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Dr Lam Kui Chun v The Medical Council Of Hong Kong

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date14 November 2007
Year2007
Judgement NumberCACV56/2007
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000056/2007 DR LAM KUI CHUN v. THE MEDICAL COUNCIL OF HONG KONG

cacv 56/2007

in the high court of the

hong kong special administrative region

court of appeal

(on appeal from THE ORDER OF THE MEDICAL COUNCIL
OF hONG kONG MADE ON 3rd FEBRUARY 2007)

______________________

BETWEEN

DR LAM KUI CHUN Appellant
and
THE MEDICAL COUNCIL OF HONG KONG Respondent

______________________

Before : Hon Rogers VP, Le Pichon JA and Lunn J in Court

Dates of Hearing : 23 – 24 October 2007

Date of Handing Down Judgment : 14 November 2007

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1. This was an appeal from an order of the Medical Council of Hong Kong made on 3 February 2007. The Council was satisfied that the appellant was guilty of misconduct in a professional respect in that he

“ disregarded his professional responsibility to treat or care for his patient, the late Mr Lo Tai in that:
(a) without adequate or proper training, he performed the radio frequency ablation procedure on the patient;
(b) he induced the patient into believing that he had the expertise to perform the radio frequency ablation procedure on the patient.

The Council made the following orders:

(a) in respect of charge (a), the name of the appellant was to be removed from the General Register for a period of 6 months;
(b) In respect of charge (b), the name of the appellant be removed from the General Register for a period of 1 month, such removal to run concurrently with the order on charge (a).”

2. The orders were to be suspended for a period of 2 years subject to the condition that during the suspension the appellant should not perform radio frequency ablation treatment for liver tumour patients without supervision, until he had produced evidence to prove to the satisfaction of the Medical Council that he had undergone appropriate hands-on training for the procedure under supervision.

3. At the conclusion of the hearing of this appeal, judgment was reserved which we now give.

Background

4. In June 2001 Mr Lo, who was 67 years old, was diagnosed at the Queen Elizabeth Hospital as having liver cancer. He was told that he could have a liver resection and that there were other options available including transarterial chemoemolisation and local ablation such as percutaneous alcohol injections. Mr Lo and his family were apparently cautious about the idea of an operation because of his age. In consequence within a few days they consulted the appellant. It was at that stage that they first learnt of radio frequency ablation (“RFA”), which was then a new treatment, at least in Hong Kong. The Council found that the appellant told Mr Lo and his family that the procedure was safer than a liver resection and could be repeated if there were a relapse. The appellant told them that he had attended many conferences on RFA and that he was confident about being able to perform the procedure.

5. In consequence, within a few days arrangements were made for Mr Lo to undergo RFA at the private hospital recommended by the appellant (the “first hospital”). Unknown to Mr Lo’s family the RFA procedure was not performed by the appellant. The first hospital would not allow the appellant to operate the equipment because he was not an interventional radiologist. A consultant radiologist of that hospital carried out that procedure.

6. Unfortunately the procedure did not fully eradicate the cancer. It was discovered that Mr Lo still had cancer of the liver and in October 2001 it was suggested that there should be a repeat treatment. This time, the appellant suggested that the treatment be carried out at another private hospital where there was equipment in respect of which he had made an investment. He assured Mr Lo and his family that he was confident to perform the procedure.

7. The second RFA was thus performed by the appellant on 12 November 2001. There, as the Council held, the appellant was assisted by an interventional radiologist. Again according to the finding of the Council, the appellant had initially intended to insert the RFA needle himself on the basis that he would be able to use a guide-probe. The guide-probe was not available and so he required the assistance of the interventional radiologist.

8. There were particular difficulties in the procedure to be carried out. In the first place the size of the tumour was large and at the high end of that which could be treated by RFA. In the second place the location of the tumour in the liver caused some degree of difficulty in view of the proximity of what are called the hollow organs. It was necessary to insert the probe using a subcostal approach, in other words under the ribs.

