By Invitation: Providing Second Chances for Medical Malpractice
As part of our Medical Law series, Raising the Bar invites Nathan Lee from the Raffles Law Society to present his opinion on balancing retribution and rehabilitation for cases of medical malpractice.
Written by Nathan Lee Zhe Yu, Raffles Law Society
In this By Invitation Article, find out…
What is the difference between medical negligence, and medical malpractice?
Should medical malpractitioners be given second chances?
How can we reform the disciplinary framework to prevent defensive medicine?
A simple medical surgery ends in the worst outcome imaginable — death. The culprit? A senior doctor, with more than 30 years of experience in practice. Undoubtedly, the doctor should be held accountable for his crimes. But what crime did he commit? And with the countless lives saved in his tenure, is there any possibility for a second chance?
What Distinguishes Medical Negligence from Malpractice?
When a medical professional causes injury, damage, or loss, he typically faces one of two charges — medical negligence or medical malpractice. In both cases, the bulk of claimants would lodge a complaint with the Singapore Medical Council (SMC), which is responsible for maintaining medical practitioners’ professional conduct. These offences typically do not attract criminal liability, and instead fall under tort law, in which the medical practitioner commits a civil wrong that causes harm to a patient by failing to exercise an acceptable standard of care.
However, there is a key difference between the two charges. Medical negligence aims to compensate claimants for the harm caused by medical practitioners, and thus focuses on the payment of damages to claimants. Contrastingly, medical malpractice aims to mete out disciplinary actions against medical practitioners for errant behaviour, resulting in punishments ranging from censure to removal from the Register of Medical Practitioners.
Crossing the Threshold from Medical Negligence to Malpractice
A key determinant of medical malpractice is an intentional departure from the observed standards of care, or an abuse of the privileges granted to a registered medical practitioner.
One example of medical malpractice is the high-profile death of Franklin Heng in 2009 after a botched liposuction treatment.9
In Wong Meng Hang v Singapore Medical Council and other matters [2018] SGHC 253:
At [77] and [79], Dr Wong, the doctor who treated Mr Heng, appealed his initial sentence of 18 months, arguing that his sentence was “manifestly excessive” due to his low chance of reoffending.
The Court held that the “case involved the most severe harm imaginable” and that it was “the doctors’ actions here which were the sole and direct cause of the patient’s death”, resulting in Dr Wong losing his appeal and being struck off the Register of Medical Practitioners.
This is supported by Dr Ang Yong Guan v Singapore Medical Council [2025] SGHC 17.
At [4], Dr Ang, “a psychiatric specialist who has been practicing for more than 36 years”, had “issued numerous prescriptions which were not in compliance with the standards of treatment set out in the Ministry of Health guidelines”, eventually resulting in the patient’s death.
Dr Ang was found to have “not been acting in his own self-interest or from any patently illegitimate motive”, but rather had failed “to properly consider the risks of his treatment methods or in obtaining consent from the Patient” and should “have known better as a specialist and senior medical practitioner”.
The Court sentenced Dr Ang to a suspension of 36 months, due to “the grave risks which Dr Ang’s prescriptions entailed” and “the gravity of potential harm involved”.
Both doctors made severe mishaps while treating their patients, thus causing severe harm and death. To that end, the Court has made clear that regardless of how young or experienced the doctor may be, malpractice is a severe offence. Yet, the proportionality of their sentences to their conduct remains a contentious subject.
Should There Be Second Chances For Malpractitioners?
The role of disciplinary frameworks is twofold — to deter wrongdoing by removing dangerous individuals, and to maintain trust and fairness in the medical system.
On that premise, let’s then take a second look at the cases of Dr Wong and Dr Ang. While it is crucial to appropriately punish Dr Wong so as to maintain trust in medical practitioners, this does not necessarily imply that Dr Wong is unfit to practice medicine in any format. Especially since Dr Wong is a first-time offender, it can be argued that he ought to be given the opportunity to successfully reform and rehabilitate. Still, for practitioners who knowingly and deliberately committed malpractice, rehabilitation should be a secondary condition.
In Dr Ang's case, while his actions lacked medical basis and were ultimately fatal, he was still fundamentally motivated to help his patient recover from his ailments. Dr Ang should be — and has been — held responsible for his actions. However, it is similarly difficult to ignore Dr Ang’s perspective as a senior doctor exercising his discretion in an attempt to benefit his patient, only for it to backfire spectacularly.
In both cases, ambivalence towards the final sentencing was due to a crucial reason — a lack of intentionality. As such, there is a need for the Courts to strike an appropriate balance between retributive sentencing for the harm caused by medical malpractice, and the potential for rehabilitation due to the lack of intent.
Balancing Retribution and Rehabilitation
To find a balanced approach, one may look towards the pivotal case of Singapore Medical Council v Dr Lim Lian Arn [2019] SGHC 172.
In this case, Dr Lim offered to administer a “H&L injection” for a patient due to “some pain in her left wrist”, but “did not advise the patient” of any potential complications before administering the injection.
After her skin became paper-thin and discoloured, the patient sought legal action against Dr Lim. Dr Lim “pleaded guilty to the charge”, and “admitted to the agreed statement of facts without any qualification”, resulting in him being fined $100,000 — the highest possible fine for his conviction.
However, in an appeal to the High Court, the Court entertained “serious doubts as to whether Dr Lim did indeed fail to advise the patient”. This was because Dr Lim had “offered the patient two treatment options”, and “did not actively recommend the H&L injection to the patient”, casting doubt on the validity of the charge.
