Dr Wong Kar Mau Bernard v. The Medical Council of Hong Kong

CACV 73/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2014

(ON APPEAL FROM THE ORDER OF THE

MEDICAL COUNCIL OF HONG KONG MADE ON 8 MARCH 2014)

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Before: Hon Cheung JA, Barma JA and McWalters JA in Court

Date of Hearing: 6 January 2015

Date of Judgment: 6 January 2015

Date of Handing Down Reasons for Judgment: 23 January 2017

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REASONS FOR JUDGMENT

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Hon Barma JA (giving the Reasons for Judgment of the Court):

1.This was an appeal by Dr Wong Kar Mau, Bernard against a decision of the Medical Council of Hong Kong dated 8 March 2014 finding the appellant guilty of misconduct in a professional respect, in that on about 25 January 2008, he disregarded his professional responsibility to his patient (who was identified only as Madam A), in that he performed dilatation and curettage on her without proper justification. The Medical Council imposed a sentence of removal of the appellant’s name from the General Register for a period of four months, but suspended that sentence for 24 months, provided that the appellant complied with certain conditions relating to continuing education and provision of records relating to one patient requiring inpatient surgical treatment per month for inspection. Although the Notice of Appeal challenged both conviction and sentence, at the hearing we were told that the appeal would be pursued only in respect of the conviction. At the end of the hearing, we dismissed the appeal with costs to the respondent, and indicated that we would hand down our reasons for doing so later. These are those reasons. The delay in handing them down is regretted.

2.The appellant is a specialist in gynaecology and obstetrics.  He was first consulted by the patient on 15 January 2008, with a history of heavy vaginal bleeding, with her last menstrual period being on 7 December 2007 lasting for about a week, and followed by continuous bleeding from 27 December 2007 until the date of the consultation.  She also complained of low abdominal pain, and pain during intercourse.  An ultrasound scan was carried out at the appellant’s clinic, which revealed a somewhat thickened endometrium, and a shadow mass or polyp.  The appellant’s note of the consultation recorded:

“2 times menses/month    HMMP SP

pain at intercourse

Yellow discharge

No pruritis

No contraception

LMP 7/12/07 x 1 wk

27/12/07 til now

[sketch of uterus showing location of a mass] polyp seen

Pelvic infection

US thickened endometrium

d ? Mass

[a list of the medication prescribed]

Thin P.S. sent to PHC lab”.

3.There was also a marginal note reading:

“25/1/08 D & C

7:30 am

BH”

This was a reference to the course of action agreed between the appellant and the patient, which was to do a dilatation and curettage procedure (“D&C”) at the Baptist Hospital on the morning of 25 January 2008.  The procedure involved dilatation of the cervix, the insertion of an instrument into the uterus and scraping of the inner wall of the uterus with a view to removing tissue from inside the uterus.  A D&C is done “blind” in that the surgeon carrying it out cannot see what is being done.

4.The patient was admitted to Baptist Hospital on 24 January 2008, the night before the D&C was scheduled to take place.  On the admission letter provided by the appellant, the diagnosis was stated as “DUB, endometrial polyp” with DUB standing for dysfunctional uterine bleeding. The D&C was performed without incident the next morning, and the patient was discharged the same evening.  The hospital discharge form stated the principal diagnosis to be “endometrial polyp”.

5.Thereafter, the patient continued to consult the appellant for various medical problems until about November 2008.  During that period, the patient was also admitted to Canossa Hospital on 1 May 2008, with anaemia and vaginal discharge.  On that occasion she was seen by another gynaecologist, Dr Wilfred Wong, whom she informed of the D&C performed by the appellant in January 2008.  It does not appear that the patient informed the appellant of her admission to Canossa when she consulted the appellant subsequently.

6.Some years afterwards, in 2011, the patient lodged a complaint against the appellant with the Medical Council, complaining that the D&C performed on her in January 2008 had been done without proper justification.  The patient said that she was prompted to take this course of action because of newspaper articles she had read relating to the appellant. She also wrote to the appellant claiming substantial compensation (just over HK$21 million, of which HK$20 million was said to be for mental or psychological damage) for loss and damage allegedly suffered as a result of the D&C having been performed unnecessarily.  She later issued a writ against the appellant, but those proceedings were subsequently discontinued without progressing much further.

