Compensation proves elusive for long-suffering patients
Mary Ann Benitez
Once the dust settled on the Sars crisis, another battle unfolded as victims and their families considered legal options over the loss and suffering endured during the epidemic.
But legal sources say that five years on, many Sars patients still suffering the long-term effects of their treatment have been unable to sue the Hospital Authority for compensation.
How the Sars patients fared in early litigation actions was closely watched as a possible litmus test for personal injury compensation in the city.
Of 32 claims handled by the Society for Community Organisation, 18 settled out of court. All of them are Hospital Authority staffers who became infected while working in public hospitals and filed their claims under employment compensation laws. A patients' rights advocate for the Society for Community Organisation, Tim Pang Hung-cheong, said the settlements were thought to range from HK$100,000 to a few million dollars.
Five of six patients who sued the Hospital Authority for medical negligence withdrew after they failed to obtain legal aid, he said. One litigation case against the private Baptist Hospital is still to be heard.
One of those who gave up the legal battle, Ah Chung, a taxi driver, is still unemployed after developing avascular necrosis, the degenerative bone disease that many developed as a result of receiving huge doses of steroids to treat the virus. In his case he was misdiagnosed with Sars in April 2003.
In late 2004, Ah Chung sought help from the Legal Aid Department so that he could launch a personal injury claim against the Hospital Authority. His application was rejected after he failed the assets test. After some time, he again sought help from the department. This time he qualified.
But Ah Chung said he was told the lawsuit could proceed only if he was able to secure a medical certificate 'stating negligence'.
'It is unfair as the other party is the Hospital Authority, and more importantly, I was not a Sars patient. They misdiagnosed me,' he said.
Amy, a health-care assistant at Princess Margaret Hospital, was infected while working there in April 2003. After being discharged, she was diagnosed with avascular necrosis and post-traumatic stress disorder. She sued for employment compensation and settled out of court last year for an undisclosed amount.
Lawyers familiar with medical injury claims said the settlements had been as high as HK$30 million.
A total of 1,456 Sars patients recovered from the disease, while 299 died in the Hong Kong outbreak. Of those who survived, 233 patients need long-term medical assistance, according to the Sars trust fund.
Thirty-four people treated with steroids have received more than HK$500,000 each in medical assistance. But Mr Pang said this was not enough. 'They should be helped because they cannot regain their working ability and their chance of recovery is very low. As a compassionate government and society, we should support them financially.'
Asked how many claims had been settled and the sums paid, a spokesman for the Hospital Authority said: 'For confidentiality reasons, we are unable to provide to you the information as requested.'
Last month, Mr Justice John Saunders in the Court of First Instance said that of the 39 cases he had been managing, many were settled out of court. Brian Littlewood, a lawyer who is not involved in any Sars cases, said: 'You have to first prove there was injury and someone has caused the injury and that is the hard part.' If doctors had done everything 'that was humanely possible', they could not be held liable for negligence. 'But if they do not follow accepted procedures, then they could be liable,' he said.
Medical sector legislator Kwok Ka-ki, said he believed there was negligence on the part of government. 'Many of the top officials apologised and said openly that they should be held partly responsible for the outbreak. It is now up to the court to decide, but in my opinion they should be given fair compensation. They lost their health and their ability to earn,' he said.
Former legislator Lo Wing-lok, who co-chaired a Legislative Council inquiry on Sars, believed most of the cases were being settled out of court 'because the Hospital Authority do not want to set any precedent which could lead to people making similar claims'.
'It could be bad for the community as a whole because we cannot let the whole truth be heard in court,' said Dr Lo, chairman of People's Health Action. 'Then again if you wish to tell the whole truth you have to have a lot of money. Little people do not have a lot of money to sue the almighty government,' he said.