September 2002
Vol.9 No. 5

Editors: Dr. Sam SP Lau
Drs. Elaine YW Kwan, Karen L Kwong, KY Wong

Medical Negligence and Professional Misconduct

Dr. Li Chi Him
FRCP (Edin, Glasg), LLB (Hons) (London), PCLL

(Dr. Li gave this lecture to the Private Practicing Paediatricians Study Group on the 16 January 2001. The Editorial Board prepared the present paper from a transcription of his talk; and this paper's content was approved by Dr. Li)


Editor's Notes

Dr. Li Chi-him is qualified both as paediatrican and lawyer; so he is in a unique position to understand the issue of medical negligence from both the doctor's and the lawyer's perspectives. In a talk given to the Private Practicing Paediatricians Study Group in January 2001, he outlined the essential elements alluding to this topic. It is no exaggeration to say that the legal language is usually beyond comprehension for ordinary mortals; however the editor has strived consciously of making it simple in the process of transcribing the talk. It is hoped that our readers will find these legal points of law comprehensible enough, and thereafter will be able to act in a proactive manner to avoid unnecessary troubles. It is not to say that we should become over-anxious as to practice "defensive" medicine, an undesirable phenomenon and wasteful practice so prevalent across the Pacific Ocean.

During the last decade or so, medical practice in Hong Kong has become more complicated, competitive and difficult. At the same time patients are better informed and more demanding. Not surprisingly, we have experienced a surge of complaints as well as litigation against medical professionals for medical negligence and professional misconduct. So the burning question is: how should we practice safe medicine (in the legal sense)? Before we chart our course of action, there is a need to define the four fundamentals that are essential to understand the legal position: What constitutes medical negligence? What are the defenses for the doctor? What constitutes "professional misconduct"? What is the test for "professional misconduct"? In the first of two issues, the first element concerning the definition of "medical negligence" will be dealt with.

What Constitutes Medical Negligence?

There are three elements in this matter: Duty of Care (establishment of a legal relationship), Breach of Duty of Care (establishing negligence) and Causation (establishing that negligence causes damage). For the plaintiff (patient) to be successful in the legal process, he must prove that all three elements are present and operative in his case.

1. Duty of Care

For any complaint to be substantiated, the establishment of a legal doctor/patient relationship is a must. The relationship is straightforward in the case the patient seeks medical advice from the doctor in his clinic. Sometimes, however, this relationship may not be apparent and in such case, the Neighbour Principle applies. In the judgment in the case of Donoghue v Stevenson (1932) Lord Atkin ruled that neighbours are "...persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected while I am directing my mind to the acts or omissions which are called into question." In plain language, it means that you are responsible for your action or inaction, directly or indirectly, that may cause harm to your patient. This principle makes a medical practitioner responsible for consequence of any action in the course of exercising his profession. He is also responsible for malpractice of his locum doctor he employs, mistakes made by his clinic nurses, and the consequence of medical consultation over the telephone, although there is no vis-à-vis contact with his patient. Furthermore, he is also legally responsible for third parties coming to harm through his inaction; for example, immune-deficient household members contracting serious polio infection via a child who received a dose of oral polio vaccine while parents are not told to dispose child's excrement carefully.

Medical practitioner is legally responsible for his own action, and of those under his employment, consultation and advice given over the telephone, filing mistakes, misplacement of laboratory reports, and third parties damage via his patient when associated risk and precaution are not explained to him by the doctor. A direct face to face encounter with his plaintiff is not always necessary for the establishment of a legal doctor/patient relationship.

2. Breach of Duty of Care

In order to establish negligence, the plaintiff (Patient) has to prove that the doctor has not discharged his duty by "exercising all reasonable skill and care of the kind to be expected of a Paediatric Specialist". In general the doctor is expected to practice with the Standard of Care - that he is not to diverge from the fashion the majority of his colleagues would do in a similar situation. In the Bolam Test (1957) the ruling runs: "...standard of the ordinary skilled man exercising and professing to have that special skill." It is should be noted that "A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view." What it says is that any doctor of the same discipline would have acted similarly. Of course there is often more than one management scheme for any given medical condition. In case the doctor deviates from the official "Guidelines", it is essential that such a practice can be supported by learned opinion of another body of experts in the field. It explains why the expensive services of "medical experts" are often required in medical litigations.

Breach of Duty of Care (Negligence) is established if a doctor's standard of care does not conform to the current practice as advocated by a body of learned opinions. However there may be more than one recommendation for any given medical condition and "Guidelines" from professional body may not be the ultimate yardstick for "proper care". Deviation from "normal" practice can be justified with the support of opinion of another responsible body of men skilled in the faculty.

