The Medical Council is to fight for the removal of the Hospital Authority's power to investigate suspected doctors' misconduct after repeated calls for the authority to refer more cases to the watchdog fell on deaf ears.
In what he admits will be an uphill battle, council chairman Professor Joseph Lau Wan-yee will lobby the medical profession and the government for a central complaints committee to probe cases in both the public and private systems.
Lau says his move was prompted by concerns that many cases of gross negligence, misconduct or incompetence may have been swept under the carpet by the authority. Serious cases are expected to be referred to the council, which regulates medical professionals' conduct.
News of his proposal came as the public United Christian Hospital revealed a serious medical blunder yesterday in which a pathologist misread the health reports of 118 patients, leading to 17 receiving the wrong treatment.
In the five years to last year the authority referred just four cases to the council for further investigation, council figures show.
In 2012 and last year there were no referrals at all, although the authority reported 136 and 130 medical incidents in 2011/12 and 2012/13 respectively.
The reported incidents included surgical items left in patients, procedures performed on wrong patients or body parts, medication errors and errors resulting in permanent loss of function or even death.
"All these years there has been no improvement in this regard. There were many cases that should have been referred to us but we received none," Lau said in an exclusive interview with the South China Morning Post.
"Do you really believe that there was not even one case of gross negligence or misconduct in public hospitals in the past that warranted our investigation?"
The authority did not respond to the Post when asked about the number of requests for referrals to the council, the number of complaints about public doctors' misconduct or the number of internal disciplinary actions each year. It said only that it did not "specifically collate" the number of referrals to the council.
A spokesman added it would refer "appropriate cases" to the council after its internal investigations.
The absence of referrals in 2012 and 2013 occurred despite a 2010 letter from the council asking the authority to improve the "unsatisfactory referral" of cases.
Lau was particularly disappointed at the authority's continued inaction in a medical blunder case in which a public oncologist was found to have caused a patient's death by wrongly administering an injection in 2007.
The case was not referred by the authority and was only brought to the council's attention by an anonymous complainant three years later. The doctor was disqualified for two years in a disciplinary hearing in 2012.
In the judgment, the then-chairwoman of the council, Professor Felice Lieh-Mak, criticised the authority for referring only a "disproportionately small number of cases" to the council, saying "there is much room for improvement on this matter".
Lau claimed the best way to resolve this conflict was to set up a central committee to handle all complaints of medical misconduct. It would refer serious cases to the council.
Barrister Neville Sarony SC, who specialises in medical malpractice lawsuits, raised concerns that keeping cases of medical misconduct under wraps may allow the doctors responsible to repeat the same mistakes.
"Perhaps the problems lie in the fact the Hospital Authority is so anxious to protect its reputation in relation to the entire spectrum," he said.
"They tend to put the shutters up, and they will only refer something if they really feel they have no choice.
"The doctor concerned might go on making the same mistakes or believing what he was doing was right or excusable. If you have somebody who is liable to errors, he could make the same mistakes again. Are they safe to be left on their own, unsupervised?" Sarony asked.
Examples of medical blunders at Hong Kong hospitals
August 4, 2014: A 50-year-old man, who had high blood sugar, diabetes and heart problems, died six days after he was given at least twice the amount of the medication he should have received at Queen Elizabeth Hospital.
May 21, 2013: A woman transplant patient was given a heart that did not match her blood type at Queen Mary Hospital, with at least two senior doctors failing to identify the mismatch before the surgery. Although the woman's condition remained stable months after the operation, the wrong heart could still result in a fatal rejection.
April 14, 2013: An 84-year-old patient, who had an infection in his dislocated prosthetic hip, died in Alice Ho Miu Ling Nethersole Hospital after he was prescribed an antibiotic to which he had an adverse reaction.
A remedy to be taken with care
Professor Joseph Lau Wan-yee knows that his controversial proposal for a central complaint committee to handle all complaints of medical misconduct - involving both private and public doctors - is bound to meet strong opposition.
But the chairman of the Medical Council is confident it is a fairer and more effective way to safeguard the public interest and restore confidence in the Hospital Authority, which has been accused of being over-protective of its public doctors.
"Any system should be fair. [The Medical Council] may not agree to the standards set by [the Hospital Authority]. Our standards may differ," Lau said.
"It's unreasonable that public doctors aren't subject to the council's inquiries. A central complaints system would therefore be fairer to all parties."
Under his reform blueprint, the new central committee would screen all complaints and then refer what it considers to be serious allegations to the council to follow up. Minor cases would be recommended for mediation, while unresolved cases would be presented to the council upon the complainants' request.
"Sometimes patients just want an apology from the doctor, or a guarantee that he or she will not do the same thing to others. Mediation could offer patients alternatives to settle these minor conflicts," he said.
Lau said his proposal would first be presented to doctors' groups and the Department of Justice for their comments. He would then decide whether to submit it to the Food and Health Bureau.
His idea comes as the government is looking at introducing changes to the medical watchdog to speed up the council's complaints-handling process.
A spokesman for the bureau said it was actively considering a proposal the council submitted in June to increase the number of lay assessors to deal with the rising number of complaints.
Dr Louis Shih Tai-cho, president of the Medical Association, cautiously welcomed Lau's suggestion.
Mediation could offer the council an alternative to costly legal battles for dealing with complaints, he said. But the council should review the definition of professional misconduct and consider setting up a penalty system for minor misdemeanours, he added.
"Any misbehaviour by doctors can now be deemed as professional misconduct, and all such cases end up in costly court battles at the council.
"The result is an adversarial relationship between the doctor and the patient," Shih said.
"As more disputes arise, serious cases concerning gross misconduct are delayed at the council and public interest will ultimately be harmed."
Patients' Rights Association spokesman Tim Pang Hung-cheong said that a mediation process for complaints would be meaningful only if the doctor involved was required to attend the discussion along with the complainant.
The Medical Council receives about 500 complaints a year, but only an average of 22 cases are moved forward to disciplinary hearings.
Last year, the council heard a total of 46 cases, with the shortest hearing lasting only three days and the longest going on for nine days.
A Hospital Authority spokesman said it currently conducts its own internal investigations and refers complaints to the council only when it is deemed to be "appropriate".
Lawmaker Dr Leung Ka-lau, who represents the medical sector, said it was unrealistic to expect the authority to refer cases to the council for a disciplinary inquiry when the authority had a vested self-interest.
"The whole system under the authority may collapse if a doctor accused of professional misconduct lays the blame on the authority," he said.
Leung also said Lau's reform proposal might provoke a backlash from doctors, as they might embrace "defensive medicine" to avoid making risky but effective treatment decisions.
Emily Tsang and Cannix Yau