Judgment No. 65/2023/HS-PT

Defendant: Dinh Viet H

Victim: Ms. Vo Ngoc Anh Tr (Deceased)

Criminal Matter: Violation of regulations on medical examination and treatment and use of fake documents

Case Summary

Dr. Dinh Viet H (hereinafter Dr. H) is an orthopedic trauma specialist who was granted a medical examination and treatment practice certificate (No. 009047/HCM-CCHN) by the Department of Health of Ho Chi Minh City on May 25, 2013, and is employed at the General Hospital in the Central Region. From 2013 to 2014, Dr. H participated in a specialized course of plastic surgery at the University of Medicine and Pharmacy, Ho Chi Minh City, and on 06/01/2017 was granted a certificate (copy) by the University of Medicine and Pharmacy. From 2015 to early 2017, Dr. H worked as a plastic surgeon at Kangnam Hospital, District 3.

During his time working at Kangnam Hospital, Dr. H provided professional degrees and certificates (i.e. his Diploma from a Medical University and a certificate of participation in a specialized course of plastic surgery) to an agent named Hung.  The purpose was to request the Department of Health of Dong Nai Province to adjust and supplement the scope of Dr. H’s medical examination and treatment activities to include plastic surgery.  By the end of April, 2017, Hung submitted to Dr. H an original and 03 copies of, what was purported to be, Decision No. 009047/QD-SYT dated 20/4/2017 of the Department of Health of Dong Nai province adjusting and supplementing the scope of professional activities to allow Dr. H to examine and treat cosmetic surgery cases.

After the above decision, on May 1, 2017, Dr. H and representatives of Emcas Hospital Branch in District 10 signed a contract to provide medical professional support services.  Accordingly, when Dr. H needed to perform plastic surgery for customers, Dr. H would contact Emcas Hospital which would provide an operating room with a team of doctors, and nurses to support surgery, as well as anesthesia and the necessary equipment and drugs to perform the procedure. According to the contract, Dr. H was assigned by the director of Emcas Hospital to perform the tasks of consulting, medical examination, treatment, surgery, and other medical care at Emcas Hospital.

In addition, in November, 2017, KangNam Hospital applied the Decision to supplement the scope of professional activities to include plastic surgery for Dr. H.  However, on 12/12/2017, the Department of Health of Ho Chi Minh City issued Official Letter No. 4671/SYT-QLDVYT concluding that Dr. H was not eligible for the additional scope of professional activities in plastic surgery in the Medical Examination and Treatment Practice Certificate.

On October 15, 2019, Ms. Vo Ngoc Anh Tr was advised and examined by Dr. H regarding breast augmentation surgery and was instructed to undergo some pre-surgery tests at Emcas Hospital.  Two days later, on October 17, 2019, she returned to Emcas Hospital where Dr. H provided further consultation and examination. Additionally, Doctor NLQ10 performed a pre-anesthetic examination.  Both doctors concluded that Tr was fit for surgery, and the hospital’s surgical review board agreed, granting approval for the procedure to go forward.  At around 2:00 PM on the same day, the anesthesiologists and nurses prepared Ms. Tr for surgery in operating room 1.  She was administered anesthesia, starting with 100mg of the painkiller Fentanyl, followed by 120mg of the anesthetic Propofol after about a minute, and 30mg of the muscle relaxant Esmeron two minutes later.  Throughout the anesthesia process, Tr’s vital signs, including pulse, blood pressure, respiration rate, and blood oxygen levels (SPO2), were closely monitored.  Once Tr was deeply asleep and had stopped breathing independently, the medical team manually ventilated her, removed the face mask, and intubated her with an endotracheal tube.  They then continued ventilation through the tube, checked lung function and tube placement, secured the tube, and transitioned her to mechanical ventilation.  Approximately 20 minutes later, after reading the results of an antibiotic test and finding no adverse reactions, Dr. H proceeded with the surgery, placing two breast implants into Tr’s chest.  After completing the procedure, he checked the surgical site and implant positions, closed the incisions, and applied compression dressings before leaving the operating room. At around 3:50 PM, Ms. Tr was transferred to the recovery room and handed over to the nursing staff for postoperative monitoring.  Later that evening, around 8:45 PM, Ms. Tr began exhibiting signs of distress, including confusion and frothing at the mouth. The doctors and nurses promptly moved her to the intensive care unit for emergency resuscitation. Despite their efforts, her condition worsened, with low blood oxygen levels (90%), a rapid heart rate (120 beats per minute), and low blood pressure (94/57 mmHg). By approximately 10:30 PM, Ms. Tr was transferred to 115 Hospital for emergency treatment but unfortunately passed away shortly thereafter.

