Para 65: “The defendant was the only medically-trained person in the operation room. The surgical procedure lasted for about three hours. As Dr Chan stated, the defendant’s concentration would be on the surgery as the surgeon, she would therefore be unable to properly monitor Lee’s vital signs. The defendant had lost all rational verbal communication and response with Lee as she was deeply sedated.”

The Judge continues in her ‘Reasons for Sentencing’ and refers to the expert opinion of Dr Jimmy Chan. I have already indicated the lack of veracity when it comes to matters of fact with Dr Chan. Now we an opportunity to consider the validity of his opinion.

Dr Jimmy Chan claimed that he had been trained in cosmetic surgery. However, it appears that he does not have significant experience in liposuction. Like all surgical procedures there are different stages in a liposuction operation: marking, prepping, and draping, infiltration with tumescent solution, then the liposuction itself.

The liposuction, literally the sucking out of fat, is performed by advancing a hollow metal tube, a cannula, into the tissues that have been infiltrated previously. For a successful outcome, it is essential to be aware of the three-dimensional location of the tip of the cannula. This is not a process that can be assessed or judged by visual inspection. It requires tactile feedback. You are manipulating the insertion of the canula with one hand and feeling the placement with the other. Visual inspection is important later when looking at the colour of the aspirate which is being removed.

The point that I want to make here is that surgery is a complex process and does require some very specific training and the mastering of certain specific skills and techniques. However, there are subtle changes in the performance of a surgeon over time and this relates to environmental awareness. When we talk about the maturation of a surgeon, we say there are four stages: unconscious incompetence, conscious incompetence, conscious competence, unconscious competence. Now it is not for me to say what was the level of competence of Dr Vanessa Kwan but according to the clinic owner there were about 100 cosmetic surgical procedures performed previously by Dr Kwan. None of them had resulted in any problem in recovery.

What Jimmy Chan had done was to claim that he had experience in cosmetic liposuction and that essentially a surgeon does not have environmental awareness when performing a procedure.  His comments indicated, however, that he was still at the conscious-incompetence phase of mastering the procedure. Because if he was competent then he would have known that you can perform very effective liposuction and still be aware of the surgical environment. You can still hear the monitors, look at the screens. You can observe the colour of the skin, the level of oxygenation of the tissues, the temperature of the patient. You can even observe the respiratory incursions of the chest and listen to the sound of the air passing to and fro in the upper respiratory tract. The Judge used the opinion of a dishonest ‘medical expert’ to justify a statement that a doctor performing liposuction is unable to monitor the vital signs of a patient receiving that treatment. This is simply wrong.

There is another aspect of this case that does rather trouble me. Dr Vanessa Kwan was certainly not in control of the situation and yet is held responsible by the law for the situation. Is that right? She accessed the facilities but did not design them. The staff were delegated by the owners of the clinic, not by Dr Kwan. The gazetting of the Private Healthcare Facilities Ordinance (Cap. 633) in November of 2018 is very welcome but it is long overdue, and the emphasis should have come from the Medical Profession. I raised this very issue in a coroner’s inquest in 2012. I included some extracts in my expert opinion report on Dr Vanessa Kwan. The Department of Justice were most concerned that these comments could not be relayed to the Jury. They did not fit the prosecution narrative. I was asked to remove them.

From recommendations made in a report at a coroner’s inquest regarding the death of a 24-year-old woman having a cosmetic surgical procedure in a Jordan Clinic (2012):

  1. “There is a dangerous lack of clinical governance in the private healthcare sector in Hong Kong. This is particularly an issue with regard to sole practitioners performing surgical procedures in a clinic setting. The Medical Profession is given autonomy by the government to regulate itself and so it must fall upon the Medical Council of Hong Kong to establish mechanisms to prevent such a tragic event from occurring ever again.”

  2. If a practitioner is going to give sedation, in a clinic setting, the clinic must be fully-equipped to deal with the adverse consequences of a failed sedation. The practitioner must also be able to demonstrate competence in dealing with the adverse event

  3. The Medical Council cannot leave the responsibility to provide a safe and acceptable environment up to the individual practitioners. They must make a pro-active step to ensure that safe facilities are present before a practitioner uses them. This will necessitate some form of accreditation.

  4. There must also be fixed and regular assessments of the competence of the practitioner in using the necessary emergency equipment.

  5. If an adverse event does occur in a clinic setting, then there must be a mechanism for an immediate and independent investigation of the circumstances surrounding the event. Although the Medical Council can devolve this responsibility to the Academy of Medicine or one of the specialist colleges, it is essential that if the Medical Profession is going to maintain the trust and respect of the public that it is seen to take an immediate and active role in investigating major adverse events. Such an investigation should not be restricted to those undertaken by the police and the coroner's court as there will be adverse events that do not result in death or criminal prosecution.”

Who is responsible for deaths in Medical Practice? The individual medical practitioner, or the Medical Profession collectively, including the regulators? (To be cont.)

Andrew Burd (Prof)

The Chinese University of Hong Kong.

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