What Can I Do If My TCM Treatment Went Wrong?
Traditional Chinese Medicine (TCM) has started to gain prominence in recent years as an alternative form of medicine. In Singapore, about 66% of the population has undergone some form of TCM treatment. However, TCM’s increased popularity also comes with the increased possibility of cases going awry. One example is the unfortunate case of the lady who received third-degree burns from a moxibustion session gone wrong at a TCM clinic.
In this article, we will bring you through some of the legal actions you can take should you find yourself in such an unfortunate situation.
1. Suing TCM Practitioners for Negligence
One legal recourse would be to sue the errant TCM practitioner for negligence.
Proving negligence involves several elements:
- First, you will need to prove that the TCM practitioner (the defendant) owed you (the claimant) a legal duty of care. Generally, TCM practitioners would owe a duty of care to their patients because of the nature of their physician-patient relationship.
- Secondly, that there was a breach of that standard of care.
- Lastly, that you suffered a specific damage because of that breach.
Since there are no reported decisions that reveal the standard of care to be imposed on an errant TCM practitioner for negligence, it is hard to tell exactly how the court would deal with such a case. However, it is likely that they will be judged based on the standard expected of a reasonable person in the shoes of the TCM practitioner (i.e. the usual standard of reasonable man for civil law cases).
As a side note, it should be noted that the standard of care in the United Kingdom differs from this standard of a reasonable man. In the United Kingdom, the standard of care is that of an “ordinary careful general practitioner” in his orthodox specialty. However, it remains to be seen whether this different standard will be adopted in Singapore.
Apart from being liable for negligence, errant TCM practitioners may be charged with other criminal offences under the Penal Code.
For example, a TCM practitioner may be liable for causing death by a negligent act under section 304A of the Penal Code. A TCM practitioner can also be convicted under section 338 of the Penal Code for causing grievous hurt to a patient that endangered their life.
2. Professional Misconduct by a TCM Practitioner
Another legal recourse would be to lodge a complaint against the errant TCM practitioner with the Traditional Chinese Medicine Practitioners Board. The Board regulates the conduct and ethics of registered TCM practitioners under the Traditional Chinese Medicine Practitioners Act (TCMPA).
The procedure is as follows:
- Lodge a written complaint with the Board. The complaint must concern one of the following matters.
The registered TCM practitioner has:
- obtained his registration by a fraudulent or incorrect statement;
- had any of his relevant qualifications (which he relied upon for registration) withdrawn or cancelled;
- his registration in any other country for the practice of TCM withdrawn, suspended or cancelled;
- ceased to carry on the prescribed practice of TCM for which he is registered;
- failed to comply with any condition or regulation under the Act relating to the practice and conduct;
- been convicted for fraud or dishonesty;
- been convicted of any offence in Singapore or elsewhere;
- been guilty of negligence;
- been guilty of improper conduct (professional or otherwise) which renders him unfit to remain on the Register; or
- a mental or physical disability which hinders the safe administration of treatment
In most cases concerning the negligence of TCM practitioners, sections (i) and (j) would be most relevant.
- Be sure to include the full facts of your case and state the relevant allegations clearly in your letter of complaint against the TCM practitioner. When the complaint relates to any matter referred to in section (e), (f), (i), (j) or (k), the complaint should be supported by statutory declaration that must include:
- the name, address, and occupation of the complainant
- the grounds of the complaint; and
- the evidence supporting the complaint
Determining liability for professional misconduct
In determining whether the TCM practitioner is liable for professional misconduct, the Board refers to the Ethical Code and Ethical Guidelines for TCM Practitioners (TCM ECEG), which sets out the expected standards of professional conduct.
The TCM ECEG covers many aspects of TCM practice. Pertinently, it provides that TCM practitioners should only use appropriate and generally accepted methods of TCM treatment. This means that the TCM practitioner shall not use unorthodox or questionable treatments.
In addition, the TCM ECEG also states that a TCM physician can prescribe only herbal medicines that are legally available in Singapore, and must comply with all statutory requirements governing their use.
Moreover, a TCM practitioner must respect a patient’s right to information so that he/she makes informed choices about the TCM treatments he/she undergoes as well as provide competent and appropriate care to the patient.
In another unfortunate case of a patient who suffered second-degree burns from a fire cupping treatment, the TCM practitioner who administered the treatment was found guilty of professional negligence, and breaching the TCM ECEG.
While the TCM practitioner had adequately informed the patient of the benefits and risks of TCM fire cupping treatment before the signing of the consent form to receive treatment, the practitioner failed to provide appropriate care and exercise safeguards to prevent the risk of burn injuries to the patient. In particular, the TCM practitioner was not mindful of the overheating of the cup and failed to carefully monitor the patient’s skin colour and condition after each cupping movement before administering further cupping. She also did not take adequate precautions to avert serious burn injuries to her patient.
3. Practicing TCM without a licence in Singapore
This recourse is helpful if you realize that an individual who claims to be a TCM practitioner is in fact not registered. In Singapore, individuals intending to practice TCM must register themselves under the TCMPA.
Registration is required for services such as:
- Diagnosis, treatment, prevention or alleviation of any disease or symptom of a disease;
- Retailing, prescribing, preparing or processing any herbal medicine.
Any individual who is found guilty of providing the services listed above without being registered, will be liable for up to 6 months’ imprisonment and/or a fine of up to $25,000.
Another recourse you could undertake would be mediation which involves having a discussion with the TCM practitioner in the presence of a trained professional mediator. Such a recourse will enable you to receive some relevant remedies without having the need to go to court.
Hence, there are several available methods you could undertake if you are unfortunately the victim of a TCM mishap. For more case-specific advice or for advice on which method may be the best option for your own situation, you could speak with an experienced lawyer.
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