Doctor fined $100,000 by disciplinary tribunal cleared by Court of Appeal

Private orthopaedic specialist Lim Lian Arn was fined in January 2019 for not telling a patient about the side effects of an injection. PHOTO: GLENEAGLES MEDICAL CENTRE

SINGAPORE - A doctor who had been fined $100,000 by the Singapore Medical Council (SMC) for not telling a patient about the side effects of an injection has had the judgment set aside by the Court of Appeal.

The fine imposed by an SMC disciplinary tribunal (DT) in January on private orthopaedic specialist Lim Lian Arn had the medical profession up in arms.

Thousands signed a petition against the judgment, saying it was too severe, and such a judgment would lead to the practice of defensive medicine in Singapore which would be detrimental to doctors, patients and society.

The possible impact of the judgment on the practice of medicine here was also raised in Parliament.

The steroid injection in question is commonly given and the side effects are rare and transient. The patient claimed to have paper-thin skin with discoloration, loss of fat and muscle tissues as a result, and filed a complaint against the doctor.

The doctor pleaded guilty.

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

The 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 the SMC that a reduced fine was appropriate. Instead, it said there was really no case against the doctor.

The judgment delivered by Chief Justice Sundaresh Menon on Wednesday (July 24) called the case "an ill-judged prosecution, an unwise decision to plead guilty and an unfounded conviction".

The other two judges who reviewed the case were Justice Andrew Phang and Justice Judith Prakash.

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

But they questioned if Dr Lim did indeed not tell the patient of the side effects. The doctor had said he could not remember but that it was something that he normally did. The judges said the lack of notes was probably 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 much of the difficulty in the case arose from Dr Lim's decision to plead guilty and to ask for 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 the 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 the 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.

When asked if he had any view on the soundness of the conviction, Dr Lim's lawyer, Mr Eric Tin of Donaldson & Birkinshaw, "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 the 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 nor the respective parties' counsel even considered the adequacy of the expert report."

Aside from that, they also were troubled by the position taken on behalf of the 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.

Join ST's WhatsApp Channel and get the latest news and must-reads.