Dr. Fung Yee Leung Wilson v. The Medical Council of Hong Kong
Read the full judgment text of CACV 35/2017 on BabelCite. This Court of Appeal judgment was delivered on 11 July 2018.
1. The facts and issues are set out fully in Cheung JA’s judgment. I would gratefully adopt them for this judgment.
Cited by 4 cases · Cites 3 cases
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CACV 35/2017 [2018] HKCA 393 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 35 OF 2017 (ON APPEAL FROM THE ORDER OF THE MEDICAL COUNCIL MADE ON 17 JANUARY 2017) ________________________
________________________ Before : Hon Cheung CJHC, Cheung and Yuen JJA in Court Date of Hearing : 24 April 2018 Date of Judgment : 11 July 2018 ___________________ J U D G M E N T ___________________ Hon Cheung CJHC : 1.The facts and issues are set out fully in Cheung JA’s judgment. I would gratefully adopt them for this judgment. The primary charge 2.In essence, Dr Fung, the appellant, was said to have inappropriately or without proper justification prescribed steroids to the infant patient for his condition. All other charges followed from this allegation. “The first question”: was the patient suffering from AB? 3.The Medical Council, in paragraph 27 of its decision dated 17 January 2017, identified and answered “the first question” this way:
4.That was followed by the council’s discussion on the approach to assessing witness credibility as described in case law (paragraph 28); what Dr Fung put down or did not put down in his clinical notes and receipts (paragraph 29); the mother’s evidence of the infant patient’s condition during the 3 consultations (paragraph 30); the question of “rapid deterioration” between the second and third consultations on 3 and 5 January 2011 and the infant patient being “on the verge of hospitalization” on 5 January 2011 (paragraph 31); the lack of mention of wheezing (paragraph 32); and the use of steroids to treat acute bronchiolitis (“AB”) for young patients under the age of 24 months (paragraph 33). 5.Then the council said:
6.When read alone, the problem with paragraph 34 is plain. It does not follow from the finding that the patient was not suffering from AB that Dr Fung’s prescription of the two steroids was inappropriate and without proper justification. This is because if Dr Fung had actually made, as he claims, the diagnosis of AB at the time, that diagnosis would justify his prescribing the steroids according to the general medical view at the time. Of course, he may have been wrong with his diagnosis – after all the council has concluded that the patient was not in fact suffering from AB – which may mean a mere error of judgment on his part, or a culpable misdiagnosis. However, a charge of misdiagnosis was never made against him. And the council has never dealt with the possibility of an error of judgment. 7.The council cannot be criticised for asking the first question of whether the patient was suffering from AB. If, contrary to the council’s subsequent conclusion, the patient was actually suffering from AB, the charge against Dr Fung for wrongfully prescribing steroids must, subject to questions like quantities and disclosure of risk etc, fall away. However, as explained, the fact that the patient was not suffering from AB did not by itself conclude the charge against Dr Fung. For there exists the possibility of Dr Fung making a diagnosis, albeit a wrong one, of AB at the time, which at least to Dr Fung, would therefore justify the prescription of steroids. 8.If the matter had simply stopped there, the conviction would have been problematic. What therefore becomes crucial in this appeal is whether the council did consider the question of what diagnosis Dr Fung had actually made at the time. Did the council make a finding on Dr Fung’s claim that he diagnosed AB? 9.Did the council nonetheless deal with this question of whether Dr Fung made the diagnosis of AB at the time? First, it must be remembered that it was Dr Fung’s case throughout before the council that he did make a diagnosis of AB. It would be very strange for the council not to have made a finding on this claim of Dr Fung. 10.Secondly, a fair reading of the council’s decision would suggest that the council did consider the claim of Dr Fung that he diagnosed AB at the time. Paragraph 29 of the decision is in these terms:
11.In this paragraph, the council dealt directly with Dr Fung’s memory of what happened at the 3 consultations, and pointed out that there was no mention of the diagnosis of AB in the notes. Nor were any specific clinical features suggesting of AB referred to in the notes (a matter which I will return to). Rather, the receipts issued and signed by Dr Fung after the second and third consultations, the council noted, gave “bronchitis” as the diagnosis. 12.On a fair reading of paragraph 29, the council was there dealing squarely with the claim of Dr Fung that he made the diagnosis of AB at the time. 13.This, in my view, becomes even clearer when one reads paragraph 44 of the decision when the council was dealing with sentencing:
14.There, the council rejected Dr Fung’s solicitor’s submission in mitigation that this was a case of wrong diagnosis. In other words, in the council’s view, it was not a case in which Dr Fung wrongly made a diagnosis of AB and prescribed steroids accordingly. Rather, this was a case, according to the council, where although Dr Fung himself had no independent recollection of what happened, and although the clinical notes did not contain any specific clinical features for AB, he still insisted that the prescription of steroids was justified, and therefore he was criticised by the council as showing “no insight into his wrongdoings”. The underlying premise of the council’s criticism must have been that although Dr Fung did not make a diagnosis of AB – as confirmed by the clinical notes and receipts, he still insisted that the prescription of steroids was justified, and thus the criticism that he lacked insight into his wrongdoings. That, in my view, must be the fair and correct reading of paragraph 44 of the decision, as well as of the council’s finding on Dr Fung’s claim that he made a diagnosis of AB at the time. 15.Although the council could have expressed its thinking process in a clearer way, my reading of the logic of the council is that although it put forward as the first question to answer whether the patient was suffering from AB (for the reasons explained above), in the process of seeking to answer that question, the council, understandably, looked at what the treating doctor had diagnosed at the material time, for after all, the council, like the experts, did not have the benefit of treating the patient at the time, and was only basing its judgment on paper. The treating doctor’s clinical diagnosis must be of significance. This being the case, not surprisingly, the council, after setting out the first question it gave itself to answer, turned almost immediately to Dr Fung’s memory of what had happened, as well as what the clinical