Findings

Charge Characteristics

Additional Orders

Commonly
Cited Cases

Precis

Charge:  

A Complaints Assessment Committee charged that Dr Chan was guilty of professional misconduct in his care and treatment of his patient before and during liposuction surgery. In particular that:

1. There were serious deficiencies in his anaesthetic practice, namely:

1. Dr Chan failed to provide any or proper information to his patient about the effects of the anaesthetic she was to receive; and/or
2. He failed to carry out an adequate or proper anaesthetic assessment of the patient prior to surgery; and/or
3. The anaesthetic which Dr Chan administered to his patient was outside relevant professional guidelines; and/or
4. He failed to monitor the patient's condition adequately during surgery; and/or
5. He failed to monitor the patient's condition adequately post-operatively.

2. Dr Chan failed to meet with his patient and adequately inform her of the anaesthesia process, the surgical procedure and associated risks and the post-operative care required, thereby failing to:

1. Obtain the patient's informed consent to his proposed treatment, including the anaesthesia and surgical procedure; and/or
2. Obtain the patient's informed consent to the procedure at the time of surgery.

3. Dr Chan failed to keep full and accurate clinical records of his pre-operative, intra-operative and post-operative care of his patient.

Background: 

Following two visits to Dr Chan's surgery the patient decided to undergo liposuction surgery to remove fat from her legs. At each of these pre-operative consultations the patient saw a woman whom she believed to be Dr Chan's nurse and that woman advised her that the procedure would be painless. The patient did not see Dr Chan until the day of surgery. Dr Chan did not carry out any pre-operative assessment or physical examination of the patient to determine if it was safe to administer an anaesthetic. The patient experienced considerable pain and discomfort both during and after the procedure. She awoke twice during the surgery, on each occasion feeling a considerable amount of pain, and was given further medication. After 24 hours post-operatively the patient began vomiting and was unwell. She tried to contact Dr Chan by means of the emergency number she had been given, but was unable to do so. She suffered a great deal of pain post-operatively, and for several weeks after the operation. In addition she was dissatisfied with the results of surgery.

No evidence was presented on Dr Chan's behalf.

Finding:

The Tribunal found that Dr Chan was guilty of professional misconduct.

The Tribunal considered the legal principles relating to a doctor's obligation to obtain a patient's "informed consent" prior to surgery. The Tribunal considered the fundamental principle is that of self-determination and the right of the individual to decide what happens to their body; a person has a right to know what treatment entails in order to make a reasoned choice and thus to give valid consent. The law requires doctors to provide a patient with sufficient information to make a considered decision and this obligation on the doctor does not depend on the patient's ability to ask the right questions. The process of obtaining informed consent requires the active participation of the doctor. The obligation to ensure the patient is fairly and adequately informed applies even more so when the surgery is elective and there is no element of necessity or emergency. The patient must not be coerced into agreeing to undergo surgery, especially where the surgery is elective and there is significant financial remuneration to the practitioner.

The Tribunal found Particular 1 established. It was satisfied that no meaningful information was given to the patient by Dr Chan prior to her liposuction surgery. No information was given to her directly by Dr Chan in relation to the anaesthetic or the liposuction procedure. Dr Chan made no attempt to counsel the patient about the nature, risks, or benefits of her surgery, nor did he attempt to ensure that she understood the information she had been given by any of his staff, and therefore paragraph (a) of Particular 1 was established. The Tribunal found paragraph (b) of Particular 1 was established. The patient's evidence that Dr Chan did not carry out any pre-operative examination at all was consistent with the patient records provided to the CAC by Dr Chan. The Tribunal was satisfied on the facts that the allegations contained in paragraphs (c) - (e) of Particular 1 were established. The Tribunal found the standard of care provided by Dr Chan to the patient fell deplorably short of the standard she was entitled to expect.

The Tribunal found Particulars 2 and 3 were established. It expressed concern that the patient may have been coerced, or unfairly pressured into her decision to undergo surgery. It was satisfied that Dr Chan did not adequately inform his patient about the surgery, nor did he adequately disclose the risks of either the anaesthetic or the surgery. The Tribunal found that Dr Chan fell woefully short of fulfilling his professional obligation to provide the patient with the information she was entitled to receive to enable her to give valid consent to the liposuction procedure. The Tribunal considered, given the nature and extent of Dr Chan's failure and the fundamental nature of the requirement to obtain proper informed consent, that it was hard to imagine a more complete failure on his part.

Penalty:

The Tribunal considered that Dr Chan is an unsafe practitioner.

The Tribunal ordered that Dr Chan's registration be suspended for nine months, he be censured and fined $12,500. It further ordered he pay $19,201.90 which represented 50% of the costs of and incidental to the inquiry, prosecution and hearing of the charge. It also ordered publication of the case in the New Zealand Medical Journal.

It recommended to the Medical Council that a comprehensive review of Dr Chan's competence should be commenced as soon as practicable upon reinstatement of his registration.

Appeal:

Dr Chan appealed the Decision to the District Court.

Dr Chan made an interlocutory application to the Court to stay his suspension from medical practice. The interlocutory application was denied. (Chan v MPDT (Auckland District Court, NP 1538/01, 19 June 2001, Roderick DCJ)).

The District Court dismissed Dr Chan's substantive appeal. It considered the Tribunal was justified in reaching the conclusion that Dr Chan was guilty of professional misconduct. (Chan v CAC (Auckland District Court, NP 1538/01, 8 August 2001, Doogue DCJ)).