Important observations

Last month was a month for changes and for celebrations.  Two events, the HKMA 90^th Anniversary Charity Concert and the Public Education Day (Beat Drug Stars Brighten the Community) were successfully held.  Both events were beat drugs activities related to the new Beat Drugs Action Committee.  Another event was the Annual General Meeting with the announcement of results of the HKMA Council Election.  Dr. CHOI Kin was elected President (again).  Dr. CHAN Yee Shing and Dr. CHOW Pak Chin were elected Vice-Presidents (again).  Dr. LEUNG Chi Chiu was elected Honorary Treasurer (again).  The six elected Council Members were Dr. IP Wing Yuk, Dr. LO Chi Fung, Dr. SHEA Tat Ming, Dr. SHIH Tai Cho, Dr. WONG Yee Him and myself.  I have to thank everyone for their support so that I can continue to serve on the Council.  I was also appointed the Editor of the News again in the first Council Meeting.  (Dr. LEE Fook Kay was appointed Honorary Secretary.)  In this issue, I continue to share with you some important observations concerning decisions of the Medical Council.  It is about the use of steroid again.

Last month, a doctor was found professional misconduct “… in that he prescribed to the patient systemic corticosteroids without informing the patient of the nature, anticipated actions, and possible side effects of such medication.”  Another case decided early this year was looked upon as the precedent case.  The charge in that case was that “the doctor prescribed to the patient celestamine that contained steroid without informing the patient of the fact that celestamine contained steroid.”

In the recent case, the judgment stated that: “The Council has repeatedly emphasized that it is a duty upon all registered medical practitioners who prescribe steroids to inform patients of the nature and the side effects of the medication.”  The judgment was very strict and was very broad as it caught all steroids and not just systemic steroids, and the dosage or duration was not taken into consideration.  For example, the judgment also stated that: “By failing to inform the patient that Dexamethasone is a steroid, the Defendant’s conduct has fallen below the standard expected amongst registered medical practitioners.”  It was also ruled that the specific Chinese term 類固醇 had to be mentioned.  “The term 消炎、消腫藥 is too ambiguous as it can refer to many other drugs, and is not an acceptable substitute for 類固醇.”

Naming it “properly” was not enough, the nature and side effects had to be explained.  In this case, “The Defendant only advised the patient of the potential side effect of gastro-intestinal upset.  No mention was made of other significant side effects of steroids, such as susceptibility to infection and mental disorder.  In this respect, the Defendant’s conduct has fallen below the standard expected amongst registered medical practitioners.”  It was debatable whether Dexamethasone 0.5mg QID for two days could cause these side effects.  Even for informed consent, failure to volunteer rare side effects might not render the doctor guilty.

The appropriate provision in the Code for warning patients about side effects of medications is Section 9.6.  It stipulates that: “Where a drug is commonly known to have serious side effects, the doctor has the responsibility to properly explain the side effects to the patient before prescribing the drug.”  The non-judicial use of steroids should be discouraged.  However it is neither a good law nor a good practice to make it necessary to have informed consent for the use of steroids disregard of the indication, the duration or the dosage.

Below is the summary of my observations and thoughts:

• Whenever steroid is use, the patient has to be informed.
• The doctor has to volunteer all the information.  He would be found guilty of misconduct if he does not do so.  It does not matter whether the patient asks about it or not.
• Steroids have to be referred to as 類固醇.
• Detailed potential side-effects have to be mentioned.
• This is not limited to systemic steroids.
• The indication, the dose and the duration are not taken into consideration.
• Strict liability has been introduced for the use of steroids.
• I still doubted that the prosecution had failed to prove that the use of a few days of low dose steroid could cause serious side effects to the extent that professional misconduct was involved.
• It is not clear whether this strict liability is limited to the use of steroids (and whether it is limited to systemic steroids) or to all drugs commonly known to have serious side effects.
• The strict requirement of informed consent for the prescription of a drug is more complicated than you can expect.  It can develop into the need to prove that there has been consent; that the patient understands the information given; that the patient agrees to the use of the medication with the specification of everything including the dose, the duration, the correct diagnosis and each and every details; and that there should be explanation of other options of treatment. 

