Paying the price when rulings are overturned

An unusual thing happened when obstetrician and gynaecologist Lawrence Ang appealed against the Singapore Medical Council's (SMC) decision that he was guilty of not acting in his patient's best interest and should be suspended for three months.

First, the Court of Appeal, comprising Chief Justice Sundaresh Menon and Justices Andrew Phang and Judith Prakash, overturned the guilty verdict last month.

Second, and this is the unusual part, the medical watchdog was ordered to pay Dr Ang's legal costs for the disciplinary hearing as well as the appeal.

That ruling was a first, and sets a possible precedent for future cases. Up until Dr Ang's case, doctors always had to pay for their own legal costs even if they were cleared of wrongdoing by the courts. Those found guilty had to pay both their own as well as the SMC's costs.

The reason for this was spelt out in 2010 by then Chief Justice Chan Sek Keong and Justices Andrew Phang and V. K. Rajah when they overturned another SMC guilty verdict against a doctor.

They explained that when it came to legal costs, "we have decided that in all the circumstances, we will not order the SMC to pay the costs of the proceedings as we are prepared to give it the benefit of the doubt that it had acted in good faith and in the public interest in trying to stop what it believed to be an inappropriate treatment for a particular medical condition".

So even if the SMC was ultimately proven wrong, it would be spared paying legal costs.

But when Dr Ang's case turned up, the apex court decided quite differently, sparking discussion in medical and legal circles.

In 2009, Dr Ang delivered a baby who had an infection and congenital pneumonia that required five months of hospitalisation.

The disciplinary committee made clear that the baby's condition was not the doctor's fault, but suspended him for three months for not having a neonatologist, a specialist in the care of newborn infants, present or on standby for the delivery, given signs that it may not be well.

Of the seven expert witnesses called, five saw no need for a specialist to have been on standby. The Court of Appeal criticised the committee for accepting the opinions of two experts who thought the specialist ought to have been present, without explaining why it ignored the majority who felt otherwise.

Several lawyers told The Straits Times Dr Ang was awarded costs most likely because the SMC was not only clearly wrong in finding him guilty, but also because the way it had done so appeared highly questionable.

They pointed to the judges saying the committee's findings were "contrary to the evidence" as an indication of how badly the committee had erred.

The irony is that if the SMC had cleared Dr Ang, he would have had to pay his own costs.

Costs for such hearings easily run into tens, often hundreds, of thousands of dollars, as doctors normally appear before disciplinary committees with legal counsel, usually paid for by the Medical Protection Society (MPS).

The not-for-profit organisation for health-care professionals offers help with legal and ethical problems that arise from their professional practice. Doctors pay subscription rates according to the risk of their practice, from $1,765 a year for a general practitioner to $36,370 for a doctor offering cosmetic or aesthetic surgery.

MPS told The Straits Times: "In the last few years, the cost and frequency of regulatory cases have risen. These are due to a number of factors, including the increase in number of complaints, number and complexity of SMC inquiries, and associated increase in SMC and defence legal costs."

As a result, the annual subscriptions paid by doctors have soared. Obstetricians like Dr Ang now pay $36,000 a year, up from $25,695 just three years ago.

The London-based MPS looks after the interests of almost 300,000 health-care professionals in more than eight countries and covers almost all the 11,000 doctors here.

Commenting on the outcome of Dr Ang's appeal, Dr Ming Teoh, head of MPS' Medical Services in Asia, said it was unusual for costs to be awarded against medical regulators, but he felt it was too early to say if the ruling would affect future cases to the extent that doctors' subscriptions might come down.

But Dr Myint Soe, a lawyer well-versed in medical litigation, said: "Of course, we'll all ask for costs now when a doctor wins."

This is not the first time mistakes by an SMC disciplinary committee have proven costly.

In 2012, the SMC changed the guilty verdict it delivered against Dr Georgia Lee for aesthetic practice, after the High Court dismissed a similar guilty verdict against Dr Low Chai Ling with scathing comments about the SMC's biased and slipshod disciplinary inquiry.

Many doctors were offering the aesthetic procedure, but the SMC chose to take only some to task. Also, Dr Low was accused of doing those procedures before the SMC had declared them to be not evidence-based.

Two years down the road in Dr Ang's case, the SMC disciplinary hearing has been taken to task for relying "on facts that it should not have considered".

Doctors are understandably concerned that such mistakes by the SMC could prove costly for them in terms of the fees they pay the SMC for their practising licence. This was raised to $400 a year in 2012.

The SMC has refused to divulge if its income comes entirely from its 11,000 members, or if it has separate government funding for the large sums it needs for such disciplinary hearings.

Unlike the Singapore Dental Council, the SMC does not list its income or disbursements in its annual reports. The dental council does receive a government grant on top of the fees it collects from dentists.

In the case of the SMC, it is a matter of equal concern if the costs are borne by doctors or taxpayers, especially in cases that prove costly because of a lack of understanding of how disciplinary cases should be heard.

Perhaps doctors should stick to what they know best - medicine - and leave the intricacies of disciplinary hearings to those trained in the law.

It is a pity the 2009 proposal by then Health Minister Khaw Boon Wan to amend the Medical Registration Act so that SMC disciplinary tribunals include a legally trained person was derailed.

That might have saved time and money wasted on appeals against decisions that turn out wrong.

It might also have gone some way in assuring doctors and patients that they will get a fair hearing, and avoid the need for costly appeals to the High Court.

salma@sph.com.sg

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