Timelines are very important but how reliable are they? Of course, it depends on the source(s) of the data on which they are based.
In this case we had the statements of the witnesses that were taken within days of the incident. However, because of the rather strange way in which the law deals with ‘evidence’, such statements can only become ‘evidence’ when they are confirmed in court. This may be several years after the event that is the focus of attention.
In this case the difference between near contemporaneous recall and the actual situation has been highlighted by the CCTV evidence. The timeline serves two purposes: of course, the primary function is to record the time events occurred but equally important is to record the sequence of events even if the precise timing is not available.
In the recorded witness statements, all four assistants at the procedure said it was over around 3pm and it was half an hour later, and at 3.30pm that Dr Kwan “shouted” for an ambulance to be called. The precise times, according to the CCTV, are reported in the Judge’s summary. Even in this preliminary review it is worth taking a careful look at the Judge’s commentary. Remember, this is the Judge’s justification for incarcerating a young doctor for six years, so she should be very careful about what she writes:
“24. At about 14:40 hours once the defendant sutured Lee the liposuction procedure was completed. Approximately four minutes later at 14:44 hours the defendant left the operation room having no intention to return. The defendant told her assistants to pass a key to Lee, she was engaged and had something to do and to tell Lee to call her [for] anything. At that time Lee was still sedated and unconscious.
- Lee was then left solely in the care of the four medically-untrained assistants whilst she was unconscious. Lee was detached from the Mindray machine and left prone on the operation table.
- At about 15:19 hours one of the assistants noticed that Lee was not snoring, was unresponsive to patting, did not answer her name and did not move. At 15:20 hours one of the assistants realised the gravity of the situation when she said, “oh really such big trouble.” One noted that Lee looked pale. As a result of the situation an assistant made a phone call to the defendant. At 15:33 hours one of the assistants said, “her tongue is blocking that thing” and went to retrieve an airway.
- At 15:34 hours the defendant returned to the operation room. At about 15:36 hours an emergency 999 call was made. At about 15:39 hours the defendant called another doctor on her mobile phone and asked if the doctor knew of a doctor around Tsim Sha Tsui to come to help her. She said, “I am really very scared this time.”
- The ambulance men arrived at the Centre at 15:38 hours. They moved Lee from the operating table to the floor of the operation room onto her back (surpine) (sic). They assessed Lee had no pulse but conducted cardiac compressions inserted an airway and gave her oxygen. The defibrillator indicated a non-shockable heart rhythm[..]”
Compare this with the report from Dr Mainland regarding this time period:
“30. The procedure commenced with sedation at 11:35 hours. After the procedure was finished Dr KWAN left the operating room at 14:44 hours. At approximately 15:30 hours Ms. SO assessed Ms. LEE who was still lying prone on the operating table. She made a telephone call at 15:21:15 to 15:24:08 to Dr Kwan who said she would return. Dr KWAN returned to the room at 15:34:00 hours and assessed Ms LEE.
- At 15:36 hours, after the procedure was completed and when Ms. LEE was identified as having poor breathing effort, nasal prongs attached to respiratory tubing were applied to Ms. LEE, via which oxygen can be administered.
- Four ambulance officers moved Ms. LEE from lying prone on the operating table to supine position (lying face up) on the floor after their arrival at 16:00h. The ambulance officers assessed Ms. LEE as having no pulse and no respirations. They commenced cardiopulmonary resuscitation for two minutes, after which the electrocardiograph (ECG - 'heart monitor') of their defibrillator indicated a non-shockable rhythm. The ambulance officers continued resuscitation as Ms. LEE was moved onto a stretcher and transferred by ambulance to Queen Elizabeth Hospital.
It is always easy to criticise others, but it is good to be aware that even Judges make mistakes in their formal judgements. As for expert witnesses, the longer the report and the more changes that are made, the less reliable it appears to be.
What is difficult to determine is the actual sequence of events after the procedure was completed: Both Mainland and the Judge agree the defendant left the operating room at 14:44. But what was it that led to her return?
The Judge reports: “26. At about 15:19 hours one of the assistants noticed that Lee was not snoring, was unresponsive to patting, did not answer her name and did not move.”
One witness statement included the following observation, “I patted her twice and she only snored and did not respond. She seemed to be sleeping”. Another observed, “It was around 3:30pm. [...] I found the female customer snored less, I checked the respirator that was connected to her. Finding that her respiration was becoming weak I immediately informed Dr Kwan. Dr Kwan immediately came over to the operation room to check the female customer.”
In Para 30 of Mainland’s report, she goes from the simple timing of the reports to the detailed time stamp of the CCTV. There is an obvious transcription error: “At approximately 15:30 hours Ms. SO assessed Ms. LEE”, and then she goes to the CCTV recording and states, “She made a telephone call at 15:21:15 to 15:24:08 to Dr Kwan who said she would return. Dr KWAN returned to the room at 15:34:00 hours”.
The Judge observed: “27. At 15:34 hours the defendant returned to the operation room. At about 15:36 hours an emergency 999 call was made.”
According to the Judge: “28. The ambulance men arrived at the Centre at 15:38 hours.”
According to Mainland: “35. Four ambulance officers moved Ms. LEE from lying prone on the operating table to supine position (lying face up) on the floor after their arrival at 16:00h.
Indeed, in one report she submitted, Para 188.8.131.52, she details the timing of arrival: “ambulance officers arrived at 16:00:55.”
There is no doubt that preparing these reports is tiring and requires concentration and so mistakes will occur. Judges and Experts are still human! The essential point being that the operation was over by 14:40. Nothing untoward was noticed for over half an hour. The patient “appeared to be sleeping”, was snoring, not rousable to patting and was noted to be pale. However, when it was observed that the snoring was less pronounced Dr Kwan was called. This call was timed as “15:21:15 to 15:24:08”. That is to say, 40 minutes after the end of the operation.
What is also not in dispute is that Dr Kwan very quickly assessed that the situation was an emergency and called the emergency services within two minutes of returning to the operating room. This is a very stark contrast from the considerable delay in a previous case that the prosecution was obviously determined to hide from the Jury (see CCDI 447/10). Of note, CCDI 447/10 was referred to the DOJ by the Coroner for a criminal investigation, but it was decided that there was no criminal case to answer.
It should also be noted that in the indictment it was claimed that the breach of duty of care included:
“(e) Failing to provide adequate timely resuscitation to (the patient)”.
Context is key and the Jury was deliberately prevented from being able to consider the context of this claim. If they had been allowed to do so, they would have appreciated that like the other charges, this was without foundation in fact.