Medical Liability in Hospital, whose responsibility

International Seminar for Health Law

Military Law College, Indonesia
“Some Food for Thought about Medical
Negligence”
21 April 2024
Professor Albert LEE MB BS (Lond) LLB (Hons-Lond) MPH (CUHK) LLMArbDR (Distinct-CityUHK) MD (CUHK) FRCP (Lond & Irel) FHKAM (FamMed) HonFFPH FACLM (Aus)
FCLM (US) FCIArb (UK) FCArb (UK) GDLP (Aus.Coll.Law) Accredited Mediator (CEDR-UK)

Emeritus Professor of Public Health and Primary Care and Consultant in Family Medicine, Chinese
University of Hong Kong
Senior Research Fellow of Centre for Medical Ethics and Law, University of Hong Kong
Medico-legal Consultant
Governor of Board of World Medical Association for Medical Law (WAML)
Member of Education Committee of WAML and Australasian College of Legal Medicine
Member of Editorial Executive Committee, Journal Medicine and Law
 Disclaimer
Content in this presentation is intended solely to provide general information
concerning Medical Liability for hospitals. It is not intended as legal or medical
advice. The presenter comes from common law jurisdictions and discussion
mainly focus on common doctrines of medical negligence.
Legal or medical advice should be obtained from qualified legal counsel or other
professionals to address specific facts and circumstances and to ensure compliance
with applicable laws and standards.
This content may not be reproduced or redistributed in whole or in part without the
prior written consent of the author.
The presenter is supported by the organiser for the arrangement to attend the
seminar with no further support from other organisations to prepare the presentation.
The presenter is serving as independent medico-legal consultant to various
organisations and they do NOT have any role for the presenter’s scholarly work
including this presentation.
 Outline of Discussion

Types of liability in hospital setting

Civil and Common on Tort Law

What constitute duty of care and assessing standard of care

Causation from common law perspecives

Consent with prudent patient test

Vicarious liabilities for healthcare provider

Open disclosure
Types of liability encountered by Hospital
Clinical negligence to patients
• Medical malpractice by physicians and other
healthcare professionals
• Defects of medical products
• Hospital environment causing harm to patients
Liability as employer
• Vicarious liable for employees during course of
employment “Respondent Superior” doctrine
• Occupational safety and health of staff
Liability as occupier
• Building safety for users
• Safety for visitors
 Civil Law and Common Law: Similarities and Differences
• Tort law in civil law jurisdictions largely derives from Roman law,.
• Common law jurisdictions derive their tort law from customary English
tort law.
• In civil law jurisdictions based on civil codes, both contractual and
tortious or delictual (wrong act and omission of act) liability is typically
outlined in a civil code based on Roman Law principles.
• Tort law is referred to as the law of delict in Scots and
Roman Dutch law.
• It resembles tort law in common law jurisdictions in that rules
regarding civil liability are established primarily by precedent and
theory rather than an exhaustive code.
• Scots and Roman-Dutch law are uncodified, scholarship-driven, and
judge made legal systems based on Roman law as historically applied
in Netherlands and Scotland during the Enlightenment.
• The term delict is used to refer to tortious liability operating on broad
principles of liability of wrongdoing with no exhaustive list of named
delicts and remedy will be afforded if conduct appears to be wrongful
even in the absence of precedents.
 Comparing Tort Law in Common Law and Civil Law
Elements of Negligence Elements of Delict
• Professional being sued owed the claimant a duty of care • Fact-based inquiries
• Professional breached the duty of care by failing to exercise • Causation is part-factual and part-normative
reasonable care • Wrongfulness and fault entirely normative: value-based
• The breach of duty caused loss towards the claimants and; articulating a wider societal policy perspective
• Those injuries are not too remote 1. harm sustained by the plaintiff;
2. conduct on the part of the defendant which is wrongful;
Lee A. (2022) Clinical Liability in Hong Kong: Revisiting Duty and Standard of
3. a causal connection between the conduct and the plaintiff's
Care. In: Raposo V.L., Beran R.G. (eds) Medical Liability in Asia and Australasia.
harm; and
Ius Gentium: Comparative Perspectives on Law and Justice, vol 94. Springer,
Singapore. https://doi.org/10.1007/978-981-16-4855-7_4
4. fault or blameworthiness on the part of the defendant.
Van der Walt and Midgley 2005. Principles of Delict. LexisNexis Butterworths, 2005
• Duty of care arises where there is a special relationship Elements of liability under action iniuriarum (non-
between the giver and recipient. The nature of special economic loss, i.e., pain and suffering)
relationship requires: • Harm- violation of non-economic loss
• A reliance by the plaintiff on the defendant’s special skill and • Wrongful conduct
judgment
• Intention
• Knowledge, or reasonable expectation of knowledge on the
part of the defendant, that the plaintiff was relying on the Elements of action legis Aquiliae (Economic loss,
statement; i.e., personal injury, property damage)
• It was reasonable in the circumstances for the plaintiff to rely • Harm must take the form of economic loss
on the defendant • Conduct in the form of positive act or an omission or statement
Hedley Byrne & Co Ltd v Hellers & Partners Ltd [1964] AC465 • Wrongful conduct objectively unreasonable and without lawful
• Consideration of the three requirements involved value justification
judgments and it was necessary to take a holistic view of • One must be at fault and blameworthiness in the form of intention or
foreseeability, proximity and the need to be satisfied that it negligence
would be fair, just and reasonable to impose a duty of care. • Causation must be factual and legal
 What constitute duty of care?
Negligence is defined as a breach of a legal duty of care owed to a claimant that that results in harm to the claimant, undesired by the
defendant.

