Medical Negligence

Law of Tort
Tort is a “wrongful act”
Derives from an Old French word meaning “wrong”,
“injustice” or “crime”
Civil wrongdoing
Negligence – from the Latin word neglegere, which
literally means “not to pick up something”
Tortfeasor – Wrongdoer, Defendant in a tort case
Plaintiff / Claimant – person who is the victim
 Law of Tort
A form of wrongful conduct resulting in harmful
consequences, and the law may award compensation
for such consequences as personal injury or damage to
property

Compensation is award ONLY when tortfeasor is at

fault
Fault – failure to take reasonable care, or an intention
to cause unwanted contact / interference with a
person or property
Sources of Tort Law in Hong Kong
Case Law – Decisions of Courts
English Law – Common Law & Equity
Art 8 of Basic Law & Section 3(1) of Application of
English Law Ordinance 1966 (Cap 88)

References from other common law jurisdictions

Art 84 of Basic Law
Overview of Negligence
 What is “Negligence”
Legal Definition
“Negligence is the omission to do something which a
reasonable man… would do, or doing something
which a prudent and reasonable man would not do.” –
Blyth v Birmingham Waterworks Co [1856] 11Ex Ch 781,
156 ER 1047
Donoghue v Stevenson [1932] AC 652

Source: https://macgillivraylaw.com/
Donoghue v Stevenson [1932] AC 652
Facts: Mrs. Donoghue went to café with a friend who
brought her a bottle of ginger beer and an ice-cream.
The ginger beer was stored in a opaque bottle and the
content could not be seen. Mr. Donoghue poured the
ginger beer onto the ice-cream and ate part of it. Later
she noticed that there was a decomposed snail inside
the ginger beer and hence she suffered from personal
injury of gastritis and psychological harm. She brought
a claim against the manufacturer.
Donoghue v Stevenson [1932] AC 652
Issue: Whether the product manufacturer owe a legal
duty to the customer?

Held: The manufacturer owes a claimant a duty of care

if there is a relationship of neighborhood in the sense
that it can reasonably be foreseen that the claimant is
likely to be affected by an act or omission.
 What is “Negligence”
Elements of Negligence

Duty of Care

Breach of Duty

Causation of damage
 Duty of Care
Donoghue v Stephenson [1932] AC652 – The “Snail
& Ginger Beer” Case

“Neighborhood Principle”

If it can reasonably be foreseen that the Claimant will

likely be affected by the acts and omissions of the
Defendant, there is a Duty of Care
 Duty of Care
Caparo Industries PLC v Dickman [1990] UKHL 2
3 elements of a Single Composite Test:
Harm must be reasonably foreseeable as a result of
the Defendant’s conduct;
Parties must be in a relationship of proximity;
Whether imposing of liability is fair, just, and
reasonable
 Breach of Duty
Standard of Care
The General Rule of a “Reasonable Man”
“the ordinary man, the average man, or the man on
the Clapham omnibus” (Hall v Brooklands Auto
Racing Club [1933] 1 KB 205)
Questions to ask:
1. What is the legally required standard of care?
(Objective)
2. Has the Defendant fallen below the standard?
(Subjective)
 Causation
The “But For” Test

“Whether , but for the negligence of the defendant, the

claimant would have suffered a loss.”

Burden of Proof on the Claimant

Chain of Causation need to be established
 Causation
McGhee v National Coal Board [1972] 3 All ER 1008, 1
WLR 1 - Claimant was a kiln worker sued his employer
for failing to provide washing facilities, which materially
increased the risks of the claimant to develop dermatitis.
The Court refused to award damages due to the reason
that claimant had not passed the “but for” test.
Fairchild v Glenhaven Fineral Services Ltd [2002] – An
employee died of mesothelioma as a result of inhaling
substantial quantities of asbestos dust while working for a
number of different employers. Since it takes 25 to 50
years to develop symptoms of the disease the claimant
simply could not identify the tortfeasor employer. Court
held that all the employers should be jointly liable.
 Remoteness of Damage
Re Polenis & Furness, Withy & Co Ltd [1921] 3 KB
560 – A ship was destroyed by fire after a plank
dropped by an employee of the defendant, who was
loading cargo and caused a spark which ignited some
petrol vapor. It was held that the defendant was liable
since the fire was the direct (though highly
unforeseeable) cause of fire.
 Remoteness of Damage
Overseas Tankship (UK) Ltd v Morts Dock and
Ednineering Co Ltd [1961] AC 388 (aka “Wagon
Mound (No.1)” case) – Claimant’s wharf suffered from
substantial damage when oil discharged from the
Defendant’s ship caught fire after the hot metal fell
onto some floating cotton waste. House of Lords ruled
that defendant not liable for the fire caused by ignition
of floating cotton waste was simply unforeseeable.
 Eggshell Skull Rule
“You take your victim as you find him”