7.The appellant’s case before the Medical Council was that the patient had told him at the initial consultation on 15 January 2008 that she had had a previous pregnancy, which had been terminated, and that he therefore considered that it was likely that the shadow seen on the ultrasound scan was either a polyp or a decidual cast from remains of the recent termination of pregnancy (also known as retained product of gestation).

8.The patient, however, was adamant that she had never been pregnant prior to her consultation with the appellant, had never undergone any termination of pregnancy, and had not told the appellant that she had undergone such a termination.

9.The expert evidence accepted by the Medical Council was to the effect that while D&C alone was appropriate treatment for a diagnosis of retained product of gestation, it was not the appropriate treatment for suspect polyps.  In the case of suspected polyps, the appropriate treatment was examination by hysteroscopy, which would enable the surgeon to see what was inside the uterus, so as to determine what further steps should be taken.  In the event that a polyp was found, curettage would then be called for, but it would be able to be carried out in a directed manner, rather than blindly in the hope of removing the polyp.

10.The key issues were therefore whether the appellant had in mind retained product of gestation as a possible diagnosis, whether the patient had undergone a previous termination of pregnancy and if so, whether she had told the appellant about this.  On the latter two issues, the positions of the patient and the appellant were diametrically opposed. Further, the resolution of these issues would necessarily impact on the outcome in relation to the first issue.

11.The Medical Council preferred the evidence of the patient on the latter two issues, and concluded that the appellant did not in fact have retained product of gestation as a possible diagnosis.  It followed (on the basis of the expert evidence accepted by the Medical Council) that the appellant was guilty of the charge of carrying out the D&C procedure without proper justification, and the Medical Council accordingly convicted the appellant of the charge.  In coming to these conclusions, it had regard to the following matters:

(1) The patient’s evidence that she had never been pregnant, and had not told the appellant that she had previously undergone a termination of pregnancy.

(2) The failure of the appellant to record a decidual cast (from the remains of a previous termination of pregnancy procedure) as a differential diagnosis in his notes of the consultation on 15 January 2008.  In this regard, the Medical Council did not consider the notation “d ? mass” to amount to such a diagnosis.  The Medical Council did not consider this failure to be a merely accidental omission.

(3) The failure of the defendant to make any note of the alleged disclosure by the patient of a previous termination of pregnancy in the notes of consultation.  The Medical Council did not consider this failure to be an accidental omission either.

(4) The admitted failure of the defendant to seek further details from the patient of such alleged previous termination of pregnancy, such as when it was performed.

(5) The fact that the admission letter to Baptist Hospital mentioned only DUB and endometrial polyp as the diagnosis on the basis of which the patient was to be admitted (and did not mention decidual cast or retained product of gestation as an alternative diagnosis).  The Medical Council noted the appellant’s explanation that the diagnosis stated was no more than a presumptive diagnosis, but pointed out that this explanation contradicted his evidence at the hearing that he had in fact concluded during the consultation that the shadow on the ultrasound scan was retained product of gestation.

(6) Although the patient accepted that she had been told that the object of the D&C procedure was to remove “dirty things” from inside her uterus, the Medical Council did not accept that this was necessarily a reference to retained product of gestation, particularly as this understanding of the phrase was never put to the patient.

(7) The Medical Council concluded that notes made by Dr Wilfred Wong when the patient consulted him at the Canossa Hospital in May 2008 were unclear as to whether what was recorded was that the patient had no previous pregnancies or two previous pregnancies which had been terminated.  However, it also noted that Dr Wilfred Wong had stated that his normal practice when recording previous terminated pregnancies was to make a record of the details of such pregnancies, and that this had not been done here, leading the Medical Council to believe that the notes should be understood as recording no previous pregnancies.  The Medical Council also accepted Dr Wilfred Wong’s explanation that when he made a reference to “decidual cast” this was a misnomer, and should have been a reference to an endometrial cast.

(8) The Medical Council also accepted the evidence of the Secretary’s expert, Dr Vincent Cheung, that there was unlikely to have been a recent termination of pregnancy, having regard to the timing of the patient’s last menstrual period and the continuous bleeding for nearly three weeks prior to the first consultation with the appellant.

