Findings

Charge Characteristics

Additional Orders

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Cited Cases

Precis

Charge:  

A Complaints Assessment Committee charged that Dr Chan acted in a way that amounted to disgraceful conduct in a professional respect in that:

1. He continued to consult with and make arrangements for further surgery with the patient, regarding his previously performed liposuction while suspended from practising medicine; and/or
2. He failed to inform the patient that he was suspended from practising medicine while continuing to consult with her and to make arrangements for further remedial surgery; and/or
3. He failed to inform the patient that he was not a vocationally registered plastic surgeon in New Zealand; and/or
4. He failed to carry out an adequate pre-operative patient assessment, including a clinical examination; and/or
5. He failed to exercise appropriate professional judgment in offering liposculpture to the patient in view of her history of Anorexia Nervosa, chronic benzodiazepine use and her recommended weight for her height based on Body Mass Index.
6. He failed to obtain the patient’s informed consent to his proposed treatment including the anaesthesia and surgical procedure in that

1. He did not adequately inform the patient of the anaesthesia process, the surgical procedure and the risks and complications associated with the procedure and the post-operative care that was required.
2. The consent forms for anaesthesia and for surgery were given to the patient to sign after she had been given the preoperative oral sedation.

7. There were serious deficiencies in Dr Chan’s anaesthetic practice, namely:

1. He failed to provide adequate information to the patient about the nature and/or effects of the anaesthetic that she was to receive; and/or
2. There was no anaesthetist present during the patient’s surgery and drugs were administered in a dosage and combination contrary to the accepted guidelines laid down by the Australian and New Zealand College of Anaesthetists which state that unless an anaesthetist is present, only conscious sedation may be used. The dosage of drugs and combination of drugs administered to the patient could reasonably be expected to result in loss of consciousness.
3. He failed to monitor the patient’s condition adequately during the surgical procedure; and/or
4. He failed to monitor the patient’s condition adequately post-operatively.

8. He discharged the patient without any of the usual discharge criteria being met thereby potentially compromising her safety.
9. He failed, post-operatively, to adequately acknowledge or address the patient’s concerns arising from her dissatisfaction with the cosmetic result of the surgery.

Background: 

On 21 January 2001 the patient consulted Dr Chan at his clinic. She weighed approximately 52 kilograms and was 155cm tall. She wished to discuss a large liposuction on her hips, arms, bottom, thighs and stomach.

The patient said she had suffered from anorexia and bulimia. At the time she first consulted Dr Chan she said she was still suffering from various eating disorders. She had also been addicted to sleeping pills on and off for about five years and was currently taking Diazepam for this. She had not undergone liposuction or any similar procedure before.

Dr Chan told her he was the most experienced cosmetic surgeon in Australasia and that he had performed more operations than any other doctor in either country. He did not tell the patient what his actual qualifications were, he indicated that he had all the necessary qualifications and was reliable, talented and very good at what he did.

Dr Chan told her the procedure would be painless and that she would be in a twilight state where she would not be fully anaesthetised but nor would she feel anything. Other than this, she said Dr Chan did not tell her anything about the risks associated with the anaesthetic she would have if she were to undergo the liposuction. She asked what could go wrong. She said he did not respond but brushed off her questions.

The only form dated 21 January 2001 produced to the Tribunal provided for information relating to the patient’s address, occupation, date of birth, height and weight. General health is ticked as excellent, smoking and alcohol intake as moderate. It provided for “Current Medication” which was recorded as “occasionally diazepam”. The Tribunal found the patient received an unsigned copy of “Neurolept Anaesthetic Information Sheet” or a document to like effect on 21 January 2001.

There was a further document “Operation Sheet” with the date of 27 January 2001 typewritten on it. There was a section at the bottom “Medical History” which the patient signed. It had thirteen boxes providing for a yes/no answer and a provision for allergies and current medications. The patient wrote “Diazepam” and someone else wrote “5 mg every 2-3 days”. The Tribunal concluded that this document was not presented to the patient until the day of surgery.

The patient said Dr Chan did not tell her anything about the post-operative period, but the nurse told her she would have massage sessions and be a little sore for the first month and quite swollen, and that some people return to work a few days later while others, depending on the degree of surgery, might need to take a few extra days off work.

The patient attended Dr Chan’s clinic on 27 January. He did not give her any explanation about the procedure. He checked the areas the patient wanted treated. She didn’t think they spoke more than two or three sentences at that time.

She was given a consent form by the nurse to sign. She was given no explanation concerning it. She read it and signed it. It provided consent for liposuction of “Arms, Hips, Butt, outer thigh, U and L abdomen, inner thighs”. The words “inner thighs” were added in handwriting which the patient said was not her handwriting.

The patient recalled waking about three times during the procedure and she felt significant pain on each occasion.

The patient did not recall seeing Dr Chan while she was in recovery. She thought she remained in the clinic for about an hour before driving to a friend’s house. The nurses were aware that she had driven herself as they told her at a subsequent visit. She had told them her friend was collecting her.

While at her friend’s house blood started to ooze from the incisions, soaking the body garment and onto the carpet. Her friend wrapped her in towels for about an hour and gave her a drink but she was unable to take more than a little sip as she felt nauseated. She was quite shaky and still very affected by the drugs she had been given during the operation. She believed she stayed with her friend for about an hour and a half and that by the time she left there it would have been about three hours after the operation had finished.