Picture credit: www.hkuspace.hku.hk

 Eggshell Skull Rule
R v Blaude (1975) Cr App 61 R 271
Facts:
The accused broke into the home of a young woman and
asked for sex. When the victim declined his advances, the
accused stabbed her four times; the wound penetrated her
lung which caused the need for both a blood
transfusion and surgery. The victim refused blood
transfusion treatment because of her religious beliefs as a
Jehovah's Witness, and she died eventually. The prosecution
conceded that she would not have died if she had received
treatment.
During examination, the counsel for the Crown accepted
the refusal to have a blood transfusion was a cause of the
death. The accused argued that the refusal to accept medical
treatment broke the chain of causation (the novus actus
interveniens) between the stabbing and her death.
 Eggshell Skull Rule
R v Blaude (1975) Cr App 61 R 271
Issue:
Was the chain of causation (the novus actus interveniens)
between the stabbing and her death broken?

Held:
Lawton LJ ruled that, as a matter of public policy
"those who use violence on others must take their
victims as they find them," invoking the thin-skull
rule. The defendant's conviction of manslaughter was
upheld.
 Defenses
In tort of negligence, tortfeasor can raise the following
defenses to exonerates one’s full or partial liability:
1. Volenti non fit injuria;
2. Contributory and comparative negligence;
3. Novus actus interveneiens and inevitable accident;
4. Ex turpi causa non oritur actio;
5. Limitation Ordinance
 Volenti non fit injuria
“No injury is done to a person who consents to the risks of
injury”, i.e. voluntary assumption of risks
A complete defense

Courts generally interpret narrowly – Defendant must

prove that Claimant possess full knowledge of the risks

Scenario: patient possesses full knowledge of risks of

pulmonary embolism after surgery, with or without
provision of prophylactic treatments
Contributory and comparative negligence

Claimant’s unreasonableness in avoiding certain risks

of which is the substantial factor in causing the damage

Partial (comparative) or full (contributory) defense

Section 21(1) of Law Amendment and Reform

(Consolidation) Ordinance (Cap. 23) (“LARCO”) –
Damages recoverable should reduce to the extent as
the Court thinks fit regarding the claimant’s share of
responsibility
Contributory & comparative negligence

Contributory from Claimant:

Patient’s non-compliance / violation of doctor’s post-
operative rehabilitation order causing a sub-optimally
fixed fracture to displace

Contributory from other tortfeasors:

Attorney General v Yiu Yun [1990] 2 HKC 238/1990
– A piece of gauze left inside the abdomen of a patient
during surgery in public hospital. The patient went to
1st private doctor who did not found the gauze and the
same was subsequently found by a 2nd private doctor.
Damages suing the public hospital was reduced because
of negligent act of the 1st private doctor.
 Novus actus interveniens
“New intervening act” which broke the chain of
causation

R v Jordan [1956] 40 Cr App R152: The Claimant

admitted to hospital because of a stabbed wound.
Hospital has given antibiotic to the claimant who was
allergic to it. Evidence showed that the wound was
healing at the time of the claimant’s death. The misuse
of antibiotic was raised as defense of novus actus
interveniens.
Ex turpi causa non oritur actio
“From a dishonorable cause and action does not arise”
Defense of illegality

Claimant cannot sue for damages when at the time of

injury he was committing an illegal act
Limitation Ordinance (Cap. 347)
“Time-barred”
For personal injury: 3 years from date of injury
Overview of Medical Negligence
 Doctor-patient Relationship
Duty of Care
“Fiduciary Duty”
§ An obligation to act for another’s benefit
§ Exists between solicitors – client, trustee – beneficiary,
executors – heirs of a decedent’s estate, driver – other
road users

Established once positive actions has been taken

towards furthering the diagnose and treatment of a
patient, or consultation takes place
 Doctor-patient Relationship
Duty of Care
Yet, in difference scenarios…

