Risks are ubiquitous in medicine. It is very important to realise that a risk can be both a threat and a friend. Risks relate to probabilities. The probability or possibility that the outcome may not be as desired. The Law does have a perverse view on this. The Law likes, demands, seeks cause and consequence. An honest doctor can rarely satisfy the Law. And that is why it was such a bad thing to see this poor Judge being led by the nose by two unscrupulous Medical “Experts”!
This is where we have to go to the backend of “Reasons for Sentencing” report. The poor Judge, I was feeling quite embarrassed for her by this time, began in an unnecessarily pompous way to outline the facts that rendered the case so serious as to warrant an immediate custodial sentence.
Para 59: “The prosecution experts, Dr Mainland, the anaethesiologist, and Dr Chan Yu-wai, a specialist surgeon in plastic and reconstructive surgery expressed the view that the breach of duty in this case constituted a very serious departure from normal professional standards.” Just to remind the reader that Dr Mainland was the devious expert who mislead the Jury and the Judge about “guidelines”. Who colluded with the Prosecutor to create indictments with no legal, ethical or moral basis. But, there was something almost endearing about her tenacity as evidenced by the propofol drama. That was something. (https://www.thepmfajournal.com/blog/post/gross-negligence-manslaughter-in-healthcare-the-medico-legal-dilemma-part-8-propofol)
But Jimmy?! What on earth prompted him to stand up in open court and lie? (https://www.thepmfajournal.com/blog/post/gross-negligence-manslaughter-in-healthcare-the-medico-legal-dilemma-part-6-cosmetic-surgery-in-hong-kong). This is going to be interesting because it may be a test case of a doctor suing the experts who mislead the court, spread lies and misinformation and created a monster out of a Judge.
So I want to look at the comments made by the Judge using the medical expert opinions on which she based her legal opinion.
Para 59: “(i) and (ii) no pre-surgery assessment of Lee’s medical condition (such as a full work up of comorbidity associated with obesity given her weight) such assessment would have shown if Lee had an increased risk of cardiorespiratory compromise.
(ii) Lack of documentation and/or lack of records of necessary information. There was no record of a peri-operative interview with Lee regarding the nature of the surgery, the potential risk associated with the procedure.”
When considering these two justifications for an immediate custodial sentence, even though the so-called crime had occurred seven years before, the inconsistences of logic are literally painful. When a Judge uses the classic student bullshit of “such as a full work up” she reveals exactly who she is. She is out of her depth and doing her best to try and make some sense of the information she is being given without giving away the fact that she does not understand what is going on. It is the “such as” that gives the game away. If you have any sense you try to throw in something specific. But there is a problem because if you asked Jimmy Chan, what would a full work up mean? Could he answer? I urge the reader to look out this paper: Böhmer AB, Wappler F, Zwissler B. Preoperative risk assessment—from routine tests to individualized investigation. Deutsches Ärzteblatt International 2014;111(25):437. There was an honesty in this paper which sets it apart from the run of the mill CME articles. The authors drew attention to a consensual approach to a shared clinical problem. This is very, very important because it is exactly the opposite of what Dr Mainland was doing in her misdirection of the Judge and Jury. In the introductory paragraph the authors highlight the differences between guidelines and consensus finding processes. This was a multidisciplinary group and they made recommendations that were acceptable to all the stakeholders. The specialty group, the European Society of Anaesthesiology, came up with guidelines using evidence-based recommendations for the treatment of specific diseases but made no recommendations about preoperative testing. The CME article continues with a review of other studies and presents a strategy which is based on the individualisation of investigation. Thus coming back to this “full work up of comorbidity associated with obesity” what was being proposed by the Medical Experts? A chest xray, ECG, bloods, maybe a treadmill? No. No No. What comorbidities are associated with obesity? Well, there are quite a few and if you start to investigate for them what are the chances that you might discover something new?
Most new co-morbidities can be determined by taking a good history and undertaking a physical examination. This process should begin as soon as the prospect of an operation is raised. Ideally it should not be more than six weeks before the intended surgery. But it could be much longer, and we also have to consider the effects of experience on opinion. A patient who has had prior experience of a procedure with no adverse events or recollection would be more inclined to consent to a new procedure. What about the history and examination? The problem with the prosecution medical experts is that they have no idea how private cosmetic surgery works in Hong Kong. The business is built on repeat treatments. New walk-ins are not so common. The relationship between Vanessa and Madam Lee was actually based on shared social activities. There would be a constant exchange of information over a period of time and, remember, the primary relationship was as a student and teacher of dance. The switch to doctor and patient would have been subtle but now there is a duty of care. A moral and ethical duty to do the best for the client. The “best” varies in terms of perks but the fundamental duty of care must be consistent and rational.
The Judge then reveals yet another, grave, breach of understanding. Claiming that the investigation would determine whether the patient did have “an increased risk of cardiorespiratory compromise.”
The best physical assessment of cardiopulmonary reserve is for the doctor and patient to undertake a stress test. Walking up the stairs together works but so does dancing. Then we look at the relative cardiac risk rating of different procedures and liposuction comes under low risk. Another factor of interest is the general level of metabolic activity of the patient? Level 4 is associated with, amongst other activities, moderately strenuous sports, for example, dancing.
In other words, if your patient is an active dancer with no other identifiable medical problems then there is nothing to investigate. The Judge was wrong, and I do feel very sorry for her but the fault is in the system. And that is what must change.