• Existing duty or novel duty?

English Tort Law- no universal duty of care, i.e., doctors do not owe duty of care to everyone in the society
Caparo Industries plc v Dickinson [1990]
three-stage test
- Proximity
- Reasonable foreseeability
- Fair, just and reasonable
It will not always be necessary to apply the Caparo test to determine the issue of duty of care because:
o There are many established duty situations- doctor and patients, hospitals and patients
o What is meant by a ‘novel duty’ situation?
• Duty situations which begin as ‘novel’ (there are no decided cases to establish duty or show definitely NO) cease to be so once the court
has decided the issue. There is a broad class of situations where it is
• It is possible to start from the assumption that a duty of care will exist (i.e., that the Caparo test will be satisfied and is unlikely to be in
dispute).
• At the time when these cases were decided they were novel duty situations. The court needed to apply the relevant test(s) from
 Negligence is the omission to do something which a reasonable
man guide upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which is
reasonable and prudent person would not do.

Reasonable person is put in the shoes of the defendent who is

expected to have the same knowledge and understanding of risks

Standard
as the reasonable persons.

of Care
If involves defendants like doctors with special skills or
qualifications, it is to compare with reasonable person with the
relevant skill or qualification. Bolam Test

Bolam vs Friern Health Management Committee[1957]

“A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible body of
medical men skilled in that particular art.”
 Bolam vs Friern Health Management Committee [1957] 1 WLR 582

• Mr. Bolam as treatment for depression at the defendants' mental hospital, the plaintiff sustained bilateral “stove-in”
fractures of the acetabula.
• Bolam had received ECT unmodified, and without applying any form of manual restraint other than general supportive
measures.
• Experts of both plaintiff and defendant presented evidence to the different approaches but they ALL agreed that there
was a firm body of medical opinion opposed to the use of relaxant drugs by balancing the risk of deaths using the drug
against the risk of fracture.
• The plaintiff’s expert evidence admitted that he could not say a practitioner using ECT not giving relaxants falling below
the standard of care of a competent practitioner.
• He agreed that there was a school of thought using more strain, greater likelihood of fracture. So did not disagree with
approach by the attending doctor of Mr. Bolam.
• Statement of McNair J in ‘Bolam’ made it clear that doctor would not adopt a practice in contrary to substantial standard.
“….a man is not negligent, …..merely because there is a body of opinion who would take a contrary view. …. does not
mean that a medical man can …carry on with some old technique if it has been proved to be contrary to what is really
substantially the whole of informed medical opinion.”
It was held in Bolam case:
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art.”
Would inexperience affect the standard of care?