(Source: HKMA News August 2010)

A Review

June is the month for HKMA Council Election.  You would probably have received the election materials.  Please remember to return your ballot paper before July 8.  2010 is the year for the election of HKMA President, which is held every two years.  Results of election will be announced during the Annual General Meeting on July 22.  It is the tradition that composition of committees will be reviewed with the change of President.  So this might be the last issue for me to be writing as the Editor of the News.  In fact my three-year term for Council Member will also end this year.  If I were not re-elected, this would be the end of my six years’ service as Council Member for HKMA.  It is my habit to have a brief review.

Two years ago, my first editorial made an analogy of the News to a bridge, providing a two-way flow of information between the HKMA Council and our members.  I also showed a photo of the Treetop Walkway in Kew Gardens of London, which is an 18-meter high footbridge allowing visitors to view the treetops.  This was the function that I meant to emphasize: to view things from a different angle.  In these two years, the good traditions of the News had been continued, while some new features were added.  There had been establishment of the editor@hkma.org for easier communication between the editorial board and members, ensuring the function of bi-directional flow of information.  There had been the interview sessions, looking from a different angle at the Secretary for Justice, our Legco Councilor, the Dean of Medical School, past presidents of different organizations, young doctors and medical students.  There had also been the photo corner featuring fantastic pictures from our members.  Apart from these changes, I hope you might notice that the News have been reaching you punctually, on or before the 25^th day of each month.  Moreover, the quality of the print has improved.  The number of pages has also been increasing for the enriched contents and the increased flow of information.

This time, at the end of my term, I paid a visit to another Continent.  I left behind the Tower Bridge, the London Bridge, the Millennium Bridge and the Kew Treetop Walkway.  I found a good site and took a good look at the Golden Gate Bridge.  The Golden Gate Bridge connects the city of San Francisco to Marin County.  It is the most internationally recognized symbol of San Francisco.  When talking about San Francisco, people will automatically think of the Gold Gate Bridge, and vice versa.  The bridge is very accommodative for passengers.  It has six lanes for vehicles, as well as wide pavements for foot traffic and cyclists.  As the bridge is the only road to exit San Francisco to the northern part, traffic is always busy.  I was amazed when I first observed the flexibility of the bridge.  There are altogether six lanes for vehicles.  In order to conform to traffic patterns, the median markers between the lanes are not fixed.  During my visit, four of the six lanes ran northbound on weekday afternoons.  On the contrary, four lanes ran southbound in the evening after a long weekend holiday.  The measures are very appreciative, as they allow a pathway to have great flexibility.  The features of the Golden Gate Bridge are actually my visions of the News.  I hope the Association and the News are joined at the hip.  While continue serving the functions as a bridge, I wish the News will provide larger flow of information and greater flexibility.

A review of my work cannot leave without reviewing the “From the Editor” column.  Before I became the Editor two years ago, and in fact before I became a Council Member six years ago, I have been submitting articles to the News.  Some of you might be able to recall some of my interesting stories in Chinese (and I like “Advices for Family Doctors” and “Signature version” most).  Having a quick glance through the twenty odd editorials, most of them were on events happened on that particular month: Legco Election, Lehman Brothers, Healthcare Reform, melamine-tainted milk, Obama, increase intake of medical students, contaminated and unlicensed medications, H1N1, school drug tests…  Another feature noticed was that more than half of the editorials touched on medico-legal issues and Medical Council cases.  Afterall, I have a degree in law and a master degree in medical law.  But it was not only my own interest and my training that made me write on these issues.  I thought that they were important and I had the duty to bring to readers’ attention of the cases, and of my views on them.  These included the doctor with inappropriate personal contact with his patient, the advertising doctor, the “honest but mistaken belief” in a doctor who practiced without registration, the indecent assault at A&E case, the celestamine case and the laboratory tests equal to rebate in disguise case.  It was the laboratory tests equal to rebate in disguise case that was written on most.  A detailed analysis spanned three pages in the September 09 issue, followed by another article in the May 10 issue after a letter from the Chairperson of the Medical Council expressing her personal opinions on the subject matter.  I hoped that these articles did not bore our readers.  But as a Council Member of the Medical Council, I felt the duty to share my opinions with members on this important decision which would affect most, if not all, doctors in private practice.  I am very glad that my expressed opinions are shared and support by many members, including members from the Medical Council and its committees.  I am expecting good news from the Medical Council concerning the clarification of the decision.