12.Before us, Mr Ramanathan SC, appearing for the appellant, submitted that the Medical Council had erred in the following respects:

(1) It was wrong to conclude that Dr Wilfred Wong’s notes of consultation of May 2008 recorded no previous pregnancies on the part of the patient, as Dr Wong had accepted that he could not tell whether his notation was “para 0+0” indicating no previous pregnancies, or “para 0+2” indicating two previous pregnancies, both of which had been terminated.  It was suggested that given Dr Wilfred Wong’s uncertainty, the appellant should have been afforded the benefit of the doubt, and the Medical Council should have concluded in his favour that the patient had indeed previously been pregnant, thus supporting the appellant’s case that he had been told by her that she had had a previous termination.  It was also submitted that the Medical Council failed to consider why, if Dr Wilfred Wong was indeed in the habit (as he said) of recording details of unsuccessful pregnancies, he had earlier written to the Medical Council stating that “para 0+2 referred to a previous history of 2 unsuccessful pregnancies (either miscarriages or terminations”.  The point was further made that it made no sense to record “para 0+0” if the patient had never told Dr Wilfred Wong about having previously been pregnant, on the footing that there was unlikely to have been any previous termination of pregnancy if she had never been pregnant.

(2) The patient having acknowledged that the appellant had mentioned to her that the D&C would involve scraping out the “dirty stuff” from inside her uterus, this was clearly a reference to retained products of gestation, which the appellant had said he had in mind, and which he said was what he was explaining to the patient.  Accordingly, the Medical Council should have accepted that the appellant had in mind a differential diagnosis of retained product of gestation as a possible diagnosis in respect of the patient’s situation.  Further, it was suggested that the appellant’s evidence that the notation “d ? mass” was a differential diagnosis, covering all possible explanations for the mass (including retained product of gestation), and his explanation of the diagnosis stated on the admission letter to St Teresa’s Hospital as no more than a presumptive (and not conclusive) diagnosis had unfairly been overlooked when concluding that there was no evidence that the appellant had actually considered retained product of gestation as a possible diagnosis.

(3) As the critical issue was whether the patient had undergone a previous termination of pregnancy, it was unfair and inappropriate for the Medical Council (through the Secretary) to have asked the patient to respond to the appellant’s case in a way that made it clear that an admission that she had previously had such a termination would be fatal to her complaint.  By doing so, the patient was clearly forewarned of the consequences of such an admission, which made it less likely that she would have made the admission.  Accordingly, her evidence should have been more closely scrutinised, and weight given to various factors which were said to throw doubt on her truthfulness, particularly in relation to alleged inconsistencies as to what she said at different times about the nature of her bleeding prior to consulting the appellant.

13.We did not consider these complaints meritorious, and shall deal with each of them in turn.

14.Dealing first with the criticisms of the way in which the Medical Council dealt with Dr Wilfred Wong’s evidence, we cannot agree that it was incumbent on the Medical Council to conclude in the appellant’s favour that the patient had had previous pregnancies, which had terminated or miscarried.  The appellant’s focus for the purpose of this contention on the uncertainty as to what Dr Wilfred Wong’s notation was is too narrow.  It is not appropriate to view that notation in isolation and conclude that because it was unclear, and Dr Wilfred Wong unable to state with certainty whether the notation was either “0+0” or “0+2” that it should be taken as being “0+2” so as to give the appellant the benefit of the doubt.  Rather, the Medical Council was both entitled and right to approach the resolution of this uncertainty by having regard to all of the relevant evidence before it. This evidence included:

(1) The notation itself, which was (and was acknowledged to be) unclear.

(2) Dr Wilfred Wong’s explanation as to his normal practice or habit of making a record of the circumstances of previous terminations, if any, which tended to support the view that the notation was in fact “0+0”.

(3) The patient’s own evidence as to never having previously been pregnant.

(4) The absence of any record in the appellant’s notes of consultation to the effect that the patient had ever been pregnant.  This was an important piece of information, both as a major factor to support the alleged differential diagnosis of retained product of gestation, and as a significant element in the patient’s relevant history, which one would have expected to be recorded had the appellant been told about it.  Given its importance, the Medical Council was, in our view, quite entitled to reject the appellant’s explanation for his failure to record this information (that it was given when he was engaged on carrying out an ultrasound scan, so that he simply forgot to record it).

