Low Cze Hong v Singapore Medical Council

JurisdictionSingapore
JudgeChan Sek Keong CJ
Judgment Date26 May 2008
Neutral Citation[2008] SGHC 78
Date26 May 2008
Subject MatterWhether doctor guilty of professional misconduct in administering inappropriate treatment,Whether doctor obtaining informed consent,Role of appeal court in hearing appeals from disciplinary tribunals,Distinct from previous concept of "infamous conduct",Deference not tantamount to undue deference,Ophthalmologist performing invasive procedure on blind eye during non-emergency situation,Professions,Courts and Jurisdiction,Meaning of "professional misconduct",Moral turpitude, fraud or dishonesty not necessary to support finding of professional misconduct,Appeals,Medical profession and practice,Section 45(1)(d) Medical Registration Act (Cap 174, 2004 Rev Ed),Professional conduct,Deference to original findings
Docket NumberOriginating Summons No 203 of 2008
Published date09 June 2008
Defendant CounselMelanie Ho, Chang Man Phing and Agnes Chan (Harry Elias Partnership)
CourtHigh Court (Singapore)
Plaintiff CounselChristopher Chong and Vanessa Lim (Rodyk & Davidson LLP)

26 May 2008

V K Rajah JA (delivering the grounds of decision of the court):

1 This is an appeal against the decision of the respondent, the Singapore Medical Council (“SMC”), which found the appellant, Dr Low Cze Hong (“Dr Low”), guilty of two charges of professional misconduct, and ordered that he be, inter alia, fined $7,000. The charges arose from a complaint lodged by a 78-year-old patient, Toh Seng, in relation to Dr Low’s surgical procedure on his blind right eye performed just two days after an initial consultation with Dr Low. At the time of the consultation, Toh Seng had already been nearly totally blind for ten years. One can surmise that it was not mere disappointment but in fact severe dissatisfaction with the treatment he received that drove the patient to lodge a complaint against his doctor. At the conclusion of the hearing, we dismissed the appeal and now set out our reasons in full.

Background

2 Dr Low is a consultant ophthalmologist at C H Low Surgical Centre Pte Ltd situated at Mount Elizabeth Medical Centre. He has been practising as an ophthalmologist since 1972. Toh Seng, accompanied by his son, Mr Toh Tian Hock, and his daughter, Ms Toh Khek Cheng, first consulted Dr Low at his clinic on 26 June 2002.

3 Prior to consulting Dr Low, Toh Seng had been treated for glaucoma in both eyes by Dr Peter Tseng (“Dr Tseng”), Senior Consultant Ophthalmic Surgeon at the Singapore National Eye Centre (“SNEC”), for almost ten years. Toh Seng had been blind in his right eye for many years and his left eye was nearly totally blind. Toh Seng had sought treatment from Dr Tseng on 4 June 2002 for high right intraocular pressure at 40mmHg and was prescribed Gutt Timpilo and Gutt Trusopt (eyedrops) and Diamox tablets. When Dr Tseng saw Toh Seng again on 5 June 2002 and 18 June 2002, Toh Seng’s intraocular pressure had dropped to 20mmHg. This was within the normal range.

4 At his initial consultation with Dr Low, Toh Seng had informed Dr Low that for the previous ten years, he had been treated by Dr Tseng at SNEC for glaucoma. Immediately after Dr Low examined Toh Seng during this consultation, he recommended cataract surgery for Toh Seng’s left eye and a trabeculectomy (glaucoma drainage surgery) with a Molteno tube implant for the right eye. Although Toh Seng’s subsequent complaint to the SMC was about the treatment on both eyes, proceedings were ultimately instituted only for the treatment on the right eye.

5 During this first consultation, Toh Seng complained of severe headaches and pain in his right eye. Dr Low diagnosed Toh Seng to be suffering from neovascular glaucoma with raised intraocular pressure of 58mmHg in the right eye. That was about three times the pressure of a normal eye. Dr Low recommended that Toh Seng undergo trabeculectomy with a Molteno implant to reduce the high intraocular pressure. According to the expert opinion placed before us, a trabeculectomy involves making a small “trap door” on the sclera of the eye to allow the fluid causing high intraocular pressure to drain out into the sub-conjunctival space of the eye; a Molteno implant is essentially a tube that encourages the continuous flow of the fluid. Two days later, Dr Low performed the cataract surgery on the left eye as well as the trabeculectomy with the insertion of a Molteno tube on the right eye. He charged Toh Seng a total of $9,292.66 for the procedure on both eyes. The trabeculectomy procedure on the right eye alone cost $3,800.00.

6 Unfortunately, Toh Seng suffered an extrusion of the Molteno tube in early August 2002. After consultations with Dr Low and seeking second opinions, Toh Seng underwent surgery at Tan Tock Seng Hospital to remove the Molteno tube on 10 September 2002. This surgery was performed by another ophthalmologist. Toh Seng subsequently filed a complaint against Dr Low with the SMC on 29 October 2003.

