DR. LEUNG SHU PIU v. THE MEDICAL COUNCIL OF HONG KONG

CACV 374/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 374 OF 2008

(ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL

OF HONG KONG MADE ON 23RD NOVEMBER 2008)

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BETWEEN

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JUDGMENT

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Hon Tang Ag CJHC:

Introduction

1.  Dr Leung, the Appellant, is a paediatrician registered on both the General and Specialist Registers of practicing doctors in Hong Kong.

2.  The patient, a boy, was born in August 2000.  In the two years between May 2004 and May 2006, there were 47 consultations with the Appellant.  In 26 consultations, Celestamine was prescribed.  In relation to the consultations, according to the Medical Council the diagnoses recorded on the Appellant’s hand-written medical record were:

“9. (a) ‘upper respiratory tract infection’ in 17 consultations;

(b) ‘upper respiratory tract infection with sputum’ in 2 consultations;

(c) ‘upper respiratory tract infection, acute bronchitis with expiratory rhonchi’ in 4 consultations;

(d) ‘cough, decreased running nose, stuffy nose, fever, good appetite’ in 1 consultation;

(e) ‘running nose, cough increased, sputum decreased’ in 1 consultation; and

(f) ‘cough, running nose’ in 1 consultation.”

The charges of misconduct

3.  As a result of a complaint by the father of the patient, Dr Leung was charged with the following:

“That he, being a registered medical practitioner, disregarded his professional responsibility to his patient A, a minor, in that:-

(a) in the period between May 2004 and May 2006,

(i) without proper justifications, he prescribed to the patient Celestamine which contained steroid for treating the patient's upper respiratory tract infection on about 26 occasions;

(ii) he prescribed to the patient Celestamine which contained steroid without advising the patient's parent about the nature and side effects of Celestamine;

(b) on or about 24 May 2006, upon enquiry of the patient's father on whether Celestamine contained steroid, he did not reply him in the positive and instead, he told him that Celestamine was not regarded as a steroid.

In relation to the facts alleged, he has been guilty of misconduct in a professional respect.”

(a)(i)

4.  It is not disputed that Celestamine contained steroid or that Dr Leung had not advised the parents about the nature or side effects of Celestamine.  In relation to (a)(i), the issue is whether there was proper justification for the prescription of Celestamine, in other words whether the wrong medicine had been prescribed in the light of the diagnosis made.  It was Dr Leung’s case that he prescribed Celestamine for the patient because he was suffering from Pre-school Viral Wheeze (“PVW”). 

5.  The Council had the benefit of expert evidence, for the Secretary of the Medical Council, Dr Daniel Kwok-keung Ng; and for Dr Leung, Dr Alfred Yat-cheung Tam. 

6.  There was broad agreement that Celestamine would have been justified if the patient had PVW but not upper respiratory tract infection (“URTI”).  The dosage of Celestamine given to the patient was 5 milliliters (“ml”), three times a day, amounting to a daily dose of 6 milligram (“mg”) of Dexchlorpheniramine and 0.75 mg of Betamethasone.  Both experts agreed that on such dosage, assuming the patient took all the doses given, he would have taken 58.5 mg of Betamethasone in total, or roughly 1.46 mg/kg/year on the assumption that his body weight was between 18 and 20 kg.  The experts were agreed and it has not been contended to the contrary that the Celestamine in the dosage and for the duration prescribed has no serious side effect. 

7.  On diagnosis, according to Dr Ng:

“The most important part of pre-school wheeze is the existence of wheeze.” See Dr Ng’s evidence at page 174.

8.  It was also his evidence that if the patient suffered from wheezing, that would not have been missed on a proper examination.  See his evidence at page 203.

9.  Such evidence was not disputed on behalf of Dr Leung.  Mr Macrae, SC (as he then was) who acted for Dr Leung, made it clear in his examination of Dr Tam (at page 195) as well as in his final submission, that wheezing (or expiratory rhonchi), was an essential characteristic (as one might expect) of pre-school viral wheeze.  In his written final submission at para.12, Mr Macrae submitted:

“Simply because (Dr. Leung) did not record ‘wheezing’ every time in his clinical notes does not mean that he did not diagnose recurrent PVW (as it is now better known) in this patient.”

