Propofol played a significant role in the trial of Dr Vanessa Kwan. Vanessa went to South Korea to learn about cosmetic surgery. Cosmetic surgeons in South Korea use a lot of propofol in office-based practice. Ipso facto, Vanessa learned about propofol and its use in cosmetic surgery. It is a fascinating drug and is the most widely used agent in the world for commencing general anaesthetics. It is short-acting and appropriate doses can rapidly lower the level of consciousness so that the patient can be intubated. However, when we look at the published, scientific, evidence about the clinical use of propofol it becomes apparent that what the prosecution were promoting in their case against Dr Vanessa Kwan was not evidence-based fact. It was actually opinion presented as fact by a prosecution medical expert. Even worse, the opinion was justifiably challenged, and the objection was over-ruled by a Judge who was simply out of her depth. This is a very serious matter and adds to the growing concern about the failure of this trial.
But there is more, much more. From a procedural perspective when a sudden death occurs in a medical clinic it has to be treated as a potential unlawful death. So, the ‘crime’ scene will be secured and examined and documented with copious photographs. The prosecution makes its case and presents the evidence to the defendant so they can prepare a defence against specific charges made. Evidence is presented in the form of documents, signed witness statements, photographs and laboratory results and so on.
To set the scene the procedure had taken place in an operating theatre that was used quite frequently. It contained a ‘sharps bin, a receptacle for used needles, scalpel blades, syringes and empty drug ampules. It is not emptied after each operation. This is medical waste and needs special disposal. The police photographer dutifully included shots of the waste bin and representative samples of the contents. The significance of this error in 2014 only became apparent during the trial in 2021. Sudden death during a surgical procedure could be related to medication errors. It is vital to look for documented reference to drugs used but also for physical evidence such as empty vials of medication. Due to communication error the four representative empty ampules of propofol became part of the investigative record that declared the total dose of propofol administered was 800mg (the contents of four 200mg ampules).
A propofol infusion had been used for a three-hour long procedure. Using the accepted fact of the total dose being 800mg over three hours, it was only necessary to refer the court to the abundant medical literature which confirms the excellence and safety of low dose propofol when given for procedural sedation. It was only at the trial when new CCTV evidence was presented that the prosecution expert was able to identify and demonstrate that 14, not 4, ampules had been used. This was presented in a pejorative way to the jury and was extremely embarrassing for the defence team including myself. I just make the observation that often an attempt at a cover up is far worse that what is being covered up. Obstructing justice cannot be defended, giving a larger dose of propofol than assumed by the prosecution with the timely correction of this misunderstanding can be defended. Whilst obstructing justice cannot be defended neither can the misdirection of the court be defended. In a different way it obstructs justice and prevents a fair trial. Let there be no doubt when a medical matter gets to court it is far more than the named defendant on trial. I think the profession has to accept that we too are on trial. We have to expect the highest ethical conduct from medical expert witnesses who are there to represent the profession. Remember also that doctors are made, not born and if there is a failing in practice, one has to question what was taught and who the teachers were, for they must accept some responsibility.
Propofol is a fascinating drug and does need special ‘respect’. However, let me repeat the statement from the Hong Kong legislative research division pertaining to 2014 (when this death occurred). I mentioned this in part 6. Looking at the regulation of aesthetic practices in Hong Kong there were, at that time “no mandatory requirements” regarding who gave anaesthesia. This adds increasing concerning regarding the prosecution case
In the next blog I am going to raise the issue of that old chestnut: informed consent.