A long journey to justice

April 24, 2018 13:50
Eight years elapsed between the first complaint filed with the Medical Council and the Disciplinary Committee’s eventual ruling. Photo: Internet

                                                                         There is something rotten in the state of Denmark

                                                                              - Marcellus in ‘Hamlet’ by William Shakespeare


“Ensuring justice, maintaining professionalism, protecting the public” are the mission statements of the Medical Council of Hong Kong. Delivering them is entirely another matter.

The history of the complaint to the Medical Council against Dr. Chan Yee-shing, the doctor whose treatment led to the amputation of half the ring finger of a 14-month-old boy, suggests that delivery is akin to drawing blood from a stone.

The little boy suffered a laceration to the index finger on his right hand on 10 August 2009.

Prince of Wales Hospital advised that the child would need surgery under a general anesthetic. The parents sought a second opinion from Dr. Alvin Chan, a decision they would soon regret.

Dr. Chan admitted him to Baptist Hospital, cleaned the wound and closed it using Dermabond, a proprietary topical skin adhesive (TSA). TSAs are an acceptable alternative to suturing in certain conditions.

While under Dr. Chan’s care, supply of blood to the finger was interrupted so that by 21 August 2009 the end of the finger was gangrenous and surgical amputation of half the finger was carried out on 30 September 2009 at Queen Elizabeth Hospital.

Apart from examining to ensure that there is no infection, it is essential to keep the tip of the finger exposed so as to monitor the blood circulation. If the dressing is too tight, the blood supply can be cut off and the tissue dies.

The dressing was replaced on four occasions, the last one on 15 August.

On 21 August the tip of the finger was dark grey and it was confirmed that the supply of blood had been interrupted.

Ultimately, the little boy was left with a grossly disfigured finger, its bulbous size ruling out any fine fingering dexterity with his dominant hand. He will certainly never be a pianist or surgeon.

Misconduct complaint

On 6 January 2010, his mother lodged a complaint with the Medical Council, alleging professional misconduct against Dr. Chan over the treatment.

On 26 March 2010, the mother submitted a further complaint disclosing that Dr. Chan’s fee note claimed that he had sutured another laceration on 12 March when no other laceration was found, consequently no further suturing was done.

Though very closely related, professional misconduct has a different meaning to professional negligence. Misconduct is conduct that not only falls short of the standard expected among doctors but carries an additional meaning of impropriety.

The learned professions of medicine and law have a long history of setting exacting standards for their own. The courts have consistently held that doctors are best placed to judge themselves.

Every complaint of clinical professional misconduct goes through a two-stage screening process: first by the chairman and deputy chairman of the Preliminary Investigation Committee (PIC) whose task is to determine whether the complaint is frivolous or groundless and should not proceed further.

If it passes stage one, it is referred to the PIC to investigate whether to refer the matter to a disciplinary tribunal.

The initial task of the chairman and deputy chairman is simply to screen out what are obviously baseless claims. Consideration of the merits of referring a claim to the Disciplinary Tribunal is the duty of the PIC.

Consistent with obligations of this initial screening, at the time of this first complaint, Professor Joseph Lau was the chairman and he referred it to the PIC, setting 12 March 2012 for it to be considered. Yet even this involved a delay of two years.

However, Professor Lau resigned from the post on 7 March 2012 and was replaced by Dr. Gabriel Choi.

Though Dr. Choi and Dr. Chan had a long-standing association and acquaintance with each other, at no stage did Dr. Choi declare that he had an interest in the case, something that quite obviously he should have done. Are you beginning to detect an unsavory aroma?

The date for the PIC consideration was moved to 16 April 2012 to accommodate Dr. Chan, having twice been extended.

Conceding liability

On 13 September 2012, two years and eight months after the complaint was first lodged, the mother’s complaint hit the buffers, the PIC deciding that they would not proceed further with it because the treatment was not substandard.

At this point, it is noteworthy that the test for clinical negligence in a Common Law claim is whether or not it is substandard.

On 20 November 2012, the High Court gave judgment in favor of the child’s Common Law claim in negligence against Dr. Chan. Significantly, he conceded liability. In simple terms, he admitted that his treatment was substandard.