10.  However, as Dr Tam agreed in answer to questions posed by the Chairman, PVW “is episodic” and “not continuous”, such that:

“… the child may have one episode, the child is OK, and the child may have other problems, not necessarily (PVW).”. See Transcript of 17 February 2008 at pages 232-233.

11.  It followed that even on the basis of Dr Tam’s report that:

“9. … there is a good chance that this patient suffered from some airway allergy, may be even asthma.

10. If indeed the patient had some airway allergy, steroid treatment would of course be justified.”,

it does not follow that a prescription of Celestamine would have been justified on each occasion that it was prescribed.

12.  According to Dr Leung, he used the abbreviation “AB”, short for “acute bronchitis”, loosely for bronchial allergy.  It is clear from para. 10 of the findings that the Medical Council was prepared to proceed on the basis that whenever the Appellant had recorded AB, with or without expiratory rhonchi, in his notes, his diagnosis was that the patient was (or might have been) suffering from PVW.  For that reason they were of the view that Celestamine might be justified for the consultations on 28 June 2005, 30 June 2005, 18 May 2006 and 22 May 2006.  On the 22 occasions on which the Appellant was convicted of prescribing Celestamine without proper cause, Dr Leung’s notes did not record any “AB” with or without “expiratory rhonchi”. 

13.  This is what the Council said:

“10. The Defendant said that he prescribed Celestamine for the patient in question because he was suffering from Pre-school Viral Wheeze (‘PVW’). However, contrary to his claim there was no record of PVW or bronchial allergy in the medical record. He explained that he had been seeing the patient for such a long time and remembered the patient's history, therefore he would not make a full record of the diagnoses. That explanation is contrary to the medical record in which he repeatedly recorded ‘URI’, and added in additional diagnoses of ‘acute bronchitis’ and ‘expiratory rhonchi’ where appropriate. We see no reason that he would have consistently chosen to singularly omit the most significant diagnosis of PVW but not those less significant diagnoses throughout the large number of consultations. We reject that explanation. We are satisfied that the diagnoses made by the Defendant at the time of prescription were those recorded in the medical record. We shall decide whether the prescription of Celestamine was justified on that basis.

11. It is common ground that Celestamine is not justified if a patient had only upper respiratory tract infection, but is justified if a patient had PVW. We are satisfied that the prescription of Celestamine might be justified in 4 consultations, namely, 28 June 2005, 30 June 2005, 18 May 2006, and 22 May 2006. However, the prescription was not justified in 22 consultations, namely, 21 May, 11 September, 14 September, 28 October, 1 November and 12 November in 2004; 26 February, 25 April, 28 April, 25 June, 7 July, 11 August, 12 September, 15 September, 28 October, 31 October and 12 December in 2005; 20 February, 5 March, 8 March, 11 April and 15 May in 2006.”

14.  Just what the Appellant had diagnosed at each of the material consultation, was a matter of fact for the council to find.  I can see no basis upon which I can interfere with the finding.  So I have no doubt that the appeal in respect of charge (a)(i) must be dismissed.

(a)(ii)

15.  I turn to charge (a)(ii) which concerned a failure on the part of the Appellant to inform the patient’s parents “about the nature and side effects of Celestamine”.  

16.  On the question whether Dr Leung should have told the parents although the dose of steroid was small, Dr Tam said:

“12. Although I would always explain to my patients and parents about the effects and possible side effects of steroid if I ever prescribe it, I also understand that there may be a spectrum of practice, ranging from what I do, to some who never inform patients unless they ask. Where one stands along the spectrum is perhaps an individual matter. The doctor will have to make a judgment according to the dosage given, the possibility of side effects, and the possible acceptance of the parents.

……

16. Nevertheless, I would still opine that Dr. LEUNG should preferably have given parents some information on steroid. This should be done regardless of the dosage given. However, I would suggest that Dr. LEUNG has not fallen short of a general professional standard as long as he has taken careful consideration of the factors as mentioned above and exercised his judgment for the benefit of the patient. I do not think that we should establish any ‘black and white’ rule for these circumstances which would take away any discretion and judgment that a doctor could exercise. Each case must be considered on a case by case basis.”

