Lam Kwok Tai Leslie v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 20 October 2017
• Neutral Citation: [2017] SGHC 260
• Plaintiff Counsel: Lek Siang Pheng, Priscilla Wee Jia Ling and Audrey Sim Mei Jun (Dentons Rodyk & Davidson LLP)
• Docket Number: Originating Summons No 11 of 2016
• Date: 20 October 2017
• Hearing Date: 27 July 2017
• Subject Matter: Medical profession and practice,Professional conduct,Professions
• Published date: 25 October 2017
• Defendant Counsel: Philip Fong and Sui Yi Siong (Eversheds Harry Elias LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 260
• Year: 2017

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The appellant in this originating summons, Dr Lam Kwok Tai Leslie (“Dr Lam”), is a cardiologist in private practice. He commenced practice in 1967, and until the present proceedings, had maintained an unblemished record of professional service. The present proceedings stem from an invasive procedure known as a Percutaneous Coronary Intervention (“PCI”) that he carried out on a patient (“the Patient”) in 2011. Following a complaint made by the Patient, three charges were brought against Dr Lam. An inquiry was conducted by a Disciplinary Tribunal (“DT”) appointed by the Singapore Medical Council (“the SMC”), at the end of which Dr Lam was convicted of one charge of professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the MRA”) for having failed to obtain informed consent from the Patient prior to carrying out the PCI, in breach of Guideline 4.2.2 of the 2002 edition of the SMC’s Ethical Code and Ethical Guidelines (“the SMC ECEG”), which was the edition in force at the material time. Dr Lam was acquitted of the other two charges. The DT imposed a sentence of three months’ suspension from practice on him, and also ordered him to pay one-third of the costs and expenses of the inquiry to the SMC.

By way of this originating summons, Dr Lam appeals against his conviction; in the alternative, he appeals against the sentence of three months’ suspension and submits that if his conviction is upheld, he should be sentenced to a fine instead. The main issue in this appeal is whether the DT erred in finding professional misconduct on Dr Lam’s part, having regard to the evidence that was led before it.

Background

A PCI is a procedure used to open a blocked coronary artery by placing stents, which are small mesh tubes, in the affected artery to support its inner wall. It was described by one of the SMC’s expert witnesses as a “complex, invasive [procedure] with higher risk”.

The complaint in question was brought by the Patient, a foreign national, arising from Dr Lam’s management of his condition in March 2011. The Patient had a history of coronary artery disease, hypertension and hyperlipidaemia. He had previously undergone a PCI at Raffles Hospital in 2006, when three stents had been placed. In March 2011, the Patient visited Singapore and sought a suitable doctor to provide follow-up treatment.

On 10 March 2011, the Patient had his first consultation with Dr Lam. The following tests were carried out to establish the Patient’s condition: (a) an Electrocardiogram (“ECG”); (b) an Echocardiogram; (c) an Exercise Stress Test; and (d) a Computed Tomography (“CT”) Angiogram. It was Dr Lam’s case that at this consultation, he explained to the Patient the benefits, risks and possible complications of a PCI as well as the alternative treatment options available (collectively referred to hereafter as “the PCI benefits, risks, complications and alternatives”). The results of the CT Angiogram became available the following day, 11 March 2011, which was the date of the second consultation. The Patient’s coronary arteries appeared to be in good condition, with indications of only minor stenosis (the narrowing of blood vessels, leading to restricted blood flow) at some locations. No stenosis was evident in the Left Anterior Descending Artery (“LAD Artery”) proximal or distal to the stents that had previously been inserted. However, Dr Lam told the Patient that he did not consider the CT Angiogram results to be sufficiently reliable, and advised him to undergo a Conventional Angiogram as well. Dr Lam also informed the Patient that he should proceed with a PCI if any high-grade stenosis were found in the course of the Conventional Angiogram. The consultation concluded with the Patient leaving to consider Dr Lam’s advice.

The third consultation took place on 17 March 2011. On that occasion, Dr Lam again informed the Patient of his view that the findings from the CT Angiogram were not sufficiently reliable, and recommended that the Patient undergo a Conventional Angiogram and, if necessary, a PCI. It was Dr Lam’s case that he explained the PCI benefits, risks, complications and alternatives to the Patient again at this consultation; the Patient was also provided with brochures on Conventional Angiograms and Coronary Stenting. The Patient evidently accepted Dr Lam’s advice, and agreed to undergo a Conventional Angiogram and, if necessary, a PCI. He then signed a consent form for a “Coronary Angiogram Keep in View Coronary Angioplasty” (“the KIV Form”) at Dr Lam’s clinic.