(Source: HKMA News June 2010)

Dangerous precedents

“No more Medical Council!”  I had told myself when I wrote the Editorial last month that I should not write on the Medical Council anymore.  Summer is approaching and it should be time for fun.  As shown in the photo, my bear had refused to dress up for taking picture for illustration anymore.  When I caught him, he had got changed and was ready to play in the pool with his rubber duck.  (The photo was taken in a misty day, which by coincidence reflected the atmosphere and the environment of what I am going to discuss.)

However, I was also caught liked the bear.  It was only when the media approached us did we know that there had been a letter uploaded to the website of the Medical Council to all doctors from the Chairman of the Medical Council.  It was only when a letter from the Secretary of the Medical Council was put up for discussion in the HKMA Council meeting did we know that the HKMA was asked to publish that letter for the Chairman.  Members of the Medical Council confirmed that there had not been any discussion on the content of the letter nor any discussion on the letter itself.  Upon enquiry, the Chairman stated that it was only her personal opinions.  The HKMA thus decided to decline the request for publication of the “personal letter in the name of the Chairman of the Medical Council”.  Because of the irregularity and the attention stirred up in the media, I was asked to write something on this matter.

Everything started around September last year when a doctor was found professional misconduct because he charged an old-aged patient excessively for blood tests for sexually transmitted disease with the provisional diagnosis of zoster.  Most doctors might agree to the verdict of this straight forward case.  However, it was the reason for finding him guilty and the judgment that most doctors disagreed to and even found annoying.

The case and the judgment

Apparent facts

• A doctor charged a patient up to ten times the cost for blood tests.
• He marked the charge as laboratory tests in the receipt.
• He was then found professional misconduct for charging excessively.
• However, the reason given in the judgment for finding him guilty was that the item “laboratory charge” as stated in a receipt should be “the fees charged by the laboratories”.  Charging more than that was “a rebate in disguise” and was misconduct.

Impressions

• This was an extreme case with ten times excessive charge on a relatively old aged patient without thorough discussion and time for decision.
• The inquiry panel failed to address the uniqueness of this case and instead made a general finding on technicality.
• The reasoning was super artificial, if not wrong, and dwelled on the labeling of an item on a receipt.
• By the reasoning of the judgment, a doctor would be found misconduct if: he charged one dollar more than what the laboratory billed him and at the same time he wrote that amount on a receipt as laboratory test.
• The ruling disregarded the common practice of doctors and the ambiguity posed threat to many doctors.

Implications

• To avoid being caught by the ambiguity of the judgment, it might be wise to add a clause to explain every charge on the receipt to be interpreted as including, and not limited to, consultation, handling, professional judgment and advice, rental…, and virtually everything in the world.
• The judgment was so artificial that it took the convenience of targeting the bill from the laboratory because the charge was stated clearly.  This meant that when the cost could not be defined conveniently, the charge would not matter.  This encouraged doctors to perform more laboratory tests in their clinic, which might not be a desirable outcome.
• All the fuss might spread to “medication fees” in the receipt in a similar sense to “laboratory tests”.