Discussion in general / hypothetical way

§ No DoC if no information particular to a patient, or is based
on certain procedure / pathology only

Interdepartmental consultation
§ Mead v Legacy Health System [2009]

Telephone consultation
§ General rules apply
 Doctor-patient Relationship
Duty of Care

Interdepartmental consultation
§ Mead v Legacy Health System [2009] 231 Or App 451
§ Facts:
• An Emergency Room physician in Oregon, USA, ordered an MRI
which led her to believe that the plaintiff was developing cauda
equina syndrome. The physician called the defendant, the on-call
neurosurgeon, and told him over the phone that she just had a
consultation with a patient “who suffered from back pain, was
neurologically intact, had an MRI with disc bulge and with a
normal rectal tone”;
 Doctor-patient Relationship
Duty of Care

Interdepartmental consultation
§ Mead v Legacy Health System [2009] 231 Or App 451
§ Facts: (cont’d)
• The defendant opined that the plaintiff patient did not require NS
treatment but instead recommended her to be admitted to hospital
by her primary physician for observation and pain management;
• Over the following 4 days, the plaintiff’s condition deteriorated,
until the defendant was called in to see her;
• The plaintiff was diagnosed to suffer from cauda equina syndrome
and surgery was performed accordingly;
• The plaintiff suffered from permanent disability as a result of the
delay in operation.
 Doctor-patient Relationship
Duty of Care

Interdepartmental consultation
§ Mead v Legacy Health System [2009] 231 Or App 451
§ Issue:
• Whether duty of care exists between the defendant neurosurgeon
(who was not the primary attending doctor) and the plaintiff?
• Whether the neurosurgeon actually known that he was diagnosing
the patient?
 Doctor-patient Relationship
Duty of Care

Interdepartmental consultation
§ Mead v Legacy Health System [2009] 231 Or App 451
§ Held:
• A telephone consultation between the emergency room physician
and the on-call neurosurgeon is enough to create a doctor-patient
relationship, if the neurosurgeon knowingly undertake the
diagnosing of the patient;
• But the neurosurgeon in this case was held to be not knowing that
he himself was diagnosing the patient;
• The Court ordered a retrial on the basis of the trial court erred in
directing the jury.
 Doctor-patient Relationship
Duty of Care

Telephone consultation
§ If a doctor phones an established patient, a relationship is
presumed to have established;
§ A doctor-patient relationship also would have established if a
doctor discusses a case with a patient via videoconferencing, or if
a university physician asks questions and gives treatment advice.
§ Giving generic information about diseases and treatment
probably is not enough for a relationship to be established.
§ Court will look at physician’s affirmative actions, if any, to be
involved in a patient’s medical care.
 Doctor-patient Relationship
Duty of Care - Telemedicine

Ref.: The Medical Council of Hong Kong Ethical Guidelines on Practice of Telemedicine. The
Medical Council of Hong Kong. Newsletter issue No.26, December 2019.
 Doctor-patient Relationship
Duty of Care
Independent Medical Examinations instructed by Insurance /
Expert Witness for Court cases
§ Generally, no Doctor-patient Relationship exists
§ Except for the legal duty to report to the patient for any life-
threatening situation discovered
§ In Stanley v McCarver [2004] CV 03 99 PR, a radiologist was
sued for failing to notify a patient of the presence of a suspicious
lesion on a pre-employment chest radiograph. Since Dr.
McCarver was screening for tuberculosis only, he only reported
the lung lesion to the company but had not notified the patient
directly. 10 months later the patient was diagnosed to suffer
from lung cancer. McCarver was held liable.
 Doctor-patient Relationship
Duty of Care
A doctor-patient relationship can only be terminated when:
The treatment has been completed;
The patient consents to termination;
Sufficient notice has been given to the patient, and the patient
has had sufficient opportunity to find an alternative treatment
provider.