The Conventional Angiogram was carried out on 18 March 2011. Immediately after the Conventional Angiogram, Dr Lam told the Patient that there was high-grade stenosis in his proximal LAD Artery, and advised him that that artery could be opened up by using a single drug-eluting agent. This involved placing in the artery a stent, which would then release, in a slow and controlled manner, a drug to prevent cell proliferation. The Patient agreed to let Dr Lam perform the PCI immediately. This was then done.

The following day, 19 March 2011, Dr Lam apprised the Patient more fully of what had transpired during the PCI and showed him the DVD recording of the procedure. In particular, Dr Lam informed him that two stents had been inserted. This was because the first stent had missed the site of the stenosis, as a result of which, a second stent was needed. The second stent had slipped back proximally and protruded partially into the left main stem. It is not in dispute in this appeal that despite this, the Patient did not suffer any harm as a result of Dr Lam’s actions and his condition in fact improved after the PCI.

The Patient lodged a complaint against Dr Lam with the SMC on 17 August 2011. The essence of his complaint was that Dr Lam had performed the PCI when it was unnecessary, and, further, that in doing so, he had failed to apply the requisite skill. The Patient described the PCI as having been “shoddily done” [emphasis in bold in original omitted]. He also mentioned in his complaint that “[Dr Lam] proceeded with the PCI procedure without even once … informing [him] or explaining to [him] what [were] the potential risks and complications associated with the procedure” [emphasis in bold in original omitted]. The SMC sent Dr Lam a Notice of Complaint on 12 April 2012. This was more than a year after the PCI had been carried out. In response to the Notice of Complaint, Dr Lam tendered his written explanatory statement (the “Explanatory Statement”) a little over a fortnight later on 28 April 2012. The SMC then conducted further investigations before informing Dr Lam on 4 October 2013, more than 17 months after he submitted his Explanatory Statement, that the Complaints Committee had ordered a formal inquiry to be held by a DT.

Approximately two years later, on 25 September 2015, the SMC sent Dr Lam a Notice of Inquiry setting out three charges. The first charge (“Charge 1”) was for professional misconduct under s 53(1)(d) of the MRA for having advised and persuaded the Patient to undergo a Conventional Angiogram and a PCI without due clinical evaluation of his test results. The second charge (“Charge 2”), which was brought under s 53(1)(e) of the MRA, was for failure to use proper skill and care in performing the PCI and stenting procedure on the Patient. The third charge (“Charge 3”) was for professional misconduct under s 53(1)(d) of the MRA for having failed to “adequately advise the Patient of all the benefits, risks and possible complications of the [PCI] procedure and any alternatives available to him”.

Charge 3 is the sole subject matter of the present appeal. It reads as follows:

That you [Dr Lam] … are charged that, whilst being a registered medical practitioner at The Cardiac Centre …, [you] failed in your duty of care to … [the Patient] in that you had breached section 4.2.2 of the [SMC ECEG] in failing to ensure that the Patient was adequately informed about his medical condition and options for treatment so that he is able to participate in decisions about his treatment in that:

PARTICULARS (i) You failed to adequately advise the Patient of all the benefits, risks and possible complications of the Percutaneous Coronary Intervention (“PCI”) procedure and any alternatives available to him;

and that in relation to the facts alleged you have been guilty of professional misconduct under section 53(1)(d) of the [MRA].

It is undisputed that Dr Lam’s clinical notes from his consultations with the Patient do not record that he explained the PCI benefits, risks, complications and alternatives to the Patient. However, it is also undisputed that the KIV Form, which was signed by the Patient, states in general terms that the Patient had been informed of “the nature, purpose, risks and alternatives” pertaining to a PCI.

The DT’s decision

Dr Lam contested all three charges. The DT conducted the inquiry on 6, 7 and 21–23 June 2016. The SMC called Prof Lim Yean Leng (“Prof Lim”) and Dr Ho Kay Woon (“Dr Ho”) as its expert witnesses at the inquiry. Prof Lim’s evidence related to Charges 1 and 2, while Dr Ho’s evidence related to the consent-taking process in Charge 3. Dr Lam called Assoc Prof Philip Wong En Hou and Dr Philip Koh Siam Soon (“Dr Philip Koh”) as his expert witnesses (collectively, “the Defence experts”); he also called his staff nurse, Siti Sundari binte Sudri (“the Staff Nurse”), as a factual witness. After the hearing on 23 June 2016, there was a break of almost six months before the DT convened a further hearing on 14 November 2016. About a fortnight later, on 29 November 2016, the DT delivered its written decision (“the Decision”), in which it acquitted Dr Lam of Charges 1 and 2 but convicted him of Charge 3.

Acquittal on Charges 1 and 2

Before we turn to the DT’s assessment of...