Dr Eric Gan Keng Seng v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 01 November 2010
• Neutral Citation: [2010] SGHC 325
• Plaintiff Counsel: Cavinder Bull SC, Harleen Kaur (Drew & Napier LLC) (instructed counsel) & Charles Lin Ming Khin (Donaldson & Burkinshaw)
• Docket Number: Originating Summons No 144 of 2010
• Date: 01 November 2010
• Hearing Date: 29 April 2010
• Subject Matter: Professions,Professional conduct,Medical profession and practice
• Published date: 06 December 2010
• Citation: [2010] SGHC 325
• Defendant Counsel: Tan Chee Meng SC, Ho Pei Shien Melanie & Chang Man Phing, Emily Su (WongPartnership LLP)
• Court: High Court (Singapore)
• Year: 2010

Chao Hick Tin JA (delivering the judgment of the court):

This is an appeal by Dr Eric Gan Keng Seng (“Dr Gan”) against the decision of the Disciplinary Committee (“the DC”) of the Singapore Medical Council (“SMC”) dated 8 January 2010 finding him guilty of professional misconduct under section 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the Act”) in relation to his post-operative care of a patient, Mr Toh Hock Ken (“the Patient”). After the DC hearing which took place in two tranches between 12 May 2009 and 15 May 2009 and 6 January 2010 and 8 January 2010, the DC acquitted Dr Gan on the first charge of performing pre-cut sphincterotomy (“the Pre-cut Technique”) on the Patient when Dr Gan knew or ought to have known that the procedure was beyond the scope of his competence. However, Dr Gan was convicted on the second charge for wilful neglect of his duties and gross mismanagement of the post-operative treatment of the Patient. The DC imposed the following sanctions: That Dr Gan be suspended from practice for a period of 6 months; That Dr Gan be censured; That Dr Gan give a written undertaking to the SMC that he would not engage in the conduct complained of or any similar conduct; and That Dr Gan pay 70% of the costs and expenses of and incidental to the proceedings, including the costs of the solicitor to the SMC and the Legal Assessor.

The reasons for the decision of the DC may be found in its written grounds dated 8 January 2010 (“the GD”)¹.

Background facts

Dr Gan, a medical practitioner of 19 years standing, is a Consultant Surgeon at Mount Elizabeth Hospital and a Visiting Consultant Surgeon at the National University Hospital and Alexandra Hospital (“AH”).

Dr Gan first saw the Patient on 13 November 2005 when the Patient was admitted to AH after an acute episode of severe, colicky upper abdominal pain² . After some treatment, the Patient was discharged from hospital on 15 November 2005. At a follow-up outpatient appointment on 29 November 2005, Dr Gan found that there was a possibility of stone(s) in the Patient’s common bile duct and advised the Patient to undergo endoscopic retrograde cholangiopancreatogram (“ERCP”). After being advised by Dr Gan that the ERCP was a very common procedure involving hardly any risk, the Patient agreed. On 6 December 2005, at around 3.00 pm, Dr Gan performed the ERCP on the Patient at AH. The initial attempts at cannulation were unsuccessful and Dr Gan attempted a further procedure, the Pre-cut Technique on the Patient. However, Dr Gan still failed to gain access to the Patient’s bile duct and accordingly had to halt the Pre-cut Technique to consider an alternative treatment plan.

The sequence of events on that fateful day was noted by the DC as follows (at [8] of the GD):

(A)6 December 2005 (i) 1500 – 1550 hours: Dr Gan was unsuccessful in cannulating the bile duct despite performing the [Pre-cut Technique]. The Patient was kept nil-by-mouth post procedure, which was not Dr Gan’s usual practice in previous cases. Dr Gan ordered that the Patient be observed and not be discharged. (ii) 1710 hours: The Patient’s abdomen felt distended; discomfort was noted, and tenderness was elicited on palpation. (iii) 1745 hours: Two episodes of bilious vomiting were noted. (iv) 1800 hours: The Patient was noted to be unwell with epigastric pain radiating to the back, and voluntary guarding detected. The Registrar on-call, Dr Eugene Lim’s assessment was that of “?post [sic] ERCP complications”. Dr Gan verbally instructed Dr Lim to order blood tests and an erect chest X-ray. (v) 1900 hours: The Patient complained of abdominal pain and intramuscular pethidine was administered. (vi) 2150 hours: The results of the tests were received and Dr Eugene Lim updated Dr Gan verbally.

(B)7 December 2005 (vii) 0440 hours: The Patient’s abdomen was distended, and it was noted that the Patient was unable to pass urine and motion. (viii) 0850 hours: The Patient was seen by Dr Gan for the first time post procedure. (ix) Between 1700-1930 hours: A CT scan was ordered. (x) 2330 hours: The CT results were noted and the Patient was sent for emergency surgery by Dr Gan.