Termination does not satisfy all the above conditions may

result in patient abandonment.
 Breach of Duty
To RECAP:

Standard of Care

The General Rule of a “Reasonable Man” (Blyth v Birmingham

Waterworks Company [1856] 156 ER 1047)

Hypothetical ordinary person who exercises average standard of

care, skills and judgment in his actions

Questions to ask:
1. What is the legally required standard of care? (Objective)
2. Has the Defendant fallen below the standard? (Subjective)
 Breach of Duty
Muir v Glasgow Corporation [1943] AC 448
Facts:
The defendant corporation owned and operated a
tearoom in Scotland. The manager had allowed a
Sunday school-party to use the tearoom for a picnic in
bad weather. However, two men carrying a large tea urn
accidentally lost their balance and scalding-hot tea was
spilt onto several children causing injuries. One of those
children claimed for damages.
 Breach of Duty
Muir v Glasgow Corporation [1943] AC 448
Issue:
Whether the manager of the tearoom was negligent
towards the Sunday-school party, based on pre-existing
standard of care?
 Breach of Duty
Muir v Glasgow Corporation [1943] AC 448
Held:
Standard of care is based on reasonableness which only
can be defined in familiar situations. For extraordinary
situations, standard of care must be defined on case-by-
case basis.
In this case, the defendant could not have foreseen the
accident, although alternative route could have been
taken to avoid the accident. The manager has been
reasonably entrusting the task to be carried out by
responsible person who would take care in carrying out
the task.
 Breach of Duty
Meeting the Standard
Court has developed four factors to consider:

1. The state of knowledge

2. The magnitude of risk

3. The practicability of precautions

4. The utility of conduct

 Breach of Duty
The state of knowledge
• Inexperience is not an excuse for negligence (Wilsher v
Essex Area Health Authoirty [1988] AC 1074);
• In Hong Kong, HA has vicarious liability on its
employee so this is not an issue;
• In Maynard v West Midlands Regional Health Authority
[1985] 1 All ER 635, it was held that Court is not
required to choose between different school of thought
as long as the defendant can show he was acting in
accordance with a standard that is widely supported
by competent practitioner.
 Medical Standard Test
Bolam v Friern Hospital Management Committee
[1957] 1 WLR 582
Montgomery v Lanarkshire Health Board [2015] UKSC 11
(Concerning duty to disclose, will be discussed later)
 Bolam v Friern Hospital
Management Committee [1957] 1
WLR 582
Facts:
Claimant was undergoing electroconvulsive therapy
(“ECT”) as treatment for mental illness;
The ECT was conducted without dispensing any
muscle-relaxants;
The Claimant thus suffered fracture acetabulum and
claimed sued for negligence;
However, there was a diverse in opinion on whether
relaxant should actually be dispensed.
Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582
Facts:
The treating doctor Dr. Allfrey followed one Dr. de
Bastarrechea, who did not use muscle relaxant;

Dr. Allfrey also did not exercise control over the

patient’s shoulder and supported his chin;

He was however found to have applied his best efforts to

stabilize the patient.
Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582
Issue:
Has Dr. Allfrey’s practice reach the standard of
responsible body of medical opinion?

Held:

Dr. Allfrey had not been negligent because the

standard of care provided has reached the standard of
responsible medical opinion
Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582
Conclusion:
The state of knowledge of a clinical practitioner
(doctors, nurses, allied health) must be in accordance
with accepted practice at the time, even if some other
practitioners are practicing using a different approach.
Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582
The Bolam principle has become the landmark case
for test of negligent, particularly in medical negligent
cases.

It has been widely accepted as a golden standard

including in Hong Kong Courts (e.g. Atzori v Chan King
Pan [1998] 2 HKLRD 77/1999; Cheng Man Chi v Tam
Kai Tai Carl [2009] HCPI 1094/2006)
Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582
Two aspects of the Bolam principle: -
1) The professional standard: “The standard is that of the
reasonable average. The law required of a professional man
that he be a paragon combining the quality of polymath and
prophet.” (per Lord Bingham in Eckersley v Binnie and
Partners [1988] 18 Con LR 1)
2) The doctor’s choice of treatment: a doctor can’t be
negligent only if some of his peers disagreed with his
choice. Theoretically, even if only one doctor’s support
of treatment can satisfy the rule.
Bolam v Friern Hospital Management
Committee [1957] 1 WLR
Amended in Bolitho v City and Hackney Health Authority
[1997] UKHL 46 to include the requirement that the
doctor should also behave in a way that “withstands
logical analysis”. A doctor cannot escape liability simply
because he found support from some medical experts.
The body of opinion relied upon must be responsible
and reasonable, up to the satisfaction of the judge.