9. The Council found that in 2001 RFA was a new procedure. It had been introduced in Hong Kong in mid-2001. The first hospital at which it was available to the public was the Prince of Wales Hospital where it was introduced on a trial basis around April 2001. It was performed under a research protocol. Later, in August 2001 RFA for unresectable liver tumours was approved by the Queen Mary Hospital under the Hospital Authority Mechanism for Safe Introduction of New Procedure (“HAMSINP”). That document referred to RFA being an innovative and evolving technique that adds to the list of aggressive therapies and should be tested under trial conditions and not considered as an established therapy.

10. The Council observed that as it was not an urgent case the appellant could have waited for the arrival of a guide-probe and it was pointed out that that instrument was a commonly available piece of equipment. Nevertheless, it was decided to proceed without the guide-probe and that necessitated the RFA needle being inserted by hand. Because of that it would be necessary for the person inserting the needle to view the positioning of the needle in the body through ultrasound equipment. As the appellant described in the course of his evidence at Mr Lo’s inquest:

“ One had to hold the ultrasound instrument by one hand and put the needle into the patient’s body by the other hand. The ultrasound instrument of course enables one to see the locations. However, how to coordinate both hands? This requires experience. One cannot do this properly unless he is adapted to the procedure. I was not adapted to the bare-hand approach. I could only conduct the procedure in another way. However, at that time with the instruments available, one could only perform the procedure by the bare-hand approach. Therefore I did not choose to do it myself. Accordingly, I invited a doctor from the diagnostic-radiology department of (the hospital), (name of doctor), to put the needle into the patient's body.”

11. According to the findings of the Council there was no difficulty in the initial location of the needle tip. However, after ablation on the first site, the area was clouded owing to the generation of micro bubbles which obscured the ultrasound image. Nevertheless, the Appellant decided to continue with the ablation. The needle was withdrawn three times at approximately 1 cm intervals and further ablation given after each withdrawal or stop. The whole procedure took 47 minutes. Unfortunately, in the course of ablation there was thermal induced necrosis of both the gall bladder and the colon. This led to Mr Lo’s death.

12. In the course of giving evidence at Mr Lo’s inquest, the appellant expressed his dissatisfaction with the manner in which the procedure had been conducted at the first hospital. He said that the procedure was conducted by the radiologists and that they were “rather conservative”. It would appear that the radiologists at that hospital only performed each ablation for 15 minutes and raised the heat “quite slowly and conservatively”. The reference to 15 minutes appears to have been in contrast to a reference earlier in his evidence where the appellant said:

“ At the beginning, you will use around 50 watts. Then you will increase the voltage by 10 watts for every minute. The voltage will be increased in this way continuously. The instrument is a comparatively new machine. Its advantage is that if the tissue becomes necrosed owing to the heat, the instrument will be turned off automatically. According to its design, no excess treatment will be given. Its design is this. Its principle is that when you increase the heat continuously, the tissue will cause the electric resistance to increase. When the tissue becomes necrosed, the resistance will be so high that the instrument will be turned off. Therefore this should be a safe practice.”

13. The appellant went on in his evidence about what happened at the first hospital to say:

“ After performing the procedure twice, the cancer cells had not solidified. The objective of killing the cancer cells was not achieved. Then they stopped the treatment. Later the cancer recurred.”

14. Although at the hearing before the Council the appellant put forward the case that it was the radiologist at the second hospital who conducted the procedure, the Council held that it was the appellant who was in overall charge of the procedure and he took the relevant decisions throughout the procedure. The radiologist had had no training in RFA at all and he had relied upon the appellant for all necessary guidance to take the relevant decisions. The appellant had made the calculations in respect of the ablation and was responsible for deciding whether to continue. In those circumstances the appellant was held to have himself performed the RFA treatment. Before this court that matter was not challenged.

15. In respect of the finding by the Council that the appellant had conducted the procedure without adequate or proper training, the first point taken by...

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