From the above tabulation of events, it would be noted that following the failed ERCP procedure (including the Pre-cut Technique) and after instructing the medical team under him to keep the Patient under observation, Dr Gan left AH for the day. At about 6 pm, on the same day, the on-call registrar, Dr Eugene Lim Kee Wee (“Dr Lim”), called Dr Gan to inform him that the Patient looked unwell and had an episode of bilious vomiting and epigastric tenderness but that the Patient’s vital signs were normal. Thereupon Dr Gan ordered several tests to be done, including an erect chest X-ray and serum amylase blood test as an initial investigation into the possible post-operative complications. The tests showed that the Patient’s amylase was elevated to more than 5 times the normal level at 593U/L³ and the erect chest X-ray did not reveal any subcutaneous emphysema, pneumomediastinum or gas under the diaphragm. At around 9.50 pm, on that same evening, Dr Lim conveyed the results of the tests to Dr Gan over the telephone. Based on the working diagnosis of acute pancreatitis, Dr Gan instituted treatment for pancreatitis and instructed Dr Lim to keep the Patient fasted, start an IV drip, insert a nasogastric tube into the Patient and administer pethidine. Dr Lim was also instructed to place the Patient under close observation with his abdomen being reviewed periodically.

The following morning, on 7 December 2005, at around 8.50 am, Dr Gan visited the Patient at the ward. While the Patient looked well and his vital signs continued to remain normal with no fever, the Patient still complained of abdominal pains and had a slightly distended abdomen with tenderness in the right hypochondrium. Dr Gan also picked up a right pleural effusion and ordered a second chest X-ray to be done on the Patient. The chest X-ray confirmed that the Patient had a right pleural effusion⁴.

At about 5.00 pm on 7 December 2005, Dr Gan observed that the abdominal signs of the Patient had changed in that the area of tenderness had spread down the Patient’s right flank and there was guarding. He immediately ordered a CT scan of the Patient’s abdomen and pelvis to ascertain whether there was a perforation of the duodenum. A CT scan of the Patient was performed at around 10.00 pm that same evening. The CT scan revealed the presence of a retroduodenal perforation. Dr Gan performed an emergency exploratory laparotomy on the Patient in the early hours of 8 December 2005. This revealed large amounts of bile stained fluid within the peritoneal cavity, together with some haemoserous fluid. Similar fluid collections were also present in the retroperitoneal spaces⁵. Despite subsequent efforts, the Patient passed away on 22 January 2006 from septicaemia due to intra-abdominal sepsis.

On 12 April 2007, Mdm Neo Guat Dee (“Mdm Neo”), the Patient’s wife, lodged a complaint against Dr Gan with the SMC. The Complaints Committee, after considering the expert evidence of Dr Cheng Jun (“Dr Cheng”), specialist in Gastroenterology and Internal Medicine at Mount Elizabeth Medical Centre (who later became the sole expert witness for the SMC in its case before the DC), decided that it sufficed to only issue a letter of advice to Dr Gan, advising him to review his practice.

Dissatisfied with the decision of the Complaints Committee, the Patient’s wife wrote to the Minister of Health, who invoked his powers under the Act to convene a Disciplinary Inquiry. Two charges were proffered against Dr Gan and they were set out in the Notice of Inquiry dated 12 August 2008. The first charge alleged that the Pre-cut Technique which Dr Gan had performed on the Patient was beyond the scope of his competence. However nothing in this charge should concern us here as Dr Gan was acquitted by the DC of the first charge (see [6] of GD). Of greater importance is the second charge (“the Charge”) in respect of which the DC had found Dr Gan guilty. The Charge read:

That you [Dr Gan] a registered medical practitioner under the Medical Registration Act (Cap 174), are charged that whilst practising at Alexandra Hospital and the attending physician to [the Patient] for the period 6 December 2005 to 8 December 2005, you were in wilful neglect of your duties and had grossly mismanaged the post-operative treatment of the Patient.

Particulars

(a) The Patient had undergone [ERCP] surgery involving a procedure called [the Pre-Cut Technique]] at about 3.00 p.m on 6 December 2005; (b) Post-surgery, at about 6.00 p.m. on 6 December 2005, the Patient suffered from an episode of bilious vomiting and epigastric tenderness; (c) Perforation of the duodenum is a known risk of ERCP and [the Pre-cut technique]; (d) Despite the Patient’s clinical condition and medical history, you failed to carry out the appropriate clinical investigation by way of a CT Scan on the Patient’s abdomen and pelvis within reasonable time in order to ascertain whether there was perforation of the duodenum; (e) On the evening of 7 December 2005, a CT scan of the abdomen and pelvis was arranged and revealed the presence of free air and fluid in the right abdomen; and (f) On 22 January 2006, the Patient passed away from septicaemia due to intra-abdominal sepsis.

and that in relation to the facts alleged you are guilty of professional misconduct under section 45(1)(d) of the Medical Registration Act (Cap. 174).

At the inquiry before the DC, Dr Gan contested both charges. The witnesses for the SMC were: Mdm Neo and Dr Cheng.

The witnesses for Dr Gan were: a) Dr Gan; b) Dr Michael Hoe Nan Yu (“Dr Hoe”), former Senior Consultant and Chief of Department of Surgery, Changi General Hospital, general...