Bolitho extended the principle to the “three Rs” –

reasonable, respectable, responsible.
 Breach of Duty
The magnitude of risk
Two issues to consider: -

• The greater risk of harm (the likelihood of inflicting

an injury);

• The risk of greater harm (the seriousness of potential

injury)
 Breach of Duty
The magnitude of risk

Chester v Afshar [2004] UKHL41

Facts:

• the claimant was suffering from low back pain and was
referred to the defendant who was a neurology expert.

• The defendant recommended surgery but did not

explained the very minimal risk of complications (1-2%).
The surgery failed and the claimant suffered from
paraplegia resulted from cauda equina syndrome.
 Breach of Duty
The magnitude of risk

Chester v Afshar [2004] UKHL41

Issue:
• Was the defendant negligent?

Held:
• By a 3:2 majority, the “but for” test was satisfied.
• Although the risk was minimal, but the seriousness of
injury was great
 Breach of Duty
The practicability of precautions
Absolute precautions is not expected in law.

Fardon v Harcourt-Rivington [1932] All ER Rep 81

Facts:

• The defendant’s dog, which was all along quiet and

obedience, lost control and smashed a window, causing
a splinter of glass to enter into the claimant’s eye. The
claimant sued for damages.
 Breach of Duty
The practicability of precautions
Fardon v Harcourt-Rivington [1932] All ER Rep 81
Issue:
• Was the accident foreseeable? If yes, was the Defendant
negligent for failing to take precautions?
Held:
• Since the dog has always been docile, the emerging of
danger was not reasonability foreseeable by the
Defendant, hence no negligent.
 Breach of Duty
The utility of conduct
Watt v Hertfordshire County Council [1954] 1 WLR 835
Facts:
• The lorry jack was normally carried on special vehicle but at
the very moment was not available. The fire chief thus
ordered it to be carried on ordinary truck. The claimant
fireman suffered from serious injury after a lorry jack fell on
his legs while on the way to fire scene.

Held:
• No negligent on the defendant’s part as the fireman’s
conduct of trying to save life outweighed the need to take all
precautions.
 Breach of Duty
The utility of conduct
• It is often hard to differentiate between error of
judgment and true negligent.

• The difficulty for the judge is how much weight to be

given to each of the aforesaid factors and where to
strike a balance.
 Causation
Connection between the breach of duty and the
damage or the injury

“But for” Test – but for the defendant’s negligence, the

claimant would not have suffered a loss
Bolitho v City and Hackney Health Authority
[1997] 4 All ER 771, [1997] 3 WLR 1151
Facts: The patient, Patrick Bolitho, was admitted to a
London Hospital suffering from croup*.
A ward nurse noted the abnormal respiratory sounds,
informed the Resident who failed to attend the patient
despite that she had promised to come ASAP.
Patient’s condition fluctuated and became sick again two
hours later. This time the nurse paged the Resident, who
was busy in clinic, and therefore she paged the intern.
Unluckily the battery of the intern’s pager ran out and she
did not get the message.
Later the patient suffered from respiratory and cardiac arrest
which in turn caused brain damage. The patient eventually
passed away before legal proceedings commenced.
*an infection of the upper airway, which causes obstruction of breathing and barking cough
Bolitho v City and Hackney Health Authority
[1997] 4 All ER 771, [1997] 3 WLR 1151
Issue: Was the failure to attend the patient amount to
negligence?

Held:
The Resident established in Court that even if she had
attended the patient she would not have intubated the
patient anyway (the decision was consistent with
respectable body of professional opinion).
Therefore, no causation between the Resident’s
negligence and the patient’s death. The Defendant was
found to be not liable.
Barnett v Chelsea & Kensington Hospital
Management Committee [1969] 1 QB 428
Facts: A patient attended the defendant hospital
complaining of severe abdominal pain and vomiting.
He was sent home by the attending doctor and was
advised to consult family doctor next morning. The
patient eventually died five hours later due to arsenic
poisoning. Had the doctor examined the patient, he
would have discovered the same though there was
nothing he could have done to save patient’s life.
Barnett v Chelsea & Kensington Hospital
Management Committee [1969] 1 QB 428
Issue: Was the defendant liable for the plaintiff’s
death?

