost or benefit) that we, the medical profession at large, did NOT choose to incur:

• How the charge (the laundry list of complications) was drafted
• The suspension of five months that the SMC lawyers asked for
• The fine of $100,000 which Dr Lim offered and which was accepted and the reasons for not imposing a suspension
• The reasoning for the conviction and sentencing as given in the Grounds of Decision, including the effectiveness of any mitigation factors, if any
• The need to document almost everything as given in the SMC Statement dated 30 Jan 19.

To this hobbit, the ONLY benefit or positive externality effect the profession derived from the Lim Lian Arn case is that not all cases of (lack of) informed consent will end up with a suspension and a fine may suffice (albeit a big fine).

The externalities of this case extend not just to the medical profession, but to ALL healthcare professionals that carry out procedures and prescribing and dispensing of treatment, including dental surgeons, pharmacists, physiotherapists, TCM practitioners etc. The magnitude of fines may differ, but the principles and effort of getting an effective informed consent should not vary much. For example, the TCM practitioner-patient cannot be less deserving of a less patient-centric advice process than a patient seeing a Western Medicine doctor, right?

The Limitations of SMC and the Government

A lot of criticism has been levelled at the SMC members, the SMC lawyers, the Complaints Committee, and the Disciplinary Tribunal recently. The four parties are often conflated in discussions but actually they function quite independently.

The first question to ask is, what gives SMC the right to even exist, and to investigate and punish doctors? The answer is the Medical Registration Act (MRA) which is passed by Parliament. Parliament passes laws like the MRA. Then the MRA is administered by MOH and SMC. The SMC’s power to publish the Ethical Code and Ethical Guidelines (ECEG), to punish and extent of punishment is provided for in the MRA. So in a sense, the SMC’s DT also has the power to interpret the SMC Ethical Code and Ethical Guidelines as well as the MRA itself. But like all laws in Singapore, the FINAL power to interpret any law or the final arbiter of any law does not rest with a ministry or a statutory board but the Courts. That is why the patient, doctor or SMC lawyer can all appeal to the Court of Three Judges (Sometimes five) if they are unsatisfied with the DT’s judgement. The Court of Three Judges always consist of High Court or Court of Appeal Judges, and sometime may even include the Chief Justice himself.

So in a sense, the SMC DTs and  the SMC lawyers must take guidance from the learned Judges when they pass judgment on SMC appeal cases brought before them. In recent years, a few precedents or case laws which may or may not have a bearing on the Lim Lian Arn include:

• The Courts have on more than one occasion asked that SMC metes out more severe sentences to doctors
• In the SMC vs Ang Peng Tiam case, a lifetime of good clinical practice record is NOT an effective mitigation plea. In fact, being senior may work against you. The only effective mitigation plea in this case was that there was a delay by SMC in processing this case.
• In the Hii Chi Kok vs London Lucien Ooi case (Which is NOT an SMC Case, but a case brought by the patient directly against the surgeon through our Courts), the Modified Montgomery (MM) Test was first confected and applied. The MM Test will apply to all medico-legal cases (including SMC cases) in this country to test how medical advice is offered.

Of course, what these cases demonstrate and instruct are principles. Whether these principles are correctly applied (as the Judges would have wanted it) on the ground is a big question.

For example, is the five-month suspension or $100,000 fine appropriate in this case, given that “ there is nothing to suggest that the complications experienced by the Complainant were in any way permanent or debilitating” (Grounds of Decision, Para. 57)?

In the Grounds of Decision, it was recorded that the SMC lawyer asked the DT members to “not to give any weight to the mitigating factors such as the potential hardship to the Respondent (i.e. Dr Lim) arising from the conviction, the testimonials, character references and acts of community service and the Respondent’s long, distinguished track record”. (Para 33 of the Ground of Decision). In fact, it was recorded in para 27 of the same Grounds that had Dr Lim not submitted an early plea of guilt, the SMC lawyer would have asked for six to 8 months of suspension.

