Singapore Medical Council v Lim Mey Lee Susan

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 13 May 2015
• Neutral Citation: [2015] SGHC 129
• Court: High Court (Singapore)
• Docket Number: Bill of Costs Nos 110 of 2014 and 111 of 2014 (Summonses Nos 4443 and SUM 4444 of 2014)
• Year: 2015
• Published date: 12 March 2016
• Hearing Date: 17 April 2015,02 February 2015,31 March 2015
• Plaintiff Counsel: Melanie Ho, Chang Man Phing and Jocelyn Ngiam (WongPartnership LLP)
• Defendant Counsel: Paul Tan, Amy Seow and Alyssa Leong (Rajah & Tann Singapore LLP)
• Subject Matter: Civil Procedure,Costs,Taxation
• Citation: [2015] SGHC 129

Woo Bih Li J: Introduction

This review concerns two party-and-party bills rendered by the Applicant, the Singapore Medical Council (“SMC”), against the Respondent, Dr Susan Lim (“Dr Lim”): Bill of Costs No 111/2014 (“B/C 111/2014”) for work done for hearings before two disciplinary committees from 2010-2012 (the “DC hearings”); and Bill of Costs No 110/2014 (“B/C 110/2014”) for work done for an appeal to a Court of Three Judges.

On 4 September 2014, B/C 111/2014 and B/C 110/2014 (“the Bills”) were taxed by an Assistant Registrar (“AR”) in the following amounts (all excluding GST):

B/C No	Section No	Amount claimed by SMC	Amount suggested by Dr Lim	Amount taxed
111/2014	1	$900,000	$156,000	$180,000
2	$ 6,000	$ 1,500	Each party bears own costs
	3	(i) First legal assessor’s fees: $49,200	(i) First legal assessor’s fees: $40,000	(i) First legal assessor’s fees: $45,000
(ii) Second legal assessor’s fees: $235,635.40	(ii) Second legal assessor’s fees: $20,000	(ii) Second legal assessor’s fees: $22,000
(iii) Dr Tan Yew Oo’s fees: $12,145	(iii) Dr Tan Yew Oo’s fees: $6,000	(iii) Dr Tan Yew Oo’s fees: $9,000
(iv) Dr Hong Ga Sze’s fees: $40,000	(iv) Dr Hong Ga Sze’s fees: $5,000	(iv) Dr Hong Ga Sze’s fees: $5,000
(v) Ring binders: $6.00 per unit	(v) Ring binders: $2.50 per unit	(v) Ring binders: $2.50 per unit
110/2014	1	$150,000	$40,000	$70,000
2	$ 3,000	$ 1,000	$ 1,000

SMC then filed Summonses Nos 4444 of 2014 and 4443 of 2014 to seek a review of the AR’s taxation of Sections 1, 2 and 3 of BC 111/2014 and Section 1 of BC 110/2014 respectively.

The Bills arose from disciplinary proceedings against Dr Lim. She was charged and found guilty on 94 charges of professional misconduct in respect of one and the same patient. The first 83 charges were for allegedly invoicing the patient medical fees that were far in excess of and disproportionate to the services rendered by Dr Lim and her medical team. The remaining 11 charges were for allegedly invoicing the patient medical fees that were far in excess of and disproportionate to the services rendered as well as falsely representing that such fees had been invoiced by and/or would be payable to certain named doctors, when Dr Lim knew or ought to have known that such representation was not true because she had added a significant and undisclosed markup to the actual fees charged by those doctors.

Although the disciplinary proceedings against Dr Lim are not the same as the usual civil or criminal proceedings in the High Court, it is common ground that in taxing the costs of a party to such proceedings, the court will have regard to all the relevant circumstances and, in particular, to the factors stipulated in O 59 Appendix 1 of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (see Shorvon Simon v Singapore Medical Council [2006] 1 SLR(R) 182 (“Shorvon”) at [19]). The factors stipulated in Appendix 1 of O 59, some of which overlap, are:

(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

(b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor;

(c) the number and importance of the documents (however brief) prepared or perused;

(d) the place and circumstances in which the business involved is transacted;

(e) the urgency and importance of the cause or matter to the client; and

(f) where money or property is involved, its amount or value.

It was also common ground that the charges raised issues of importance to both the SMC and to Dr Lim especially in the light of the quantum involved and the extent of the alleged overcharging. Dr Lim had charged the patient an aggregate total of $24m. She subsequently offered to withdraw certain invoices or discount her fees so that the aggregate would be reduced to about $12.6m. Even then, the Court of Three Judges agreed that the $12.6m figure would still be several times more than what she ought to have charged the patient.

