I came across a judgment handed
down from the Court of Appeal on December 16, 2013. It was heard on November 19, 2013 on appeal by
two appellant doctors from the order of the Medical Council of Hong Kong made
on November 21, 2011. The Medical Council
lost this appeal and had to pay the costs of the appellants.
It is no big news that the
Medical Council lost an appeal. In an
adversarial system of litigation, either the appellant or the respondent will
be ruled in favor of. Doctors found
guilty of professional misconduct tend to appeal. This is especially the case when the sentence
involves removal of the name of the guilty doctor from the General Register. The reason is that when there is an appeal in
progress, the removal will not take effect. Such arrangement is considered to be fair to
the doctor found guilty as the waiting time for an appeal to conclude usually
takes years. As in the aforementioned
case, it took two years. If the doctors had
been removed immediately after the Medical Council inquiry, the majority of
them would probably have spent their sentences before the appeals were heard. They would be punished even if they succeed in
the appeal, which means they are actually not guilty. This to-be-fair practice is not limited to the
Court of Appeal. Therefore it is not
uncommon to find doctors lodging appeal to the Court of Final Appeal after they
lose in the Court of Appeal. It would
then take three to five years for a removal sentence to materialize. Well, I am not going to discuss or comment on
this practice, as this is part of the game of litigation.
Among these so-commonly-happen
appeals, the Medical Council seldom loses. If you are to bet on it, don’t put your money
on the appellant doctors. The reason is
given in each and every judgment in a copy-and-paste manner. In the aforementioned judgment, it was said
that “this Court would be very slow to
interfere with findings of fact and credibility by an experienced body such as
the Council.” “…. This Court is at the double disadvantage of not having heard the
witness but of also being ill-equipped to gainsay a determination by the
Council as to what are or are not acceptable standards amongst medical
practitioners.” Thus, when there is
a case in which the Court of Appeal rules in favor of the appellant doctors, it
appears more interesting and invites more thorough reading of the judgment.
I am going into details of the
case. If readers are interested, you can
go to the following link: http://www.hklii.hk/eng/hk/cases/hkca/2013/637.html. I just want to highlight some of my
observations and gut feelings as a family doctor who knows a little bit about
evidence law and medical law. The Court
of Appeal had rightly and concisely summarized the allegation into one
sentence: “the failure of the appellants
to care for their patient post-operatively by not referring him to an
oncologist when they knew the tumour had not been successfully and completely
excised: and instead, leading the patient and his family to believe that it had
been.” And the issue of the case was
conveniently described by one word: “credibility”.
Reduced to the simplest, the
complainants alleged that the defendant doctors omitted to do something, or did
something in a negligent manner. The
defendant doctors denied such allegations, and told another story. It was the evidence of the complainants
against that of the defendants. Apparently,
the inquiry panel whole-heartedly preferred that of the complainants. The inquiry panel found the complainants “honest and reliable witnesses”. On the other hand, the inquiry panel showed
strong feelings against the defendants, particularly the family doctor. The Court of Appeal shared my observations. The judges described the inquiry panel as “adopting some very strong language in its
assessment of the conduct and evidence of the two appellants”. They then gave nine excerpts from the findings
of the inquiry panel “to give a flavor of
that assessment”. They described
such criticisms as “damning” and
supplied emphasis on the excerpts as follows: “dishonest and unreliable”; “he tried to cover up”; “both lied to the
patient and the daughters”; “deliberately misled the patient and the daughters”;
“hiding the facts”; “deliberately designed to dissuade the patient and the
daughters from pursuing post surgical treatments which would expose his lie”; “was
the mastermind of the whole arrangement”; “pursued his self-interest to cover
up his lie”; “dishonest motive to hide the fact”. The judges went on and summarize that: “The Council effectively
found, and said so in emphatic terms, that D1 had for personal gain
masterminded a plan to induce the patient and his family to have the operation
done privately rather than in a public hospital, conspired with D2 to conceal
from the patient and his family that removal of the tumour had not been
successfully achieved, and then pursued a deliberate course of conduct designed
to dissuade the patient and his family from having any treatment which might expose
their lie; thereby clearly putting the patient’s life in grave danger.”
However, for the fact of the case
and the ground of appeal, it was not just the evidence given by the
complainants against that given by the defendant doctors. There were certain written documents that the
inquiry panel “overlooked and/or failed
to deal with which not only undermined the evidence of the complainants but
confirmed the evidence of the appellants”. Moreover, it was common sense that the doctors
would not on one hand tried to lie and hide the facts, while on the other hand
gave the true pathological report to the patient and advised him having an
oncology appointment in Queen Elizabeth Hospital.
Misconduct in a professional
respect is a serious verdict for a doctor. Risking patient’s life for financial interest
amounts nearly to a criminal charge. A
very high standard of proof is called for. If it is not “proved beyond reasonable doubts”, it should be “highly probable than not”. The judges had commented fair and square: “If the Council took such a serious view of
the appellants’ conduct and adopted such a disparaging view of their evidence,
then it was particularly important that it should deal with that body of
evidence which tended to confirm their credibility and strengthen the
improbability of them having done what was alleged.”
(Source: HKMA News January 2014)