notes and receipts had or had not said about the diagnosis and the specific clinical features for AB. And for the reasons given by the council, it came to the view that Dr Fung did not make the diagnosis of AB at the time, despite his claim before the council. No quantum leap in paragraph 34 16.For this factual reason and for the other reasons it gave, the council came to the conclusion that the patient did not in fact suffer from AB at the time, in answer to the first question it posed to itself. From that conclusion and answer, the council came to the further conclusion that therefore, there was no justification for the prescription of steroids at all. 17.Thus viewed, paragraph 34 of the decision did not constitute a “quantum leap”, as Mr Denis Chang SC, for Dr Fung, contended at one stage in his opening submission, in response to a suggestion from the bench. Since, in the process of answering the first question of whether the patient was really suffering from AB, the council had already come to the view that contrary to his claim, Dr Fung had not made a diagnosis of AB at the time, once the council came to the further conclusion that the patient was not suffering from AB, it was left with nothing which could potentially justify Dr Fung’s prescription of steroids. The council therefore concluded it must follow that the prescription of any amount of steroids by Dr Fung was unjustified. Is the council’s finding assailable on appeal? 18.This leaves the question of whether the council’s finding that Dr Fung did not make a diagnosis of AB can be challenged on appeal. The threshold for such a challenge is necessarily high. First, it is a challenge against a finding of primary fact. Secondly, that finding was arrived at by a professional tribunal after hearing and analysing, amongst other matters, medical and expert evidence and material within its expertise. Dyspnoea 19.The arguments between the parties centred on several matters. First, whether the council was right in saying in paragraph 29 that there were no records of such specific clinical features of AB as rapid respiration, insucking of the chest, prolonged expiration and expiratory wheeze. Here, the debate revolved around the clinical feature of dyspnoea observed by Dr Fung and recorded in the clinical notes accordingly. Put in a simplified way, there was evidence before the tribunal that dyspnoea, when used in a paediatric sense, could include the insucking of the chest, a specific clinical feature indicative of AB, although it was by no means conclusive in that by itself, it could not enable a doctor to conclude that the patient was really suffering from AB. 20.If one were to focus on paragraph 29 alone, it would indeed appear that the council had forgotten this material specific clinical feature recorded in the clinical notes, and was factually wrong in saying that there was no record of the insucking of the chest. However, the decision must be read as a whole. Paragraph 31 of the decision reads:
21.There, although the council was dealing with the question of rapid deterioration (which I will come to shortly), it specifically mentioned that Dr Fung was constrained to accept under cross‑examination that “apart from dyspnoea … he was unable to pinpoint from the clinical notes record of any specific clinical features in support of his diagnosis of acute bronchiolitis” (emphasis added). This, in my view, clearly suggests that the council has not forgotten that the clinical notes refer to dyspnoea, and that dyspnoea, when used in a paediatric sense, is a specific clinical feature indicative of AB (although by no means conclusive). 22.Here, I should add that although Dr Fung also claimed in his solicitors’ statement dated 5 March 2014 given to the Preliminary Investigation Committee that he observed expiratory wheezing which is also a symptom indicative of AB, his clinical notes, as the council pointed out in paragraph 31, did not refer to expiratory wheezing at all. Rapid deterioration and “on the verge of hospitalization” 23.Secondly, the challenge against the council’s finding of fact turns on whether the council has misunderstood Dr Fung’s evidence to the effect that the patient was suffering from “a rapid deterioration” in condition between the second and third consultations, so much so that he was “on the verge of hospitalization” on 5 January 2011, as discussed in paragraph 31 of the decision already extracted. (There, obviously by a slip, the council mentioned 3 January 2011; but paragraph 32 of the decision clearly indicates that the council did not get the date wrong, as it referred to 5 January 2011.) 24.The criticism against the council here is that in evidence, Dr Fung never said that the patient was on the verge of hospitalisation on 5 January 2011. Rather, he only said that if there was any further deterioration on the patient’s condition, the patient might have to be admitted for management as an in‑patient. 25.In my view, first, the idea of a rapid deterioration in the condition of the patient originated from Dr Fung himself in paragraph 7 of his solicitors’ statement dated 5 March 2014 where it was said that in view of “the rapid deterioration from 3‑5 January 2011, he [ie Dr Fung] escalated his treatment with further prescription of medications as the inhaled [steroids] alone appeared clinically ineffective”. The council has not misunderstood Dr Fung’s case by saying in paragraph 31 that “initially”, the defendant sought to explain that the escalation of treatment on 5 January 2011 was due to a rapid deterioration after the second consultation on 3 January 2011. 26.As regards “on the verge of hospitalization”, the single sentence in paragraph 31 that “indeed, he [that is, Dr Fung] went so far as to saying that Patient B was on the verge of hospitalization” might represent, when read alone, an oversimplification of Dr Fung’s evidence (as described above). However, in the context of the entire evidence before the council, an oversimplification of that nature would fall far short of the type of culpable error that an appellant in the position of Dr Fung would need to demonstrate to this court in order to justify its interference with the professional tribunal’s finding of primary fact. No wheezing was heard 27.Thirdly, the arguments focused on whether Dr Fung said that no wheezing was observed (and therefore the notes did not record any) because the dyspnoea had become so severe that wheezing could not be heard at all. This is what the council said in paragraph 32 of the decision:
