Jen Shek Wei v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA,Judith Prakash JA,Steven Chong JA
• Judgment Date: 13 November 2017
• Neutral Citation: [2017] SGHC 294
• Published date: 17 November 2017
• Date: 13 November 2017
• Year: 2017
• Hearing Date: 25 July 2017
• Plaintiff Counsel: N Sreenivasan SC, Lim Min (Straits Law Practice LLC) (instructed), Charles Lin and Tracia Lim (Myintsoe & Selvaraj)
• Defendant Counsel: Edmund Jerome Kronenburg, Kevin Ho, Lynette Zheng and Tan Tien Wei (Braddell Brothers LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 294
• Docket Number: Originating Summons No 3 of 2017

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

The appellant in this originating summons, Dr Jen Shek Wei (“Dr Jen”), a gynaecologist, was convicted by a Disciplinary Tribunal (“DT”) constituted by the Singapore Medical Council (“SMC”) of two charges of professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2014 Rev Ed) (“the Act”).

The first charge (set out in full below at [39]) stated that Dr Jen had, sometime between 30 and 31 August 2010, advised a patient (“the Patient”) to undergo surgery to remove a pelvic mass, discovered during a Magnetic Resonance Imaging (“MRI”) scan on 27 August 2010, without conducting further evaluation and investigation of her condition, when such further assessment was warranted. This failure to carry out such further evaluation was serious negligence which objectively portrayed an abuse of the privileges which accompany registration as a medical practitioner. This, as held by this court in Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612 (“Low Cze Hong”) at [37], is one of two limbs under which professional misconduct under s 53(1)(d) of the Act could be made out.

The second charge (set out in full below at [90]) stated that Dr Jen had, on 31 August 2010, performed a left oophorectomy (a surgical procedure to remove an ovary) on the Patient without having obtained her informed consent, in breach of Guideline 4.2.2 of the 2002 edition of SMC’s Ethical Code and Ethical Guidelines (“ECEG”), and that such conduct was an intentional, deliberate departure from standards observed or approved by members of the profession of good repute and competence. This, according to Low Cze Hong, is the other limb under which professional misconduct could be made out.

Having convicted Dr Jen on both charges, the DT ordered that Dr Jen (a) be suspended for a period of eight months, (b) pay a fine of $10,000, (c) be censured, (d) give a written undertaking to the SMC that he would not engage in the conduct complained of or other similar conduct, and (e) pay the costs and expenses of the disciplinary proceedings, including the costs of the SMC’s solicitors.

By way of this originating summons, Dr Jen appeals against his conviction, and in the alternative, the sentence imposed. We heard the appeal on 25 July 2017 and reserved judgment. We now give our decision.

Facts

We start by recounting the facts salient to the present appeal. We have used, as a starting point, the facts as found by the DT in its grounds of decision (“GD”) but have supplemented these, where necessary, with references to the record of appeal.

Dr Jen runs his practice at Women’s Clinic of Singapore, located at Ang Mo Kio Avenue 8, and had, at the time of the disciplinary proceedings, been practising there for 28 years. He obtained his MBBS from the National University of Singapore in 1979 and has specialist qualifications in obstetrics and gynaecology.

Before the material events in this case, the Patient had, on 7 June 2010, consulted Dr Jen about her problems with conceiving a child. She was 34 years old at the time. She attended follow-up consultations with Dr Jen on three occasions: 19 June, 29 June and 27 July 2010, respectively. Dr Jen started her on fertility treatment which involved the prescription of a medication known as Clomid.

The material events in this case were set in motion when the Patient was referred to Dr Jen by an orthopedic surgeon, Dr Tay Chong Kam (“Dr Tay”). The Patient consulted Dr Tay on 27 August 2010 because she had been suffering from what she described as “very bad backache”. An X-Ray and a MRI scan were taken of her spine. The radiologist, Dr Esther Tan, observed in her radiologic report dated 28 August 2010 that, based on the X-Ray, there appeared to be a “lobulated soft tissue density in the pelvis raising the suspicion of a mass”, and that, based on the MRI scan, there was a “suggestion of a septated cystic mass in the pelvis anterior to the sacrum” which might be “ovarian in origin”. Dr Tay advised the Patient to evaluate the pelvic mass further and suggested that she consult her gynaecologist. On 30 August 2010, he referred her to Dr Jen with a handwritten letter. The letter said that the Patient had consulted him for “backache and right sciatica”, that the MRI scan of her lumbar spine was normal but that it showed a “septated cystic mass in the pelvis”. The letter ended with a request for Dr Jen to “see and manage”.