According to forensic autopsy report No. 1322/TT.19 dated November 13, 2019, from the Forensic Center of the Ho Chi Minh City Department of Health, the cause of death for Vo Ngoc Anh Tr was determined to be Lidocaine and Paracetamol poisoning, along with an old brain infarction. On December 13, 2019, the Department of Health of Ho Chi Minh City issued document No. 6944/SYT-Ttra, which concluded that the cause of respiratory arrest was Lidocaine poisoning. Further, the Emcas Cosmetic Hospital had professional errors in the process of receiving, caring for, diagnosing, and treating Tr, including not thoroughly investigating her medical history. The medical records did not adequately reflect the preliminary diagnosis or appropriate management plan when her condition worsened, and the process of transferring her to a higher-level hospital was not conducted according to healthcare regulations.

On October 14, 2020, the Department of Health of Ho Chi Minh City issued document No. 6099/SYT-NVY, which provided a medical explanation for the cause of death. The document stated that Tr’s medical history of “functional neurological disorder” and “brain infarction due to cerebral venous thrombosis,” which occurred on September 23, 2018, over a year before her surgery at Emcas Cosmetic Hospital on October 17, 2019, was unlikely to have influenced her respiratory arrest. However, if the respiratory and circulatory arrest had been detected earlier, and if the hospital had followed the correct procedures for resuscitation, diagnosing, and treating the Lidocaine poisoning, Ms. Tr could have been saved.

On March 31, 2022, the Ho Chi Minh City Police Investigation Agency issued Decision No. 255 and document 1769, requesting the Medical Council of the Ho Chi Minh City Department of Health to review the cause of Tr’s death and identify any professional errors during the examination, consultation, breast augmentation surgery, postoperative monitoring, and resuscitation process.

Regarding Decision No. 009047/QĐ-SYT dated April 20, 2017, from the Department of Health of Dong Nai Province, which supposedly adjusted the scope of professional activities to include “examination and treatment of cosmetic plastic surgery” for Dr. Dinh Viet H, on October 22, 2019, the Department of Health of Dong Nai Province issued document No. 60/TTra confirming that they had not issued Decision No. 009047/QĐ-SYT dated April 20, 2017, to Dr. Dinh Viet H.

According to the forensic examination report No. 933/KLGĐ-TT dated May 25, 2020, from the Criminal Technical Department of the Ho Chi Minh City Police, there was insufficient evidence to conclude whether the signature in the name of Huynh Minh Hoan on the document in question matches the signature of Huynh Minh Hoan on the comparison sample documents.  On August 6, 2020, the Criminal Technical Department of the Ho Chi Minh City Police issued Forensic Examination Conclusion No. 1508/KLGĐ-TT for the certified copies of this decision: “The round seal with the content ‘JUSTICE DEPARTMENT – DISTRICT 1 – HO CHI MINH CITY – SOCIALIST REPUBLIC OF VIETNAM’ on 03 certified copies of purported ‘Decision’ No. 009047/QĐ-SYT of the Department of Health – Dong Nai Province, all dated April 20, 2017, with certification number 5006 dated May 8, 2017, compared to the round seal with the same content on the comparison documents, is not made by the same seal.”

The first-instance Criminal Judgment No. 394/2022/HS-ST dated August 26, 2022, of the People’s Court of Ho Chi Minh City sanctioned Dr. Dinh Viet H to 01 year in prison for the crime of “Violating regulations on medical examination and treatment,” and 01 year in prison for the crime of “Using fake documents of agencies and organizations.” The total penalty for both crimes was 02 years in prison. On September 7, 2022, the defendant Dr. Dinh Viet H filed an appeal. The reasons for appeal were: The defendant’s family situation was very difficult, the defendant was the main worker in the family, his parents were elderly and constantly sick, the children were small, and his wife was a housewife and had been pregnant for 2 months and needed care. Additionally, the defendant’s family had a revolutionary tradition and the defendant himself suffered from high blood pressure and was being treated for this condition. Finally, the defendant sincerely declared and regretted that the incident occurred.