28.Mr Chang criticised the council for misunderstanding Dr Fung’s evidence as he never said that no wheezing was heard because the dyspnoea had become so severe that it could not be heard at all. 29.I am again prepared to accept that the council has made a mistake about Dr Fung’s evidence here. However, I repeat my observation above that this is another isolated incident of the council mistaking a piece of evidence. This mistake, even when taken together with the oversimplification about hospitalisation mentioned above, still falls far short of what is required of Dr Fung to pass the threshold. For, importantly, it must be remembered that according to Dr Fung, he had already made the diagnosis of AB on the second consultation on 3 January 2011, and prescribed a steroid accordingly, before the third consultation two days later when the “on the verge of hospitalization” remark and the question of no wheezing being heard due to the severity of dyspnoea by then came into the picture. In other words, the mistakes made by the council in relation to the evidence of Dr Fung simply had no bearing on Dr Fung’s allegation that he had made a diagnosis of AB as early as the second consultation, which was maintained by him on the third consultation. In other words, the mistakes had little if anything to do with the council’s rejection of Dr Fung’s claim about the diagnosis he made, on the entirety of the evidence before the council. Was the case against Dr Fung properly put to him? 30.Finally, it was argued that it was never put to Dr Fung in cross‑examination that he had not made a diagnosis of AB, and before the council, it was never the case against him that he had not made a diagnosis of AB. It was therefore unfair to so read the decision as containing a finding by the council against Dr Fung’s claim that he had made such a diagnosis at the time. 31.It is true that it was never put to Dr Fung as such in cross‑examination that he had not made a diagnosis of AB. But, Dr Fung was fully cross‑examined on the two medical receipts for the second and third consultations, signed by him, which stated clearly that bronchitis was the diagnosis he made, and Dr Fung gave his explanations for the diagnosis so written. 32.Reading the evidence as a whole, I take the view that Dr Fung had been given a sufficient opportunity to explain himself regarding what diagnosis he had actually made at the time, and it must have been plain to him that as part of the case against him, it was not accepted that he had made a diagnosis of AB at the time. 33.Moreover, it is plain from the written closing submissions of the legal officer prosecuting the complaints against Dr Fung that his claim of having made a diagnosis of AB at the time was not accepted. Paragraph 5 of the closing submissions reads:
34.And when one turns to the written closing submissions of Dr Fung before the council, Dr Fung gave this argument in response to paragraph 5:
35.In my view, Dr Fung was fully aware of the case made against him that he had to meet and he did try to meet it, but the council did not believe him on the diagnosis he had actually made at the time. Other evidential matters 36.By reference to the lack of mention of various evidential matters in the decision of the council, Dr Fung has argued that the council has omitted evidence, factual or expert, in his favour and has adopted a selective approach, when reaching a finding of fact against him regarding what diagnosis he has made. 37.In my view, this is not the right way to attack a finding of fact by a tribunal of fact, still less one by a professional tribunal of fact. It must be remembered that a tribunal of fact is not obliged to set out all facts and evidence pertaining to a factual dispute in its judgment or decision. This would be an impossible task. This court does not easily accept that a tribunal of fact, including a professional tribunal like the Medical Council, has forgotten any material or relevant evidence placed before it, unless there is good reason to doubt it. In the present case, I have no good reason to entertain such a doubt. 38.Looking at the entirety of the evidence before the council, the rejection of Dr Fung’s case that he had made a diagnosis of AB at the time was a finding open to the Medical Council to make. As explained, in my view, it has made such a finding; and for the reasons given above, that finding of fact by the council is not assailable on appeal. As Dr Fung did not make a diagnosis of AB, he had no justification to prescribe any steroids at all. Sentencing 39.Sentencing is essentially a matter for the professional tribunal, not this court sitting on appeal. I am not prepared to say that the removal orders in the present case are plainly inappropriate or outside the reasonable ambit of sanctions that the council could impose as to justify the court’s interference. Disposition 40.For these reasons, I would dismiss the appeal with costs. Hon Cheung JA : I. The appeal 41.1The appellant (‘Dr. Fung’) is a medical doctor in private practice. He is a specialist in paediatrics, having obtained his medical qualification in 1977. He was a busy practitioner. In 2011 the year in which the present complaint occurred, he saw about thirty patients per day. He was charged by the Medical Council that he had been guilty of misconduct in a professional respect in that from 31 December 2010 to 5 January 2011, he disregarded his professional responsibility towards his patient, an infant (‘the Patient’) in that :
41.2He was found guilty as charged except in relation to Charges g) and i). The Medical Council ordered his name be removed from the General Register for a period of three months in respect of charges (a) and (b), and for a period of two months in respect of charges (c), (d), (e) and (h), and for a period of one month in respect of charge (f), all removal orders to run concurrently, making a total of three months. 41.3Dr. Fung now appeals to this Court both in respect of his conviction and sentence. II. Background 1) The events 42.1The following is the chronology of events. On 15 December 2010 the mother of the Patient who was then a ten‑month old baby consulted another doctor, one Dr. Lau. The mother complained the Patient had running nose for one day with sneezing. Dr. Lau diagnosed the Patient with Upper Respiratory Tract Infection. 42.2On 31 December 2010 the mother brought the Patient to consult Dr. Fung for the first time. Dr. Fung found the Patient had eczema and prescribed a cream containing steroid. 42.3On 3 January 2011 the mother brought the Patient to consult Dr. Fung for the second time (‘the 2nd consultation’). Dr. Fung’s evidence based on his record showed that the Patient had poor sleep, poor appetite, persistent cough and a low grade fever 38.6 °C for the previous two days, and that he had dyspnoea (or dyspnea). Dr. Fung said he diagnosed the Patient to be suffering from Acute Bronchiolitis with atopic tendency and prescribed, amongst others, Flixotide, a nebulized steroid [i.e. mist form steroid]. The mother’s evidence was that Dr. Fung told her that her son was suffering from common cold and flu. She did not remember whether she told Dr. Fung that the Patient had a fever for two days which peaked at 38.6 °C. 42.4On 4 January 2011 Dr. Fung’s evidence from his clinical notes showed that his clinic nurse had followed up with the mother through a telephone call. This was disputed by the mother. 