The handling by the Medical Council Chairman

Apparent facts

• The doctor appealed to the Court of Appeal and lost.  His appeal was dismissed.
• The judgment from the Court of Appeal did not rule on the interpretation of “laboratory tests” or how the verdict was arrived at.
• The main focus of ruling was whether it was appropriate for the Legal Advisor of the Medical Council to give advice on the points of law and on facts during an inquiry.
• After the judgment was delivered, the Chairman of the Medical Council uploaded a personal letter addressing to all registered medical practitioners, stating that: “Arising from this case, the Medical Council wished to impress upon members of the profession that the doctor’s own fees for professional services should be clearly separated from the fees collected on behalf of laboratories for investigations.  If the doctor charges fees for his own services in connection with the investigations to be performed by the laboratories, the charge should be clearly set out and explained to the patient.”
• The content of the letter and the issuing of the letter had not gone through the normal procedure of discussion and endorsement by members of the Medical Council.
• What the Chairman wanted to “impress upon” doctors in the name of the Medical Council was more than that decided in the case.
• The artificial judgment in the case ruled that when a charge was stated as laboratory test, it equated the charge billed by the laboratory to the doctor.  Charging more than that stated was charging excessively (and rebate in disguise).
• However, what was stated in the letter posed a strict liability on doctors to explain charges to patients irrespective whether they were asked by patients or not.

Impressions

• The case concerned was an exceptional case with extreme charges.  It was a disaster for other doctors when a general judgment was given which would affect their common practice.
• It was more disastrous when this was seized as a chance to “impress upon members of the profession” with the involvement of the media.  This gave the public an impression that the exceptional case was not exceptional, but it was necessary to warn all doctors who might be behaving like the doctor concerned.
• The reason for the Medical Council to have representations from different sectors is for thorough discussion and collective decision making.  It should take into consideration of opinions and voices from different aspects.  Seemingly, this mechanism was not respected.

Implications

• The image of doctors was affected out of an extreme case of misconduct (in which the doctor was reprimanded only).
• New code of conduct or innovative interpretation of the code tended to arise from the inquiry level.
• Due process was not respected.

Ripples

• All these arose as ripples from the judgment of an extreme case of misconduct.
• There had been attempt to initial a review according to the Medical Registration Ordinance (MRO) so as to clarify any ambiguity and to address concerns from doctors.  However, the request was disallowed because of a strange interpretation (as least it was strange to me) of the MRO saying that the word “Council” in that provision meant the inquiry panel instead of the usual meaning of the Medical Council.
• So apart from missing the chance for discussion and stopping the ripples, the Medical Council was stripped of an important power to review a decided case.

All these are dangerous precedents.

(Source: HKMA News May 2010)

As Time Goes By……

As time goes by, the year 2010 marks the 90^th Anniversary of the HK Medical Association.  There will be a series of activities to celebrate this big event.  The Charity Concert on July 31, 2010 will mark the beginning of these activities while the Annual Ball on December 31, 2010 will be the finale.  Other activities include sports events (the HKMA 90^th Anniversary Cup), singing contests, public education events, recreation and cultural activities, and the production of souvenirs.  It is my honour to be responsible for the production of the Commemorative Publication.  If you have any documents or photographs related to the history of the HKMA and would like to share with others, please kindly send them to the Secretariat (Ms. Candy YUEN).  Your precious memories might appear in the Publication.

As time goes by, this is the third year I have been serving on the Action Committee Against Narcotics (ACAN).  The medical profession and the HKMA have always been supportive in beat drugs activities.  In response to the need to consolidate beat drugs activities organized by the HK Medical Association, the Beat Drugs Action Committee (BDAC) was formed in March 2010.  It aims at strengthening the role of doctors in the team work of prevention and management of drug abuse problems in Hong Kong.  Activities organized by the BDAC include school talks, public education, CME lectures and workshops for doctor training, group therapy programme with drug abusers, and cooperation with other organizations and professions in the prevention, treatment and rehabilitation of drug abusers.  Another piece of good news was that the BDAC had successfully applied to be the beneficiary of the 90^th Anniversary Charity Concert.