17.  Later, Dr Tam made the point that:

“19. If the parents ever asked, it is important that the doctor tell them completely about the steroid prescribed and its effects and side effects.”

18.  Mr Huggins, SC, who appeared for Dr Leung in the appeal, submitted that as Dr Tam pointed out, the Appellant’s failure, or decision not to inform the parents, fell within a spectrum of practice.

19.  Dr Tam was questioned about this aspect of his evidence by Professor Grace Tang.  I will set out the exchange between Dr Tam and Professor Grace Tang in full:

“PROF. GRACE TANG:		Now, your report, page 86, ‘Should Dr Leung not tell the parents as the dose of steroid was small?’ At paragraph 12, you said that there may be a spectrum of practice. That means you see that as a possibility, that there are really paediatricians, your colleagues, who will not tell the parents of their patients about the use of steroids?
DR ALFRED TAM (witness):		I must confess I have never actually conducted a study.
PROF. GRACE TANG:		It is just guesswork?
DR ALFRED TAM (witness):		No. I think in our daily conversations among doctors I do come up with doctors who do not always tell patients about this.
PROF. GRACE TANG:		During your conversations, under what circumstances would they not tell the parents?
DR ALFRED TAM (witness):		Of course, this is not going to be very detailed.
PROF. GRACE TANG:		The major reason?
DR ALFRED TAM (witness):		Usually because parents may resist or usually because parents may be worried.
DR ALFRED TAM (witness):		Usually because parents may resist or usually because parents may be worried.
PROF. GRACE TANG:		Can the paediatricians not convince the parents about the need?
DR ALFRED TAM (witness):		It depends on a lot of factors, whether you have enough time, whether you have the patience, and whether the patient or the parent is easy to talk with, and so on.
PROF. GRACE TANG:		I am not a paediatrician, so I will defer to your expertise, but I still think that one should not keep information from –
DR ALFRED TAM (witness):		I agree with you, I agree with you in general.”

20.  I have to say that this is a very slender basis for the so-called spectrum of practice.  I do not wish to give the impression that I accept as sufficient justification for not telling a parent or a patient that steroid is being prescribed that the doctor does not have the time or the patience to do so.  Furthermore, given Dr Tam’s evidence about the difficulty in diagnosing the cause of the wheeze (depending on which steroid might be appropriate or not) one would have thought that a parent would be acting entirely reasonably if he/she wishes to have a second opinion before embarking on a steroid based treatment.  So withholding such information because of a parent’s or the parents’ resistance or worry does not appear to me to be an acceptable reason.

21.  Mr Huggins relied on the Bolam test.  In Sidaway v Board of Governors of the Bethlem Royal Hospital & the Maudsley Hospital [1985] AC 871 at 881F.  Lord Scarman describe the Bolam test as follows:

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.

The Bolam principle has been accepted by your Lordship’s House as applicable to diagnosis and treatment …”

22.  The judgment of the majority in Sidaway (Lord Scarman dissenting) can be gathered from the headnotes at page 872:

“… the question whether an omission to warn a patient of inherent risks of proposed treatment constituted a breach of a doctor's care towards his patient was to be determined by an application of the Bolam test; save that although the degree of disclosure required for a particular patient was an issue to be judged primarily on the basis of medical evidence, there might be circumstances where the proposed treatment involved a substantial risk of grave consequences in which a judge could conclude that, notwithstanding any practice to the contrary accepted as proper by a responsible body of medical opinion, a patient's right to decide whether to consent to the treatment was so obvious that no prudent medical man could fail to warn of the risk save in emergency or some other sound clinical reason for non-disclosure.”

23.  Mr Huggins rightly submitted that here, the medical evidence was that no serious adverse side effect could be expected from Celestamine in the dosage and duration prescribed.  It follows, he submitted that Dr Leung could not be blamed for not informing the parent of any side-effect, because none was expected.  However, as Mr John Bleach, SC, for the Medical Council, pointed out, Dr Leung had failed to inform the parent of the nature of Celestamine, namely, that it contained steroid.