42.5On 5 January 2011 the mother brought the Patient to consult Dr. Fung for the third time (‘the 3rd consultation’). The mother said the consultation was an unscheduled visit initiated by her as there was no improvement in the Patient’s condition. Dr. Fung said the Patient continued to have signs and symptoms of dyspnoea, persistent cough, blocked nose, running nose, frequent turning and excessive sweating, and that he slept in a prone position. He prescribed, amongst other medicine, Allersan (a systemic steroid) [i.e. synthetic steroid] and Zimax (an antibiotic), in addition to Flixotide. 42.6On 6 January 2011 Dr. Fung in his clinical notes had an entry by the clinic nurse that the mother telephoned the clinic and informed the nurse that the Patient had a suspected breath‑holding attack when the mother was washing his nose with nasal puff spray. This was disputed by the mother. 42.7On 6 January 2011 the mother brought the Patient to consult Dr. Lau. The mother complained the Patient had a lot of nasal discharge with suspected cyanotic attack (possibly breath holding attack) [i.e. sudden attack of cyanosis where the patient’s skin has bluish decoloration]. Dr. Lau’s report stated that the Patient was ‘well on examination’. 42.8On 11 January 2011 the mother brought the Patient to consult Dr. Lau again with the complaint of running nose and occasional noisy breathing with cough. Physical examination revealed no abnormalities. 42.9On 21 January 2011 the mother complained to the Medical Council that Dr. Fung did not tell her that the medications prescribed on the 2nd and 3rd consultations contained steroid and antibiotic. 2) The Patient’s case 42.10The Patient’s case as summarized by the Medical Council is that the Patient’s mother brought the Patient to see Dr. Fung on 31 December 2010. He was then about 10 months old. This was their first consultation with Dr. Fung. The mother said the Patient started to have a mild cough only the day before. Nevertheless, she preferred to consult Dr. Fung, whose clinic was close by their home, lest his condition might deteriorate during the New Year holidays. 42.11The mother said she consulted Dr. Fung because she believed the Patient was suffering from symptoms of common cold or influenza. 42.12The mother said that the Patient did not have diarrhoea, but she remembered the Patient had a little bit of fever although he might not have fever when he was at the clinic. The mother could no longer remember whether Dr. Fung had explained to her what the rash around the Patient’s ears was. However, she was adamant that he never mentioned to her the word ‘eczema’. 42.13On 3 January 2011, the mother brought the Patient to see Dr. Fung at his clinic again. 42.14The mother said that she could only remember the Patient’s general condition did not improve after the first consultation. Whilst she accepted that the Patient still had a cough it was not bad enough to cause him to wake up in the night. She denied that the Patient had any difficulty in breathing, wheezing or rapid respiration. 42.15The mother denied that Dr. Fung had ever discussed with her about the treatment plan during the second consultation. Nor was she given to know that Flixotide contained steroid. As far as she could remember, all the medications were dispensed to her by the clinic nurse, who also explained to her how the medications were to be used. 42.16However, the mother said her understanding (the same as what had been written on the printed label of the plastic bag containing the medicine) was that nebulized Flixotide had to be given to the Patient every two hours. The mother denied having talked to the clinic nurse on the phone at all on 4 January 2011. 42.17On 5 January 2011, the mother brought the Patient to see Dr. Fung again. She agreed that the Patient’s general condition did not improve after taking the prescribed medications and that was why she brought the Patient to see Dr. Fung. However, she denied that she was frustrated by the lack of improvement in the Patient’s general condition. She also denied having told Dr. Fung that the Patient had a history of disturbed sleep due to his blocked nose and breathing difficulties. Moreover, the mother said that she had no recollection of Dr. Fung telling her that the Patient’s condition had deteriorated as a result of the allergic elements and an escalation of his treatment was necessary. She was adamant that Dr. Fung never talked to her about the possibility that the Patient might have a bacterial infection. 42.18The mother denied having talked to the clinic nurse on 6 January 2011 at all. According to her, she immediately brought the Patient to see his usual paediatrician, one Dr. Lau, for check‑up. After examination, Dr. Lau found the Patient to be well and prescribed to him the usual medications for treating cold or influenza. But when Dr. Lau told her that some of the medications prescribed by Dr. Fung contained steroids and/or antibiotics, she was shocked and disappointed. She subsequently lodged this complaint with the Medical Council. 3) Dr. Fung’s Case 42.19Although the mother first complained to the Medical Council in January 2011, the Medical Council only gave the notice of meeting of the preliminary investigation committee to Dr. Fung on 29 October 2013 and Dr. Fung submitted his medical report addressing the complaint on 5 March 2014. 42.20This is what Dr. Fung said in his medical report submitted to the Medical Council :
42.21The mother was advised to return for a follow‑up consultation in three days’ time. But on 5 January 2011 she returned to Dr. Fung’s clinic with the Patient. This is what Dr. Fung said about this consultation :
42.22Dr. Fung’s case is that he diagnosed the Patient to be suffering from Acute Bronchiolitis (‘AB’) [Chinese translation 「急性細支氣管炎」]. He explained that AB usually came in clusters in cold weather. In this case he was treating the Patient of 10.5 months’ old in the cold season of January 2011, AB was his ‘working’ diagnosis or the ‘best-fit’ diagnosis. He said he had successfully treated about 5,000 cases of AB with short-term steroids and there has been no complaint or reported case of adverse side effect. 4) Dr. Alfred Tam’s evidence (1) What is Acute Bronchiolitis? 42.23What then is AB? Dr. Tam Yat Cheung Alfred (‘Dr. Tam’) who is a specialist in paediatrics in private practice and who gave evidence on behalf of Dr. Fung examined :