Eventually, the High Court set aside Dr Lim’s conviction, stating that the lack of supporting documents was “not determinative” to convict Dr Lim, with “the H&L injection [being] a routine one administered in a clinical setting” likely accounting for why “a detailed note of any discussion […] was not kept by Dr Lim”.
This case is noteworthy for two reasons. First, Dr Lim’s decision to plead guilty denied the Disciplinary Tribunal the opportunity to evaluate his liability, leading to his original conviction. While it is unclear why Dr Lim pleaded guilty, it is likely that he felt remorseful for the honest mistake he allegedly made that harmed the patient. This highlights the stresses that doctors face when treating patients.
Second, the SMC had to appeal the harsh $100,000 fine imposed onto Dr Lim due to backlash from the medical community. This underscores how the Courts should still consider the opinions of certain groups in society, particularly medical professionals, due to their vested interests and societal impact.
As such, Dr Lim’s case emphasises how leniency should be considered for doctors who reflect a lack of intentionality for committing malpractice. Still, one must consider the smaller degree of harm caused by Dr Lim’s actions, as opposed to the deaths resultant of Dr Wong and Dr Ang.
Are We Encouraging Defensive Medicine?
Even the most qualified doctors are still likely to make mistakes, let alone students who have more recently begun to practice medicine. Yet, cases like Dr Lim’s have stoked fear in the medical community, potentially incentivising doctors to overshare information in a flawed attempt to avoid legal liability — a phenomenon known as defensive medicine.
Doctors are distracted from genuinely caring for the patient, distorting good medical practice and resulting in poor decision-making. These errors ironically result in an increased perpetuation of medical malpractice, and reduces the overall standard of care provided to patients.
In Singapore Medical Council v Dr Lim Lian Arn [2019] SGHC 172, the Courts found that the over-provision of information does not allow doctors to avoid legal liability, as the patient may consequently be more confused and less able to make a proper decision.
With overworked doctors quickly burning out and younger doctors doubting their capabilities, medical practitioners are more likely to perpetuate lapses in patient care by going against their better judgement to opt for the “safer” route. Contentions over less severe cases like that of Dr Lim highlights the Court’s need to appropriately sentence doctors to prevent a “miscarriage of justice”.
What then, of Dr Wong and Dr Ang, whose medical malpractice resulted in fatal consequences? Some may argue that both doctors had deviated significantly from the applicable standard of care prescribed by the Ministry of Health, and may even assert that patients should expect the highest standards of care from the doctors they entrust their lives with.
While the sentiments above are fair, the argument for greater leniency is still valid. After all, the disciplinary framework not only has to maintain the public’s trust in the medical system, it must also maintain the trust of medical practitioners that the legal system is not fundamentally biased against them. The trust of the public and medical practitioners are not mutually exclusive — we should not overlook one in an attempt to prop up the other.
How Can We Modify The Disciplinary Framework?
From these cases, it is clear that ascertaining the degree of control and intention, where the doctor deliberately engages in legally questionable conduct, would be useful. A collective consideration of these factors is required in order to judge cases more accurately and fairly. Leniency, then, should be shown in cases where doctors lack the intention to cause harm to the patient, and the undesirable outcome does not severely impact the patient.
We can draw a parallel here between the cases of Dr Wong and Dr Lim. While Dr Wong deliberately lied to cover up his mistakes, Dr Lim had merely believed that he forgot to inform the patient of all potential side effects of her treatment. In Dr Lim’s case, while harm was caused to the patient, his lack of intention should have acted as a significant mitigating factor in his initial conviction by the Disciplinary Tribunal.
In such a volatile and unpredictable environment, it is impossible to avoid making mistakes occasionally. This makes pursuing every error for any harm caused counterproductive and impractical. Hence, intention and control can serve as significant indicators of whether a mistake was a deliberate act of misconduct, or an aberration in the grander scheme of things.
While this argument is sound for Dr Lim, it does not consider cases like Dr Ang, whose negligent behaviour led to fatal consequences, despite his lack of intention to harm his patient or cover up his misdeeds. This highlights that although being largely applicable for some medical malpractice cases, intention cannot be the sole deciding factor between an honest mistake and medical malpractice. This implies that there is a limit to the ability for well-intentioned means to mitigate negative consequences, as the degree of harm caused must be given equal, if not more, weight in consideration.
As such, in cases where severe harm was caused to the patient, a doctor’s good intentions would only be a significant mitigating factor to a limited extent. However, the exact definition of “a limited extent” varies widely on a case-by-case basis, making it challenging to explicitly demarcate the red line between medical malpractice and honest mistakes.
Conclusion
In conclusion, drawing the red line between considerations of retributive sentencing and rehabilitation in the area of malpractice is a tall order. While the use of statutes and previous cases may act as a guide to dealing with medical malpractice cases, deviations may still be necessary to accord the appropriate sentence to the crime.
Ultimately, there is a need to balance the competing needs of protecting patients from harm, and facilitating doctors to practice medicine without fear of biased litigation. A failure to consider either factor would result in a reduced standard of care for patients. As such, the onus is on the Courts to prevent the miscarriage of justice for doctors, in turn allowing doctors to practice their craft in a safe environment, thus helping patients receive the best possible care from their doctors.
Disclaimer: The views expressed in this opinion article are those of the author(s), and do not necessarily reflect the views of any affiliated organisations, including the Singapore Introductory Mooting Programme.