24.  This is the finding of the Medical Council:

“14. For a medicine which has known potential side effects, patients should be advised of its nature so that they can make an informed choice as to whether to accept the medicine. Steroid is such a medicine, as it has been shown to have some significant side effects. There is general concern about the use of steroid, and patients should be given the proper advice before it is prescribed. This is so even if the dosage prescribed does not have any side effect. It must be borne in mind that patients are not medically trained and so are unlikely to understand technical medical terms. While it is neither necessary nor helpful to advise patients of the chemical composition of the medicine, patients should be informed in laymen terms what the medicines are.

15. We bear in mind that Celestamine in the dosage prescribed has no significant side effects. However, there was a danger that the patient might see other doctors and if the other doctors also prescribed steroid this might result in a dosage which would increase the risk of side effects. In the present case, the Defendant must have been well aware of the parents' concern about the use of particular medicines with side effects. In the circumstances, it was particularly obvious to the Defendant that the parents should be informed of any medicine with significant side effects before prescribing it. By failing to do so for 26 occasions when Celestamine was prescribed, the Defendant's conduct had fallen short of the standard expected. We are satisfied that this is professional misconduct. We find him guilty of charge (a)(ii)”

25.  With respect, this is a finding which the Medical Council was entitled to make, and I can see no reason to disagree.

(b)

26.  The third charge was that when asked by the father on 24 May 2006 whether Celestamine contained steroid, he did not reply in the affirmative. Instead, he told him the Celestamine was not regarded as a steroid.  This is what the Tribunal said:

“18. Having considered the entirety of the evidence, we are satisfied that the Defendant answered the question by saying that Celestamine was not regarded as steroid. We do not accept that the Defendant misunderstood such a simple question. Furthermore, the Defendant's subsequent advice in the same conversation about Prednisolone being a steroid was clearly prompted by the question. We are satisfied that the evasive answer was intended to conceal the fact that he had been prescribing a steroid for many times without informing the patient’s parents. It is unethical for a doctor to give such an evasive and misleading answer to a patient's parent who has shown concern for the medicine in question, and the Defendant's conduct has certainly fallen below the standard expected. We are satisfied that this is professional misconduct. We find him guilty of charge (b).”

27.  Mr Huggins rightly accepted that the Medical Council was entitled to find that Dr Leung had been evasive.  He submitted however, that the Medical Council erred in finding that the deliberate evasion by Dr Leung of the question amounted to professional misconduct:

“without differentiating between an improper motive for the evasion (namely self protection) and another perfectly proper motive, namely, a possible and understandable wish not to cause anxiety or worry to the parents in relation to the small steroid content of the drug (which Dr Leung believed would be beneficial to the child and not at all harmful in the dosage prescribed).”

28.  I have carefully considered the references to the transcripts relied on by Mr Huggins.  With respect, I do not believe Dr Leung ever said that on 24 May 2006 that he was evasive because he did not want to cause anxiety or worry to the parent.

29.  Nor do I think it has been shown that the Council had misunderstood the burden or standard of the proof.  So there is also no basis to disturb the Medical Council’s decision in relation to (b).

Sentence

30.  In respect of charge (a)(i), the Appellant’s name was ordered to be removed from the General Register for a period of two months; in respect of charge (a)(ii), his name was ordered to be removed from the General Register for one month; in respect of charge (b), his name to be removed from the General Register for a period of one month; and all the orders to be served concurrently.

31.  In para. 25 of its decision, the Medical Council mentioned that the court has criticized its sentence in respect of the case of Dr Lam Kui Chun as being too lenient, therefore the sentence in that case would not be regarded by them as a benchmark against which other cases should be compared.

32.  Given the seriousness of the charges, I can see no basis upon which to interfere with the decision of the Medical Council. 

Conclusion

33.  I would dismiss the appeal against the findings of professional misconduct as well as the appeal against sentence.  I would also make an order nisi that the Respondent is to have the costs of the appeal to be taxed unless agreed.

Hon Yeung JA:

34.  I agree.

Hon Yuen JA:

35.  I agree with the judgment of Tang Ag CJHC.