42.24This is the extract from Dr. Tam’s opinion. i) The diagnosis of the respiratory infection 42.25Bronchiolitis is a very common viral infection affecting infants before two years of life, and especially for infants under one year of age. The infection typically begins with a few days of fever, nasal congestion, discharge and cough, and evolving into more cough with respiratory distress as a result of small airway obstruction, presenting with breathing difficulty, wheezing and signs like prolonged expiration, expiratory wheeze and inspiratory crackles. These symptoms arise because of an infective inflammation affecting the small airway wall generally. To date diagnosis is still by clinical means. Rhinoviruses (‘RV’) and Respiratory Syncytial Virus (‘RSV’) are the most common causes. Since this is a virus infection, it tends to run a self‑limiting course leading to recovery. Around 30% of infants will have bronchiolitis before two years of life, but only about 2‑3% infants have it severe enough to be admitted into hospital. Nevertheless, bronchiolitis is an important cause of hospital admission in Hong Kong and worldwide. Infants with no signs of airway obstruction nor respiratory distress would be considered to have an upper respiratory infection, or bronchitis if the Patient has only significant cough without respiratory distress. ii) The presence of an atopic background and its influence on the diagnosis and prognosis of future problems 42.26Another common cause of wheezing and small airway obstruction in children is asthma. Asthma is a chronic allergic inflammation of the airways characterized by episodic or chronic airway obstruction. Typically, the patient presents with episodes of coughing, wheezing and respiratory distress associated with viral infection, weather changes, and exposure to environmental triggers like allergens, air pollution and tobacco smoke. The onset is insidious. A family history or past history of allergic diseases, namely, eczema, asthma, urticaria, allergic rhinitis or food anaphylaxis (atopic state or atopy), is important to the diagnosis, as this makes it much more likely. 42.27Because the symptoms and findings of asthma and bronchiolitis overlap in the young infant, it is difficult to make a clear distinction at such young age. Generally, one would diagnose the first episode of wheezing and respiratory distress as bronchiolitis. Further recurrence of wheezing and/or a positive allergic family or past history will render the diagnosis of asthma more probable. 42.28In the situation where a first episode of wheeze occurs in an infant with atopic background, it would be very difficult to diagnose whether this is bronchiolitis or the first episode of asthma. It is then up to the doctor to balance out the various contributing factors. In this situation there is very little scientific evidence to guide treatment. One is therefore entitled to try asthma medications to see if the Patient responds. iii) The treatment involved 42.29As bronchiolitis is characterized by airway obstruction, it is quite logical that research on treatment has been directed towards opening the airway and decreasing inflammation. Medications like bronchodilators, anticholinergics, sympathomimetics and corticosteroids have been used to treat asthma with success since the 70’s. Therefore, these have been tried on bronchiolitis with variable success as well. In the guidelines prevalent in 2010, the consensus was that bronchodilators are not useful in bronchiolitis, while adrenaline (a sympathomimetic) and steroid given by inhalation or systemically may be beneficial. Although the most recent guidelines and reviews have all negated the role of these medications in treating bronchiolitis, they should not be relevant to this case as these publications have appeared later than the case. iv) Severity assessment 42.30Assessment of severity in a patient with bronchiolitis will be different according to the clinical situation. For the clinic doctor, the primary concern is to prevent hospital admission. He will, therefore, classify the Patient’s severity according to the Patient’s symptoms, the parent’s history and the physical findings. In the hospital, the Patient is sicker and requires more monitoring. Therefore, assessment will often be based on monitored parameters like SaO2 and blood gases. In the literature, severe bronchiolitis usually refers to those requiring hospitalization. However, to the clinic doctor, he may consider the condition serious based on the symptoms and findings alone. (2) Reasonable diagnosis of AB 42.31Dr. Tam was of the opinion that Dr. Fung’s diagnosis of AB was reasonable.
(3) Presription of steroid justified 42.32Dr. Tam was of the view that Dr. Fung’s prescription of steroid was justified.
(4) Use of specific medicine 42.33Dr. Tam further addressed the charges that Dr. Fung inappropriately or without proper justification prescribed Flixotide to the Patient and that he prescribed Flixotide to the Patient with an excessive dosage.
42.34To the charge of Dr. Fung inappropriately prescribed systemic steroid i.e. Allersan to the Patient, Dr. Tam said :
42.35As to the charge that Dr. Fung inappropriately prescribed Zimax antibiotics to the Patient, Dr. Tam said :
(5) The Guidelines 42.36The ‘Clinical Guidelines on the Management of Acute Bronchiolitis’ (‘the Guidelines’) HK J Paediatr (new series) 2006;11:235-241 referred to by Dr. Tam was prepared by the Hong Kong College of Paediatricians. Page 237 of the Guidelines states :
42.37The Guidelines referred to the Rochester group study which has more restrictive diagnostic criteria for bronchiolitis :
42.38The Guidelines dealt with Clinical Features and Diagnosis3.7‑10 (Level of evidence IV) :
42.39The Guidelines at 239 dealt with the use of steroid :
42.40In respect of other medications, the Guidelines at page 240 stated :
(6) Dr. Cheung Kam Lau 42.41The Medical Council had called an expert of its own, namely Dr. Cheung Kam Lau who is also a specialist in paediatrics. Dr. Cheung said in his report :
42.42Dr. Cheung referred to Dr. Lau’s treatment of the Patient on 6 January 2011 and expressed the view that :
III. The Legal Officer’s case 43.Whilst the case of Dr. Fung is that he had diagnosed the Patient to be suffering from AB and the use of steroid was appropriate, what then is the stance of the Legal Officer who presented the case on behalf of the Medical Council? In the course of Dr. Fung’s evidence, the Legal Officer said ‘the charge is not complaining that he made the diagnosis of Acute Bronchiolitis’ rather it is the prescription was inappropriate in that ‘the (medicine) made potential serious complications’. In his closing submissions the Legal Officer said that the clear objective evidence of the case showed that ‘there was no basis for Acute Bronchiolitis and there was no diagnosis made by the defendant’. Further he submitted that :
IV. The Medical Council’s decision 1) What did it decide? 44.1A common issue was raised by both the Legal Officer and Dr. Fung as to what was the diagnosis by Dr. Fung of the Patient which led him to prescribe the steroids. The Legal Officer then went further and said there was not even objective evidence that the Patient was suffering from AB but a simple ‘flu and cold case’. But how did the Medical Council resolve the common issue? It did not appear to have addressed this issue at all. What it did is merely to address the issue of whether the Patient was suffering from AB and not what was Dr. Fung’s diagnosis. After referring to the test for assessing witnesses’ credibility, the Medical Council gave the following reasons for its view that the Patient was not suffering from AB and as a consequence Dr. Fung’s prescription of steroids was inappropriate and without proper justification.
