On February 27, 2009, five Form 2
school girls from Sheung Shui Government Secondary School fell ill in school
after taking katamine during lunch time and were sent to hospital. Two fifteen-year-old boys, who were suspected
to provide the students with ketamine, were charged with trafficking in a
dangerous drug.
As a Hong Kong citizen, I read in
newspaper news related to youth drug abuse nearly every day.
As a member of the Action
Committee Against Narcotics (ACAN), at every meeting I face statistics showing
a continuously rising trend of young people abusing drugs including ketamine.
As a doctor joining the Project
Mac (a pilot project of the ACAN to help young drug abusers by providing body
check-ups and motivational interviews with doctors), I meet many teenagers who
started their first abuse before the age of 12. Many of them do not attend school, do not
work, and are in debt because of regular drug abusing.
As a family doctor, I now and
then encounter teenage patients with drug abuse problems in my daily practice.
Some of them come for sick leave, the other come for symptomatic relief. However, some of them do come to ask for help.
I was very sad to see a university
student who developed psychosis after taking Ecstasy in several occasions in
Karaoke because of peer pressure from classmates.
I believe that doctors can help
young dug abusers. We can do it as an
individual doctor by increasing our alertness in screening and identification;
and by sharpening our knowledge and technique in intervention. The HKMA can take the leading role in
organizing seminars and forming district networks. In cooperation with the ACAN, we are
organizing a Certificate Course on the Management of Drug Abuse Patients for
Family Doctors. There will be eight
sessions of seminars and discussions, together with the formation of supporting
networks between our Community Network and local NGOs.
The government also has set up
the Task Force on Youth Drug Abuse to review current anti-drug measures, to
spearhead cross-bureaux and inter-departmental efforts, and to enhance
collaboration among NGOs, stakeholders and the community, with a view to
identifying areas of focus and improvement. I have invited the Chairman of the Task Force,
Mr. WONG Yan Lung, SC, JP, Secretary for Justice, for an interview. He shared with us the work of the Task Force
and discussed how doctors and HKMA could fit in the battle against drug abuse.
Talking about legal matters, on March
2, 2009, the judgment handed down from the Court of Final Appeal with respect
to the case of Frank Yu Yu Kai and Chan Chi Keung (FACV No. 11 of 2008) left
some doctors, especially anesthetists, feeling uneasy. The case concerned the claimant suing the defendant
(an anesthetist) for clinical negligence because of radial nerve injury after
radical prostatectomy. The claimant
failed in the High Court (HCPI 230/2004) but succeeded in the Court of Appeal
(CACV 433/2006). The anesthetist lodged
an appeal to the Court of Final Appeal and the judges (by a ratio of 4:1) found
that the burden of proof fell on the anesthetist (who was the defendant in the
claim) to proof that he had discharge his duty of care to the patient and to
explain why the radial nerve injury happened. They found that the anesthetist failed to do
so. He was found negligent and therefore
had to pay damage to the patient.
The gist of the case hinged on
the maxim “res ipsa loquitur”, which is
a Latin phrase meaning “the thing speaks for itself”. In a clinical negligence case, the claimant
has to prove that the defendant has breached his duty of care owed to the
claimant, and causing damage to him which is not too remote. The most difficult part is the proof of
causation. “Res ipsa loquitur” concerns causation and a classical description can
be found in Scott v London and St
Katherine Docks Co[1]:
“where the thing is shown to be under the
management of the defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by
the defendants, that he accident arose from want of care.” It is said that when this maxim is
successfully invoked by the claimant, it can have the effect of shifting the
burden of proof from the claimant and the defendant has to prove that he is not
acting negligently in causing the damage.
But what was the problem here? Quoting
Mr. Justice Litton NPJ, the only dissenting judge, at para 133: “The event or ‘thing’ must be so clear-cut
that a court can say with assurance: Unless the defendant can come forward with
some credible explanation, it must be concluded that want of care produced that
result. As stated in Clerk &
Lindsell on Torts [19th ed.] para. 8-152, common experience suggests
that in the absence of negligence, bales of sugar do not usually fall from
hoists, barrels do not fall from warehouse windows, cranes do not collapse,
trains do not collide and stones are not found in buns. In the medical context because of the
complexity of the human body and the fact that medical science is perpetually
evolving and changing, things are seldom so clear-cut.”
However, the majority view, as
given by Mr. Justice Ribeiro PJ, was that: “.…(Res ipsa loquitur) is an approach whereby, in cases where the
plaintiff is unable to say exactly how his injury was caused but, consonant
with his duty of care, one may expect that defendant to know, one asks whether
the evidence has raised a prima facie case against the defendant and if it has,
whether the defendant has, at the end of the day, dispelled that prima facie
case by providing a plausible explanation for the plaintiff’s injury which
consistent with the absence of negligence of his part.” (para 43) He considered that this approach was also
applicable in medical negligence case because the well recognized purpose of
the rule was “to enable justice to be
done when the facts bearing on causation and on the care exercised by the
defendant are at the outset unknown to the plaintiff and are or ought to be
within the knowledge of the defendant.” (para 45)
How about the scope of the
decision? Does it apply to all medical
negligence cases? Mr. Justice Ribeiro PJ
said, “Although the approach will not be
important in medical negligence cases where the issues of causation and
negligence are wholly fought out on competing evidence, it seems to me obvious
that in a significant number of such cases -particularly where the patient is
unconscious when the injury is incurred- the res ipsa loquitur or prima facie
case approach will be indispensable.” (para 46) Thus this decision might affect many medical
negligence cases concerning procedures under anesthesia.
