It is a little over six months ago that I began these blogs and now I am beginning the stage of summing up. I have just been looking at some of the blogs and I think a direct quote will be the easiest way of pointing at the fundamental baseness of the prosecution, the medical experts who lie, but also of the process. The Law wants a win or loss. That is the way it “works”. But it is rarely the way complex medico-legal cases can be resolved. Experience shows time and again that we often never really know what happened in terms of clinical response and the best way of determining the most likely sequence of events is by investigating and not advocating. This supports a fundamental change in how to resolve the claims of gross negligence manslaughter in healthcare.
The blogs started following a hearing about the conviction of Dr Mak in the DC-CIK tragedy. This was a tragedy on several levels, but the conviction of Dr Mak revealed the illogical nature of the law, the crucial role of honesty in expert witnesses, and also how legal guidelines are fostered in a closet and have limited relevance to real life. The Judiciary is urged to consider the “balance of probabilities”, to “focus on the law”, to weigh up the “preponderance of the evidence”. It is all so subjective and the reason why the law is not fair or constant and why money buys “justice”.
The Medical Profession does not help itself and concepts such as “informed consent” are often not “informed”. It is a maxim of law that an alleged crime should be viewed in the context of the prevailing laws. Looking at the trials of Dr Mak and Dr Vanessa Kwan it is obvious that this did not happen and that raises some very tough issues regarding ethics and professionalism. In Part 5, I state:
“Two young doctors in Hong Kong are in prison. This is despite the statement of intent in the Basic Law: “The principle of trial by jury previously practiced in Hong Kong shall be maintained. Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs. (BL Articles 86-87)” (https://www.basiclaw.gov.hk/en/basiclaw/facts.html)
Both doctors were convicted many years after the supposed criminal events. A fair trial assumes ethical probity in the prosecution. Without that the “rule of law” becomes a farcical notion. The case against Dr Vanessa Kwan is a catalogue of disasters ending up with a Judge being fooled into allowing a Medical Expert for the prosecution to lie under oath whilst another Medical Expert was so prejudicial and biased that they lost sight of the science behind hypoxia. “
In Part 6, I state a fact: There is no officially recognized speciality of Cosmetic Surgery in Hong Kong, and at the particular time there was no official training in cosmetic surgery in Hong Kong. This is the factual background to the Perjury committed by Dr Jimmy Chan. Perjury that was aided and abetted by the Department of Justice, the Prosecution counsel Juliana Chow and by the High Court Judge, S. D’ Almada Remedios. The false testimony was so prejudicial that the Jury was irrevocably tainted.
I raised the issue of training in South Korea and how that would influence propofol use and return once again to informed consent: this must be regarded as a process not a procedure.
I gave Part 11 a subtitle of “Misinformed Assent”, to quote again:
“What I have outlined thus far is the way in which the prosecution knowingly and wilfully misinformed the Judge regarding the training, or lack of it, of cosmetic surgery in Hong Kong. The Judge did not act on the basis of an uncontested claim. Published, verified evidence was presented to the Judge affirming that there was no such training at the material time and that the prosecution claim to the contrary was false. The Judge made a decision, a highly subjective decision, and she gave her assent to the prosecution lie. This is a toxic combination of an unethical medical expert and a gullible judiciary.
We then come to the second prosecution medical expert, an anaesthetist from Australia. A major problem was her practice of stating opinion as fact. This indeed resulted in indictments that were completely without merit. False, baseless accusations of clinical negligence. Guidelines. They are not a legal requirement. They are not compulsory and yet this anaesthetist misinformed the Judge and the Jury as to the relevance of the guidelines to clinical practice. The expert claimed that if the guidelines were not followed this was evidence of negligent behaviour and failure of duty of care. This is fundamentally false and yet it is there in para 6 of the sentencing report: “The defendants breach of duty of care as framed in the indictment ………… 6(ii)(c) failing to follow the paragraphs 3.3.1 to 3.3.3, 3.3.7, 3.4, 4, 5.1 to 5.3, 220.127.116.11 to 18.104.22.168, 7.3, 7.5, 10 and 11.2 of the “Guidelines of Procedural Sedation” of the Hong Kong Academy of Medicine endorsed by the Hong Kong Academy of Medicine Council on 22 December 2009 …”
It does not matter who endorsed these guidelines. They carry zero legal weight and the quoted guidelines do not give evidence-based criteria on which to judge clinical practice. Dr Mainland was perversely unethical when she misinformed the Judge about the guidelines.”
I concluded that blog with the statement:
“Final word. The current, adversarial system, for dealing with unexpected deaths in medical practice is not the way to reduce risk in the complex, interconnected, world of medical interventions. Doctors are made, not born. Flawed systems create flawed doctors. Modify the systems to reduce risk and be very cautious of passing the buck and blaming individual doctors.”
In Part 12, I talk about risk and look at how the Judge was held hostage by two very dishonest and unethical prosecution medical experts. Again, let me quote:
“But Jimmy?! What on earth prompted him to stand up in open court and lie? (https://www.thepmfajournal.com/blog/post/gross-negligence-manslaughter-in-healthcare-the-medico-legal-dilemma-part-6-cosmetic-surgery-in-hong-kong). This is going to be interesting because it may be a test case of a doctor suing the experts who mislead the court, spread lies and misinformation and created a monster out of a Judge.“
It will not happen, but it should. An “expert” who perverts the course of Justice by lying in court should be held accountable. To conclude this first part of the summing up let me quote again, this time from Part 13. The subtitle was “Records of Necessary Information”. I have taken this term from the Judges Reasons for Sentencing:
“Reasons for Sentencing Para 59. “The prosecution experts, Dr Mainland, the anaesthesiologist, and Dr Chan Yu-wai, a specialist surgeon in plastic and reconstructive surgery expressed the view that the breach of duty in this case constituted a very serious departure from normal professional standards
(ii) Lack of documentation and/or lack of records of necessary information. There was no record of a peri-operative interview with Lee regarding the nature of the surgery, the potential risk associated with the procedure.”
I used one extract as the title of this blog: “Records of Necessary Information”?! What gobbledygook is this? The Judge has been led astray by a foolish and immature young specialist and a hired gun for hire. Please list the “records of necessary information”. Read the consent form. What information does that contain? And make an inference. This is where we are moving into contentious territory, but consider one of the most intimate of human interactions, sex. What is the consent process? Verbal and corroborated. But when a person dies? Does the Law actually believe that there are doctors out there who wake up in the morning and say, this is the day, this is the day when a patient is going to die. But then, let’s face it, there are doctors out there, who wake up in the morning and know they are going into a court and say that this is the day that they are going to lie.
The moral chasm between these two types of medical professionals is so vast, is so huge it can never be reconciled. And so, who is the MCHK going to censure? The MCHK will really be put on the spot in terms of its ethical standing. This is why I shall be contacting all stake holders. Unethical medical experts can never, should never, be tolerated. We have perjury and obstruction of justice and if the MCHK looks the other way we know it is irredeemable.”