A joint medical opinion from experts instructed by both sides to the personal injury claim agreed that Dr. Chan’s treatment had been substandard.

The PIC decision of 13 September 2012 under Dr. Choi’s chairmanship now looks highly dubious.

In the negligence claim, an appeal was pursued in the Court of Appeal against the unimaginative refusal to award damages for the adverse effect that his damaged hand would have on the boy’s future employment prospects.

The trial judge commented that the child would “adjust to it in time”, a remark that I find irrelevant when assessing the value of a physical disability.

I declare an interest here because I advised on the merits of taking the claim to the Court of Final Appeal.

Now armed with the admission of liability, the joint experts’ report and the High Court judgment, on 4 January 2013 the boy’s father lodged the complaint against Dr. Alvin Chan again.

This time, Dr. Choi the PIC chairman, as he subsequently admitted, wrongly assumed the role of the PIC by taking it upon himself to weigh up the conflicting evidence and, as he stated, Professor Fok, the deputy chairman, made the same mistake.

First-stage screeners

As Mr. Justice Lightman observed in R v. General Medical Council it is not for the first-stage screeners in the position of Doctors Choi and Fok to arrogate to themselves the role of the PIC and decide whether the complaint should be referred to the Council for inquiry, still less to arrogate to themselves the role of the PIC and weigh up conflicting evidence or judge the prospects of success.

But, inexplicably, they did.

The complaint did not even get past the first hurdle because Doctors Choi and Fok together with a lay member with whom they only corresponded, dismissed the second complaint on 8 January 2015. Keep in mind that their dismissal meant that not only had they over-reached their authority but it took two years to reach this decision?

Frivolous? Groundless?

The much put-upon parents persevered courageously and sought a judicial review of the Medical Council’s decision. On 12 October 2015, five years and nine months after the first complaint was lodged, Mr. Justice Zervos directed that the complaint be reheard by different chairman and deputy chairman within 30 days.

At long last, the newly constituted PIC referred the case to the Disciplinary Committee for a hearing. But even this was not as expeditious as one would have legitimately anticipated in the light of Mr. Justice Zervos’ direction.

The Disciplinary Committee heard three allegations against Dr. Chan: mismanagement of the boy’s finger, charging for treatment that had not been carried out, and falsely claiming to have sutured the wound when actually a TSA was used.

The Committee delivered its verdict on 16th April 2018. The Committee described Dr. Chan’s use of the word "suture" as lax and careless but dismissed the charge, accepting the argument on behalf of Dr. Chan that "suturing" was a description that included the use of a TSA.

The other two charges were, however, held to have been made out and Dr. Chan was struck off the medical register for six months.

The striking off was not suspended because Dr. Chan refused to accept that he had done anything wrong. Worse, he claimed that it must have been the parents or someone else who covered the tip of the finger, a claim that was rejected by the committee.

The allegation of charging for work that had not been carried out was also proved. The Committee held that Dr. Chan’s fee note was intended to misrepresent, mislead or confuse.

Eight years

You and I might well think that charging for something that one has not done is dishonesty that on its own would have caused the PIC’s under Dr. Choi’s chairmanship to order a disciplinary hearing.

It is only right to point out that Dr. Chan is considering appealing against the Committee’s findings. Nevertheless, he was reported to have slept well that night.

How, one asks rhetorically, can clinical professionals of sufficient standing to be chair and deputy chair of the PIC investigation dismiss such a claim not once but twice, take two years each time yet after a full hearing by the Disciplinary Committee the claim be found proven?

There is a malodorous effluent emanating from the PIC under Dr. Choi’s chairmanship, a post from which he resigned in May 2016 claiming that the workload was killing everyone.

Now consider this complaint in perspective: eight years elapsed between the first complaint and the Disciplinary Committee’s eventual ruling.

As Mr. Justice Zervos commented, the case revealed a lamentable state of affairs in the Council’s handling of complaints from members of the public against registered medical practitioners.

What this case demonstrates, contrary to the Medical Council’s bold mission statements, is that only by persevering against the odds can you ensure justice, that professionalism is a proprietary quality and that the individual member of the public needs Herculean courage to protect their interest.

Should we, as Horatio replies to Marcellus, "let Heaven deal with it"?

-- Contact us at [email protected]


Queen's Counsel