The standard of care should not be lower for

inexperienced doctors. In Wisher v Essex[1987] 1 QB
730, a junior doctor mistakenly inserted a catheter in vein
instead of an artery for oxygen monitoring.
• “That standard of care required of member of a
medical unit was that of the ordinary skilled person
exercising and professing to have the special skill, and
the standard was to be determined in the context of
particular posts in the unit rather than according to
general rank.”
• “An inexperienced who was called on to exercise a
specialist skill and made a mistake nevertheless
satisfied the necessary standard of care if he had
sought the advice and help of his senior when
necessary.”
 Proximity/Remoteness

Causation
• After the claimant has established the fact that doctor/health professional has breached his/her duty of care, one
still needs to prove the breach of duty causing the injuries.
• The standard test for causation is ‘but for’ test, but for the defendant’s negligence, would the claimant suffer
injuries? The claimant needs to prove the injury is caused by negligence of health professionals. The
defendant’s wrong in fact cause the claimant’s harm, factual causation
• One needs to demonstrate a ‘dose-response’ phenomenon.
• In ‘Wilsher v Essex’, the near blindness of preterm baby, Martin Wilsher had more than one possible cause apart
from given excess oxygen on two occasions so the claimant failed to prove excess oxygen causing the
damage/injury.
• It only applies if there is civil claim for damage. Doctors can still be found ‘guilty’ of professional
misconduct/medical malpractice even his act cannot be proven to cause the injury.
In ‘Barnett v Chelsea and Kensington HMC’
“A man turned up at casualty with stomach pain and died shortly afterward. A doctor refused to see him. It would
be clear for his negligence act. However, the man actually suffered from arsenic poisoning so there was nothing
that the doctor would do to save him. This case established ‘but for’ test. Would the outcomes be the same even if
the professional did not attend the case?
Would that doctor be fraud guilty of professional misconduct by the Medical Council?
 Legal causation
• “Remoteness of Damage- Was the kind of damage suffered by the claimant reasonably foreseeable at the time the
breach occurred?
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) (No2) [1967] PC. The defendants
carelessly transferred furnance oil from nearby wharf onto a vessel, the Wagon Mound, causing a large quantity of the oil
to spill into the harbour and pieces of hot metal got into the wharf falling onto an object supporting a piece of inflammable
material in the oil-covered water and ignited, and the wharf was destroyed and the claimant’s vessels. PC held that
although the chance of oil catching fire was very low but if risk materializes, it would lead to grave consequences so the
defendant had no justification not taken steps to prevent spillage .
Where the type of harm suffered is foreseeable (e.g., personal injury) it is not necessary to foresee the precise way in
which the harm was caused: Hughes v Lord Advocate
Egg-shell skull rule- Robinson v Post Office
Intervening acts- novus actus intervenis
• Would the negligent actions of a claimant can break the chain of causation? McKew v Holland
• Does the intervention of a third party break the chain? Knightley v Johns [1982] CA, the instruction of the inspector
broke the chain of causation between the defendant car driver’s original negligence and the claimant’s injuries.
Voluntary assuming the risk-Volenti non fit injuria
• “No wrong will be done to the willing’
• Two-part test: full knowledge of nature/ extent of the risk AND Claimant freely consented to the risk.
• White v Blackmore [1972], The Court of Appeal held that the victim did not have full knowledge of the factual risks for
the defence of volenti but defendants had taken reasonable step to inform the victim to exclude liability.
• Dann v Hamilton Hamilton has been drinking and whether claimant had voluntarily accepted the risk. Simple knowing
the risk is not enough and the claimant must accept it.
• Morris v Murray, the drunkeness of the pilot was so extreme that the claimant could be said to accept the risk.
• Consented to the risk of harm by going to the rescue? No. Haynes v Harwood [1936] 1 KB 146 Baker v Willoughby
 Proximity/Remoteness

