SINGAPORE - In its judgment against surgeon Susan Lim, the Court of Appeal upheld the Singapore Medical Council's disciplinary committee's stance on an ethical limit to the fees doctors can charge.
The three judges had found that the $24 million bill by Dr Lim for treating a Bruneian royal patient went beyond what should be morally charged.
They said: "The charging of fees is common to all professions, and there must therefore be - even in the absence of express statutory provisions or regulations - an ethical obligation on the part of a professional, over and above contractual and market forces, to charge his or her client only a fair and reasonable fee for services rendered."
While both the committee and the court say an ethical limit exists, neither defined it, or what this limit is except to say it should be "based on the judgment of her peers, taking into account certain objective criteria" such as the patient's special demands and the treatment or service rendered.
Since then, there has been much angst among doctors in private practice, who have to set their own fees.
Several lament the removal in 2007 of fee guidelines, which the Competition Commission of Singapore found to be anti-competitive.
But even those guidelines did not take into account things such as special training or skills of a doctor or the cost of lost opportunity as a result of rendering this service - that can legitimately allow a doctor to charge more. Nor did they specify how much more doctors can charge should special circumstances exist.
That said, one wonders how many doctors are charging their patients at, or close to, what Dr Lim had charged her Bruneian patient.
For such doctors, the recent decision should act as a wake-up call. Doctors who charge fees that high may now be regarded as "fleecing" their patients. Doctors whose fees are not at such astronomical heights need not worry.
They will not be accused of unethical conduct if their fees are reasonably higher than their peers, as both the panel and the court allow that a "fair and reasonable fee" takes into account factors including the doctor's level of expertise, the time spent with the patient and the urgency of the service.
But both were clear that the affluence of the patient cannot be a consideration.
No one will quibble that some doctors might be better than others or are more popular. If they do not charge higher fees, they might see themselves inundated by long queues of patients.
If all senior consultants in the public sector charge the same fee as registrars or even junior consultants, no one will want to go to a junior doctor. So even in the public sector, the fee structure varies.
Of course, fees in a public institution are not fixed by the doctor, the variations are not many, and they apply across the board for all doctors in an institution of that rank. Fees do vary among institutions, but not by much.
They are a good guide on what the majority of doctors charge. Can a private specialist charge more than a senior consultant in a public hospital? Of course, since that fee is neither an official guide nor is it a ceiling.
Also, depending on location, he might have higher overheads than a public institute.
How much more can he ethically charge? In Dr Lim's case, the judges found her fees to be as much as 15 times that in the public sector: $450,000 against $30,000. The service she provided was deemed far less complex.
Perhaps doctors should settle this issue themselves, without having the Government step in with price guidelines.
The Academy of Medicine or the Singapore Medical Association (SMA), for example, could poll their members on what most assess to be a legitimate mark-up for better (non-clinical) service, greater expertise or ability, and the "X" factor that lets some doctor command higher fees.
This can act as a yardstick to gauge if doctors' fees are felt to be "ethical" by their peers.
Indeed, the court judgment said "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".
While doctors need not be bound by this consensus, should their fees be far higher, they will have difficulty justifying them.
The Court of Appeal also suggested that the SMA publish actual fees charged in the private sector. It is a good idea but one more difficult to implement without legal backing, given market competition.
Will having acceptable upper fee limits raise patients' costs? Will all private doctors charge the maximum they can? This is unlikely, given market forces.
Polyclinics, for example, charge foreigners about $40 for a simple consultation and more than $50 for a longer consultation with a family physician.
With market forces in play, many GPs charge less, with some charging more.
Similarly, some specialists in the private sector actually charge the same or even less than their peers in the public sector. Others charge far more. It is up to patients to decide who they want to go to.
And they, too, can use public sector fees as a guide. The Ministry of Health puts online the actual bill sizes of 70 most common hospital procedures.
But it is not just the fees charged that have to be ethical. The court also said that even if the fees were moderate, what the doctor charges a patient for has also got to be ethical.
So although Dr Lim was on 24-hour call to her patient, the court found: "It was unreasonable for her to charge, in respect of 24-hour critical care monitoring in the ICU, an hourly rate commensurate with what she might have commanded for performing complex surgery and, moreover, for her to charge for all 24 hours of her time."
This effectively tells doctors that keeping fees "reasonable" but making up any "loss" in revenue with creative billing for service not truly rendered could just as easily land them in hot water as grossly overcharging patients.
To that extent, the Court of Appeal has done a great service to the health-care sector.
Get a copy of The Straits Times or go to straitstimes.com for more stories.