High Court overturns conviction of surgeon fined S$100,000, calls it ‘miscarriage of justice’

SINGAPORE — In reversing the high-profile conviction of an orthopaedic surgeon, who was fined the maximum S$100,000 by a disciplinary tribunal, the High Court emphasised that departing from acceptable medical standards of conduct does not always amount to professional misconduct.

Dr Lim Lian Arn was fined by a disciplinary tribunal of the Singapore Medical Council (SMC) last November, after pleading guilty to failing to inform a patient of the risks or complications that could arise from a steroid injection to her wrist. The treatment was given in October 2014.

The patient developed “paper-thin skin” with discolouration and loss of fat and muscle on her wrist after the injection, which was nevertheless found to be the appropriate treatment. The patient made a complaint in 2016.

The S$100,000 penalty sparked outrage among doctors here, who questioned whether they were expected to list every possible risk of treatments or drugs when dealing with patients and warned of escalating costs from the practice of defensive medicine.

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Delivering the High Court’s unanimous written decision on Wednesday (July 24), Chief Justice Sundaresh Menon took the opportunity to reiterate the elements that constitute professional misconduct.

There must be “an intentional, deliberate departure from standards”, or “such serious negligence” that it portrays an abuse of the privileges that accompany medical registration, he said. The panel of judges also comprised Judges of Appeal Andrew Phang and Judith Prakash.

They concluded that Dr Lim should not have been subjected to disciplinary sanctions in the first place, as they had “serious doubts” on whether Dr Lim even failed to advise his patient on the risks and possible complications of the treatment.

“In short, there has been a miscarriage of justice with dire consequences for the medical practitioner concerned,” Chief Justice Menon added in the 38-page judgment.

In May, at the request of the Ministry of Health, the SMC appealed against the disciplinary tribunal’s decision to reduce the fine to no more than S$20,000.

During the appeal, Dr Lim had agreed with the SMC’s position on the fine. With the court’s decision, Dr Lim no longer has to pay a fine.

The SMC’s lawyer Chia Voon Jiet said then that the medical watchdog — which regulates doctors here — decided to appeal against the sentence due to several factors.

They included the factor that the sentence might have implications on the practice of medicine and provision of healthcare services in Singapore.

In the judgement, Chief Justice Menon wrote that the case was a result of “an ill-judged prosecution, an unwise decision to plead guilty and an unfounded conviction”.

NOT A RESPONSE TO OUTCRY

The judges noted that Dr Lim had decided to plead guilty and sought the S$100,000 fine, in lieu of suspension — which means medical practitioners may sometimes choose not to contest proceedings despite having strong merits on their side.

Courts and tribunals should thus “closely scrutinise the facts and evidence” in such situations, before deciding if convictions are well-founded and sentences meted out are appropriate.

In this case, the judges also made clear that they did not come to their decision in response to the outcry from the medical community.

“Courts are not susceptible to be moved by such extraneous opinions, however strongly and sincerely they may be held and expressed. We emphasise this point because it is the rule of law that we are subject to, not the rule of the crowd,” Chief Justice Menon wrote.

The courts should also strike a balance between imposing the appropriate sanctions where medical practitioners gravely fail, and giving “a rich range of options for the counselling, education and rapid rehabilitation” for those who depart from expected standards. This was overlooked in Dr Lim's case, he added.

‘SERIES OF MISSTEPS’

The judges had harsh words for the disciplinary tribunal, noting that when they found out more about the nature and extent of Dr Lim’s infraction, they “did not then re-assess the logic of its conclusions and consider whether the charge was made out”.

"It seems to us that the case took the course that it did largely because of a series of missteps that were, in a sense, preventable,” Chief Justice Menon wrote.

The tribunal had found Dr Lim’s conduct to be an isolated, one-off incident and was an honest omission on the doctor’s part.

They also found that there was nothing to suggest that his patient would have taken a different course of action, should Dr Lim have told her all the risks and possible complications of the steroid injection.

The patient’s autonomy to make an informed decision on her own treatment was not substantially undermined, and Dr Lim had offered an alternative treatment besides the injection — oral medication and bracing.

Ultimately, what has to be disclosed to patients “is largely a matter of common sense”, the judges noted.

“Even if misconduct had been made out, the imposition of the maximum fine of $100,000 would have been wholly unwarranted,” Chief Justice Menon wrote.

“The disciplinary tribunal fell into error by too readily accepting Dr Lim’s submission that the maximum fine of $100,000 would be appropriate, which itself was made in response to the SMC’s wholly unwarranted position that a suspension of five months was called for,” he added.

DEFENSIVE MEDICINE

Addressing the issue of defensive medicine, the three judges said they noticed that the term tended to be overused even when it was not appropriate.

Other doctors had said, in this case, that doctors “are likely to overwhelm patients with a deluge of information on unlikely risks in order to protect themselves legally”.

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“With respect, it is a mistake to describe this as defensive medicine. The reason for this is simple: Giving too much information will not avoid legal liability,” Chief Justice Menon explained.

Defensive medicine refers to doctors taking a certain course of action to avoid legal liability, rather than to secure the patient’s best interest.

This might apply when a doctor withholds information about potentially beneficial treatment options because they are more likely to result in legal liability — not where a doctor simply gives too much information, the judges noted.

On the issue of legal costs, the court ruled that “having regard to the role played by each party in bringing about this debacle, we order the parties to bear their own costs” both for the appeal and the disciplinary tribunal proceedings.