In R V Croydon Health Authority [1997] 40 MLR 40, it is a case of failure to

alert the employee the abnormality suggesting pulmonary hypertension on
pre-employment chest X Ray which would exacerbate during pregnancy.
• She argued that if she had known the fact, she would not have become
pregnant.
• Unless the findings would affect her fitness to work as employee in
immediate future, it was found that the damage was too remote.
In Goodwill v British Pregnancy Advisory Service, it was held that a doctor
did not owe a duty of care in giving contraceptive advice to a person,
towards people the patient may be in future engaged in sexual relationship.
 Montgomery v Lanarkshire Health board, (Montgomery case)
Montgomery (Appellant v Lanarkshire Health Board
(Respondent) (Scotland) [2015] UKSC 11.
• The ‘Montgomery’ case has raised the standard of reasonable test as the focus is now on
‘reasonable patient’ rather than ‘reasonable doctor’. The law defines material risk as either a risk to
which a reasonable person in the patient’s position would be likely to attach significance or a risk
that a doctor knows or should reasonably know perceived to be significance by this particular
patient.
• Many jurisdictions have moved towards legal standards for risk disclosure prioritizing the
preferences of patients.
• In modern health care, responsible bodies of medical opinion really means judicious use of the
current best evidence in making decisions about care of patients , and also strong emphasis on
patient-centred care.
• A doctor is not guilty of negligence unless other alternative technique has proved to be more
beneficial and less harmful
• ‘Patient-centred clinical approach’ or ‘Prudent Patient Test’ focuses on identification of patients’
priorities so appropriate clinical decision would be made
• Significant/Material risks: Hidden agenda and holistic care
Bismark MM, Gogo AJ, Clark RB, Gruen RL, Gawande AA, Studdert DM: Legal disputes over duties to disclose treatment risks to patients: A review of
negligence claims and complaints in Australia. PLoS Med 2012; 9(8): e.1001m283 doi: 10.1371/journal.pmed. 1001283
Lee A. Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘Patient-Centered Care. Postgraduate Medical Journal 2017;
Nadine Montgomery was a woman with diabetes who gave birth by vaginal delivery.

Her baby was born with serious disabilities after shoulder dystocia during delivery.

The doctor did not tell Montgomery of the 9-10% risk of shoulder dystocia.

She did not routinely discuss the risk of shoulder dystocia with women with diabetes for fear that, if told, such women
would opt for a caesarean section.

The court held that McLellan should have informed Montgomery of the risk and discussed with her the option of a
caesarean section.

Montgomery case came at ‘late season’

In Roger v Whitaker [1992] 175 CLR 479 Some would argue being nonsense to warn Mrs. Whitaker remote risk of 1 in 14,000
suffering from sympathetic ophthalmia, but one particular duty arising from doctor-patient relationship is to provide information from
the needs, concerns and circumstances of the patient.
Gaudron J: “That duty (to provide information and advice) takes its precise content, in terms of the nature and detail of the
information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or
concerns which, if known to the doctor, will indicate that special or additional information is required. ….the information to be provided
will depend on the individual patient concerned. …no specific enquiry is made, the duty is to provide the information that would
reasonably be required by a person in the position of the patient.”
 Two pronged approaches
Lee A. Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘Patient-Centered Care. Postgraduate
Medical Journal 2017; 93:46–50. doi:10.1136/postgradmedj
• In modern health care, responsible bodies of medical opinion really means judicious
use of the current best evidence in making decisions about care of patients and also
strong emphasis on patient-centred care.
Strauss DC, Meirion Thomas J. What Does the Medical Profession Mean by Standard of Care. Journal of Clinical Oncology 2009; 27(32): e192),

• Would alternate clinical approach claimed by the claimant withstand logical analysis to
be of lower risks with better benefits ?
• If this part cannot stand, this gives strong weighting towards defendant’s medical
opinion.
• If this part stands, one needs to analyse the ‘prudent patient test’-, i.e., ‘patient-
centred’ care
• One should identify ‘material/significant risk’ whether patients’ ‘hidden agenda’ has
been unfolded as part of holistic care
 Employer Liability
An employer owes a non-delegable common law duty of care to their employees and therefore may be
personally liable for harm to their employees, Woodland v Essex County Council [2013] established that
a school owed a non-delegable duty of care towards its pupils, as do hospitals towards their
staff/patients

An employer may be liable vicariously for injuries caused by an employee’s tort committed in the course
of their employment.

