When diagnosed with a serious condition like cancer, receiving the best treatment possible is essential. The professionals who provide this medical care are of huge importance to society and they provide an invaluable service. When mistakes occur, which unfortunately they do, medical staff should not always be held accountable. However, certain standards must be adhered to. If someone with a serious condition like cancer is a victim of medical malpractice, then circumstances should be investigated.
Medical negligence is when the care provided to a patient falls below the accepted standards of medical practice, due to an act or omission from the medical professional. As a result, death or injury must have occurred. The level of competency and professionalism used will be measured against other professionals in the industry. If a medical professional chooses to perform procedures normally performed by a specialist, they will be judged by the standards of the specialty.
The courts will first establish if a “duty of care” exists. Medical professionals owe a duty of care to everyone they treat. This does not mean that they are obliged to save someone’s life or act perfectly in each medical situation. It means they must exercise reasonable skill and care towards each patient when administering medical treatment.
The courts will then determine if a breach of the duty has occurred using the “Bolam test”. In Bolam v Friern Hospital Management Committee  1 WLR 583 a patient underwent electro-convulsive therapy but was not given muscle relaxants and consequently sustained multiple injuries. It was not common practice at the time to administer muscle relaxants when performing the procedure, therefore the claim failed. Generally, a breach will have occurred if there is a usual normal practice, which has not been followed. The “Montgomery test” creates a duty of care to warn of material risks. In Mrs A v East Kent Hospitals University NHS Foundation Trust  EWHC 1038, the Montgomery test required the medical professional to disclose all material risks.
Finally, the courts will look at causation. This is whether the actions of the medical professional caused the injury or death. In the case of cancer, a medical professional may not have adhered to the correct standards and may have worsened the condition. If a worsened condition was likely to occur regardless, then the medical professional will not have caused the injury and a claim would fail on this basis.
Proof of the injury/death that the medical negligence caused is also necessary. Proof can come in various forms including medical records, correspondence records, financial records, death certificates and more. The compensation received will depend on the type and extent of the damage caused.
Making a claim
There is a 3-year time period in which a medical negligence claim can be made. It can be a risky pursuit as a claim won’t be accepted lightly. A claim will have to be proved on the balance of probabilities (more than 50%).
A claim of medical negligence ought to be carefully considered and it is vital that professional legal advice is sought before making claims. If you believe you are a victim of medical negligence, then seek the assistance of a law firm who can provide specialist services for such situations. Advice will be given on whether a claim is viable or not and on organising your evidence to build a case for medical negligence. At Hugill & Ip we are skilled at providing such specialist services. Our firm recognises the sensitivity of such issues. We tackle each case as they come with emotional awareness, open minds, a logical analysis and a practical approach.
Medical practitioner standards and consent
In Hong Kong, medical quality and standards are also governed by the Medical Registration Ordinance, Cap 161. The Ordinance empowers The Medical Council of Hong Kong (“MCHK”) to ensure certain standards are met. The MCHK have a Code of Professional Conduct (“the Code”) that all registered medical professionals are required to follow.
Consent must be given for any procedure or treatment involving physical contact. Section 2.7 of the Code states that consent must be given voluntarily, the doctor must have provided a proper explanation of the treatment and the patient must have properly understood the treatment. If a cancer patient has undergone treatment that they have not consented to, they may be able to make a complaint. It is worth noting that consent may be express or implied and a complaint to the MCHK will not amount to any monetary compensation.
When considering whether consent has been given, the Montgomery test stresses that there should be clear communication between the patient and the medical professional when consenting to the treatment and puts more emphasis on including patients as decision makers.
Section 2 and 3 of the Medical (Therapy, Education and Research) Ordinance, Cap 278 outlines specific situations where a specified form of consent is needed. A lack of consent may amount to trespass of the person or battery and monetary compensation could be rewarded.
This month Hugill & Ip has joined the World Cancer Day’s #IAmAndIWill campaign in support of Asian Fund for Cancer Research (AFCR). The firm will be donating part of its profits, helping to spread cancer awareness and raising funds from other corporations and individuals. Every contribution counts to fund cancer research and to save the lives of cancer patients.
Get involved in any way you can. Together we can create change.
For additional information about the campaign, please click on the following link. For donations, you can access AFCR “Ways to Give” link and set up gifts as one-off, monthly, in memoriam or in honor.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.