Medical Litigation in 2012

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1 Medical Litigation in 2012 Jacob Tse Partner Mayer Brown JSM 8 May 2012

2 Medical Litigation All kinds of litigation relating to medico-legal matters Legal action for medical negligence

3 Time limit for bringing a legal action for medical negligence Limitation period - A period of time within which a medical negligence action must be brought, otherwise it will be barred Up to 3 years from the occurrence of the medical mishap

4 3-year limitation period - 2 qualifications A minor (person below 18) Newborn baby : Limitation period is = 21 years Adult without mental capacity Limitation period will never start to run if mental capacity never regained, until death

5 Implications of the limitation period on preservation of evidence and professional indemnity Preservation of evidence - Documents and evidence in the form of witness statements Professional indemnity - Need to cover legal actions brought many years after the medical mishaps

6 A medical negligence claim Investigation - Ascertain the merits of a medical negligence claim Expert opinion essential The Bolem test : Standard of the ordinarily skilled doctor or specialist exercising reasonable care Without expert support of the claim, legal action will be struck out by the Court

7 Compensation for medical negligence Compensation is for actual loss Little scope for the multi-million dollar award for "punitive damages" found in some states in USA

8 Special Court Protocol for medical negligence actions Avoiding litigation Active case management

9 Pre-action procedure Letter of claim Constructive reply Explore settlement Mutual exchange of information and documents

10 Litigation begins Issue of a Writ Which Court District Court : Claim does not exceed HK$1 million High Court : Claim exceeds HK$1 million

11 Active case management Check List Review hearing appointed upon issue of Writ 5-6 months after the date of the Writ

12 Statement of Claim and other documents Statement of Claim Facts of the medical management Medical negligence Injuries and loss Statement of Damages Medical report(s) on the Plaintiff's condition Expert report as to liability and causation

13 Defence and other documents Defence - Defendant's specific and detailed response to the contents of the Plaintiff's Statement of Claim Expert report as to liability and causation, if available and practicable to serve it

14 Reply Not compulsory Only if the Plaintiff wants to respond specifically to some allegations in the Defence

15 Pleadings Pleadings - Statement of Claim, Defence, and Reply A pleading must be verified by a statement of truth False statement of truth - Contempt of Court

16 Discovery of documents Mutual disclosure of relevant documents in each party's possession, custody or power Even an adverse document, if relevant, must be disclosed Relevant documents subject to legal professional privilege need not be produced

17 Mediation After commencement of a medical negligence action, filing of Mediation Certificates by the parties Mediation is effectively compulsory Constitutionality? Mediation serves a useful purpose Completion of mediation before legal action proceeds

18 Litigation continues - The Check List Review hearing Court reviews progress of the case Court gives directions for case to progress further expeditiously Witness statements Expert reports

19 Evidence Factual evidence Expert evidence

20 Witness statements Factual evidence Documentary evidence Oral evidence Oral evidence No ambush Exchange of witness statements

21 Expert reports Whether medical negligence - Liability experts Plaintiff's condition and prognosis - Quantum experts Exchange of reports of liability experts Report of joint quantum expert or joint report of the parties' quantum experts Limit the number of experts

22 Timetable for witness statements and expert reports Timetable for exchange of witness statements and reports of liability experts Timetable for production of the report of joint quantum expert or joint report of the parties' quantum experts Time consuming process, but stringent timetable

23 Plaintiff must agree to reasonable examination by quantum expert The Court may suspend or even dismiss the legal action if the Plaintiff refuses reasonable examination by quantum expert Rarely happens now

24 Can a party change his liability expert? Expert shopping should be prevented Change not allowed if reason for change is that opinion of new expert more favourable Change may be allowed Matters not dealt with by original expert but by new expert Matters outside expertise of original expert Original expert cannot continue through illness or other incapacity But weigh against other circumstances eg disruption to the Trial and prejudice to the other party

25 Further Check List Review hearings One or two further Check List Review hearings Defendant to file Answer to Plaintiff's Statement of Damages

26 Pre-Trial Review Hearing to review if case ready for trial If ready, case goes to a Trial

27 Settlement Parties can still try to settle Sanctioned offer or payment into court

28 The Trial Single judge, no jury Plaintiff's case Counsel for Plaintiff explains Plaintiff's allegations and evidence Factual witnesses and experts give evidence Defendant's case Counsel for Defendant explains defence and evidence Factual witnesses and experts give evidence

29 Examination of factual witnesses and experts Examination-in-chief Cross-examination Re-examination Evidence given In person By video link

30 Modified sequence at the Trial All Plaintiff's factual witnesses All Defendant's factual witnesses All Plaintiff's experts All Defendant's experts

31 Final Submissions Defendant's final submission Plaintiff's final submission Written final submissions Judgment reserved

32 Judgment of the Court Decision of the Court on relevant issues Reasons for coming to the decision

33 Appeals Court of Appeal Court of Final Appeal "Appeal on the record" - no witness or expert

34 Publicity Commencement of the legal action Check List Review hearing Pre-Trial Review Trial Appeals Anonymity Order

35 How much compensation can a patient get for medical negligence? Compensation for pain, suffering and loss of amenities (PSLA) Loss of earnings Cost of care

36 PSLA Compensation for injury Maximum about HK$2.5 million Quadriplegia Vegetative state

37 Loss of earnings Depends on Earnings lost How long the loss will last Example Young person Pre-injury earnings of HK$1 million per year after tax Cannot work for rest of life HK$1 million x 20 = HK$20 million

38 The cost of care Depends on Amount reasonably needed for care How long care needed Yearly amount x a number of years

39 What is the record compensation for medical negligence in Hong Kong? No published statistics Generally thought not exceeding HK$100 million

40 How long is a medical negligence action from beginning to conclusion? Average complexity - 2 years from Writ to Trial Appeal to Court of Appeal - Another year Appeal to Court of Final Appeal - A further year

41 How frequent is a medical negligence action? Claim for medical negligence not infrequent Less frequent for claim to result in Writ being issued Even if Writ issued, few medical negligence actions go to a Trial Current practice Defence evaluates merits of claim early Settles claim if claim indefensible

42 How to avoid medical negligence actions? One thing that has always given rise to claims or even legal actions Warning of the risks and potential complications of a proposed medical procedure

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