Held: although the attending doctor’s performance was

below legal standard, the defendant hospital was not
liable because the omission for checking the patient
was not the cause of death. Arsenic poisoning became
an intervening act (“novus actus interveniences”) which
breaks the chain of causation.
 Causation

Special situations

1. Balance of probabilities

Hotson v East Berkshire Area Health Authority [1998]

UKHL 1
A boy suffered from fracture neck of femur, which was
not diagnosed and was sent home. He was taken to
hospital again 5 days later. The boy suffered from
avascular necrosis which caused permanent incapacity.
The House of Lords reversed the Court of Appeal’s
decision that the defendant was liable, for the claimant
had failed to established that the defendant’s breach
was, on the balance of probabilities, cause of the avascular
necrosis, thus no damages was allowed.
 Causation

Special situations
2. Multiple successive causes

• Baker v Willoughby [1969] UKHL 8

• Claimant injured his leg in a RTA in which the
defendant was liable. Yet, before the trial the claimant
met with another gun-shot injury in the leg which
eventually led to an amputation. The defendant argued
that the gun-shot injury superseded the first accident.
The HL rejected the argument since the gun-shot robber
could not have been responsible for the initial injury.
The liability of the defendant was the same.
 Causation

Special situations
2. Multiple successive causes

• Jobling v Associated Dairies Ltd [1982] AC 794

• Pre-existing disc disease at the back cannot be a defense
for negligent claim arising out of a work-related back
injury. The spirit of thin-shell skull rule applies.

• Generally speaking, a subsequent event cannot be used

as a defense to diminish liability of the defendant for
an initial accident. A superseding event can be a
defense theoretically, but it cannot be a pre-existing
condition.
 Causation

Special situations
3. Material increase in risk

• In McGhee v National Coal Board [1972] 3 All ER

1008, the House of Lords held that though the lack of
shower facility did not directly led to dermatitis, it
substantially increase the risk of developing the same.
 Causation

Special situations
4. Remoteness
• The claimant’s loss cannot be too far removed, or
remote, from the defendant’s act which caused the loss
(Lamb v Camden London Borough Council [1981]
QB 625)
 Intentional Wrongs
Actions that involve a deliberate interference with a
legally recognized interest, e.g.
Patient Abandonment;
Personal injury – trespass to person;
Theft – improper medical billings in extreme cases; and
Criminal Negligence.

Damages awarded tend to be much higher than those

awarded in cases of negligence.
 Patient Abandonment

Occurs when patient is not provide with (inadequate)

care

Doctor’s failure to terminate doctor-patient

relationship (“DPR”) properly

DPR must be terminated by mutual consent and

sufficient time must be given to patient to find
alternative treatment
Patient Abandonment
 Patient Abandonment
Elements of an actionable case: -
ü Duty of Care+ (pre-existing DPR)
ü Breach+ (improper termination)
ü Damage caused

DPR should not be terminated when patient is in need

of critical care, unless another competent care provider
is available to take over
 Patient Abandonment
To ensure proper steps of terminating DPR:
Doctor should inform the patient DPR has ended with
reason explained;

note of the decision be put in patient’s record;

make necessary referrals or give sufficient time to

patient to find alternative treatment; and
prepare referral letter and timely transfer medical notes
to new doctor.
 Patient Abandonment
Common patterns of abandonment:
Medical care is not provided to patients clearly in need;

DPR terminated without patient’s consent, proper

warning or making acceptable arrangements;

Doctor unavailable for an unreasonable amount of

time / back up doctor unavailable
 Patient Abandonment
Ricks v Budge [1937] 64 P2d 208 – a doctor who
stopped treating a patient due to a lack of payment was
found to have breached his duty of care.

Surgical Consultants, PC v Ball [447 N.W.2d 676

(1989)] – patient failed to pay bill 11 times and not in
critical conditions held not abandonment as patient
was not in emergency condition.
 Patient Abandonment
Other scenarios:
Shortage of Hospital Staff

Patient defaulted FU but hospital missed calling

him/her

Failure to respond to emergency conditions

Patient’s condition unnecessarily deteriorated because

of appointment too far in future
 Patient Abandonment
Possible Defense:
Patient has broken rules laid down by doctor / hospital

Patient missing multiple appointments despite

repeated reminders

Patient’s non-compliance to treatment

Inappropriate behavior
Non-critical patient’s failure to settle treatment fees
 Criminal Negligence
In English law, a doctor may be criminally negligent if
his conduct is so reckless to the extent that it put
patient’s life at risk.

