Feb 2022

Medical Negligence in Hong Kong: Claims, Procedure, Examples

medical Negligence malpractice
Medical Negligence in Hong Kong

What Is Medical Negligence?

Medical negligence refers to any professional negligence which leads to injury or death. Since medical negligence constitutes a form of personal injury, the courts in Hong Kong follow the same principles concerning duty of care, breach of duty, causation and damage in cases involving medical negligence.

Duty of Care Explained

A medical practitioner’s duty of care towards his patient is to be treated as a single comprehensive duty. It covers all the ways in which a medical practitioner is called upon to exercise his skill and judgment in the improvement of the patient’s physical and/or mental condition and in respect of which his services are engaged.

In order to satisfy the duty of care in tort, the standard of care and skill to be attained is that of the ordinary competent medical practitioner who is exercising an ordinary degree of professional skill. In other words, he must act in accordance with a practice accepted as proper by a responsible body or practitioners skilled in the relevant field and will not be held to be negligent. This is the principle from Bolam’s case (Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582). In the course of time, there have been some inroads to the above principle. First, where there are two bodies of responsible professional opinion and a medical practitioner acts in accordance with one of the bodies of professional opinion, he will not be negligent simply because there is another body of professional opinion that would have pursued a different course of treatment, but if a practitioner acts in accordance with a body of professional opinion which is not capable of withstanding logical analysis, then the practitioner will not be acting in accordance with a body of “responsible” professional opinion, and may be liable for negligence.

The duty of care includes the duty to warn patients of risks. According to the Bolam’s case, such duty of care is based on whether the medical practitioner has acted in line with a responsible body of medical opinion. In the UK, there were indications of a move away from the approach in Bolam and it is Montgomery v. Lanarkshire Health Board [2015] UKSC 11 that gives the final word.

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

The above passage cited from the judgment demonstrates the English Courts’ firm departure from the views of the medical profession to the decision of a reasonable person in the patient’s position in considering the issue of consent. It is important that a medical practitioner’s advisory role involves dialogue with the patient rather than routinely demanding a patient’s signature on a consent form.

However, there is yet to be any authority in Hong Kong which applies the Montgomery test albeit the Medical Council of Hong Kong did react to the ruling in Montgomery by issuing a newsletter with Issue No. 22 emphasising that doctors in Hong Kong could no longer rely on the Bolam test.

Statement of Claim

Causation is another element that a claimant has to prove, namely whether the act (or omission) causes the injury or death in question and needless to say, a claimant is also required to prove he has suffered injury in the care of the medical practitioner.

In Hong Kong, to prove one’s case, the claimant must serve with his Statement of Claim

  1. i) At least one medical report describing his recent condition, and
  2. ii) If available and insofar as practicable, an expert medical report (which may be the same report) which is relied on as to liability and causation.

The above requirements are set out in paragraph 66(5) of the Practice Direction 18.1 and non-compliance with the Practice Direction may lead to adverse cost consequences. More so, if a claimant fails to produce the relevant medical evidence as stipulated, his claim is liable to be struck out.

Who Can Be Sued?

One may think that only the medical practitioner is liable for any negligence. It has long been held that the hospitals are also vicariously liable for the negligence of the members of its staff.

Similarly, a hospital authority, which provides a casualty department, owes a duty of care towards persons who present themselves there and complain of illness.

When To Make a Claim?

A claimant has three years from the date on which the incident involving the negligence occurred, or the date (if later) of the claimant’s knowledge of the incident and any possible claim. References to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts:

  • that the injury in question was significant;
  • that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
  • the identity of the defendant; and
  • if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

Nonetheless, the Courts can exercise discretion in disapplying the limitation period after having regard to all the circumstances.

COVID-19 and Medical Negligence

Health care systems around the world remain under enormous pressure in these unprecedented times and the system in Hong Kong is under no exception. It is inevitable that medical practitioners will be stretched with a surge in demand. Complaints related to COVID-19 treatment or about its influence on provision or availability of other healthcare treatment and claims may arise.

There is yet to be any case in Hong Kong addressing this issue but past medical negligence cases concerning infectious disease can provide some useful guidance on how the courts may rule when it comes to dealing with medical negligence cases concerning COVID-19.

The case Wan Sai Ping (Widow of Lo Chung Hing, deceased) & Ors v Hong Kong Baptist Hospital DCPI 510/2006 is concerned with the outbreak of Severe Acute Respiratory Syndrome (“SARS”) in Hong Kong in 2003. According to the Plaintiffs, there were suspected SARS infections on the 8th Floor of Baptist Hospital. However, the Defendant was negligent by failing to inform the deceased of these probable infection cases and so the deceased was admitted as a patient to the Hospital from 20th to 26th April 2003 without knowing the risk of getting infected. During the time of the deceased’s hospitalisation, he stayed on the 9th Floor of the Hospital and was later found to have contracted with SARS virus from which he passed away.

The Judge was of the view that in order to succeed in their claim, the Plaintiffs must be able to prove that the deceased was infected with the SARS virus during his stay at the Hospital. The Plaintiffs must plead all the circumstantial facts to support their case on causation and must plead the possible route of transmission they seek to establish such as the nexus between the type of isolation system and contraction of the virus.

Conclusion

Given that the burden of proof lies with the claimant and the claim will not succeed unless it is proved on a balance of probabilities (i.e. more than 50%), it is therefore always advisable to seek professional legal advice in assessing the merits of any potential medical malpractice claim and whether it is indeed worthwhile start and progress a legal claim.

 

Disclaimer: This article is provided for information purposes only and does not constitute legal advice.

Written by: Partner, Patrick Rattigan and Associate, Vivian Leung

Written by:

Vivian Leung

Associate

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