The philosophy of employers’ liability is that the employees often have limited control over the work
condition, and employers are better informed of the potential hazards and should be encouraged to
improve the working conditions.

An employer owes the employees a personal duty to take reasonable care to ensure their health and
safety and the duty is non-delegable, Wilsons & Clyde Coas Co Ltd v English [1938] HL. The duty is not
fulfilled if the employer just entrusts its fulfilment to employees.
 Competent workforce;

Four
components Adequate material and equipment;
of Non-
delegable A safe system of work including effective
Duty supervision

A safe workplace
Vicarious Liability “Respondent Superior” doctrine
• Vicarious liability is a mechanism that one person is held liable to a claimant for
tort committed by someone else (tortfeasor).
A defendant can be held vicariously liable when:
• There is an employer and employee relationship or akin to employment
between the defendant and tortfeasor), Stage 1, e.g., between partners of
solicitors, police constable and officers.
• The tortfeasor committed the tortious act while acting in the course of
their employment (stage 2)
• The defendant would NOT be vicariously liable for torts committed by
independent contractors unless the defendant owes a non-delegable duty of
care.
• The defendant is unable to discharge the duty by carefully entrusting and
delegating responsibility to another if the carelessness of the entrusted person
causes damage notwithstanding reasonable care has been exercised to select
the delegates, Barclays Bank v Various claimants [2020] UKSC 13 , Various
Claimants v Catholic Child Welfare Society and others [2012] SC (“Christian
Brothers ”)
Factors such as to what extent the worker is ‘managed’ or ‘accountable’ to
the employer would be determining factor for control.
The key issue is that the activities of the employee activate the enterprise of
the employer and the integration of their activities to the business of
The justifications for employer to be held vicarious liable are:
- employer is likely to be in a position to compensate, the tort is committed as result of
the activity undertaken by the employee on behalf of the employer,
- part of the business activity (‘enterprise liability’ or ‘delegation of tasks’) that the
employer derives a benefit with economic interest so it is fair to place ‘corresponding
liability’ for the loses as result of tort,
- the employee has taken the risk of harm occurring for the employer so the employer
gains a benefit and should be responsible for the risk materialise by creating the risk
- the employee is under control of employer
- The law holds the employer (company) vicariously liable because the actions of
employees are treated as action of the company.
- Employer has insurance coverage
- ? Independent contractors
- Charitable organisations Charitable Immunity Doctrine Farren Purwaningrum (2022). Medical Liability in
Indonesia: Overview and Regulatory Trends. In: Raposo V.L., Beran R.G. (eds) Medical Liability in Asia and Australasia. Ius Gentium: Comparative
Perspectives on Law and Justice, vol 94. Springer, Singapore
 [2008] 1 HKC Hospital liable to patient’s relatives
contracting SARS while staying in hospital
• The plaintiff’s brother (the deceased) was admitted to the defendant, a private
hospital, suffering a medical condition, epididymitis. He was treated by a visiting
doctor (urologist), whom. the defendant allowed to practice at its facility, neither
as its employee nor agent.
• The visiting doctor later discharged the deceased and he returned home.
• It emerged that the deceased had contracted Severe Acute Respiratory
Syndrome (SARS) while in the hospital and the defendant had provided no
advice or warning in this respect. The deceased died from SARS, as did a third
member of the family.
• The plaintiff also contracted SARS, even though she did not live with the
deceased. She later recovered and brought this action in negligence against the
defendant. The defendant applied to strike out the plaintiff’s statement of claim
on the ground that no reasonable cause of action was disclosed.
The Court refused to strike out the plaintiff’s claims
• It was plainly arguable that the defendant owed a duty of care to the deceased
while under the care of the visiting doctor, in respect of all aspects of the care of
 [2008] 1 HKC
• This arguably extended to the crucial act in the present case, i.e., discharging the
deceased from the hospital, as that was not solely the act of the visiting doctor.
Evans v Liverpool Corp [1906] 1 KB 160; Cassidy v Minister of Health [1951] 2 KB
343
Claimant entered a hospital for an operation on his left hand under the care of the surgeon who
performed the operation who was a whole time assistant medical officer of the hospital, the house
surgeon and members of the nursing staff of the hospital were employed under contracts of service. It
was found that his hand had been rendered useless after operation. It was held that the doctrine of res
ipsa loquitur applied with the onus on the hospital authority to prove that there had been no