7 Dr Low filed his reply to the complaints committee of the SMC (“the Complaints Committee”) on 8 January 2004. Thereafter, on 16 November 2004, the SMC sent a letter to both Toh Seng and Dr Low to clarify, inter alia, whether other treatment options were offered and whether the relative benefits and risks of these options were discussed. Toh Seng and Dr Low responded on 26 and 28 November 2004 respectively.

8 The Complaints Committee thereafter wrote a letter to Dr Low dated 27 April 2005 notifying him that some aspects of the complaint would be referred to a disciplinary committee of the SMC. On 23 November 2006, Dr Low received a notice of inquiry from the SMC together with an expert report prepared by Assoc Prof Paul Chew (“AP Chew”). The notice of inquiry laid out the two charges of professional misconduct under s 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the Act”) levelled against Dr Low.

9 The first charge read:

That you DR LOW CZE HONG are charged that on or about 26 June 2002, you did recommend glaucoma drainage surgery to your patient, one Toh Seng (“the Patient”) to reduce the high intraocular pressure in his right eye for the purposes of alleviating the pain in his right eye and headaches suffered by the Patient, when you knew or ought to have known that it was not the appropriate treatment.

The particulars of this first charge, were, inter alia:

iii. Glaucoma drainage surgery was not appropriate as a first line treatment for the Patient.

iv. The standard practice as a first line treatment is:-

a. to evaluate medical therapy by optimizing the anti-glaucoma medication for the Patient; and

b. if medical therapy is found to be unsatisfactory, to offer to the Patient other non-invasive procedures such as laser cyclophotocoagulation.

10 The second charge read:

That you DR LOW CZE HONG are charged that on or about 28 June 2002, you did perform glaucoma drainage surgery (“the Surgery”) on your patient, one Toh Seng (“the Patient”) without informing him of all treatment and surgical options available to him, and without sufficiently explaining to him the risks, side-effects and nature of the Surgery, and thereby failed to obtain the informed consent of the Patient for the Surgery that was carried out on him.

The particulars of the second charge were, inter alia:

iii. During your consultation with the Patient, you failed to inform the Patient of any other treatment and surgical options available to him. You also failed to sufficiently explain to him the risks, side-effects and nature of the Surgery.

11 Dr Low claimed trial before the disciplinary committee chaired by Prof John Wong (“the DC”), and the inquiry was held on 30 July 2007, 31 July 2007 and 27 August 2007. The other members of the DC were Assoc Prof Ong Biauw Chi (who replaced Assoc Prof Gilbert Chiang on 5 January 2008), Prof Chacha Pesi Bejonji and Ms Wong Mui Peng (who was the lay member). The legal assessor advising it was Mr Giam Chin Toon SC. On 5 January 2008, the DC came to the following conclusions on the first charge (at para 13 of its verdict):

(a) It is not appropriate to recommend therapy, especially invasive therapy, to patients with chronic medical conditions without seeking input from the patient’s primary doctor, especially in the absence of an emergency, and in this case, when there is a non-functioning organ.

(b) It is not appropriate to reject a proper trial of medication in a patient with a non-functioning organ, especially when an invasive procedure is being considered, and especially when the risk of side-effects of a limited trial is acceptable.

(c) It is not appropriate to reject other forms of therapy on the grounds that the doctor is not familiar with the therapy, or because the therapy is not available in their institution, when such therapy is available in the public institution in Singapore.

12 For the second charge, the DC found (at para 20 of its verdict) that:

Based on the evidence of all the witnesses, the medical records produced and your testimony relating to this charge, the Committee does not accept that other than drainage tube surgery, you had offered the other options to the patient as you had testified. The Committee is fully satisfied that there was no balanced discussion of risk versus benefit in this case to allow the patient to make an informed consent.

13 It is worthy to note that Dr Low was not faulted for the failure of the trabeculectomy he had performed, but for the inappropriateness of the treatment. Before passing sentence on Dr Low, the DC made the following pertinent observations on Dr Low’s conduct (at para 22 of the verdict):

The Committee has carefully considered the submission in mitigation by counsel for you, Dr Low Cze Hong. However the Committee is of the view that your action, by such a senior member of the medical profession, is a serious breach of professionalism. The Committee has to send a clear signal to the profession that inappropriate treatment cannot be tolerated. The Committee also stresses the critical importance of patients understanding all options available, and the risks and benefits of these options, especially when treatment is elective. [emphasis added]

The DC then passed the following sentence:

(a) that [Dr Low] be fined the sum of $7,000;

(b) that [Dr Low] be censured;

(c) that [Dr Low] give a written undertaking to abstain in future from the conduct complained of or in any similar conduct; and

(d) that [Dr Low] pay the costs and expenses of and incidental to the proceedings, including those of the solicitor of the [SMC] and the Legal Assessor.

Grounds of appeal

14 Before us, Dr Low appealed against his conviction on both charges. For the first charge, he disputed each of the three conclusions reached by the DC. With regards to the first conclusion (see [11] above), he contended that:

(a) Contrary to evidence, the DC failed to recognise that Toh Seng was suffering from an acute onset of neovascular glaucoma during his first consultation with Dr Low, and not the chronic angle-closure glaucoma treated by Toh...

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