Credibility

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)