Hong Kong Medical Law Brief

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1 9 July 2013 Hong Kong Medical Law Brief Welcome to the July edition of Kennedys' Hong Kong Medical Law Brief. Our team of dedicated lawyers had launched a series of informative seminars for medical practitioners this Summer 2013 and the first seminar presented by our experienced healthcare lawyer Sophie Pearson attracted a good deal of attention and was very well received. Our next seminar titled Preparation for Coroner s Inquest will be held on the 19th of this month. We would be delighted if you could join us. You can register your interest in the seminar by contacting Betty Hui at We are also pleased to announce that our team had been greatly involved in setting the new discount rates in Hong Kong. For details, please refer to our Briefing Note issued in February Our London healthcare team kept a web page to discuss the hot issue from a global perspective. Please visit our website for more details. Returning to this edition, we discuss the topic of Defensive Medicine and share our view as to whether this is indeed a good approach for medical practitioners. We also review the case of Tang Tak Ping v. Kai Shing Construction Company and others where the judge sets out the principles involved in adducing expert evidence in both personal injury and medical negligence cases. As always, we hope you enjoy reading this edition and welcome your feedback. Christine Tsang and Julian Wallace Case review Principles in adducing expert evidence Tang Tak Ping v. Kai Shing Construction Company and Keader Construction Company Limited HCPI 539/2011 The Judge in this decision sets out the principles involved in adducing expert evidence in personal injury and medical negligence cases. 1

2 The Plaintiff, in this personal injury action, appointed his own expert and obtained a psychiatric report in support of his claim of damages without first seeking leave from the court and agreement of the Defendants. According to the general rule sets out in the Practice Directions, leave of the court or consent of the other party is required before any expert evidence can be adduced at trial. A party who obtains expert evidence without first obtaining leave runs the risks of adverse costs consequences and/or eventual refusal of leave to adduce such expert evidence. The Judge reiterates the factors to be considered when the court has to exercise its discretion as to whether or not to grant leave for the admission of the expert evidence. First of all, the court has to decide whether such evidence is reasonably required to resolve the issues in disputes and is proportionate, having regard to the importance of the issue in question and the amount of money involved. If such evidence is considered necessary to assist in the determination of a particular issue, the further question arises as to whether such expert evidence is best adduced from a single expert, or from experts nominated by each party conducting a joint examination and preparing a joint report, or from experts nominated by each party conducting separate examinations and preparing separate reports. All in all, the discretion must be exercised in the light of the underlying objectives of the Civil Justice Reform; including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.. The same principles apply to medical negligence cases when the expert evidence is required on quantum issues, and in such case, a joint approach of obtaining expert evidence is the norm. However, when the expert evidence is required on liability, the plaintiff can commission an expert report from his liability expert without leave of court and without agreement of the other party, and can do so without running the risks of adverse costs consequences. The Judge pointed out that in circumstances where a joint 2

3 approach on liability is warranted, the parties lose their right of private access to their respective nominated experts, at least until such time as the court grants leave for the nominated experts to give oral evidence at trial. But in cases where each nominated expert prepares his separate report, the parties are permitted to communicate privately with their respective experts at any time, and even if the court directs that a without prejudice meeting be held by the experts in the absence of legal representations. Comments This decision serves as a reminder of the court s approach in dealing with expert evidence in medical negligence cases. When the expert evidence is on quantum, a joint approach is preferred and is seen to be the most cost efficient way in resolving the dispute. In cases where a party wishes to appoint their own expert, it is advisable for them to obtain the leave of the court or the consent of the other parties first before instructing the expert. Feature article Defensive medicine the secret to avoiding litigation? A recent article published in the (Casebook Asia) discussed the tricky issue of defensive medicine. According to surveys and reports, over 70% of medical professionals admitted that on occasion they had practised defensively to avoid complaints and claims or said they had noticed colleagues doing so. What is defensive medicine? Defensive medicine is commonly defined as the practice of conducting tests and procedures not for the purpose of furthering the diagnosis of patients, but to avoid litigation. There are two types of defensive medicine. The first is assurance behaviour (positive defensive medicine) meaning an increase in tests, follow-ups, referrals, and the prescription of unnecessary drugs; the second is avoidance behaviour (negative defensive medicine)- which reflects the practice of avoiding high risk, invasive procedures and treating high risk patients. 3

4 Why choose to practise defensively? The main driving force is the threat of being sued. Litigation involves time and costs, emotional stress and possible damage to a doctor s reputation. The negative impact of litigation is often perceived to be more costly than the cost of taking precautions. It is also often believed that it is much easier to defend a claim when one has ordered a number of tests as opposed to not ordering a test at all. Another issue is press interest in healthcare litigation. In countries like Singapore and Hong Kong, the press are aggressive and critical of doctors, which can affect their reputation and thus their income. Media criticism is seen as another contributing factor to doctors practising defensively. What are the disadvantages of practising defensively? The practice of positive defensive medicine does not necessarily lower the risks of litigation. On the contrary, it can create more risks to both the doctors and patients, as well as causing delays and increased expense in patient care. Additional tests and investigations expose patients to more and unnecessary risks, and are themselves potentially serious violations of the standard of care, which could be the basis of malpractice litigation. Defensive medicine imposes a high cost to society and also raises patient anxiety. The additional tests may lead to false positives, meaning that there is an indication that a patient has a disease but actually the disease does not exist. These incidental findings may expose the patient to more unnecessary tests and to further risks such as unnecessary exposure to radiation. The doctor-patient relationship could also be damaged if the doctor is perceived to be protecting his own position rather than acting in the interests of the patient. The disadvantages of practising negative medicine are more obvious. By avoiding performing high risks or invasive procedures, patients are deprived of receiving proper treatment and care. Doctors may decide not to accept certain types of cases resulting in 4

5 patients with the greatest need for care, including the most difficult and risky cases, having problems finding a suitable Doctor to treat them. What do courts look at when considering standards of medical care? A good defence is not based on the number of tests ordered, but the clinical reasoning behind the actions. Doctors are advised to practise safely with evidence-based medicine, and to follow local guidelines and protocols. In assessing standards of care, courts look for evidence of:- Effective communication with patients, explaining what the doctor is doing and why Robust systems for follow-up Transparency about risk Tests based on a thorough clinical history and examination Discussions about difficult cases with colleagues Clear and detailed documentation An understanding about what the doctor seeks to exclude or confirm by understanding a test Courses or independent study Conclusion Doctors fear of being sued is clearly a motivating factor behind defensive medicine but practicing defensive medicine does not always afford doctors a good defence and there are other ways of demonstrating to a court that appropriate care has been given to a patient. A doctor will not always be accurate in his diagnosis and there will always be cases where an unfortunate outcome may arise even when the doctor s management is up to standard. The best way to help prevent the issue of that risk is to maintain a good relationship with patient and to take the time to explain to him/her the reasons for your decision. As long as the doctors are acting in accordance with a responsible body of medical opinion (and that means having a logical basis for the decisions taken or treatment given (or not give, as the case may be)), claims against them are unlikely to succeed. 5

6 For more information on the Hong Kong healthcare practice, please contact: Christine Tsang Partner Julian Wallace Partner Kennedys Hong Kong 11/F Hong Kong Club Building 3A Chater Road, Central Hong Kong T F

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