No more “Laboratory Tests” !

Introduction 

“No more Laboratory Tests” is my advice.  It does not mean that you should not perform laboratory tests as investigations in the management of your patients.  But whatever you do, do not mark on the receipt an item simply labeled “Laboratory Test” with the related charge.  Otherwise, you might not only run the risk of being found professional misconduct, but also be found guilty of taking rebate in disguise.

My advice originated from an inquiry which was reported in nearly all newspapers on August 29, 2009.  It was reported that a doctor was found professional misconduct because he charged excessively for laboratory tests.  The Medical Council treated this as taking rebate in disguise.  I was confused after reading the reports.  Some Council Members of the Medical Council and the HKMA shared my feelings and there had been discussions through e-mails.  We were also approached by anxious doctors who did not get the full picture from newspaper reports.  So we decided to wait until we received the judgment to see if there was any misinterpretation by reporters.

However, after reading the judgment, our confusion remained the same.  We were still concerned about the meaning of “laboratory tests”, “excessive charge” and “rebate in disguise” in the context of the judgment.  We were still not clear when a doctor would be found taking rebate in disguise and thus misconduct in a professional respect.  So we tried to initiate discussion of these matters in the Medical Council by asking for a review of the case according to a section in the Medical Registration Ordinance.  Our aims were to clarify terms used in the judgment, to discuss how the judgment would affect many doctors in private practice, and to discuss rectifications if indicated.

I felt sad when our request was turned down.  I doubted the legality of such decision and I was angry on the way our request was handled.  I then found that taking the Master Course in Buddhist Studies did help me.  When I wrote the following, I was calm and my aim was to clarify matters.  So it was presented as objective as possible, though of course with my subjective perception and analysis.

The case and the Judgment 

The Defendant Doctor was found guilty of professional misconduct because he “charged the patient excessively for the laboratory tests conducted for sexually transmitted diseases.”  According to my interpretation of the judgment, the main argument of the Panel finding the Defendant Doctor guilty was that: “laboratory tests”, if written on the receipt, should mean “the fees charged by the laboratories”.  And then the Panel took a leap forward and found that the differences in charges (between the amount the Defendant Doctor charged the patient and the amount the laboratory charged the Defendant Doctor) indicated that the Defendant Doctor had a financial gain from referring the patient for laboratory tests. They considered that such gain was “a rebate in disguise”

It is Difficult to Find a Doctor Guilty of Professional Misconduct for Charging Excessively. 

In fact the panel faced a difficult task when they had to decide on whether the Defendant Doctor had charged the patient excessively for the laboratory tests conducted.  The Code provides some guidance.  Section 12.3 read: “A doctor should not charge or collect an excessive fee.  The Council will consider the following factors in determining whether a fee is excessive:-

• (a) the difficulty, costs and special circumstances of the services performed and the time, skill and experience required;
• (b) the average fee customarily charged in the HKSAR for similar services; and
• (c) the experience and ability of the doctor in performing the kind of services involved.”

 

The burden of proof lied with the prosecution.  That meant the prosecution had to provide evidence of the average charges of laboratory tests in Hong Kong, taking into consideration the technique required and the risks involved, together with the Defendant Doctor’s experience.  So it might need comparison with the average charges of a doctor with similar specialty and experience in performing the tests.  Defining how much in excess of the average charge constituted “excessive charge” would be even more difficult.  So I guessed the panel took another approach, I called it the “rebate in disguise” approach.

A Quantum Leap to Find Rebate in Disguise 

For analysis purpose, I call the charge that the laboratory billed the Doctor “Charge A”; and that charge which appeared on the receipt “Charge A+B”, in which “B” denoted the charge in excess of what the laboratory billed the Doctor.  It was agreed fact that there existed a Charge B.  The point was whether in the settings of the case, was it wrong to do so?  If it was, did the act fall below the standards of doctors?  If it did, did it amount to professional misconduct?