2) Assessment of Dr. Tam’s evidence 44.2The Medical Council was of the view that Dr. Tam’s evidence did not support the view that the Patient was suffering from AB. It dealt with Dr. Tam’s evidence as follows :
V. The proper approach 45.1In Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225 this Court applied Ghosh v General Medical Council [2001] 1 WLR 1915 where Lord Millett held :
45.2This Court further applied Preiss v General Dental Council [2001] 1 WLR 1926 where Lord Cooke of Thorndon (who sat with Lord Bingham of Cornhill and Lord Millett) stated that :
VI. Grounds of appeal 1) The fundamental error 46.1Mr Chang SC (together with Mr Miu and Ms Kung) for Dr. Fung submitted that the Medical Council had committed a fundamental error in its approach because in order to resolve the ultimate question whether Dr. Fung had not properly discharged his professional responsibility by inappropriately prescribing steroids to the Patient, the question to be asked was what was Dr. Fung’s diagnosis when he treated the Patient and not what illness the Patient was suffering at the time of the consultation. 46.2Mr Wong SC (together with Mr Leung) for the Medical Council reminded this Court of the constraint that it faces in an appeal of this nature. He submitted that the Medical Council had made a finding of diagnosis made by Dr. Fung, which was not a diagnosis of AB but rather bronchitis. Reference was made to paragraph 29 of its Decision and paragraph 44 where the Medical Council said this was not ‘a case of wrong diagnosis’. 46.3In my view Mr. Chang has raised a valid point. Bearing in mind the constraint imposed on this Court on an appeal from a specialist professional body, which is more so on an appeal from finding of facts by such a body, my view is that the Medical Council did make a fundamental error which provides the basis for this Court to interfere. I am unable to accept, reading the Decision as a whole that the Medical Council had, in fact, made a finding of what was Dr. Fung’s diagnosis? The reasons given by the Medical Council speak for themselves. The fact that the Medical Council had said ‘this is not a case of wrong diagnosis’ (which by itself is ambiguous and confusing) does not mean that it had resolved the contentious issue of what was Dr. Fung’s diagnosis which led him to prescribe steroid to the Patient. Even if the Patient was not suffering from AB, it does not follow that Dr. Fung could not have made a diagnosis of AB. 46.4Mr Wong submitted that the Medical Council actually decided that the diagnosis made by Dr. Fung was one of bronchitis [Chinese translation 「支氣管炎」]. Again I am unable to accept this submission. The position is that the Medical Council referred to the receipts issued by Dr. Fung for the consultation of 3 and 5 January 2011. In a box next to the printed words ‘diagnosis’ was the handwritten word ‘bronchitis’. What is clear is that the Medical Council relied on what was written on the receipt as one of the factors in coming to its conclusion that the Patient was not suffering from AB. As apparent from the Decision itself, the Medical Council did not come to a finding that the diagnosis by Dr. Fung was bronchitis. 46.5Indeed the case run by Legal Officer was not that the Patient was suffering from bronchitis which is a lower trachea inflammation, but rather URTI (upper respiratory trachea inflammation) : a flu and cold case. 46.6Further, I am not convinced this Court is in a position to say that because the Medical Council had already made a finding that the Patient was not suffering from AB, it must have by implication rejected Dr. Fung’s diagnosis of AB. These are two separate issues. This point does not require further elaboration. On this ground alone, I would allow the appeal. 2) Errors in finding 46.7Further in my view, there are serious errors in the Medical Council’s finding that the Patient was not suffering from AB. The possibility that the diagnosis was indeed AB is not one that could be excluded. These errors render the decision plainly wrong and the finding of professional misconduct unsafe. 46.8The Medical Council in its Decision stated that :
46.9As Mr Chang submitted ‘zero memory’ in this context could only mean that Dr. Fung did not have independent recollection of the three consultations. This is only natural, bearing in mind that he had a busy practice when the event occurred in early 2011 and he was only given notice of the PIC enquiry in 2014. The use of ‘inferences’ is a misnomer. The view that ‘primary facts must be proven on the evidence before reasonable inference can be drawn’ is problematic. Does it mean it was for Dr. Fung to prove the primary facts? In his evidence Dr. Fung said that his memory was refreshed by looking at the clinical notes. The clinical notes contained symbols and abbreviation which enabled him to provide his response to the PIC enquiry in his medical report. 46.10The Medical Council referred to the clinical notes and said that there was no mention of diagnosis of AB or other specific clinical features of AB such as rapid respiration, insucking of the chest, prolonged expiration and expiratory wheeze. I have to say, at the outset, the clinical notes kept by Dr. Fung are not satisfactory but at the end of the day, the diagnosis of AB must be based on the whole circumstances that Dr. Fung encountered in a clinical setting. I have already set out Dr. Fung’s case earlier in the judgment. On 3 January 2011, Dr. Fung found the Patient had a distressful cough with expiratory wheezing. Dr. Fung in his clinical notes used ‘Dys+’ to show that the Patient had dyspnoea (dyspnea), and ‘cgh+à++’ to show that he had a distressful cough that had worsened since his last consultation. Dr. Fung concluded that the Patient’s condition had deteriorated rapidly from their first consultation three days prior, which was serious enough to affect his feeding, sleep and general condition. He further found that the Patient’s father had a history of allergic airways and would cough repeatedly whenever there is a change in weather. He recorded ‘AA+ Δ weather à cgh’ on the front sheet of his clinical note to reflect the father’s history of allergic airways. He also recorded ‘AA+’ in under ‘PAST MEDICAL HISTORY’ to indicate the Patient’s possible allergic airways. He found the Patient to have had atopic tendency based on his eczema and father’s history of allergic airways. Dr. Fung said, considering the Patient’s clinical presentation, including his fever, rapid progression, distressful cough, dyspnoea and expiratory wheezing, he diagnosed the Patient to suffer from Acute Bronchiolitis caused by a virus (most likely RSV) (and not just a simple upper respiratory infection), with probable allergic elements. He found the Patient’s AB to be severe because of the rapid deterioration of his general condition from their previous consultation and because his condition had resulted in poor appetite and poor sleep. Dr. Fung had lifted up the Patient’s clothes and physically examined him. These were factors leading to Dr. Fung’s diagnosis. 