‘Miscarriage of justice’: High Court sets aside SMC conviction, S$100,000 fine against surgeon
SINGAPORE: An orthopaedic surgeon who was fined S$100,000 by a Singapore Medical Council (SMC) disciplinary tribunal had his conviction set aside by the High Court on Wednesday (Jul 24) after more than 4,000 doctors signed a petition asking the health minister to intervene.
Dr Lim Lian Arn was given the maximum fine by the disciplinary tribunal for failing to obtain informed consent from a patient before giving her a steroid injection in 2014.
He had pleaded guilty to one charge of professional misconduct and was fined and given a number of other commonly-made disciplinary orders by the tribunal.
More than 4,000 doctors signed a petition over the ruling in January this year, asking the health minister to examine SMC’s decision and clarify its stance on the need for doctors to obtain informed consent for minor procedures such as routine injections.
In February, the Ministry of Health (MOH) said SMC’s decision could lead to “defensive medicine” and asked the council to apply to court to have its decision reviewed.
In delivering the judgment on Wednesday, Chief Justice Sundaresh Menon said: “Having heard the parties, 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.”
Dr Lim, a registered specialist in orthopaedic surgery at Alpha Joints and Orthopaedics at Gleneagles Medical Centre, had treated a patient on Oct 27, 2014.
The patient had complained of pain in her left wrist. After undergoing an MRI scan, Dr Lim informed the patient the following day of two possible treatment options - a brace and oral medication, or a steroid injection.
She chose the latter. In the agreed statement of facts, Dr Lim said he did not advise her of the post-injection flare, the change in skin colour, the thinning of the skin or local infection.
She experienced swelling and pain in the injected area about two hours later, and developed “paper-thin skin with discolouration, loss of fat and muscle tissues”.
She filed a complaint against Dr Lim in January 2016, saying he failed to advise her on the possible complications.
Dr Lim was prosecuted by the SMC’s disciplinary tribunal, during which he pleaded guilty to the charge of failing to obtain informed consent. He eventually admitted to the agreed statement of facts without any qualification.
The SMC sought a five-month suspension, but Dr Lim pleaded for a maximum fine of S$100,000 instead.
The fact that he was a specialist and a senior doctor with nearly 30 years of experience was an aggravating factor in the sentence.
MOH STEPS IN
Thousands of doctors petitioned against the sentence, saying it was “unreasonably high”.
“Those protesting appeared to be concerned that the decision would set an unacceptable benchmark for other cases, notwithstanding the fact that the disciplinary tribunal had, in fact, imposed the lesser of the sanctions that Dr Lim himself had sought,” Chief Justice Menon said in the judgment.
In February, MOH asked SMC to apply to court to have its decision reviewed, saying the decision in Dr Lim’s case carried “much wider professional practice implications and also has an impact on future cases”.
The ministry added it could lead to the practice of “defensive medicine”. Senior Minister of State for Health Lam Pin Min said in Parliament that doctors do not need to lay out and get consent from a patient for every side effect or complication of a drug or treatment.
CONVICTION SET ASIDE
On appeal, the SMC sought a reduction of the sentence to a fine of not more than S$20,000, something Dr Lim agreed with.
But having considered the evidence, the court decided instead to set aside Dr Lim’s conviction.
The court found “serious inadequacies” in the expert report, and that it merely presented conclusions without setting out the reasons for such conclusions.
On the issue of informed consent, a counsel for SMC told the court that Dr Lim should have disclosed the “entire list of risks and possible complications”.
But Chief Justice Menon said that “a doctor is not under a duty to convey to his patient every conceivable risk”.
“The only difference between the two treatment options lay in whether the (steroid) injection would be administered. Just on those facts, we very much doubt that the patient would have proceeded with the (steroid) injection without any question or discussion at all as to its possible benefits and side effects,” he added, saying the case was a “one-off failing” in the course of a routine procedure with “no material harm to the patient”.
In the judgment, the Chief Justice said the law needed to strike a balance between providing appropriate sanctions for grave failures and a “rich range of options” for counselling, education and the rapid rehabilitation of doctors who “departed from the expected standards but not in a persistent or sufficiently serious way”.
“The law has always recognised the need to strike this balance, but it is sometimes overlooked in practice, as it was in this case,” Chief Justice Menon said.
“The result has been an ill-judged prosecution, an unwise decision to plead guilty and an unfounded conviction. In short, there has been a miscarriage of justice, with dire consequences for the medical practitioner concerned."
“Doctors are human after all, and, like the rest of us, are susceptible to lapses, errors of judgment, poor record-keeping and failures of memory,” he added.
“It would pose an intolerable burden for each medical practitioner, and, indeed, for society, which invests in and depends on the establishment of a vibrant medical profession, if each and every one of these failures were visited with sanctions."