There could be two reasons to explain Charge B:

1. The Doctor marked up the charge, with no extra service provided
2. Charge B stood for additional service the Doctor provided in performing the laboratory test 

It was up to the panel to decide which reason to infer upon analysis of the material facts.  However, it was also stated as agreed facts that the Doctor spent some time in taking blood and taking swab.  It is understood that a doctor can charge for providing service.  Whether the charge is excessive is another discussion.  It is only problematic when a doctor charges a patient without providing service, or in fact without providing anything.

What the panel believed (I supposed) was that Charge B should have been included under item “Consultation, Medication & Treatment” on the receipt, and thus the Defendant Doctor had made a charge without providing any service.  To make this finding, I supposed there should have been comparison of the Doctor’s normal consultation and medication fees for similar cases, but without laboratory tests, to show that there was an indication of the inclusion of Charge B.  It would not be easy to do so as cases seen were likely to be different.  If it could not be shown that Charge B had already appeared under item “Consultation, Medication & Treatment”, then the Doctor was legitimate to charge the patient as he had provided extra service.  The wrong might only be that he had put the charge under the wrong item in the receipt.

Even if the panel was satisfied that the Doctor made a Charge B without providing any service, the panel could found him charging excessively because he was actually charging more than he should have.  (He should have charged nothing.)  However, it was a quantum leap to make a general statement that financial gain from referring a patient for laboratory test was rebate in disguise and then to find the doctor guilty of taking rebate.

Stating that the charge for laboratory tests as written on the receipt should not include any service charge was artificial.  What happens when a patient is referred to a laboratory for a laboratory test?  Let’s take an example of a blood test for VDRL.  There needs to be reception service.  There needs to be a nurse or a technician to take the blood sample with appropriate equipments including a tourniquet, a syringe with needle, alcohol swabs, gloves, sample bottle and Elastoplasts.  The nurse needs to be trained in blood taking and she might encounter difficulties in locating the vein or in taking blood.  There needs to be personnel with knowledge and training in first-aid and resuscitation in case the patient has a vaso-vagal attack.  There needs to be storage facilities for the blood sample.  It is only then come the procedure of process of the blood and the chemical reaction for the VDRL test.  Obviously, there are differences between a patient going to the laboratory to have the VDRL test and the doctor taking blood from the patient and sending it out to the laboratory for process and testing.  When the doctor takes blood, he is providing some of the services and bears some of the costs and risks of the laboratory.  It is natural and reasonable for the doctor to charge the patient for service provided. 

Financial Gain for Making Referrals 

Talking about having financial gain from making referrals, I can identify some similar situations if an over-simplified approach is taken.  When a doctor charges the patient for writing a referral letter to another doctor, is he taking rebate in disguise?  Do we need to examine how much he charges for the letter, how much time he needs to spend on it, or how he presents his charge in a receipt?  When a doctor charges a patient for writing a prescription, do we need to undergo the above analysis?  When a doctor asks his nurse to buy a box of medicine from a neighboring drug store and gives it to his patient, he marks up the price without removing the price label from the drug store.  Is he taking rebate in disguise?

How About Medication Fees? 

Another pitfall for the rebate in disguise approach is medication fee.  For the same reasoning, the item “Medication Fee” as appears on the receipt should mean the price of medicine that the drug company charges the doctor.  The obvious reason that the doctor has provide service such as dispensing service should not be included in this item.  That can constitute again “rebate in disguise”.

Approach in Inquiry 

I always remind myself not to come to over-generalized rulings especially when large number of doctors are affected.  In judging a defendant doctor, I am guided by the Code of Professional Conduct (our Red Book) and peer standards. General principles are laid down by the Ethics Committee and are endorsed by the full Council.  There are thorough discussions with members from different representations.  There is ample time for researches and legal advice.  This is not the case for an inquiry panel.  Time is often limited.  There are usually around five to seven Council Members and Assessors.  Therefore, I would try to limit the judgment to the individual case according to principles laid down.

A Request for Review of the Decision was Turned Down 

The above are my analysis of the case and the judgment.  I might not be correct.  I have to write it down here because there seemed no other way to have my opinions discussed and the result of the discussion conveyed.  The following was an outline of how the request for review ended in futile, with similarly difficult-to-understand logics.