WongPartnership (“WP”) act for SMC. WP submitted that there were fundamentally important issues which were raised in the disciplinary proceedings. As the Court of Three Judges said in Lim Mey Lee Susan v Singapore Medical Council [2013] 3 SLR 900 (“Susan Lim”) at [1] and [2]: 1 … [T]his appeal raises several related issues of fundamental importance. In particular, is there an ethical obligation on the part of all doctors who practise medicine in Singapore to charge a fair and reasonable fee for their services? If so, is such an obligation an inherent one, or must it first be embodied within published legislation or rules before it can be enforced? If such an ethical obligation exists, is it inoperative in the face of a binding contract between a doctor and his or her patient (assuming that the contract in question is not otherwise rendered invalid under the general principles of contract law)? These questions raise, in turn, an even more fundamental question – what does it mean to be a professional? More specifically, is a professional bound by ethical obligations which trump his or her commercial obligations and interests? If so, should a distinction be drawn between lawyers on the one hand and doctors on the other, given that for lawyers, the answer to the last-mentioned question is in the affirmative, whilst counsel for the Appellant has argued that the contrary should obtain for his client instead? 2 There are also numerous important issues of application as well. …

[emphasis in original]

For Dr Lim, a finding that she had overcharged the patient was likely to attract a severe sanction such as suspension from practice or something else more severe in the light of the huge aggregate sum involved and the allegations of the extent of overcharging. Her professional reputation was very much at stake too.

As for complexity, the AR noted WP’s argument that the charges necessitated an understanding of the technical medical services provided. The AR also noted that Rajah & Tann (“R&T”) who act for Dr Lim, did not really challenge the complexity of the matter.¹ Indeed, as WP pointed out, the written submissions for Dr Lim to the Court of Three Judges stated:

“This is a case that involves very complex and novel issues of law. It involves very complex and intricate facts almost none of which have been analysed or presented in comprehensible form …”

Even so, the AR was of the view that the factual complexity of Dr Lim’s matter was not of the level as that in Pang Ah San v Singapore Medical Council [2014] 1 SLR 1094 (“Pang Ah San”) or that in Shorvon.²

The AR observed that in Pang Ah San, it was necessary to examine the medical procedure performed because one of the key issues of fact was whether the loop-percutaneous endoscopic gastronomy procedure performed was generally accepted by the medical profession.

The AR also observed that in Shorvon, “a thorough understanding of scientific and medical practices, methodologies, ethics …” was required as was observed by the Court of Appeal in that case. Also several of the charges in Shorvon involved an examination of whether the doctor there had failed to safeguard the best interests and health of patients afflicted with Parkinson’s disease by exposing them to unnecessary risks.

It was therefore no surprise that R&T seized on the AR’s observations to argue that Dr Lim’s case was not as complex as claimed by WP.

I am of the view that while the disputes in Dr Lim’s case did not involve a consideration of a medical procedure as in Pang Ah San, Dr Lim was facing 94 charges whereas in Pang Ah San, the doctor was facing one main charge. While it is true that the 94 charges were grouped into two main categories, there were a further six sub-categories. The SMC, as the prosecution, had the burden of establishing each and every charge even though there would be some overlap for similar services. Indeed, the Court of Three Judges noted that SMC had in fact placed a detailed rendition of each charge before the DC (see Susan Lim at [77]) and the Court of Three Judges themselves also scrutinised all the 94 charges. Dr Lim did not concede the fact or extent of over-charging and it was only late in the day, as I shall elaborate later, that she said that she was not going to call any evidence on her behalf.

Furthermore, documents totalling 12,531 pages were involved for the proceedings at the inquiry stage before the two disciplinary committees. While there was overlap of documents between the SMC and Dr Lim, this case was obviously document intensive.

As for Shorvon, there were a number of charges but not close to 94 and while some factual issues there were complicated, that case was not as document intensive as Dr Lim’s case. It seems to me that, bearing in mind the legal and factual issues, Dr Lim’s case was more complex that Dr Shorvon’s. Furthermore, Dr Shorvon did not appear or have anyone represent him to contest the SMC’s case unlike Dr Lim whose solicitors vigorously contested the charges.

Therefore, it was no wonder and it is worth reiterating that the submissions for Dr Lim to the Court of Three Judges stated that the case involved “very complex and novel issues of law” and involved “very complex and intricate facts”.

SMC and Dr Lim were each represented by senior counsel and each senior counsel had a team of solicitors to assist him. While R&T stressed that SMC did not obtain a certificate for two or more counsel, the complexity of the matter was still a matter to be considered.

For the rest of my judgment, I will first consider the work done for the inquiry before the disciplinary committees and then the work done for the appeal to the Court of Three Judges.

B/C 111/2014...