At the appellate trial, the defendant Dr. Dinh Viet H maintained the reasons and requests for the appeal. The defendant additionally provided new evidence, which includes a certificate indicating that Ms. Nguyen Thi T, the defendant’s mother, was awarded the Second-Class Resistance Medal according to Decision No. 765/KT/CTN dated October 10, 2001, by the President. In addition, defendant submitted a petition for leniency and a request for a suspended sentence, confirmed by the receipt of an additional 40,000,000 VND by Mr. Vo Van D and Ms. Bui Thi T1, the parents of the victim.

The representative of the High People’s Procuracy in Ho Chi Minh City stated that the first-instance court’s declaration that the defendant Dr. Dinh Viet H was guilty of “Violating regulations on medical examination and treatment” and “Using fake documents of agencies and organizations” was accurate and justified, with no wrongful conviction. The first-instance court also considered all mitigating circumstances for the defendant when deciding the punishment. Therefore, they recommended that the appellate trial panel reject the defendant’s appeal.

Judgment of the Court

The defendant Dr. Dinh Viet H, a doctor trained in cosmetic surgery, had not been authorized by the competent professional authority to perform specialized medical activities in plastic surgery. The defendant possessed a forged Decision No. 009047/QĐ-SYT dated April 20, 2017, from the Department of Health of Dong Nai Province, which supposedly allowed him to perform medical examinations and treatments in cosmetic surgery. Based on the forged Decision, he conducted examinations, consultations, and breast augmentation surgery for Ms. Vo Ngoc Anh Tr. During the surgery, several errors occurred, leading to Ms. Tr’s death post-operation.  As such, the declaration of the first-instance court of the defendant being guilty of “Violating regulations on medical examination and treatment” and “Using fake documents of agencies and organizations” was accurate and justified, with no wrongful conviction. The actions committed by the defendant Dr. Dinh Viet H violated state regulations on medical examination and treatment, infringed upon state administrative management order, and negatively impacted social order and safety. Therefore, an appropriate punishment was necessary to deter and educate the defendant and to prevent similar incidents in society.

The defendant’s family had a revolutionary tradition. The defendant himself was undergoing treatment at the time for high blood pressure and was the primary breadwinner of the family. After the incident, the defendant actively cooperated with the Investigative Agency and the Procuracy to clarify the case as soon as possible. He sincerely confessed and had shown remorse for his actions. Subsequently, he, along with Emcas Hospital, visited and expressed condolences to the victim’s family and compensated the victim’s representative with 760,000,000 VND. Therefore, on July 12, 2022, Mr. Vo Van D and Ms. Bui Thi T1, the parents of the victim Vo Ngoc Anh Tr, submitted a petition for leniency, requesting that the defendant not be isolated from society, allowing him to care for his family. Given these circumstances, the defendant had many mitigating factors.  Thus, the first-instance court’s sentencing of the defendant to 01 year in prison for the crime of “Violating regulations on medical examination and treatment” and 01 year in prison for the crime of “Using fake documents of agencies and organizations,” without granting a suspended sentence, was somewhat severe. After the first-instance trial, the defendant continued to support the victim’s family with an additional 40,000,000 VND. On December 13, 2022, Mr. Vo Van D and Ms. Bui Thi T1 again submitted a petition for leniency and requested a suspended sentence for the defendant. The defendant also provided additional confirmation that his mother, Ms. Nguyen Thi T, was awarded the Second-Class Resistance Medal by the state.

Court Decision

Accepting part of the appeal of the defendant Dr. Dinh Viet H. Amending the first-instance criminal judgment No. 394/2022/HS-ST dated August 26, 2022, of the People’s Court of Ho Chi Minh City. Declaring the defendant Dr. Dinh Viet H guilty of the crime of “Violating regulations on medical examination and treatment” and the crime of “Using fake documents of agencies and organizations”. Summing up the penalties for both crimes, and compelling Dr. Dinh Viet H to serve a common penalty of 01 (one) year in prison.

Legal Basis

Point a, Clause 1, Article 315; Point d, Clause 2, Article 341; Points b, s, Clause 1, Clause 2, Article 51; Article 54; Article 38 of the 2015 Criminal Code, amended and supplemented in 2017;

Point b, Clause 1, Article 355, Point c, Clause 1, Article 357 of the 2015 Criminal Procedure Code.

Resolution No. 326/2016/UBTVQH14 dated 30/12/2016 of the National Assembly People’s Committee regulating court costs and fees.