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Dr Li Wang Pong Franklin v The Medical Council Of Hong Kong And Another

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date07 January 2009
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL12/2008
CourtHigh Court (Hong Kong)
HCAL000012/2008 DR LI WANG PONG FRANKLIN v. THE MEDICAL COUNCIL OF HONG KONG AND ANOTHER

HCAL 12/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2008

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BETWEEN

DR LI WANG PONG FRANKLIN Applicant
and
THE MEDICAL COUNCIL OF HONG KONG 1st Respondent
THE PRELIMINARY INVESTIGATION COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG 2nd Respondent

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Before: Hon A Cheung J in Court

Date of Hearing: 15 December 2008

Date of Judgment: 7 January 2009

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J U D G M E N T

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Facts

1. The applicant is a registered medical practitioner in private practice. On 28 August 2003, he performed a liposuction procedure on a patient, Madam Lam King Fong. Unfortunately, the patient collapsed during the procedure and passed away shortly thereafter. An inquest was held (Coroner Case No CCDI 1002/2004) and the deceased was found to have died as a result of misadventure.

2. The matter was reported in an article dated 1 March 2006 on Apple Daily online. The English translation of the article reads:

“Woman died from liposuction, held as ‘death by misadventure’

【Apple Daily】Lam King Fong, a 70-year-old female piano teacher, died in the course of an abdominal liposuction surgery in 2003. Yesterday, the Coroner’s Court determined the cause of death to be ‘death by misadventure’ and suggested that Dr. Li Wing Pong Franklin (‘Franklin Li’) keep the patients’ medical records and receive emergency resuscitation/treatment training again. The female teacher’s husband was not satisfied with the Court’s finding and angrily accused Dr. Li of disregarding and killing a human life, ‘He shirking his responsibilities in such a way, even manslaughter is not enough!’

Yesterday, the deceased’s husband [Chiu Cheong Ming] said in an aggrieved tone outside the Court, ‘By saying that it is ‘death by misadventure’, the doctor has nothing to do with it anymore. There is no justice under the law. Even a 3-year-old kid could tell that her (the deceased’s) death is the result of administration of too much anaesthetic and of the flow of fat to her lung in the course of the surgery.’ The resuscitation equipment in the clinic were ‘for show’ only, he said. He stated that he had already consulted a lawyer about making claims.

Coroner suggested that [Franklin Li and staff] learn emergency resuscitation/treatment again

Mr. P.C. White, the Coroner, has made a few suggestions to Franklin Li, including setting up a system to keep the medical records and personal data of the patients and not performing any surgery upon a patient who refuses to disclose any of these, and Li and his staff receiving emergency resuscitation/treatment training again etc. (see the table).

In response to our enquiry, Franklin Li said it was a fair finding and he would accept the suggestions of the Coroner’s Court. ‘I have been practising as a medical practitioner for several tens of years. I previously worked as an attending doctor in the Accident and Emergency Department of the Queen Mary Hospital where I performed emergency resuscitation/treatment on many occasions each week. I seldom do so after I have become a medical practitioner in private practice.’

On the evidence of this case, the Coroner concluded that it was more convincing to say that Lam King Fong had died from injection of an overdose of medication. Although Franklin Li claimed he had only injected a very small dosage of painkiller to Lam, the possibility that Lam had been injected with an overdose of medication cannot be excluded. Furthermore, the statement of Tang, a female nurse from the clinic in question, in respect of the time when Lam went into a coma was inconsistent. One can hardly understand why Dr. Li gave her medication which is used to treat angina cordis when Lam did not have any cardiac problem. On the other hand, Lam had never revealed her real age and identity to Dr. Li.

Lam King Fong (70 years old), the deceased in this case, suddenly lapsed into a coma in the course of a liposuction surgery and eventually died in the clinic of Dr. Li Wang Pong Franklin, a plastic surgeon, in Tung Ying Building, Tsim Sha Tsui on 28th August 2003. As stated by an expert witness, it is possible that Lam’s death was caused by injection of an overdose of medication and fat embolism in her lung. There were not enough facilities in the clinic in question for the performance of such a liposuction surgery of the expected scale upon Lam, said a plastic surgeon specialist.”