46.11Much has been said both in the Decision itself and in the submission that the clinical notes merely referred to dyspnoea and did not mention specific clinical features that can be found in AB. It is submitted that dyspnoea only means difficult or laboured breath. In my view the Medical Council had selectively dealt with the evidence of Dr. Tam in paragraph 26 of the Decision and overlooked Dr. Tam’s evidence when he was asked to deal with the natural cause for bronchiolitis. Dr. Tam’s unchallenged evidence is that the difference between respiratory distress and dyspnoea ‘depends on people’ and ‘can mean the same thing’, Dr. Tam said ‘in‑sucking of the ribs and in-sucking of the sub-costal area are signs of ‘dyspnoea in the paediatric sense’, and further that dyspnoea or respiratory distress was a sign of breathing difficulty caused by airway obstruction, and airway obstruction was the most important feature of acute bronchiolitis, distinguishing it from URTI or acute bronchitis. There were also records of other signs and symptoms, such as cough, running nose and blocked nose and sleep disturbance and a history during ‘the 72‑hours’ of low‑grade fever at home (as reported by the Mother although afebrile [i.e. not feverish] at the clinic) and reflected in Dr. Fung’s clinical notes, which Dr. Tam said ‘contributed’ to making the diagnosis of acute bronchiolitis. Thus, there was evidence from an expert who is a specialist in paediatrics describing the ambit of dyspnoea in the paediatrics sense. 46.12In the circumstances the Medical Council had glossed over what was entailed in the word ‘dyspnoea’ when Dr. Fung used it. The focus on the general meaning of ‘dyspnoea’ as meaning ‘difficulties in breathing’ was a major flaw in the Medical Council’s reasoning process. 46.13The Medical Council did not in its decision refer to Dr. Cheung’s opinion. One simply does not know whether the Medical Council had relied on Dr. Cheung’s evidence. In any event, under cross‑examination, Dr. Cheung accepted that with clinical signs of respiratory distress, the differential diagnosis would more likely to have been bronchiolitis instead of bronchitis. Further Dr. Cheung’s experience was essentially with hospitalized patients in neonatal ICU. Dr. Cheung further agreed with Dr. Tam that ‘bronchiolitis is a very common viral infection affecting infants before two years of life, and especially for infants under one year of age’. It is further Dr. Cheung’s evidence that bronchiolitis comes in season and clusters (especially the flu season of autumn and winter), and very roughly about ten percent of the cases would require hospitalization. Of those that did require hospitalization, a small proportion would require ICU support. 46.14The Medical Council’s reliance on the medical report of Dr. Lau was also in error. Dr. Lau did not give evidence. His evidence was challenged at the hearing below as hearsay. More importantly, Dr. Lau did not diagnose what the Patient was suffering when he was brought to him again on 6 January 2011 for consultation. 46.15The Medical Council had certainly not addressed the possibility that the medication prescribed by Dr. Fung within the ‘72‑hour golden period for intervention’ on 3 January 2011 and 5 January 2011 (where infants with bronchiolitis may deteriorate clinically before the symptoms improved), had achieved the intended effect of opening up the blocked airways of the Patient, enabling him to make a ‘U‑turn’ and enter upon the recovery phase on 6 January 2011. The Medical Council had also not addressed the fact that the Patient had to come back for another visit with Dr. Lau on 11 January 2011. 46.16In relation to the evidence of the mother the Medical Council held that :
46.17In my view the assessment of credibility of the mother must also be considered by reference to the inherent probability of the evidence. The second consultation with Dr. Fung was unscheduled because Dr. Fung had advised the mother on 3 January 2011 that she only needed to bring back the Patient in three days’ time. Obviously something more serious had happened to the Patient since the first consultation. Even according to the mother the condition of the Patient when she brought him to see Dr. Fung again on 5 January 2011 was between ‘no improvement and deterioration’. As to the mother’s evidence of what Dr. Fung told her about the diagnosis, she said Dr. Fung did give her a diagnosis and explained to her what the problem was, but he had used a professional term. She could not understand this term, and asked him again, whereupon「咁佢就話簡單啲來講就係氣管敏感」[Translation : Dr. Fung said, to put it simply it is allergy of the trachea]. Dr. Fung explained that he did not use the term ‘bronchiolitis’ to avoid confusing the mother. His explanation that he did not wish to confuse the mother was consistent with the mother’s own evidence on this issue. 46.18Mr. Wong referred to Dr Wu Hin Ting v Medical Council of Hong Kong [2004] 2 HKC 367 at paragraphs 32 to 35 and submitted that even where a disciplinary tribunal is obliged to provide reasons for its decision, those reasons can be brief especially if they are given after the tribunal has received detailed submissions. A tribunal is not required to detail its reasons in the same way as a judge. In straightforward cases, it would generally be sufficient for the Medical Council to state the facts to be proved, and then find them either proved or not proved. He submitted that much of Dr. Fung’s arguments are premised on alleged gaps in the Decision. However, the Medical Council is a specialist tribunal, which received extensive written and oral submissions from both sides (who were legally represented) and (as is evident from the transcript) actively participated in the questioning of the witnesses. Unless Dr. Fung can demonstrate that the Medical Council was unaware of a key issue, the presumption must be that the Medical Council analysed the evidence properly and diligently (even if a particular piece of evidence was not explicitly cited in the decision). 