It then took her a further hour to drive to where she was staying. During the drive she tried to concentrate on driving and not get blood all over the car. Once she arrived, she became more shaky and nauseated and felt very weak. She was staying by herself. She stayed in bed for the following two days as she could barely move due to the pain. She passed out on the first occasion when she got out of bed and tried to stand up and would have fainted in all on two or three occasions. She was nauseous and in incredible agony even though she was taking the pain killers she had been given. The patient had understood that the recovery was going to be straightforward and had not expected this outcome. After two days she was able to get up and move about a little and later, at the end of the second day, she was able to eat a small amount and take some fluids and go to the toilet with a little more ease without passing out.

The patient said the day after the procedure she started leaving many messages for Dr Chan to call her. She said she telephoned both clinics several times only to get the message paging service. She was eventually telephoned by a nurse and was told that her symptoms were normal and to rest. She made further phone calls to the nurses and on occasions could not get through as there was no-one available. She wanted to speak directly to Dr Chan but the nurses would always say that he was too busy or not available or in surgery or doing something. On the occasions she did make contact she said she understood from what they said that he was aware of her messages.

The patient described the following five weeks as being very difficult. She subsequently attended Dr Chan’s clinic on 3, 10, 15 and 22 February for massage sessions with Dr Chan’s nurse at further cost. She did not see Dr Chan on any of these occasions.

At one of those sessions the patient expressed concern about the unevenness of her hips.
The other doctor who assisted Dr Chan with the surgery agreed there was a difference in her hips and suggested a little of the excess fat could still be trimmed from her stomach and upper arms for a more satisfactory result.

A date was booked for the corrective procedure for Monday 9 July at 11am. The patient made all the necessary domestic and work-related arrangements in anticipation of the surgery and, on the day prior to it, telephoned the clinic to confirm. She was astonished and distressed when she was told there was a problem and that there was no booking for her surgery. A further booking was made for 17 August for the corrective procedure.

On 17 August she telephoned the clinic at around 9am to confirm she was on her way to the clinic. During this call she was put on hold and, eventually, she was told in a very unsympathetic manner, that the surgery was off, that the patient could not have the procedure, and that she had no idea when it would be possible.

Later that same evening the doctor who assisted Dr Chan telephoned the patient. He told her that Dr Chan had been suspended from practice and nothing else could therefore be done. The patient repeatedly called Dr Chan’s number in Australia until he finally answered. She explained her plight but he refused to discuss how he could help her.

On 6 September 2001 the patient wrote a three page letter to Dr Chan setting out the history of events and the remedy she was seeking. By any account, it was a plaintive and desperate letter suggesting either a refund of the moneys paid so she could pay to go to another cosmetic surgeon or obtain a quote and undergo the procedure for which Dr Chan could pay. Dr Chan did not respond to that letter.

In October 2001, the patient telephoned Dr Chan again. She asked when he was returning to New Zealand. He said he had no plans to return and that she would have to phone the Australasian Cosmetic Surgery Centre to book the procedure. She told him she had been leaving messages there for two months but no-one had called her back. She asked if he could help her contact the person who had taken over the clinic and organise the corrective procedure but at that point he said that the telephone reception was bad and he could not hear her. She asked if he could refund some of the money she had paid to him and he replied he would have nothing more to do with the matter.

Finding:

The Tribunal found Dr Chan guilty of disgraceful conduct in a professional respect.

The Tribunal was not satisfied the allegation contained in Particular 1 was established. Dr Chan was not suspended until 27 April 2001 and there was no evidence presented to the Tribunal that the patient saw Dr Chan after that date apart from when she saw him for a few seconds when she had some photographs taken “about” three months after the surgery which would put the date around the time of suspension.

The Tribunal was not satisfied the allegation contained in Particular 2 was established. It considered it was not clear whether the booking for the corrective procedure for 9 July 2001 was made prior to Dr Chan’s suspension. Even if it were, it was also not clear whether the booking was made with Dr Chan’s knowledge and consent, and similarly with the subsequent booking of 17 August 2001.

The Tribunal was not satisfied Particular 3 was established and considered that even if it was provided, such a failure would not amount to a disciplinary matter in this case.

The Tribunal was satisfied Particular 4 was established and the allegation in Particular 5 was established in relation to the patient’s history of anorexia nervosa, but was not established in relation to her history of chronic benzodiazepine use and her recommended weight for her height based on body mass index.

The Tribunal was satisfied on the facts that Particulars 6 and 7 were established.

The Tribunal was satisfied Particular 8 was established and that same day discharge should only be contemplated after a prolonged period of observation with a minimum of four hours and with evidence of full recovery from the effects of the sedative drugs, evidence that the patient had adequate pain relief and that there was no evidence of significant ooze from the wounds.

The Tribunal was satisfied on the facts that Particular 9 was established.

Penalty:

The Tribunal wished to make it plain that it was of the firm view that Dr Chan is an unsafe practitioner.

It ordered as follows:

1. Dr Chan’s name be removed from the register of medical practitioners pursuant to section 110(a) of the Act.
2. Dr Chan be censured.
3. Dr Chan pay a fine of $15,000.
4. Dr Chan pay $23,913.99 which represents 60% of the costs of the CAC investigation and prosecution and the Tribunal’s hearing.
5. A report of the Tribunal’s decisions be published in the New Zealand Medical Journal.
6. The Tribunal requested that the Medical Council consider notifying the content of the decision to the Registration Board in the particular State in Australia where Dr Chan may be currently employed and/or currently practises.