This constitutes gross negligence, and in cases if

patient’s death, may lead to a conviction for
involuntary manslaughter.
 Criminal Negligence
Legal Rationale
R v Bateman [1925] 19 Cr App R 8 - Lord Hewart
established in concept of criminal negligence as the
negligence of the accused must went beyond a mere
matter of compensation between subjects and showed
such disregard for the life and safety of others as the
amount to a crime against the State and conduct
deserving punishment.
 Criminal Negligence
Legal Rationale
R v Adomako [1994] 3 WLR 288 - the defendant
doctor was the anesthetist during and eye operation
where the tube from ventilator supplying oxygen was
detached and the defendant failed to note the
disconnection. Around six minutes later the victim
suffered cardiac arrest due to lack of oxygen supply and
eventually died.
 Criminal Negligence
Legal Rationale

R v Adomako [1994] 3 WLR 288

This case has established the 3 essential ingredients for
manslaughter by gross negligence and has become the
accepted as test for criminal negligence causing death.
The 3 elements are:
The existence of duty of care;
A breach of the duty, causing death; and
Gross negligence, justifying criminal conviction.
 Criminal Negligence
Civil Negligence Criminal Negligence

A dispute between 2 parties in their A case between the state and the accused
individual capacities doctor

Lack of reasonable care and skill in Gross carelessness and scant regard for the
professional behavior patient’s welfare

No case if negligent act or omission has Punishable in case of patient’s death

not led to injury or damage to patient

Contributory negligence applies Contributory negligence not apply

Standard of proof: balance of probabilities Standard of proof: beyond reasonable

doubt

Remedies: monetary damages Sentencing: imprisonment / fine

 Criminal Negligence

Recent developments in UK

R v General Medical Council (Mulhem) [2004] CO

3276

The accused, Dr. Mulhem, asked a junior colleague to

give an injection of cancer drug to a 18-years old
patient who suffered from acute lymphoblastic
leukemia. However, the drug was injected through
spine rather than intravenous. The accused was
convicted of manslaughter and sentenced to 8 months
imprisonment. The General Medical Council
(“GMC”) subsequently suspended him for 12 months.
Criminal Negligence
Criminal Negligence
 Criminal Negligence

Recent developments in UK

R v Stevenson [2007] EWHC 2132 Admin

A General Practitioner, Dr. Stevenson, injecting six
times the required dose of diamorphine to a patient in
2005. He later admitted manslaughter. He
subsequently made the same error with another patient
but it did not cause death. Dr. Stevenson received a
suspended sentence of 15 months’ imprisonment and
was erased from medical register in 2009.
 Criminal Negligence

Recent developments in UK

R v Kovvali [2013] All ER (D) 48

A patient seen by Dr. Kovvali was presented with
classic symptoms of diabetes (confusion, erratic
breathing and bad breath). Dr. Kovvali did not perform
a proper examination and the pateint died the
following day. A post-mortem examination concluded
the cause of death was diabetic ketoacidosis. Dr.
Kovvali was convicted of manslaughter and sentenced
to 2.5 years imprisonment.
 Criminal Negligence

Recent developments in UK
R v Sellu [2016] EWCA Crim 1716
A patient who underwent knee replacement surgery
suffered from rupture of bowel post-operation. Dr.
Sellu, a colorectal surgeon, was found to have
unnecessarily delayed for 40 hours before operating on
the patient and he was convicted of manslaughter by
gross negligence and was imprisoned for 2.5 years.
Dr. Sellu’s conviction was overturned by the Court of
Appeal in 2016 but was not restored to the medical
register.
Criminal Negligence
Criminal Negligence
 Remedies for Medical Negligence
Filing Personal Injuries lawsuits for damages
Fatal cases
Fatal Accident Ordinance (Cap. 22)
Bereavement

The Law Amendment and Reform (Consolidation)

Ordinance (Cap 23) (“LARCO”)
Loss of Accumulation of Wealth

Pain, Suffering, and loss of amenity (“PSLA”)

 Remedies for Medical Negligence
Filing Personal Injuries lawsuits for damages

Non-fatal cases
1. General Damages
§ PSLA (Pain, Suffering and Loss of Amenity)
§ Future Loss of Earnings
§ Loss of Earning Capacity