negligence on its part or on the part of anyone for whose acts of omissions it was liable, and that onus
had not been discharged. It was found that where a person himself is under a duty to use care, he
cannot get rid of his responsibility by delegating the performance of it to someone else, no matter
whether the delegation be to a servant under contract of service or to an independent contractor under
a contract for services (Lord Denning LJ),
and Roe v Minister of Health [1954] 2 QB 66 considered (paras 25, 27, 31).
The claimant was paralysed after being injected with contaminated nupercaine contained in sealed
glass ampoules and neither the anaesthetist nor any hospital staff at the time of operation knew of the
dangers of storing glass ampoules in phenol solution resulting invisible cracks.
• It was arguable that, as a matter of proximity, the above-mentioned duty of care
 Defective equipment
Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming [2011] 2 HKC 364, [2011] 2
HKLRD 223, (2011) 14 HKCFAR 14. It is a case of factory operator (appellant) engaged
independent contractor to repair a machine in factory and provided two pallet jacks and two bearing
trolleys to the contractor to transport a heavy unit to be detached and removed for repair. The unit
fell and crushed the respondent employed by the contractor crushing both his legs. The trial judge
found both contractor and factory operator liable.
• Harm in question was foreseeable. It was obvious that the operation was dangerous (para 39)
• The Worker was on the Factory Operator’s premises doing work. He was using equipment on
loan from the Factory Operator. Proximity existed between the Worker and the Factory
Operator. (Para 40)
Is it fair, just and reasonable to hold that a duty of care was owed by the Factory Operator to
the Worker?
• The Factory Operator chose to engage an independent contractor who had to borrow makeshift
equipment from it. It could have chosen instead to engage an independent contractor who had
the equipment needed to do the work in a safe manner. That would presumably have been more
costly. But safety is not a thing on which to cut costs like this. (Para 41)
• Personal safety being at stake is always significant. This is an area in which legal policy is
involved. The policy considerations in favour of personal safety are naturally very powerful. (Para
41)
The appeal was unanimously dismissed.
Occupier liability: Hospital as occupier of the premise
Occupiers’ liability deals with the risk posed and harms caused by dangerous places and building
including not only buildings but also doorways, fire escapes if reasonable care has not been
taken to ensure safety.
The scope of duty depends on the circumstances when the claimant enters to the premises, e.g.,
by virtue of contract (plumber) which owed a higher standard of care then invitees (shoppers) or
friends and guests who were merely licensee.
• In Spearman v Royal United Bath Hospital NHS Foundation [2017] QBD, Spearman was
taken to hospital with hypoglycaemic attack and suffered from severe traumatic brain injury
and multiple fractures fallen while climbed over a protective barrier. Was Spearman a visitor
or trespasser or had he gone beyond permission of his visit.
• A person’s state of mind is an important factor whether he simply makes a mistake and goes
the wrong way or true trespasser. Patient is still lawful visitor until s/he leave the hospital
premise.
• The judge concluded that the hospital had failed to ensure the premise being reasonably safe
for a vulnerable patient who was confused and mentally unstable.
• One will not be liable for work of sub-contractor if they have acted reasonably in
entrusting the work of sub-contractor and have taken reasonable steps to ensure
competency and properly done. The more technical the work, more reasonable
will be to entrust it to an independent contractor, Gwilliam. v West Hertfordshire
Hospital NHS Trust [2002], a 63 year old woman, was injured at a summer fair
hosted by West Hertfordshire Hospital.
• She was injured whilst using a ‘splat wall’ whereby participants would bounce off a
trampette against a wall and become attached to the wall by means of Velcro
material. The injury occurred as a result of negligent set up of the equipment.
 Why Open Disclosure?
• The Institute of Medicine (now known as National Academy of Medicine) in the United States in 2000 published ‘To
Err Is Human’ opened up a global discussion about medical errors, and was a major incentive in pushing forward
concepts of clinical governance (Kohn et al, 2000).
• Clinical governance is defined initially in the UK as ‘a framework under which the National Health Service (NHS)
organisations are accountable for continuously monitoring and improving the quality of their services and
safeguarding high standards of care by creating an environment in which excellence in clinical care will flourish ...),
along with quality and safety initiatives within healthcare service systems and amongst HCP Gabriel Scally and Liam
Donaldson, ‘Clinical Governance and the Drive for Quality Improvement in the New NHS in England’. BMJ 1998; 317(7150) 61.