3. Causation

Lastly, the plaintiff needs to prove/establish that negligence, i.e. doctor's mismanagement, causes damage and this is often the most difficult part of the process. It must be determined whether a doctor's negligence is sufficiently likely to have caused the damage to justify compensating the patient. Here it must be pointed out that the doctor in question is only liable for one type of damages payment, that is, full damages according to the principle of "all or nothing". The common law as practiced in Hong Kong does not allow a plaintiff to recover damages in a way that is proportional to the likelihood of the doctor's negligence being responsible for the end result of the treatment and the illness.

Here are two relevant cases to illustrate the point of causation:

  1. Barnett type of case: Barnett v Chelsea & Kensington HMC (1969).
    A man accidentally drank arsenic and some hours later, he was sent to the Accident and Emergency Department. He was discharged home and died. In the judgment of this case; "…the ingestion of the arsenic had been a sufficiently long time beforehand to have meant that a stomach washout, or any other treatment for that matter, would have been to no avail. The patient would have died in any case." The widow's case failed on causation.
  2. Hotson type of case: Hotson v East Bershire Health Authority (1987).
    A boy fell from a tree and no X-ray was ordered. An X-ray film five days later did show fracture of the neck of femur and avascular necrosis of the femur head. In the judgment; "Statistics showed that in a comparable series of promptly treated cases, the complication occurred in 75%. Therefore, the boy, far from being deprived of a certain cure by the negligence, had only lost a 25% chance of cure". The Court of Appeal ruled that there was 25% "Lost Opportunity (of successful treatment)" and hence ordered a payout to the plaintiff 25% of the asked compensation. The House of Lords ruled later that no compensation was due because there was less than 50% chance of recovery even with good treatment. "The proportionate approach would give rise to many complications in the search for mathematical and statistical exactitude" so said Lord Ackner.
For the establishment of medical negligence the presence of all three elements must be satisfied. These three elements are (1) Establishment of a legal relationship (Duty of Care), (2) Establishment of negligence (Breach of Duty of Care) and (3) Establishment that negligence causes damage (Causation).

The Maxim 'Res Ipsa Loquitur'

With this maxim 'the thing speaks for itself' the patient can circumvent the difficulty of proving negligence and puts the burden of proof back to the doctor - 'prove your innocence if you can'. If patient's condition has become worse after treatment, the patient can then use the worsening of condition as an argument to suggest doctor's negligence. Here are a number of possible situations. A patient suffers post-operative convulsion after appendectomy and was the convulsion due to mismanagement? Is patient's eardrum rupture due to mishandling of ear syringing? Is the sciatic nerve damage due to poor technique of gluteal injection? In defense the doctor must convince the jury that he has taken all precaution in the process. The best argument in favour of the doctor would be either (a) he can provide a convincing alternative explanation for the worsening of patient's condition or (b) he can convince the judge that he has taken all reasonable care by applying the accepted current technique with meticulous record entries of the procedure.

 
Patient may use the worsening of the medical condition as an argument to allege doctor's negligence. The best defense for the doctor consists of (a) that he can provide an alternative explanation for the worsening of medical condition and (b) that he has taken all reasonable care by applying the accepted current technique with meticulous record entries of the procedure.

Defenses by Doctors

What can the doctor do to defend himself? We need to understand the three basic principles by which the doctor is judged whether he is guilty of malpractice or not: (1) Lost Opportunity Causation, (2) Unrelated Factor Causation and (3) Material Contribution Causation.

1. The 'Lost Opportunity' Causation

However the plaintiff needs two expert witnesses to convince the judge that the period of consultation falls within the intermediate phase - 'the window of opportunity' - Then one can presume negligence and causation coincided.

The 'Window of Cure' is a very important principle in judging negligence. If the court can be convinced that the doctor has failed to act properly in the critical period (Window of Cure) by failing to diagnose the disease, to treat it appropriately or to refer the patient to other specialists, negligence is the likely verdict.

2. The 'Unrelated Factor' Causation

Here is a legal example: Wilsher v Essex Area HA (1988). A catheter was inserted into the umbilical vein and not artery in a premature baby. SaO2 was measured in venous blood and the baby was given excess O2. The baby became blind due to retrolental fibroplasias. In the first instance both the Court and Court of Appeal ruled that the defendant was liable because excess O2 was one of six possible causes. However the House of Lords - using the civil standard of proof - ruled there was a need to show that excess O2 was more than 50% likely to have been responsible for the retinal damage. The Case was sent back for retrial because there was insufficient material to have thorough comparison made between the negligent cause and the other 5 unrelated causes. The case was eventually settled out of court.