The Patient consults Dr Jen

On 30 August 2010, the same day that Dr Tay had written the referral letter, the Patient consulted Dr Jen. She was accompanied by her husband. Having read Dr Tay’s referral letter and the radiologic report, Dr Jen did a transvaginal scan on the Patient and found that there was a lump in each of her ovaries.

We pause to make an observation on the nature of the scan that Dr Jen performed. In her complaint letter to the SMC, dated 12 December 2011, the Patient recounted that Dr Jen “briefly did an ultrasound scan on [her] abdominal surface”. This would suggest that what Dr Jen did was a transabdominal ultrasound scan rather than a transvaginal one. However, it later transpired that what had been done was in fact a transvaginal scan. In its GD, the DT constantly described the scan as a transvaginal one. It would thus appear that the Patient’s recollection in this regard was inaccurate.

As mentioned above, Dr Jen’s transvaginal ultrasound scan revealed the presence of two lumps, or masses, one on the Patient’s right ovary and one on her left ovary. It is undisputed that Dr Jen performed a right cystectomy (to remove only the cyst) during the same operation in which he performed a left oophorectomy (to remove the entire ovary). The present proceedings only concern the left oophorectomy. We will henceforth refer only to the mass on the left ovary when describing the operation.

What exactly transpired during the consultation is disputed. The DT accepted the Patient’s version of events in preference to that of Dr Jen.

According to the Patient, Dr Jen had advised her to remove the lumps as soon as possible as the mass was “quite huge” and there “may be a cancer”. We note that Dr Jen’s account of the diagnosis he gave was to similar effect: he said that he had informed the Patient that the mass was “not a simple cyst but instead it was a suspicious complex mass, probably arising from the ovary”; that the uneven walls and irregular septa meant that “the risk of malignancy was higher, especially with her history of severe back pain”; and that it would be best to have the mass removed for histological examination to confirm the diagnosis.

Dr Jen offered the Patient a choice of two surgical procedures for this purpose: keyhole surgery (also referred to in the GD as a laparoscopy) or open surgery on the abdomen (also referred to as an open laparotomy). Dr Jen explained that with keyhole surgery, he would cut a small hole and try to remove the mass, but there was a risk that the mass, if cancerous, could spread to other areas. With open surgery, he would cut a 5 to 8 cm hole in the Patient’s abdomen to remove the mass. The Patient and her husband decided that she should go for open surgery as they did not want to take the risk of the cancerous cells in the mass spreading.

Dr Jen then offered the Patient and her husband the option of having a pathologist in the operating theatre during the open surgery. This was for the purpose of performing a “frozen section” pathology. What this meant was that if the pathologist were present, Dr Jen would be able to take out the mass and have the pathologist test it to see if it was cancerous, and, if it were, Dr Jen and the pathologist could, in the Patient’s words, “go ahead and remove the womb area”. The test conducted by the pathologist in the operating theatre would be 99.9% accurate. If the pathologist were not present, the mass would, after being removed, have to be sent to a laboratory for testing with the result being known two to three days thereafter; if the mass were found to be cancerous, the Patient could then decide whether or not to go for further treatment. Notwithstanding the accuracy rate of this test which could be conducted during the operation, the Patient and her husband “[did] not want to take the risk to remove any part of [her] womb” and therefore opted not to have the pathologist present in the operating theatre. In other words, they opted to have the mass sent to the laboratory for testing after the open surgery.

The operation was scheduled at 3:30pm on 31 August 2010 at Mount Alvernia Hospital (“MAH”). In this regard, according to the Patient, Dr Jen had told her and her husband that the mass was “big” and this prompted her husband to ask when the earliest time that Dr Jen could operate on the Patient was. Dr Jen informed them that he would be available on 31 August 2010, the next day, and the Patient and her husband agreed to schedule the operation then. Dr Jen’s clinic nurse, Kathy Yip (“Nurse Yip”), made the arrangements for the operation. Nurse Yip gave evidence at the disciplinary proceedings. We will touch again on the relevance of her evidence at [120] below.

The Patient signs a consent form for the left oopherectomy

The Patient was admitted to MAH at 12:03pm on 31 August 2010. She signed a number of forms in the admission office, including a document titled “Consent for Operation or Procedure” (“the consent form”). The consent form was a generic form which allowed the names of the operation and doctor to be filled in, and was as follows.

I, the undersigned, hereby consent to undergo the mentioned procedure/operation of LEFT OPEN LEFT OOPHERECTOMY____ of which the nature, effect and purpose have been explained to me by Dr Jen SHEK WEI____

I also consent to: (i) The administration of general, local or other forms of anaesthesia or sedation and confirm...