Name: ____________________ ( )
Date: _________________________

SCMP Friday, April 20, 2001

Discipline a bitter pill for doctors to swallow


The Medical Council's recent ruling that surgeon Tung Hiu-ming was not guilty of misconduct, following taxi-driver Gary Chung Chi-cheong's complaint that Dr Tung was speaking on his mobile phone while performing a colonoscopy on Mr Chung, came as little surprise to me, given doctors' general attitude towards professional misconduct.
In my school days, all parents wanted their kids to become doctors. That would have fulfilled the dream of my parents and nearly every uncle and aunt I came across. Only the best got into the science stream and were accepted by the University of Hong Kong Medical School. They were the creme de la creme. Unfortunately I could never understand the intricacies of physics or chemistry. But the urge to become a professional was instilled in me at an early age, so I ended up being a lawyer.
As I grew up, I came to know many doctors and eventually married one. Despite our otherwise wonderful relationship, one thing is sure to bring about disagreement between my husband and me is our approach to professional misconduct.
Doctors are brought up to believe it is unethical to criticise a fellow doctor. I believe this rule used to be written in their little red book of ethics. It is now no longer there. But the belief remains.
Lawyers, on the other hand, are brought up with a different approach. Personal feelings and professional ethics are two different things. Much as we dislike it on a personal level, and however unpleasant it might be, we are taught that as a professional, we are under a duty to denounce unethical conduct. Except in case of very close personal relationships, we are under an ethical duty to prosecute or to give evidence against our colleagues if need be.
In my legal practice, I have come across litigants who cannot find a doctor to give evidence in support of their claim for professional negligence. One client told me his current doctor would stop treating him if he was to call that doctor to testify against the negligence of the doctor who previously treated him. Faced with the "choice", the patient preferred to continue treatment with his current doctor than to call him to testify. Quite often, lawyers in Hong Kong have to find overseas experts simply because local doctors are reluctant to testify against their colleagues.
It is not so much that the doctors do not recognise the misconduct of others in their profession, but it is part of their upbringing that it is somehow unbrotherly (or unethical) to speak ill of another colleague who makes a slip. Of course, it is different if the other doctor is dishonest or commits a criminal act. But if he simply makes an unintentional slip, no doctor wants to hound a colleague when he is down. Doctors' usual line is you were not there, so you cannot properly judge the complexities, implying that all sorts of unintentional mishaps do occur.
For years, I have found this gulf in attitude exasperating. Every professional has a duty to defend his profession. Thus, if a colleague brings the profession into disrepute, a professional is under a duty to denounce such misconduct. This is not being unbrotherly. On the contrary, it is unethical not to face up to it. Empathy towards a colleague, though understandable, might eventually damage the whole profession.
The Medical Council panel embroiled in the recent controversial ruling was studded with well-known and experienced personalities. According to reports, the hearing lasted about 14 hours. The panel undoubtedly took great care in trying to discern the truth between the story told by Dr Tung and his witnesses and that told by Mr Chung, who claimed the doctor's lack of attentiveness was the reason he suffered a perforated bowel and had to undergo an emergency operation.
It might be that the perforated colon was a known complication of the surgery and not caused by the doctor's conversation on the mobile phone. Whatever the arguments of either side in this case, there are certain facts beyond dispute. Dr Tung did bring his mobile phone into the operating room. Hospitals prohibit the use of mobile phones. Dr Tung did answer and speak on the phone while performing surgery.
Professional discipline requires a very high standard, one usually higher than that demanded of a layman. Even if a doctor is not negligent, even if the act did not cause any damage, it can still be an act that fails to meet the high standard expected of a professional.
How can a doctor who is being scrubbed up for an operation forget to put away his mobile phone? Even if the mobile phone was equipped with a device that switched the phone on automatically, surely the only thing a doctor should do is to ask a nurse to take it away, rather than carry on with a conversation, for however short a time? The length of the conversation does not excuse the act. The slip might be slight; it might be due to absent-mindedness. But it is still unprofessional conduct that merits at least a warning or a censure.
The Medical Council found that "conversation during part of the medical and surgical procedures is not an uncommon practice in operating theatres". I do not know what this phrase has to do with the complaint. During the operation, a doctor might ask the nurse to hand over a surgical tool or move a light. These are necessary in the course of the operation. But surely it does not mean doctors and nurses can carry out a conversation that has nothing to do with the operation at hand.
From the doctor's standpoint, he might feel it is a simple operation he has performed plenty of times; he might feel confident of not being distracted by the conversation. It might not have caused any damage. But has he considered the feelings of the patient who is lying there on the operating table? At the very least, it is a sign of disrespect and lack of proper decorum, both to the patient and to the profession. Surely the patient and the public have the right to expect at least that much? That must be a part of a doctor's general duty of care.
Dr Lo Wing-lok, the Legislative Council member who represents the medical functional constituency and also one of the panel members responsible for this ruling, said that although it was not professional misconduct, that did not mean the conduct was reasonable. He is reported as saying: "All doctors in Hong Kong feel it is unreasonable to use mobile phones [during operations]." I find his position baffling. Since he agrees such conduct is unreasonable, judging by the opinion of all doctors in Hong Kong, why is that not misconduct? Is this not failing in the high standard expected of the profession?
The Medical Council's ruling is worrying. Self regulation is an important part of every independent profession. Too many controversies such as this could cause the public to lose its trust and respect for the profession. Already, the Government is proposing the Department of Health take over the investigation of doctors' professional misconduct.
Should the medical profession lose its right to discipline its own members, it might bring the same fate to other professional bodies. And that would be disastrous for Hong Kong.
Audrey Eu Yuet-mee is a barrister and independent legislator.