Global healthcare insights: Hong Kong, Thailand, Denmark, France, Ireland, Spain and Canada

Following Civil Justice Reform in 2009 courts in Hong Kong have been more proactive in case management and have imposed stricter deadlines for parties to prepare court documents or to set the case down for trial. They are also more intolerant of delays and late discovery and expect parties to cooperate with each other in the conduct of proceedings and identifying issues to be resolved at trial.

Courts also encourage parties to reach a settlement out of court, so a trial is not necessary. Parties now have to have pre-action discussions, and the plaintiff is required to send a pre-action letter to the medical professional. There should be mutual discovery of documents, even at the pre-action stage, and if any party is found to be uncooperative, that party may be penalised by paying the other party’s legal costs.

The plaintiff is also expected to disclose an independent expert report to support the allegations against the medical professional. Failing which, the defendant can apply to court to ask the claim to be struck out. If the plaintiff disclosed an expert report, and the defendant disclosed theirs - the experts would need to meet and discuss in order to try to limit the issues in dispute.

Damages awards have increased steadily in Hong Kong, but not significantly.

Many people live in public housing estate flats so if a plaintiff has become wheelchair bound after a medical incident, courts will allow the cost of alternative accommodation, usually by renting a more suitable and spacious flat. Care costs such as hiring a live-in domestic helper may be awarded in catastrophic injury cases.

Discount rates were adjusted in 2013 after the case of Chan Pak Ting and it provides three different rates, depending on how long the plaintiff’s future needs are expected to last for. The relevant rates are 2.5% for loss which is more than 10 years, 1% for loss between five and 10 years and minus 0.5% for loss which is less than five years. It would appear that these rates will not be adjusted for some years yet.

Mediation is commonly used in Hong Kong and almost always attempted in medical negligence claims, unless of course the plaintiff’s claim has been dismissed or a settlement has been reached prior to attempting mediation.

Many medical professionals favour mediation, because it is a confidential process, and allows parties - typically the patient and treating doctor - to meet face-to-face to explain matters, including the treatment provided.

The success rate of mediations is very high. According to the figures published by the Hong Kong Judiciary, approximately 47% of civil claims commenced in the Court of First Instance which had attempted mediations, resulted in agreements. The District Court also has similar figures.

Periodical payments have been discussed in Hong Kong for many years but currently courts are still not empowered to order periodical payments. However, parties can agree to periodical payments if they so wish.

In Hong Kong, there are many different regulatory boards or councils which regulate the practice of medical/healthcare professionals. The majority of our work mainly involves disciplinary investigations against medical doctors.

Complaints to regulatory bodies cannot be settled directly between the complainant and the medical/healthcare professional. Unless the complaint is dismissed during the preliminary investigation stage, it has to go through an open inquiry hearing which will usually be reported by media.

If the medical/healthcare professional is found guilty of professional misconduct, they may not be able to continue practice medicine or provide healthcare services, or at least for a certain period of time.

According to the latest annual report issued by the Medical Council of Hong Kong (MCHK) in 2019, there were 3,286 complaints received by the MCHK in 2019, which is almost five times higher than the number of complaints received in 2018 and in previous years.

We consider below are the key factors contributing to the sharp increase in the number of complaints in 2019:

• A shortage of medical and healthcare staff at all levels and increasing demand on health services due to the aging population.
• Easy access of the medical information on internet allows patients to challenge doctors’ advice and management more readily which encourages the development of a complaint culture in Hong Kong.
• Greater awareness of the channel for reporting a complaint, which is relatively simple and economic to use, as it does not involve any court fees. The MCHK will investigate the complaint and will take the burden of proof of professional misconduct against the doctor.

Cases received by the MCHK are screened by a Preliminary Investigation Committee (PIC), and quite a high percentage of complaints are dismissed. In recent years, the majority of complaints against doctors have related to allegations of issuing misleading or false medical certificates, the provision of negligent treatment, and inappropriate prescription of drugs.

Only a small proportion of complaints received by the MCHK proceed to an inquiry hearing. In 2019, the PIC experienced a significant backlog.  

Upon receipt of a complaint, either the Chairman/Deputy Chairman of the PIC will perform an initial screening of the complaint. If they consider the case is frivolous/groundless or the complaint does not fall within the jurisdiction of the MCHK, the complaint will be dismissed.

If the complaint is not dismissed it will be referred to the committee for consideration. The PIC will issue a Notice to the doctor notifying them of the complaint and the doctor can choose to provide a written explanation for consideration during the PIC meeting, or to wait for the outcome of the first PIC meeting.

At the Inquiry, the doctor can be found guilty or not guilty. The doctor can appeal to the Court of Appeal in relation to the conviction or sentence or both.

