Court clears doc fined $100k for not telling patient of side effects

'Ill-judged prosecution, an unwise decision to plead guilty and an unfounded conviction'

The Court of Appeal said there was really no case against orthopaedic surgeon Lim Lian Arn. PHOTO: GLENEAGLES MEDICAL CENTRE
Orthopaedic surgeon Lim Lian Arn, who had been fined $100,000 by the Singapore Medical Council (SMC) for not telling a patient about the side effects of an injection, had the judgment set aside by the Court of Appeal.PHOTO: GLENEAGLES MEDICAL CENTRE

A doctor who was fined for not telling a patient about the side effects of an injection has had the judgment set aside by the Court of Appeal.

The $100,000 fine that was imposed by a Singapore Medical Council (SMC) disciplinary tribunal in January on private orthopaedic specialist Lim Lian Arn had prompted strong reactions.

Thousands signed a petition against the judgment, saying that it was too severe and would encourage doctors to practise defensive medicine. The issue was also raised in Parliament.

The steroid injection that Dr Lim administered is a common one, and its side effects are known to be rare and transient.

The patient claimed to have developed paper-thin skin with discolouration and loss of fat and muscle tissue as a result of the injection, and filed a complaint against the doctor.

The doctor pleaded guilty.

In February, a month after the penalty was imposed, the Ministry of Health asked SMC to review the appropriateness of the sentence and to determine any subsequent steps to be taken.

SMC decided that $100,000 was too high a penalty and applied to the Court of Appeal to reduce the fine to not more than $20,000.

The Court of Three Judges disagreed with SMC that a reduced fine was appropriate. Instead, it said there was really no case against the doctor.

The scathing judgment delivered by Chief Justice Sundaresh Menon yesterday described the case as "an ill-judged prosecution, an unwise decision to plead guilty and an unfounded conviction".

The other two judges were Justice Andrew Phang and Justice Judith Prakash.

A DOCTOR'S DUTY

A doctor is not under a duty to convey to his patient every conceivable risk... The first port of call is to ask if the information is relevant and material to the patient... Second, the information must reasonably be in the possession of the doctor. Third, a doctor may be justified in withholding information in particular situations... Ultimately, what has to be disclosed is largely a matter of common sense.

CHIEF JUSTICE SUNDARESH MENON

 
 
 
 

They said: "We are satisfied that there has been a miscarriage of justice and that Dr Lim's conviction must be set aside. Simply put, the undisputed facts do not support the charge."

They said that this was a one-off incident and the patient would likely have chosen to have the injection if told of the possible side effects.

However, they questioned whether Dr Lim did indeed not tell the patient of the side effects. The doctor could not remember, but said it was something he normally did. The judges said he probably did not keep any notes because the jab was a routine one.

The court said the case arose from a series of avoidable missteps and spelt out the mistakes made by the various parties involved.

The judges said that much of the difficulty in the case arose from Dr Lim's decision to plead guilty and offer to pay a fine of $100,000, in spite of having "strong merits" on his side.

But it remains incumbent on courts and tribunals to "satisfy themselves that the conviction is well founded and the sentence to be imposed is appropriate".

When SMC asked for a review of the case, one reason was the implications the sentence might have on the practice of medicine here.

The judges said SMC and its counsel should have considered this before seeking to have the doctor suspended for five months, which is a harsher penalty than the fine.

They said that when asked if he had any view on the soundness of the conviction, Dr Lim's lawyer Eric Tin of Donaldson & Burkinshaw "was of little assistance to us and seemed more concerned to explain why Dr Lim had been advised to plead guilty".

The judges also pointed out to SMC's lawyer, Mr Chia Voon Jiet of Drew & Napier, that there were "serious inadequacies in the expert report".

The expert had said Dr Lim should have advised the patient on possible side effects, but did not give a reason for this conclusion.

The reasoning is important, the judges said. "An expert report that consists of conclusions only, without any reasons supporting the conclusion, offers no assistance."

They added: "It is evident that neither the DT (disciplinary tribunal) nor the respective parties' counsel even considered the adequacy of the expert report."

Aside from that, they were also troubled by the position taken on behalf of SMC as it has been made clear in previous cases that "a doctor is not under a duty to convey to his patient every conceivable risk".

The judges made it plain that their decision "is not a response to the outcry from the medical community" as courts are not moved by "the rule of the crowd".


3 stages to gauge professional misconduct

Dr Lim Lian Arn, an orthopaedic surgeon in private practice, made an honest, one-off mistake in not telling his patient about possible side effects of a steroid injection.

The Singapore Medical Council (SMC) brought him before a disciplinary tribunal, its lawyer asked for a five-month suspension, and his lawyer advised him to plead guilty and ask for a $100,000 fine.

The Court of Three Judges, which reviewed the case and found Dr Lim innocent of wrongdoing, said: "It seems to have escaped all the parties that such a breach does not necessarily or inevitably lead to the conclusion that Dr Lim was guilty of professional misconduct."

The judges - Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang and Judith Prakash - said it was previously established there are three stages to an inquiry of professional misconduct:

• Establish the applicable benchmark.

• Establish if there was a departure from this standard.

• Determine if the departure was sufficiently egregious to amount to professional misconduct.

The judges said SMC, the doctor and disciplinary tribunal stopped at stage two. "The underlying rationale for the three-stage inquiry is simple: Not every departure from the acceptable standards of conduct would necessarily amount to professional misconduct."

There must be a threshold separating relatively minor breaches and failures from more serious ones that demand disciplinary action. "Were it otherwise, doctors would find it impossible to practise in a reasonable way," they said.

Giving patients an information dump is not "defensive medicine", and doctors who do that "will not avoid legal liability", the court said. The real meaning of defensive medicine, it said, is when a doctor takes a certain course of action to avoid legal liability rather than act in the patient's best interest.

A version of this article appeared in the print edition of The Straits Times on July 25, 2019, with the headline 'Court clears doc fined $100k for not telling patient of side effects'. Subscribe