 
The introduction of Unrelated Factor(s) is a very useful tool for the defense.

3. 'Material Contribution' Causation

The de minimis principle means the law does not recognize minutiae (minor complaints). In legal language 'The court will avoid a degree of precision that would set a precedent for future cases'. To do so would involve pedantic arguments about microscopic differences. Roughly interpreted it is the Uncertainty of whether the negligence made a material contribution to the damage. Charges need to have the certainty of doctor's action materially contributed to the damage. The plaintiff will have a better chance of success if he avoids making too many minor complaints (minutiae) and concentrate on a few specific major complaints.

 

De Minimis Principle: the law will not recognize minor things not making a material contribution to the damage.

Professional Misconduct - Local Statistics

Complaints received by the Medical Council over the years:
Year Involving Negligence
(Disregard of professional responsibilities to patient)

Number

Considered by PIC* Referred for disciplinary hearing
1995 85 177 78 14
1996 101 168 42 9
1997 105 190 44 10
1998 133 245 56 7
1999 120 230 39 17

*PIC - Preliminary Investigation Committee

There are 3 main categories of disregard to professional responsibilities in 1999:

Various sentences given by the Medical Council are (1) warning letter (not gazetted), (2) warning letter (gazetted), reprimand (gazetted) and suspension/ removal from register (gazetted).

Disciplinary Inquiries conducted by the Medical Council in 1999

The verdicts of 5 cases heard by Medical Council relating to Disregard to Professional Responsibilities to Patients: One case of removal from register for 6 months and suspended for 2 years; one case partly heard and three cases are found not guilty.

The breakdown of statistics includes 1 case of failing to properly label drugs dispensed (warning letter issued but not gazetted), 1 case of providing misleading information for certification for specialist registration (found not guilty), 1 case of issuing untrue and misleading or improper sick leave certificates (warning letter issued) and 1 case of using false documents with intent to deceive (reprimanded and gazetted).

Definition of "Misconduct in a Professional Respect" - A Grey Zone

In the red book "Professional Code and Conduct for the Guidance of Registered Medical Practitioners - Medical Council of Hong Kong (Revised June 1996)", p.8, it is stated:

The definition of "Misconduct in a professional respect" can be broadly defined as "If a medical practitioner in the pursuit of his/her profession has done something which will be reasonably regarded as disgraceful, unethical or dishonourable by his/her professional colleagues of good repute and competency, then it is open to the Medical Council of Hong Kong, if that be shown, to say that he/she has been guilty of professional misconduct". The seriousness of misconduct will be judged by the rules, be they written or unwritten, of the profession itself.

This definition is anything but clear-cut and it is sufficiently vague, open to all kind of argument of its interpretation. For example, not recording negative findings may be chargeable, but this act has nothing to do with disgrace, ethics or honour! The Medical Council routinely uses the following case to support its judgment.

Alexander Robert Doughty and General Dental Council - Privy Council 1987

Dentist Mr. Doughty was accused of failing to retain dental radiographs, to exercise a proper degree of skill and attention, and to satisfactorily complete the treatment required in 6 patients. In The Dentists Act 1984, "infamous or disgraceful conduct in a professional respect" was repealed in Parliament and replaced by "serious professional misconduct". The lordship then held that serious professional misconduct was a wide expression not restricted to dishonesty or moral turpitude but included all professional conduct. However, in the General Medical Council's booklet of U.K. entitled Professional Conduct and Discipline (Fitness to Practice (April 1985) p.3) it is stated: "In proposing the substitution of the expression 'serious professional misconduct' for the phrase 'infamous conduct in a professional respect' the Council intended that the phrases should have the same significance. Moreover, the relevant section in our Professional Code and Conduct for the Guidance of Registered Medical Practitioners had not been repealed.

It is the speaker's opinion that simply hiding behind the pretence that the highest standard of medical practice must be upheld to label each and every technical breach as misconduct is inappropriate and irresponsible nowadays. The old definition of labeling any and every technical breach a moral or ethical issue is very questionable. The Medical Council may be seen as using this obsolete shield or weapon to convict practitioner.

 

The current definition of labeling any and every technical breach as a moral/ ethical issue is very questionable. This gives the Medical Council a powerful weapon to convict practitioner.

The Appeal

If a practitioner is convicted, he can appeal against the judgment in two areas:

  1. Appeal against the fact. This is usually most difficult if not always impossible. Also the Discipline Committee is not obliged to give reasons for its verdict. The only chance is if the findings are obviously out of tune with evidence.
  2. Argue against point(s) of law.

The detail of appeal tactics and procedure are beyond the scope of this article, and will be reserved for future issue.

 

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