Medical Litigation in 2012 Jacob Tse Partner Mayer Brown JSM 8 May 2012
Medical Litigation All kinds of litigation relating to medico-legal matters Legal action for medical negligence 23989412 2
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 23989412 3
3-year limitation period - 2 qualifications A minor (person below 18) Newborn baby : Limitation period is 18 + 3 = 21 years Adult without mental capacity Limitation period will never start to run if mental capacity never regained, until death 23989412 4
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 23989412 5
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 23989412 6
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 23989412 7
Special Court Protocol for medical negligence actions Avoiding litigation Active case management 23989412 8
Pre-action procedure Letter of claim Constructive reply Explore settlement Mutual exchange of information and documents 23989412 9
Litigation begins Issue of a Writ Which Court District Court : Claim does not exceed HK$1 million High Court : Claim exceeds HK$1 million 23989412 10
Active case management Check List Review hearing appointed upon issue of Writ 5-6 months after the date of the Writ 23989412 11
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 23989412 12
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 23989412 13
Reply Not compulsory Only if the Plaintiff wants to respond specifically to some allegations in the Defence 23989412 14
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 23989412 15
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 23989412 16
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 23989412 17
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 23989412 18
Evidence Factual evidence Expert evidence 23989412 19
Witness statements Factual evidence Documentary evidence Oral evidence Oral evidence No ambush Exchange of witness statements 23989412 20
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 23989412 21
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 23989412 22
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 23989412 23
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 23989412 24
Further Check List Review hearings One or two further Check List Review hearings Defendant to file Answer to Plaintiff's Statement of Damages 23989412 25
Pre-Trial Review Hearing to review if case ready for trial If ready, case goes to a Trial 23989412 26
Settlement Parties can still try to settle Sanctioned offer or payment into court 23989412 27
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 23989412 28
Examination of factual witnesses and experts Examination-in-chief Cross-examination Re-examination Evidence given In person By video link 23989412 29
Modified sequence at the Trial All Plaintiff's factual witnesses All Defendant's factual witnesses All Plaintiff's experts All Defendant's experts 23989412 30
Final Submissions Defendant's final submission Plaintiff's final submission Written final submissions Judgment reserved 23989412 31
Judgment of the Court Decision of the Court on relevant issues Reasons for coming to the decision 23989412 32
Appeals Court of Appeal Court of Final Appeal "Appeal on the record" - no witness or expert 23989412 33
Publicity Commencement of the legal action Check List Review hearing Pre-Trial Review Trial Appeals Anonymity Order 23989412 34
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 23989412 35
PSLA Compensation for injury Maximum about HK$2.5 million Quadriplegia Vegetative state 23989412 36
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 23989412 37
The cost of care Depends on Amount reasonably needed for care How long care needed Yearly amount x a number of years 23989412 38
What is the record compensation for medical negligence in Hong Kong? No published statistics Generally thought not exceeding HK$100 million 23989412 39
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 23989412 40
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 23989412 41
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 23989412 42