This hobbit wonders if this severe stance by the SMC lawyer was in some way influenced by what had happened in the Ang Peng Tiam case that was brought before the Court of Three Judges?

Also, in the indirect application of the MM Test through the drafting of the charge, should a laundry list of complications of a H&L test be listed out?

On 7 Feb, The President of the Pharmaceutical Society of Singapore, Ms Irene Quay wrote in a letter to The Straits Times, “it is important for the Ministry of Health (MOH) to provide clear guidance on the extent of informed consent for low-risk medications or medical procedures if the modified Montgomery Test is to be applied”.

To be fair to the government, MOH did not ask for the MM test to be confected or applied. That was the decision of the Judges. In fact, the Attorney General (AG) Chambers specifically asked for the Bolam Test and Bolitho Addendum to be retained in their submission to the Court of Appeal in the Hii vs Ooi case. But the Court of Appeal decided that the MM test will replace Bolam and Bolitho in Singapore on matters pertaining to medical advice.

I guess MOH and SMC are as much trying to understand what stiffer penalties mean and how should the MM test be applied in day-to-day medical advice situations when they administer the MRA. They can issue guidance, but it will be very challenging to have “clear” guidance when they didn’t come up with the MM test in the first place.

Who And What Are We Trying to Deter?

The main purpose of the SMC is to protect the public from bad doctors and in doing so, also serve justice. At the individual level, patients who have been harmed by doctors guilty of professional misconduct deserves justice from the SMC.  Justice has to be done, and has to be seen to be done.

Some have argued that stiffer penalties are necessary today to deter more doctors from practising medicine such that public confidence in the medical profession is not eroded. This is called deterrent sentencing. It is meant to deter others from committing the same act of professional misconduct and the objective of this is termed “general deterrence”. General deterrent sentencing is an intended potential externality. This is in contrast to “specific deterrence”, in which sentencing is targetted at preventing the specific doctor from erring again.

If you look at the latest SMC Annual Report, 12 doctors were given letters of warning and another 23 were given letters of advice. 12 cases were brought before Disciplinary Tribunals and concluded in 2017, of which two are pending appeal before the Court of Three Judges and two cases were concluded without any punishment for the doctor. Eight were actually censured and/or punished in some way. These numbers have been rather stable in the last 10 years. Even if we assume the worst-case scenario in which the two cases pending judgment before the Court of Three Judges will actually be punished in the end, the number for DT cases in which doctors will be found guilty of professional misconduct is 10.

Assuming that general deterrent sentencing is effective, how many doctors do we think we may have deterred from behaving in a bad way? Let’s give this a generous multiple of 10. 10 times 10 is 100. In other words, we have deterred 100 doctors from behaving in a bad way such that he is guilty of professional misconduct. By the same factor of 10, another 350 doctors or so would have been not served with letters of warning of advice because of the deterrent effect of stiff penalties.

The rest would not have committed the offence anyway, because this hobbit would like to believe most doctors in this country are still ethical and professional ones.

But in the fallout from the Lim Lian Arn case, thousands of doctors are now deterred from giving a H&L injection, a safe, simple and cheap procedure that would have benefited many tens of thousands of patients: Just because one patient wasn’t properly counselled and hence did not give an informed consent and thereafter she suffered complications that were not “permanent or debilitating”?

So we need to ask, who and what are we deterring? Do the cost-benefit numbers add up and make sense for the greater good of society?

Conclusion

The Chief Justice said in his speech at the opening of the 2016 Legal Year: “Medical care is of direct concern to all Singaporeans and we must act to avoid a situation where the practice of medicine comes to be adversely affected by the medical practitioner’s consciousness of the risks of malpractice liability.”

This “consciousness” has already come to pass in Singapore. The “situation” is already unavoidable.

This hobbit does not see any conclusive way out of the current problematic situation unless new laws are drafted by MOH and passed by Parliament to restore a more sustainable practice environment, not just for doctors, but for all healthcare professionals, and ultimately for the patients as well.

 

 

 

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.