• Healthcare professionals (HCPs) have the responsibility and accountability to maintain honest communication with
patients, families and carers even when things go wrong.
• It is an essential part of clinical management and part of a world-wide movement of clinical governance, involving
quality and safety in healthcare.
• This cannot be achieved if HCPs do not have the ‘heart’ of open disclosure.
• In well-developed healthcare service systems,, it is estimated that about 1 in 10 patients admitted to hospital
experience unintended harm / adverse events. G Ross Baker et al, ‘The Canadian Adverse Events Study: The Incidence of Adverse
Events among Hospital Patients in Canada’. CMAJ 2004; 170(11): 1678.
• Up to half of these are estimated to be preventable through system modification and changes in clinician
behaviour. 25
 Principle of Open Disclosure?
Tinsley H, Lui J and Lee A. Open Disclosure in Health Care. In James Chiu, Albert Lee, KW Tong (Eds), Healthcare Law and Ethic:
Principles & Concepts. Hong Kong: City University Press, 2023

The purpose of open disclosure is to ensure communication between patients / family /

carers and HCPs and to maintain trust, confidence and relationship between both parties.
Open disclosure to be effective must include at least the following five essential components,
whilst respecting the patient’s confidentiality:
(a)An acknowledgement that a clinical incident has occurred,
(b)Factual explanation of what has happened,
(c)Discussion of the potential consequences of the event,
(d)Explanation of the steps being taken to manage the event, and
(e)Description of the follow-up plan for both patient and incident.
Definitions vary between jurisdictions, but there are common themes and principles.
 HONG KONG APOLOGY ORDINANCE REINFORCES HK STATUS AS A DISPUTE
RESOLUTION HUB
Cheung T, Chiu JSP. ”Sorry” is No Longer the Hardest Word: The Apology Ordinance in
Hong Kong.In: James Chiu, Albert Lee, KW Tong (Eds), Healthcare Law and Ethic:
Principles & Concepts. Hong Kong: City University Press, 2023.

• Hong Kong is the first jurisdiction in Asia to enact apology legislation,

following the 21 July 2017 publishing of the Apology Ordinance in the
HKSAR Gazette after states and territories of USA, Canada,
Australia and UK.
What does the Hong Kong law entail?
• The key premise is that parties are free to make apologies without
fear that such an apology including matters related the fact will be
relied upon as an admission of liability in any subsequent legal
proceedings (Section 7).
• Insurers are prevented from withdrawing coverage as a result of the
apology (Section 10), and claimants are unable to argue that the
apology constitutes an acknowledgement of a right of action for
tolling purposes (Section 9).
• These have historically been the biggest reasons why apologies –
which have the potential to not only diffuse a situation, but in some
cases prevent claims entirely – have not been made.
Cottone and Tarvydas (1998) summarized the "Golden
Five" ethical principles as follows:
● Autonomy: To honour the right to individual decisions
● Beneficence: To do good to others
● Nonmaleficence: To do no harm to others
● Justice: To be fair, equitable
● Fidelity: To be loyal, honest, and keep promises.
Beauchamp, T. L., & Childress, J. F (1989). Principles of biomedical ethics. Oxford, Great Britain: Oxford University Press.
Cottone, R. R., & Tarvydas, V M. (1998). Ethical and professional issues in counseling. Columbus, OH: Merrill.
Code of professional ethics for rehabilitation counselors. (1987). journal of Applied Rehabilitation Counseling, 80), 25-31.
Also in line with the principles of Indonesian Medical Council Regulation (28 disciplinary violation)
Law would be local but
professional ethics is global

Hukum bersifat lokal tetapi etika

profesional bersifat global

Thank you! Terima kasih!

Albert Lee (Email: alee@cuhk.edu.hk)