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CACV 103/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 103 OF 2013
(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL
OF HONG KONG MADE ON 24TH APRIL 2013)
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BETWEEN
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DR CHAN PO SUM |
Appellant |
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and |
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THE MEDICAL COUNCIL OF HONG KONG |
Respondent |
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| Before: Hon Kwan, Barma JJA and Poon J in Court |
| Date of Hearing: 25 November 2014 |
| Date of Judgment: 9 December 2014 |
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J U D G M E N T
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Hon Kwan JA:
Introduction
1. On 24 April 2013, after hearing four days of evidence, the Medical Council of Hong Kong found Dr Chan Po Sum, a registered medical practitioner, guilty of misconduct in a professional respect in relation to the following charges:
“He, being a registered medical practitioner, disregarded his professional responsibility to his patient Mr A (“the Patient”) in that:
(1) he failed to obtain informed consent from the Patient before performing the Stapled Haemorrhoidopexy (“the Operation”) on the Patient on 23 February 2010 in St Teresa’s Hospital (“the Hospital”);
(2) during the post-operative period up to the time of discharge from the Hospital, he failed to properly examine and investigate the Patient despite his repeated complaints of severe abdominal pain after the Operation;
(3) on 24 February 2010, he failed to properly examine and investigate the Patient before he was discharged from the Hospital despite his repeated complaints of persistent abdominal pain;
(4) from 25 February 2010 to 1 March 2010, he failed to properly advise the Patient when the Patient repeatedly complained of persistent abdominal pain.”
2. In the judgment of the Medical Council, the terms “Stapled Haemorrhoidopexy”, “Stapled Haemorrhoidectomy” and “Procedure for Prolapse and Haemorrhoids” were used interchangeably to mean the same procedure and were referred to collectively in short as “PPH”. I will adopt the same terminology here.
3. Having found the charges of professional misconduct established, the Council ordered that in respect of Charge (1), a warning letter be served on Dr Chan and that the order be published in the Gazette. For Charges (2), (3) and (4), the Council ordered that Dr Chan’s name be removed from the General Register for one month on each charge, and that the removal orders on all three charges to run concurrently.
4. Dr Chan brought this appeal to set aside the findings of misconduct and the sentences imposed. He indicated he will not appeal the sentence in relation to Charge (1). And if all the findings of the Council in respect of Charges (2), (3) and (4) are upheld, he will not appeal against the sentence of the same. It is only if this court should quash some but not all of the charges then Dr Chan would seek a corresponding and proportionate reduction of the sentence. Mr Huggins, SC, who appeared for Dr Chan on appeal, made clear that the only circumstance in which Dr Chan will pursue any appeal against the sentence in respect of Charges (2), (3) and (4) will be if this court accepts his submissions in relation to the Council’s findings that the Patient complained of severe and persistent abdominal pain and that Dr Chan was aware of those complaints and ignored them, but for some distinct and free-standing reason nevertheless upholds one or more of Charges (2), (3) and (4).
The background
5. The relevant background matters, taken largely from the judgment of the Council, may first be related as follows.
6. The Patient was a 33 year old male who enjoyed good health all along. He first consulted Dr Chan on 7 December 2009 for his haemorrhoid problem. Dr Chan advised the Patient to try conservative treatment by medication first. He also advised the Patient that the haemorrhoids could be treated by two surgical options: PPH or conventional open haemorrhoidectomy. In his medical records, Dr Chan wrote: “Operation of PPH Mentioned asso. [associated] risks explained.” The evidence in respect of the explanation of associated risks was not much in dispute. Dr Chan explained to the Patient that PPH would have the advantages of significantly less pain, less post-operative wound care, shorter recovery, and not much risk involved.
7. On 4 February 2010, the Patient returned for a consultation and indicated he was considering surgery. After further explanation by Dr Chan, the Patient decided to undergo PPH. In Dr Chan’s medical records, he recorded: “Operation Risks S.E. [side effects] Explained again”. As the Patient had decided to undergo PPH, Dr Chan gave a more detailed description of the PPH procedure, with little mention of conventional haemorrhoidectomy. According to the Patient’s evidence, and agreed to by Dr Chan, throughout the second consultation, Dr Chan impressed upon him that conventional haemorrhoidectomy was very painful and PPH was a newer procedure with less pain. Some of the risks were mentioned. There was however no mention of two risks associated with PPH: rectal perforation and the higher rate of recurrence of internal haemorrhoids.