As time goes by, it is becoming more and more difficult to be a doctor.  It is becoming more and more difficult for a doctor to realize, to understand, to accept and then to follow the decisions of the Medical Council so as not to find himself being charged misconduct in a professional respect.  The recent area of concern is the prescription of steroids.  In this issue of the News, the Special Feature section from JSM talks about the pitfalls in the use of steroids.  I think this article is in response to a recent decision of the Medical Council.  The agreed facts of the case were that a family doctor diagnosed an adult patient having acute bronchitis and gave him three days of celestamine (one tablet four times a day).  He was found professional misconduct not because of his failure to justify the use of steroid.  The charge was that he prescribed to the patient celestamine that contained steroid without informing the patient of the fact that celestamine contained steroid.

It was a strange charge.  It stated that if you gave steroid to a patient, you must tell him the fact that steroid was given.  It did not matter whether the patient asked for it or not.  You must volunteer this piece of information.  Otherwise, it was professional misconduct.  And this was exactly the case.  Apparently, the patient did not ask anything about the medication.  He just disappeared after receiving the medication and then complaint to the Medical Council.  Then the outcome was that the doctor was found professional misconduct.

Steroid is a potentially harmful medication.  There can be very serious side effects to the patient especially when used in high dose and in prolong use.  Doctors have the duty to explain clearly to the patient about the indication, the side-effects, the precautions and the alternatives to the use of long term steroid.  This is the respect of patients’ rights to choose and to have information before consenting to treatment.  This should apply to all kinds of treatment.  The more serious the side effects are, the more information should be given and more time should be spent on discussion.  The relevant provision in the Code is Section 9.6, which stipulates “Where a drug is commonly known to have serious side effects, the doctor has the responsibility to properly explain the side effects to the patient before prescribing the drug.” 

Having stressed the importance of patient protection and the respect of patients’ rights, one must also agree that misconduct in a professional respect is a very serious allegation to the doctor.  Being found professional misconduct would certainly affect the doctor’s good name.  The guilty doctor can also be removed from the general register and his livelihood being affected.  He might have difficulties in his application for restoration to the register.  He is not eligible for the election to be a council member of the Medical Council.  In this case, it should have been the duty of the Medical Council to prove that the use of three days of celestamine with the said dosage on an adult patient could cause serious side effects to the extent that the doctor was obliged to volunteer information concerning its use.  However, it seems to me that the judgment imposes a strict liability on doctors to volunteer information including side-effects on steroids whenever they are used irrespective of circumstances and justifications.  Naturally, many questions would arise in doctors’ mind.  Is this good development in the control of doctors’ practice and conduct?  What are the harmful effects of three days steroid on an adult?  How about other medications such as antibiotics, NSAIDs, hormones and symptomatic treatments?  Do doctors need to volunteer information on the use of these potentially harmful medications?  What make steroids single out in medications?  How about the omission of the use of steroids when there is an indication for their use?  Do doctors need to volunteer information for not using steroids?

As time goes by……

(Source: HKMA News April 2010)

Does it make sense?

 

It is spring time and Tiger Woods is back.  Let’s talk about golfing.  When reading golf magazines, there are always columns on quizzes and asking the pros.  So I throw out a question for you: When a professional golfer misses a half-foot putting, is he unprofessional? 

What is unprofessional?  As doctors, we have been sensitized by the word “unprofessional” and are likely to link it automatically to professional misconduct.  Our approach to the question would be to ask if his act of missing a half-foot putting falls below the standard of his peers.  Someone would suggest asking the opinion of another pro in golfing.  Then there happens to have one pro telling you that it does happen for pros to miss short putting.  Evidence is ample if you watch TV.  Even Tiger Woods misses short putting once in a while.

