Dr. Wong Cheuk Yi v The Medical Council of Hong Kong [2019] HKCA 1332
Facts:
- Dr Wong Cheuk Yi was the case doctor of a cancer patient (“the Patient”) at Kowloon Hospital in Hong Kong.
- The nurses who took care of the Patient had wrongly managed his permanent tracheostoma by covering the tracheostoma with gauzes that were strapped on either two or four sides with medical adhesive tapes. The Patient died, and the cause of his death was upper airway obstruction by foreign body.
- The Nursing Council of Hong Kong found three of the nurses guilty of unprofessional conduct.
- Subsequently, the Medical Council of Hong Kong (“the Council”) found Dr Wong guilty of two disciplinary charges, namely, that:
(a) he failed to take proper steps to prevent the permanent tracheostoma of the Patient being treated or managed as a temporary tracheostomy wound; and
(b) he failed to alert or instruct the nursing, medical and/or allied health care staff that the wound was a permanent tracheostoma and not a temporary tracheostomy. - Upon finding Dr Wong guilty of these two disciplinary charges, the Council ordered that Dr Wong’s name be removed from the General Register for a period of six months and refused to suspend it.
Dr Wong appealed to the Hong Kong Court of Appeal against the removal order on two grounds.
Judgment:
Ground of Appeal 1
- The first ground of appeal was that the Council failed to give credit for and to take into account mitigating factors that justified suspending the removal order (“Ground 1”).
- After considering the various mitigating factors that Dr Wong referred to, the Court of Appeal held that Ground 1 failed.
- One of the mitigating factors that Dr Wong referred to was that the incident was a one-off issue. The Court of Appeal rejected the claim that the incident was a one-off issue for the following reason:
Dr Wong had seen the Patient on eight different occasions over a span of ten days. It was not a single or one-off failure on his part. Dr Wong failed to notice from the medical records the nurses’ wrongful management of the tracheostoma. This could only be because either Dr Wong had not read the records, or he did not read them carefully enough. Either case it was a serious failure.
Ground of Appeal 2
- Essentially the second ground of appeal was that the sentence was manifestly excessive, when in particular the tracheostoma care in question was a shared responsibility between Dr Wong and the nursing staff (“Ground 2”).
- The Court of Appeal held that Ground 2 failed for the following reason:
(a) As the Patient’s case doctor, Dr Wong clearly had the responsibility to provide proper medical care to the Patient.
(b) The disciplinary charges were directed at Dr Wong’s failure to discharge his professional responsibility as the Patient’s case doctor. Dr Wong failed to discover the wrong management of the tracheostoma, which was patent from the medical records available to him. This was an aspect of his professional responsibility towards the Patient, which could not be delegated, or shared with the nursing staff. Dr Wong and the nursing staff had separate responsibilities towards the Patient.
(c) Dr Wong was obliged to read, and read carefully and properly, the medical records of the Patient. His duty in this regard would not be lessened because nurses were professionally trained and were expected, or could generally be relied on, to exercise professional judgment.
Having rejected Grounds 1 and 2, the Court of Appeal dismissed Dr Wong’s appeal.