If the Inquiry Panel find the doctor guilty of professional misconduct, the doctor will be given an opportunity to make a submission on mitigation at the hearing.  The Inquiry Panel will then take into account the seriousness of the charges, the conduct of the doctor throughout the process of the complaint handling, the mitigation submission and documents, and any past records, in deciding the appropriate sanction.

Currently, it takes approximately one year following receipt of the first Notice from the PIC and for the PIC to investigate and dismiss a complaint. For those cases that proceed through to an Inquiry the process can take approximately two or more years.  However, for cases involving more than one defendant doctor, we have seen a delay in fixing the Inquiry as the investigation on the part of PIC may take longer.

The number of medical negligence claims has remained fairly stable over the past few years. We anticipate there could be a slight decrease in the number of claims next year due to the suspension of some hospital services during the pandemic.  

However, in the coming year (2021/2022), we anticipate that the number of complaints to disciplinary bodies may continue to increase.

We have also seen an increase in the number of patients who have reported  medical incidents to the police, with an increase in the number of criminal investigations and convictions especially those cases connected with aesthetic/cosmetic medicine.

Firstly, and it is the most common practice in Thailand for a claimant to make a claim against a doctor, nurse or a hospital directly, either verbally or in writing. In most cases, if not all, the claimant will also refuse to pay medical bills. As a consequence, the process and handling of the claim, and negotiation or settlement will be regulated by the Civil and Commercial Code.

In some cases, the claimant may file a complaint to a competent authority such as the Medical Council of Thailand or the National Health Security Office. In this regard, the claim process differs. For example, if the claim is filed with the Medical Council of Thailand, the Medical Council will act according to their power and authority under the Medical Profession Act.

The Medical Council will then provide its opinion as to whether medical malpractice has occurred or if the relevant medical practitioner failed to comply with professional regulations. Whilst the opinion of the Medical Council is not binding it can often promote settlement.

Alternatively, if the claim is filed with the National Health Security Office (NHSO), the committee may summon the relevant doctors or hospital to provide information and statements.

If the NHSO considers there was medical malpractice, the NHSO has the power to award compensation to the claimant and subrogate the right to recover that from the hospital. However, compensation under the NHSO Act is relatively low compared with compensation that can be recovered under the Civil and Commercial Code. The maximum is less than £9,000.

In most cases, if settlement cannot be reached through negotiation or where the claim has not been made directly against the doctor or hospital, the claimant may file a claim at the Civil Court.

Under the Thai legal system, medical service is determined to be a business falling within the scope of the Consumer Protection Act. As such, the claim process will be based on the Consumer Case Procedure Act.

The last common route by which a claimant may file a claim against a doctor is at a police station, on the basis that the claim involves bodily injury or death of the patient. In the absence of specific laws dealing with medical malpractice, all medical malpractice claims in Thailand can be considered criminal offences under the Criminal Code, with the claim process in those circumstances based on criminal proceedings.

• Permanent injury: maximum DKK1.126.000 (€151.140).
• Pain and suffering: maximum DKK82.000 (€11.006).
• Temporary loss of income: no maximum but usually a limited period until permanent loss of income is paid.
• Permanent loss of income: maximum DKK 9.859.500 (€1.323.422).

In Gill Russell v HSE [2015] IEHC Mr Justice Cross, reduced the real rate of return from 3% to between 1% (for care) and 1.5% (for earnings). This was upheld by the Court of Appeal.

In September 2020, Department of Justice and Equality invited submissions on the discount rate, including on whether the courts should continue to set the rate on a case by case basis; whether the Minister for Justice should set the rate and review at intervals; and whether  the rate should be revised.  An update from the Department of Justice and Equality is currently awaited and it remains to be seen whether the Republic will follow England and Wales and Northern Ireland in terms of setting a negative discount rate.

The “no win, no fee” arrangements in Canada broadly equates to plaintiff lawyers being paid approximately a third of the damages payments. Accordingly, the volume of low value claims brought in England and Wales is substantially more and is a significant area of exposure not replicated in Canada.

High value claims in Canada do not reach the levels of high value claims in England and Wales. Whereas, for example, in England and Wales compensation in birth injury claims can often reach £10 million or more, comparable cases show that such damages are rarely seen in Canada. The model upon which long-term care is calculated is for a community based programme instead of home care for life.

There is no appreciable difference in the law and therefore this cannot explain the difference.

The potential financial exposure of the patient if a case is lost is a big deterrent for bringing a claim. Also, the discovery process in Canada is a key adversarial step where a plaintiff is examined and tested on their claim, a step really only replicated in the courts of England and Wales at trial.