3. By an e-mail dated 1 March 2006, a certain Mr Wong wrote to the Medical Council of Hong Kong about the case. The writer attached a copy of the Apple Daily article to his e-mail and wrote that he believed the article constituted professional misconduct under the Professional Code and Conduct of the medical profession. He pointed out that according to the article, the applicant had claimed in an interview that he had been practising as a medical practitioner for many years; he had previously worked as an attending doctor in the Accident and Emergency Department of Queen Mary Hospital where he had performed emergency resuscitation or treatment on many occasions each week; but he seldom did so after he had become a medical practitioner in private practice. Mr Wong therefore complained that the applicant had made references to his experience, skills, qualifications, practice, clinic and equipment which could be construed as promotional, contrary to Part B, art 5.1 of the Professional Code and Conduct. Mr Wong concluded that the applicant had ‘sanctioned, acquiesced in or failed to take adequate steps to prevent the publication of the article in question’.

4. After receipt of the e-mail, the Secretary of the Medical Council duly submitted the case to the Chairman of the Preliminary Investigation Committee (PIC) established under Part IIIE of the Medical Registration Ordinance (Cap 161) for consideration.

5. On 18 March 2006, the Chairman of the PIC identified a number of problems in the case in addition to the self-promotion issue specifically pointed out by the writer of the e-mail, and directed the Secretary to obtain the Coroner’s report before a further decision was made, which was duly done by the Secretary on 23 May 2006.

6. On 27 May 2006, the Chairman of the PIC directed that the case be referred to the PIC for its consideration and indicated a total of seven charges or allegations to be addressed. Self-promotion was one of the issues, but the other six all related to the liposuction procedure carried out by the applicant and his management of the patient.

7. A draft notice of meeting of the PIC (the PIC notice) was prepared by the Secretary which was sent to the Department of Justice for comment.

8. On 18 September 2006, the Chairman of the PIC directed that the advice of Professor Matthew Chan, an expert who had given evidence at the inquest, be sought with respect to some further matters raised by government counsel. A letter dated 25 September 2006 requesting for assistance was therefore sent to Professor Chan, who gave a substantive reply by letter dated 30 September 2006.

9. Having considered the reply from Professor Chan, on 1 December 2006, the Chairman of the PIC provided further comments on the draft PIC notice to be issued to the applicant.

10. On 8 January 2007, the Secretary formally issued a notice of meeting of the PIC to the applicant. Amongst other things, the PIC notice informed the applicant that:

“The particulars of the complaint/information are that on or about 28 August 2003, you, being a registered medical practitioner, disregarded your professional responsibility to your patient, the late Madam LAM King Fong, also known as MO Mei (‘the patient’), or otherwise neglected your professional duties to the patient who was under your care, in that:

(a) you failed to keep proper record of medical history and personal details of the patient;

(b) you performed a liposuction procedure on the patient (‘the procedure’) when you were not conversant with contemporary resuscitation procedures;

(c) you performed the procedure when you were not conversant with the ‘Guidelines for Safety in Sedation for Diagnostic and Minor Surgical Procedures’ published by the Hong Kong College of Anaesthesiologists (Policy document P2, reviewed in February 2002);

(d) you failed to maintain an optimal standard of monitoring the patient’s condition when a combination of drugs, namely Dormicum, Diprivan, Fentanyl and Rapifen, were used; and

(e) you failed to maintain an optimal provision of facilities available for resuscitation, if necessary, when a combination of drugs, namely Dormicum, Diprivan, Fentanyl and Rapifen, were used.

In relation to the facts alleged, either singularly or cumulatively, you have been guilty of misconduct in a professional respect.”

11. It should be noted that the issue of self-promotion did not feature in the PIC notice. This was apparently because by then, the Court of First Instance had already held that the relevant provisions in the Professional Code and Conduct against practice promotion were constitutional: Dr Kwok-hay Kwong v The Medical Council of Hong Kong, HCAL 46/2006, Reyes J (11 August 2006).

12. In response to the invitation made in the PIC notice to provide explanation, the applicant through solicitors lodged a written explanation on 31 May 2007. It included a challenge to the vires of the notice of meeting. I will presently return to the applicant’s complaint.

13. The PIC considered the applicant’s written explanation, including the complaint regarding vires, and eventually came to the conclusion that the latter complaint was unmeritorious. Having given the...

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