Medical Litigation in 2012

8 May 2012

Jacob Tse Partner

Mayer Brown JSM

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Medical Litigation

•All kinds of litigation relating to medico-legal matters

•Legal action for medical negligence

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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

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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

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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

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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

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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

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Special Court Protocol for medical negligence actions

•Avoiding litigation

•Active case management

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Pre-action procedure

•Letter of claim

•Constructive reply

•Explore settlement

•Mutual exchange of information and documents

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Litigation begins

•Issue of a Writ

•Which Court

– District Court : Claim does not exceed HK$1 million

– High Court : Claim exceeds HK$1 million

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Active case management

•Check List Review hearing appointed upon issue of Writ

•5-6 months after the date of the Writ

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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

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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

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Reply

•Not compulsory

•Only if the Plaintiff wants to respond specifically to some allegations in the Defence

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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

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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

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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

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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

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Evidence

•Factual evidence

•Expert evidence

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Witness statements

•Factual evidence

– Documentary evidence

– Oral evidence

•Oral evidence

– No ambush

– Exchange of witness statements

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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

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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

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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

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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

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Further Check List Review hearings

•One or two further Check List Review hearings

•Defendant to file Answer to Plaintiff's Statement of Damages

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Pre-Trial Review

•Hearing to review if case ready for trial

•If ready, case goes to a Trial

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Settlement

•Parties can still try to settle

•Sanctioned offer or payment into court

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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

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Examination of factual witnesses and experts

•Examination-in-chief

•Cross-examination

•Re-examination

•Evidence given

– In person

– By video link

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Modified sequence at the Trial

•All Plaintiff's factual witnesses

•All Defendant's factual witnesses

•All Plaintiff's experts

•All Defendant's experts

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Final Submissions

•Defendant's final submission

•Plaintiff's final submission

•Written final submissions

•Judgment reserved

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Judgment of the Court

•Decision of the Court on relevant issues

•Reasons for coming to the decision

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Appeals

•Court of Appeal

•Court of Final Appeal

•"Appeal on the record" - no witness or expert

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Publicity

•Commencement of the legal action

•Check List Review hearing

•Pre-Trial Review

•Trial

•Appeals

•Anonymity Order

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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

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PSLA

•Compensation for injury

•Maximum about HK$2.5 million

– Quadriplegia

– Vegetative state

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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

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The cost of care

•Depends on

– Amount reasonably needed for care

– How long care needed

•Yearly amount x a number of years

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What is the record compensation for medical negligence in Hong Kong?

•No published statistics

•Generally thought not exceeding HK$100 million

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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

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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

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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