Some members found that the judgment would affect most doctors in private practice.  The meanings and implications of “Laboratory tests”, “Rebate” and “Excessive charges” needed discussion and clarification.  A jointly signed letter was sent to the Chairman of the Medical Council asking for a review of the decision under Section 21 (4B) of the Medical Registration Ordinance (CAP. 161): “Within 14 days after the conclusion of an inquiry under this section, the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.” 

I would not go into details of how the request for review was rejected, because it would make myself or some readers angry, and anger was hazardous to health.  The essential point was that there was legal opinion that the word “Council” in Section 21 (4B) of the MRO referred to the Inquiry Panel, and not the Medical Council.  I valued the legal advice.  At least it looked at the statue from another angle which I had never thought of.  The reason behind the interpretation of “Council” meaning “Inquiry Panel” was that the Inquiry Panel was acting for the Council in an inquiry and the decision should not be fettered.

It is very common to have different opinions in statue interpretation.  The cannons (rules) for statute interpretation often lead to different meanings for the same statute.  But legal advice, like medical advice, is not just talking about experience and innovation.  It needs to be supported by evidence.  In legal issues, apart from reasoning, there need to be statutes, past decisions or authorities to support the view.  Important areas of concern included whether there had been review under Section 21(4B) before, whether there had been any discussion concerning Section 21(4B) before, either in the Council or elsewhere in the courts, and whether there had been any citation concerning the interpretation of the word “Council” in the MRO.

My humble opinions and opinions from my learned friends are listed as follows:

1. Section 2 of the MRO defines “Council” as the Medical Council of Hong Kong established under section 3.  And section 3 of the MRO governs the establishment of the Medical Council with the 28 members.
2. The word “Council” in section 21 (4B) is in capital letter
3. The Chinese translation for Council in section 21 (4B) is醫務委員會
4. Section 21B lists out details of meetings of Council for purpose of an inquiry.  It refers to members of the inquiry panel as “members of the Council” and “assessors”.  This means that the inquiry panel cannot mean the “Council”.
5. Even when the Inquiry Panel represents the Council at a particular inquiry, it would not replace the Council.  An analogy is a decision made at a particular Council meeting with a particular composition of Council members present is a decision of the Council.  But the decision can still be reviewed by the Council with a different composition later.
6. In terms of reasoning, it is perfectly reasonable to instill a review mechanism by the full Council.  When either party of the inquiry is not satisfied with the decision, he can only go to court for an appeal or a judicial review.  If the Council finds any problem with the decision, it can initiate a review.  This is the spirit of professional self-regulation.  The regulatory body (Medical Council) can take the initiative to review a decision if it is problematic.  It is not logical to have our hands tied to face the only solution of going to court.
7. It is more likely that this safety mechanism is built in for the Council than the Inquiry Panel because in a short period of 14 days, the Panel members are unlikely to come to any new considerations out of their own.  It is not talking about to fetter the decision of the Panel.  Afterall they represent the Council and the Council be given the power to review a decision is logical.  The quorum of an inquiry is five members and a meeting of the Council needs a quorum of thirteen members.  The decision of the Council also needs a majority vote.  All these, together with the 14 day limit, help to prevent the Council from making a review without much consideration.   

Credibility of a Disciplinary Body 

The interpretation of this section of the MRO is very important.  It affects the power of the Council to review decisions made in inquires.  It also affects the definition of “Council” in the MRO.  The credibility of a disciplinary body depends on its determination in truth seeking.  It is only through truth seeking and upholding truth impartially that justice can be done and justice can be seen to be done. 

Conclusion 

In a recent decision, the Medical Council considered charge item marked “Laboratory Tests” on the receipt as “rebate in disguise” if that charge exceeded the amount the laboratory charged the doctor.  This could be a precedent decision and followed in future inquiries.  Some doctors found the decision problematic and requested for a review under the Medical Registration Ordinance, aiming to have discussion and clarification with the Council.  However, the request was rejected with a simple legal opinion.  Many doctors in private practice can be affected by the decision and are now at risk.  I would simply refrain from writing the term “Laboratory Tests” as a charge item on receipts. This may be the simplest, though passive, way to handle this matter.

(Source: HKMA News September 2009)