If you, acting as the judge, stop at this point and are satisfied that the golfer involved is not unprofessional, then you are unprofessional to act as the judge.  The pro who gives his opinion is only a pro in golfing, but not a pro in judging.  The judge should analyze the context of the missed put.  Was the golfer aiming at the hole?  Had he done his routine preparatory work?  Was he distracted?  Had he done that putting in his usual manner?  The judge should be satisfied that all these things had been done properly and that it was only hard luck that the golfer missed the short-distance put.  He can then rule the golfer not unprofessional.  In some cases, even the lay audience can easily point out that the golfer has failed to aim at the hole.  The golfer can thus be regarded unprofessional without involvement of the expert witness.  That’s how common sense works.

The above is a parable told by me to explain the development of the approach by courts through the cases of Bolam and Bolitho regarding the decision of breaching of duty in clinical negligence.  They also bear some relation to the decision of professional misconduct.  The famous Bolam Test states that: “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art...  Putting it the other way round a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view”. 

However, courts are uneasy at this simplified, automatic approach.  In Hucks v Cole ([1993] 4 Med LR 393), Sachs LJ introduced the “insurance principle” into the Bolam Test.  Basically, he opined that if the price for precautions to prevent the actualization of a certain risk was small when compared to the risk involved, it was negligent to omit the precautions no matter what other doctors did.  He said (at page 397): “When the evidence shows that a lacuna exists by which risks of great danger are knowingly taken, then, however, small the risks, the courts must anxiously examine that lacuna - particularly, if the risks can be easily and inexpensively avoided.  If the court finds on an analysis of the reasons given for not taking the precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should be taken, its function is to state that fact and where necessary to state that it constitutes negligence.  In such a case the practice will no doubt be altered to the benefit of patients.  On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not conclusive.”

Subsequently, the House of Lords seized the opportunity to re-explain the Bolam Test in Bolitho v City and Hackney H.A. ([1997] 4 All ER 1151).  They made some interesting observations on the status of the Bolam test.  They opined that it was not enough to solely rely on medical opinions.  The opinion itself “must have a logical basis”.  The court therefore must be satisfied that the experts in question had weighed up the risks and advantages associated with a particular procedure and had reached, in Lord Browne-Wilkinson’s words, “a defensible conclusion”.  I reframe the approach in one question: Does it make sense? 

One sunny day, I had the privilege of discussing cases with some senior colleagues. One of the case scenarios described an adult patient who presented himself to an ENT specialist with several weeks’ history of one-sided ear block, ear discomfort and tinnitus, together with recurrent nose bleeding.  I opined that the patient actually presented with the cardinal symptoms of nasopharyngeal carcinoma.  Missing that diagnosis without further investigations put the doctor at risk of professional misconduct.  I was mocked at by a senior doctor.  He told me that I should not think that I processed better knowledge on NPC than a specialist in ENT.  Moreover, there happened to be another ENT specialist who believed that missing the diagnosis of NPC with repeated consultations on that patient was accepted practice in his expert opinion.  That was not a case of tricky NPC where repeated biopsies were negative on different occasions.  Apparently I doubted whether the EBV status or an endoscopic examination had been performed.  The patient was lucky to trust his lay knowledge and visited another ENT specialist, who diagnosed NPC right away and started treatment.

As a family doctor, I always remind myself and medical students about two separate lists of differential diagnoses.  One list involves common causes on which you will probably find the actual diagnosis to account for the patient’s signs and symptoms.  The other list includes important causes that a doctor cannot afford to miss.  They are serious illnesses particularly those that are treatable.  Missing the diagnosis means depriving the patient of an opportunity to have early treatment and sometimes it means depriving the patient of his life.  Nasopharyngeal carcinoma is common in Hong Kong and it is of good prognosis if identified and treated early.  The patient in the case scenario obviously went to see the specialist to rule out the risk of something serious.  Did evidence tell us that the doctor had thought of the diagnosis of NPC?  Had he ruled out the important diagnosis by assessing the risks of the patient?  Was he aware of the family history of NPC of the patient?  Had he checked the EBV status?  Had he done any further investigations including scanning or endoscopy?  Did the judge and the expert consider these questions that the patient wanted them to answer?  Did all these make sense?

 (Source: HKMA News March 2010)