Healthcare Law in Hong Kong: Addressing Medical Negligence Claims

Introduction

Healthcare law in Hong Kong is a multifaceted area that governs the provision of medical services, patient rights and the responsibilities of healthcare professionals. Addressing medical negligence claims is a critical element of this legal framework, ensuring accountability and promoting patient safety within the healthcare system. This article examines how medical negligence claims are addressed in Hong Kong through a combination of common law principles, statutory regulations and professional guidelines. 

The Legal Framework for Medical Negligence in Hong Kong

A. Common Law Principles and Key Legislation

The foundation of medical negligence claims in Hong Kong rests on common law principles, primarily the tort of negligence. 

While common law provides the primary framework, The Limitation Ordinance (Cap. 347) also plays a role. Under section 27, it sets a time limit of three years from the date on which the cause of action occurred to take action for personal injuries. 

B. Regulatory Bodies and Professional Guidelines 

• The Medical Council in Hong Kong: This body is responsible for regulating medical practitioners and handling complaints against them. 

• Professional codes of conduct and ethical guidelines provide further benchmarks for acceptable medical practices.  

Establishing Medical Negligence: Duty of Care, Breach, Causation and Damages

To establish medical negligence in Hong Kong, a plaintiff must demonstrate four essential elements rooted in common law principles: duty of care, breach of duty, causation and damages. 

A. Duty of Care 

The foundation of a medical negligence claim is the existence of a duty of care. This duty arises automatically from the doctor-patient relationship, obligating healthcare providers to act with reasonable skill and care in their treatment of patients. This duty extends to all aspects of medical care, including diagnosis, treatment and aftercare. 

B. Breach of Duty and the Standard of Care 

A breach of duty occurs when a healthcare provider fails to meet the expected standard of care. The standard of care is defined as what a reasonably competent healthcare professional in the same field would have done in similar circumstances. 

The Bolam test is often applied to determine whether a breach of duty has occurred. The Bolam test essentially states that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field, even if other professionals might have acted differently. It is important to distinguish between errors in judgment and negligence; not every mistake constitutes a breach of duty. 

C. Causation

Establishing causation requires demonstrating a direct link between the healthcare provider’s breach of duty and the patient’s injury. In other words, the plaintiff must prove that the healthcare provider’s negligence directly caused the harm suffered. This often requires expert medical testimony to establish the connection between the negligent act and the resulting injury. 

D. Damages

If duty, breach and causation are established, the plaintiff must also prove they suffered damages as a result of the negligence. Damages can include:

• Pecuniary Losses: These are quantifiable financial losses, such as medical expenses and lost income.

• Non-pecuniary Losses: These are non-financial losses, such as pain and suffering and loss of amenity. 

  
  

Common Types of Medical Negligence Claims in Hong Kong 

• Misdiagnosis or Delayed Diagnosis: Failure to diagnose a condition in a timely manner, leading to worsened outcomes. 

• Surgical Errors: Mistakes made during surgical procedures, such as wrong-site surgery or nerve damage.

• Medication Errors: Incorrect prescription, dispensing or administration of medication. 

• Childbirth-Related Injuries:: Injuries to the mother or child during labour and delivery. 

• Lack of Informed Consent: Failure to adequately inform a patient about the risks and benefits of a procedure, preventing them from making an informed decision. 

  
  

Defenses to Medical Negligence Claims 

• The Bolam Test and Reasonable Standard of Care: Healthcare providers can argue that their actions met the standard of care accepted by a responsible body of medical professionals. 

• Contributory Negligence: The patient’s own actions contributed to their own injury. 

• Limitation Period: The claim was filed outside the statutory time limit. 

  
  

The Claims Process

A. Lodging a Complaint 

A patient who believes they have been a victim of medical negligence can file a complaint with the Medical Council. 

B. Gathering Evidence 

Evidence is crucial in medical negligence cases. This includes medical records, expert opinions and witness statements. 

C. Legal Proceedings

The claims process may involve negotiation, mediation and if necessary, litigation. 

D. Burden of Proof 

The plaintiff bears the burden of proving negligence. 

Challenges in Proving Negligence 

• Complexity of Medical Evidence: Medical negligence cases often involve complex medical issues that are difficult for non-experts to understand. 

• Reluctance of Medical Professionals to Testify Against Colleagues: This can make it challenging to obtain expert testimony. 

For timely resolution of the cases, it is suggested that the use of mediation and arbitration should be promoted to resolve dissolve disputes more efficiently.

Conclusion 

Addressing medical negligence cases in Hong Kong requires a balanced approach that protects patient rights while supporting a healthy medical professional. By understanding the legal framework, key elements and challenges involved, Hong Kong can continue to refine its approach to medical negligence, ensuring a safer and more accountable healthcare system. 

References and Further Reading 

“Medical negligence. An overview of legal theory and neurosurgical practice: duty of care” (British Journal of Neurosurgery)

“Medical Treatment: Consent and Withdrawal” (Community Legal Information Centre)

“Negligence: the different focus of medical and legal concerns” (British Journal of Nursing)

“Negligent Treatment” (Community Legal Information Centre)

“The law of negligence and community nursing: a case study” (British Journal of Community Nursing)