2. Special Damages
§ Pre-trial loss of income
§ Medical expenses
§ Traveling fee
§ Tonic Food
Case Disucssion
 Atzori v Chan King Pan 2
HKLRD 77/1999
Facts: Bruno Atzori was an Italian businessman traded
in Hong Kong. On 19th December 1993 he visited a
private hospital in Hong Kong for back and left hip
pain, which had started on around 17th December
1993, though there was already on and off back pain
for few months while playing tennis. X-Ray was taken
and showed no bone problem, and overall examination
showed that his condition was good.
Mr. Atzori was prescribed with analgesics. Yet his pain
worsened and he re-consult the hospital on 20th Dec.
He was referred to see a famous orthopaedic surgeon
Dr. Chan King Pang.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Facts (Cont’d.): Dr. Chan was a famous spine surgeon
who had been trained extensively in England, who was
very confident in his own skills.

According to Mr. Atzori, he was only examined by Dr.

Chan once before admitted to hospital for rest and
spinal traction. However, Dr. Chan claimed that he
had conducted a second exam for admission. The
clinical notes of that second exam was short and not
dated.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Facts (Cont’d.): As per Mr. Atzori, he was strongly
advised by Dr. Chan to undergo surgery since early
stage, which was described as just a simple operation
with quick recovery and no risks at all. No
complication was ever-mentioned. Mr. Atzori was led to
believe that he would be able to play tennis and ski
again post-operation. Subsequently, Dr. Chan
announce that surgery was necessary after seeing the
MRI report, and according to hospital notes,
“exploration of 3 spaces including S1/2 by an entry at
L3/4” was done on Christmas Eve.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Facts (Cont’d.): After the surgery, Mr. Atzori
experienced weakness in the left knee an ankle and
foot, muscle atrophy and diminished sensation in left
thigh and calf, symptoms suggesting damage to fourth
and fifth lumbar spinal nerves and first sacral nerve.
There was also a L4/5 disc herniation. As a result, he
was not able to walk for more than an hour and had
difficulty in stairs and slopes climbing. He could no
longer play tennis or ski.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Issues:
The claimant alleged that: -
The Defendant was negligent in performing a
neurological examination;
The defendant had been negligent in providing him
with options so that he could make an informed choice
about surgery;
The defendant was negligent in performing the surgery;
The claimant suffered a substantial decline in and
restrictions of activity as a result of the surgery.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Expert evidence:
The 2 expert witnesses called by Dr. Chan, one was
considered biased towards the defendant, and another
one’s statement was not supportive at all.
On the contrary, the judge found Dr. York Chow,
expert for the claimant, to be thorough and objective.
Dr. Chow opined that surgery should only be
performed after a proper assessment of the patient and
a proper course of conservative treatment has been
trialed.
The other expert witnesses for the claimant also
support the opinion. One witness confirmed that the
nerve injury was a result of the surgery.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Held:
The judge was skeptical about whether Dr. Chan has
performed a second examination on the patient as
claimed. The clinical notes appeared unlikely to be a
proper record of a full neurological assessment.
The court accepted Mr. Atzori’s allegation that surgery
was the only option given to him and he was led to
believe there was no risks involved. However, based on
expert evidence, surgery was in fact unnecessary, and
on balance of probabilities, Mr. Atzori would have
benefited from a period of conservative treatment.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Held:
Court held that in deciding to go to surgery Dr. Chan
had failed to exercise the ordinary care to be
reasonably expected of a doctor of ordinary skill.
Court also held that, with reference to Bolam principle,
Dr. Chan had failed to exercise the ordinary skill of
the ordinary competent man in performing the
surgery.
The defendant was found liable for negligence.
 Atzori v Chan King Pan 2
HKLRD 77/1999
Damages:
The claimant was awarded damages totaling
HK$671,290, together with his legal costs.
General damages for PSLA was set at HK$525,000,
medical expenses incurred were calculated at
HK$110,000, and travel expenses and accommodation
expenses were also awarded.
 References
Cheong, P. M. (2019). Medical Negligence in Hong Kong
and How to Avoid It – An Introductory Guide. HKU Press.
Wai, A., Wong, D., Joynt, G., Cheung, R. (2016). Medical
Law and Ethics in Hong Kong. Sweet & Maxwell.

Glofcheski, R. (2012). Tort Law in Hong Kong (3rd

Edition). Sweet & Maxwell.