8. When the Patient was admitted to the Hospital on 23 February 2010, he signed a “Checklist of Possible Common and Important Complications (General Surgery)” and a “Surgery/Medical Procedure/Treatment Consent Form” with no further explanation.
9. Regarding the risks associated with PPH, the Council made these relevant findings on the expert evidence:
“25. Rectal perforation is a known risk of PPH. Although the probability is low[1], it is a serious risk which is life-threatening. However, by reason of the nature of the operation, there is no risk of rectal perforation involved in conventional haemorrhoidectomy. …
26. PPH is a relatively new procedure which, at the beginning of its development, was hailed as a superior treatment option for haemorrhoids. As time went on, more reliable studies revealed that there are disadvantages of PPH which were not known before. By July 2007, it was known that PPH is associated with a higher long-term recurrence rate of internal haemorrhoids than conventional haemorrhoidectomy, and a reliable study concluded that conventional haemorrhoidectomy is superior to PPH for prevention of post-operative recurrence of internal haemorrhoids. …”
10. Dr Chan performed PPH on the Patient between 12:30 pm and 1:05 pm on 23 February 2010. When the Patient woke up from the anaesthesia, Dr Chan had left. According to the Patient, he complained of severe abdominal pain to the nurse. At 2:40 pm, a nurse gave him an injection of an analgesic called pethidine.
11. The Patient was not able to pass urine after the operation. He continued to complain of lower abdominal pain after the analgesic effect waned off. This entry was made in the Nurses’ Report: “Pt [Patient] still complained he could not pass urine after operation and lower abdominal pain. Dr P S Chan was inform [sic] at 02:35 [on 24 February]. Cath [catheter] once was prescribed but patient refused. Pethidine 75 mg IMI was injected at 03:10. Pt insisted to try passing urine by himself.”
12. The Nurses Report showed that the Patient agreed to be catheterized at 6:45 a.m. and 660 ml of urine was drained from the bladder.
13. At 8:30 a.m. on 24 February, Dr Chan saw the Patient when he did the ward round. He spoke to the Patient but did not carry out a clinical examination. After having passed urine successfully by himself, the Patient was discharged from the Hospital at 2:40 p.m with pain-killers and laxatives.
14. On 25 February, the Patient felt unwell and telephoned Dr Chan’s clinic. He only managed to speak to the clinic assistant, not Dr Chan. He telephoned again on 26 February complaining of abdominal pains and inability to defecate but once more was only able to speak to the clinic assistant. On 27 February, which was a Saturday, the Patient felt severe pains in the abdomen and telephoned the Hospital. Later that afternoon, he attended the Accident and Emergency Department of Tseung Kwan O Hospital. When he was there, he had a telephone conversation with Dr Chan. He later received an analgesic injection and medications from that hospital but declined an examination of his anus.
15. In the early hours of 1 March, the Patient had sudden spasm in his pubic area with abdominal pains. He telephoned and spoke to Dr Chan about the increasing abdominal pain. He tried immersing in hot water as advised by Dr Chan but this brought no relief to the pain. At 5 a.m., he was taken to Tseung Kwan O Hospital in an ambulance. He was diagnosed with peritonitis and emergency laparotomy was performed. At the operation, a 4 x 3 cm perforation was noted at the anterior wall of the rectum above the peritoneal reflection. End colostomy and second look laparotomy were performed in the afternoon. He stayed for one month in hospital.
The evidence and findings in relation to Charge (1)
16. In respect of Charge (1) regarding informed consent, as mentioned above, the evidence was not much in dispute and Dr Chan admitted that he did not explain to the Patient the risk of rectal perforation and the higher recurrence rate of haemorrhoids in connection with PPH.
17. The line of defence taken at the trial was that there was no need to advise patients of either the risk of rectal perforation or the higher recurrence rate of haemorrhoids using the PPH procedure. In support of this stance, reliance was placed on the evidence of Dr Chan’s expert witness, Dr Chung, who was the chairman of the working group for informed consent for Hong Kong East Cluster of the Hospital Authority.
18. Dr Chung was of the opinion that as rectal perforation due to PPH has exceedingly low incidence, it is not necessary and not mandatory to...
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