46.19I understand the rationale of Dr. Wu Hin Ting : members of the Medical Council are not legally trained and one should not expect them to write a decision in a way that lawyers are accustomed to, such as detailed discussion of contentious issues. However, whatever may be the situation at the time of Dr. Wu Hin Ting’s decision (which was plainly decided with reference to the specific facts of the case), the current practice which has been in place for many years is that the decision of the Medical Council is not drafted by the members who heard the case but rather it is the Legal Adviser of the Medical Council who will prepare the draft for their consideration. This practice was challenged in the decision of Medical Council of Hong Kong v Helen Chan (2010) 13 HKCFAR 248. The Court of Final Appeal accepted the practice of the Legal Adviser drafting the decision and Bokhary PJ in paragraph 62 prescribed safeguards on how this practice should be done. As the decision of the Medical Council is now drafted by a legally qualified person, one would naturally expect a higher standard than before. It is expected that the decision should contain detailed analysis of the contentious issues and it is simply not good enough to say that the Medical Council must have considered the arguments even if they had not been mentioned in the decision. Hence, with respect, my view is that the earlier broad brush approach requires moderation because it does not sit well with the modern approach of requiring reasoned decisions including that of a professional disciplinary body whose decisions affect the professional reputation of its members. 46.20There are also other errors in the decision such as the view that the Patient could not have been suffering from AB of such severity that he was ‘on the verge of hospitalization on 3 January 2011’ as claimed by Dr. Fung. Dr. Fung did not say such things. His evidence was that he advised the mother on 3 January 2011 that any further deterioration could lead to hospitalization. There is a further error when it said that Dr. Fung sought to explain that there was no mention of wheezing in his clinical notes because the dyspnoea had become so severe on 5 January 2011 that wheezing could not be heard at all. What Dr. Fung actually said was that if the dyspnoea had become so severe that wheezing could not be heard at all, he would have added the symbol +W0 after dys+ in his clinical notes and he would have recommended immediate hospitalization. He had not done so in this case. 46.21The Medical Council held that given its finding that the patient was not suffering from AB it must follow that Dr. Fung’s prescription of the steroids was inappropriate and without proper justification and, further as a corollary, prescription of the steroids to the Patient in whatever quantity would be high and excessive. In my view the Medical Council had not properly addressed the real issue that it has to decide, namely whether Dr. Fung had diagnosed AB. If it had, Dr. Tam’s opinion clearly pointed to the conclusion that the use of steroid was justified. In any event it had not addressed Dr. Tam’s evidence that the dosage of nebulized steroid was so low that there was no known side effect and there was no need to advise the Patient that it was steroid or its possible consequences. It is important to bear in mind that at the time of the Patient’s consultation with Dr. Fung, the use of steroid was accepted as a treatment for AB. 46.22Because of the flaw in the Medical Council’s approach and the serious errors in its decision, its conclusion that Dr. Fung was guilty of professional misconduct is one that I could not support. 46.23I have refrained from expressing a view on whether Dr. Fung had properly explained to the mother on the use of steroid and whether he had failed to monitor or advise the mother to closely monitor the Patient in relation to the use of the steroid because all these are factual issues which depended largely on whether Dr. Fung had diagnosed AB in the first place. The use of antibiotics in this case was also tied up with the diagnosis of AB (see the evidence of Dr. Tam). Likewise, I have refrained from expressing a view on the adequacy of the sentence for the same reason. VII. Conclusion 47.For my part I would allow the appeal and quash the finding of professional misconduct. Hon Yuen JA : 48.I have read with care the judgments of the Chief Judge and Cheung JA. I agree with the Judgment of the Chief Judge that this appeal should be dismissed. 49.I would just like to emphasize that the Medical Council clearly did consider what diagnosis Dr Fung had made. That was the whole focus of para. 29 of their decision. 50.To find out what was the diagnosis made by Dr Fung at the time, the Medical Council had considered the contemporaneous documentary evidence, which in this case (and most other cases) is evidence of the greatest importance, even if a doctor were to claim to have an independent memory of events (which in any event, Dr Fung did not). 51.1The contemporaneous documentary evidence comprised the clinical notes and the receipts. 51.2I agree with the Chief Judge’s analysis of the contents of the clinical notes which I will not repeat here. 51.3But the more important contemporaneous documentary evidence are the receipts. They served as the only physical record of the consultation given to the patient’s parent and set out the doctor’s diagnosis. In the present case, after the 2nd and 3rd consultations, the receipts (which Dr Fung signed) stated clearly that the diagnosis was bronchitis, not AB. He could not provide any good explanation as to why he chose to write something other than what he had diagnosed at the time. The conclusion which the Medical Council was therefore entitled to reach was that his diagnosis at the time was indeed bronchitis, and not AB. The main issue therefore was only whether the patient really did suffer AB (and not bronchitis), such that the prescription of steroid was justified. Hon Cheung CJHC : 52.By a majority, we dismiss this appeal with costs. We also grant a certificate for two counsel.
Mr Denis Chang SC, Mr Nelson Miu and Ms Jolie Kung, instructed by Godwin Chan & Co., for the appellant Mr Stewart K M Wong SC and Mr Wilson Leung, instructed by Department of Justice, for the respondent |
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