(5) Further, given the significance of the information, particularly for the alleged differential diagnosis, the failure of the appellant to seek further information or details regarding the alleged previous pregnancy and recent termination was surprising, and also cast doubt on the accuracy or veracity of his case.

(6) The diagnosis stated on the St Teresa’s Hospital admission letter, with its omission to mention retained product of gestation as a possible differential diagnosis, also supported the Council’s view.  As the Medical Council stated in its decision, the suggestion that the stated diagnosis was merely a presumptive one was clearly inconsistent with the appellant’s claim to have positively considered retained product of gestation as a possible diagnosis – had he done so, it would be odd to record a presumptive diagnosis that did not reflect the actual diagnoses considered by the appellant.

15.Further, it does not seem to us that the criticisms of Dr Wilfred Wong’s evidence are well founded:

(1) As to the suggestion that no consideration was given to the change in his evidence from his letter shortly before the hearing in which he stated positively that the notation was “0+2” and referred to two previous pregnancies which had miscarried or been terminated, to his evidence at the hearing that he could not be sure, looking at the record, whether it was “0+0” or “0+2”, we do not think this is justified.  The Medical Council was well aware of the fact that when writing the letter, Dr Wilfred Wong had access only to a photocopy of the notes he had made, whereas at the hearing, he had available the original of the notes, from which it became apparent to him that they were unclear.

(2) As to the argument that there would be no sense in recording “0+0” since there could obviously be no terminations if there had been no previous pregnancies, this misses the point that whether or not a patient has had a history of previous pregnancy is clearly a relevant item of information for a gynaecologist, particularly on a first consultation. Thus, if the gynaecologist asks whether or not the patient has been pregnant before, one would expect the answer to be recorded, whether it is positive or negative.  The recording of “0+0” simply indicates that the question was answered negatively.

16.We are therefore satisfied that it was open to the Medical Council to conclude that Dr Wilfred Wong’s notation was more likely to be “0+0”, and that having regard to the overall evidence available, that this was justified.  This conclusion was clearly one that cast doubt on the veracity of the appellant’s case.

17.As for the argument that the appellant’s reference to “dirty stuff” or “dirty things” having to be scraped out of the patient’s uterus was clearly a reference to retained product of gestation, we agree with the Medical Council that there was nothing to show that this was what was actually understood by the patient.  This is clearly non-technical and non-precise language.  It does not seem that there was any commonly understood meaning to be ascribed to the phrase that was used.  In the circumstances, we cannot agree that the Medical Council should have accepted this as demonstrating that the appellant had indeed made a differential diagnosis of retained product of gestation.

18.Moreover, the suggestion that the notation “d ? mass” represented the full range of differential diagnoses, including retained product of gestation, is not one that can be accepted.  As the Medical Council noted, this notation does not represent a diagnosis of any particular condition.  Moreover, even assuming that the appellant had in mind other possibilities for the shadow seen on the ultrasound scan, the notation tells one nothing about what those possibilities were.  On the contrary, the only specific diagnosis noted in the appellant’s record of consultation was that a “polyp [was] seen”.

19.As to the point that the diagnosis on the admission letter was only a presumptive diagnosis, this has been dealt with in paragraph 14(6) above.

20.We therefore reject the complaint that the Medical Council should have concluded, from the reference to “dirty things”, that the appellant did have the differential diagnosis of retained product of gestation in mind.

21.As for the final point, while we would accept that it would have been preferable for the patient to have been asked whether she had been pregnant previously without any indication of the possible consequences for her case if she had been, we cannot agree that this was something which, whether taken on its own or in combination with the other alleged discrepancies rendered her evidence of no weight.  It remained evidence to which the Medical Council was entitled to give appropriate weight, and having regard to the other evidence supportive of the conclusion that the patient had not previously been pregnant (see paragraph 14 above), we are satisfied that the Medical Council was justified in so finding.

22.For all of the foregoing reasons, we dismissed the appeal, and ordered the appellant to pay the Medical Council’s costs of the appeal.

Mr Kumar Ramanathan SC, instructed by F Zimmern & Co, for the appellant

Ms Juliana Chow, instructed by Department of Justice, for the respondent