With an ageing population, long waits for medical consultations, a shortage of hospital beds, the highest global average female life expectancy and intense media coverage, the future of healthcare in Hong Kong is a hot topic. Unfortunately, these challenges also contribute to an increase in patient complaints. The practice of medical defence lawyers requires consideration of the evolving medico-legal landscape, management of emotions, and pressures on finite resources. In this article we outline the factors which contribute to the challenges of a medical defence lawyer today.
1. Increased Awareness & Accountability
Widespread press coverage, the availability of medical data and literature online, and the use of social media has led to increased public knowledge and challenges to the diagnoses doctors give and the treatments advised. Patients now use multiple complaint channels to air grievances and pursue complaints. Complaints made via messaging applications available on phones can lead to data privacy breaches by medical professionals and support staff, which require prompt legal advice and action.
- A single medical incident may need a medical defence lawyer’s simultaneous input to advise and prepare responses to multiple complaints to statutory bodies. Taking great care and playing ‘Devil’s Advocate’ is essential to avoid potentially prejudicing subsequent Court proceedings, Disciplinary Investigations and actions by the Medical Council of Hong Kong.
2. Scrutiny of Healthcare Professionals
- Healthcare professionals are subject to intense scrutiny under a powerful magnifying glass when things go wrong. As medical defence lawyers, contemporaneous, accurate and clear documentation of medical records makes things easier.
- In Court and Disciplinary Investigations and Proceedings, every aspect of a practitioner’s clinical management and treatment may be scrutinised (minute by minute) and questioned in detail in a public hearing, with the pressures of giving evidence in the process. All evidence given will be recorded.
3. Health and Well-being
- We provide advice to healthcare workers, who can find themselves under enormous stress, and at times at various different stages of their own/employer’s internal complaints process. Damage to reputation and potential impact on their careers are understandable concerns, particularly in the context of a busy clinical practice, which does not stop when an adverse incident happens.
- The Litigation Process and Medical Council Investigations to the Inquiry can be lengthy and often last many years. In some circumstances, seeking counselling and peer/professional support may be appropriate.
4. The Need for Indemnity or Insurance cover
- Healthcare Professionals are human and humans make mistakes. Even reasonable clinical judgments can be subject to challenge.
- It is essential that practitioners, in both the public and private sector, and in all areas of practice purchase and check they have adequate indemnity or insurance cover by employers. This will assist with the provision of legal advice and, where possible, the early resolution of complaints or claims. Indemnity or Insurance cover also provides protection for Healthcare Professionals in relation to legal fees (both those of the Healthcare Professional and the Claimant), as well as damages (compensation) that may be awarded and can be significant (subject to the terms of the cover provided).
Conclusion
The challenges discussed will continue to be faced by medical defence lawyers in the future. Early resolution of complaints benefits all parties involved, where liability should be admitted and costs covered by indemnity providers or insurers. Trust and co-operation are needed to enable lawyers to provide the best advice to fully address the concerns of practitioners, which often go beyond monetary matters. Damage to reputation, career and psychological impact are just as important to be understood and promptly addressed.
Read more items in Hong Kong Medical Law Brief - October 2019
