Aftermath of the Susan Lim Case: Thoughts on charging a “fair and reasonable fee”

“It is therefore clear, in our view, that every doctor is under an ethical obligation to charge a fair and reasonable fee for services rendered to his or her patient. The corollary of this is that overcharging would constitute an abuse of the trust and confidence placed by a patient in his or her doctor, and this would (in turn) constitute conduct that is dishonorable to the doctor as a person as well as in his or her profession, i.e., it would constitute professional misconduct within the meaning of s 45(1)(d) of the MRA (Medical Registration Act).”

How does one determine what a “fair and reasonable fee” is? The judges rejected the line of reasoning that there is so much variation in clinical complexity that it is impossible to even offer a view on appropriate charges. They offered the alternative view:

“Even given differences in factors such as the seniority and expertise of the doctor concerned as well as the location of his or her clinic, it must at the very least be possible for the experts concerned to opine on the possible range of fees which would be considered fair and reasonable in a particular set of circumstances”

The Court referenced too, acknowledging the imperfect ‘fit’ to the case the Competition Commission of Singapore’s position that pricing transparency and the involvement of the restructured hospitals in provision of healthcare are sufficient mechanisms to come to some conclusions about ‘reasonableness’ of fees. The Court describes this approach as a “practical balance between the proscription of overcharging on the one hand and the need to ensure appropriate remuneration for doctors’ services on the other hand”.

I agree with the philosophical approach the Court has taken and endorse the notion that “every doctor is under an ethical obligation to charge a fair and reasonable fee for services rendered to his or her patient”. However, my view is that operationally, there may be some challenges:

Firstly, the market benchmark is what is available in the public domain, i.e. what is on the Ministry of Health’s website. The assumption inherent in putting out the data is that the information compares apples for apples and hence are sufficient for patients to compare charges and doctors to set fees. However, the data on the website has the following caveats:

•  “The bill sizes for public hospitals are complete and include all charges including doctors’ professional fees. The data for private hospitals, however, may not be complete as not all doctors’ professional fees may be fully accounted.
• To ensure that there are adequate cases for meaningful comparisons, bill sizes for conditions/ procedures with less than 30 cases for that particular ward class within each hospital will not be shown.” (Text verbatim from MOH website)

Furthermore, the data are stratified only very broadly, e.g. asthma would be divided into two categories, ‘asthma’ and ‘asthma with complications’, and it is clear that the category ‘asthma with complications’ comprises a very heterogeneous group with likely very different clinical complexity and hence costs associated. For example, the 50th and 90th centile bill sizes for ‘asthma with complications’ in Tan Tock Seng Hospital are S$3,445 and S$8,040 respectively, a more than two fold difference.

I personally would be cautious about stating with confidence what a market benchmark should be for a specific patient episode.

Secondly, in my view the guidance provided enables only easy and straightforward identification of gross cases of ‘overcharging’ where fees are in multiples of what peers would charge. The judges describe a “possible range of fees” but when sliced finer and finer, the picture becomes more and more hazy (Pardon the metaphor, but it seems appropriate during these times). To draw an analogy, let’s look at the challenges even the legal profession faces, say in defining ‘obscenity’. The late Justice Potter Stewart famously said:

“I shall not today attempt further to define [obscenity]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it….”

 At the margins, the judgment of over-charging becomes more and more contentious and perhaps even arbitrary.

Frankly, I think every doctor in the private sector will need to come to his or her conclusion as to where the range of “fair and reasonable” ends and over-charging begins. This opinion will be sharpened over time by more judgments and guidance issued by the Singapore Medical Council. In the absence of specific guidelines, it will be near impossible to know where exactly the lines are drawn until tested in disciplinary proceedings.

Do we need a return to guidelines as some have advocated? I don’t know at this point in time. My prediction is that Singapore will hold off re-introducing guidelines and instead push harder on transparency including pricing in the private sector and ensuring comparison of like for like. Perhaps the public hospitals will individually more forcefully put out fee schedules or ranges for common surgeries and treatments and hence more clearly signal what a “fair and reasonable fee” is. Only if these efforts fail will the government consider formal and rigid fee guidelines.

[The full judgment (all 153 pages) together with the Business Times report can be found online at this link: http://www.singaporelawwatch.sg/slw/headlinesnews.html]

Tags: professional fees, Singapore Medical Council