Listen to Audio of this topic (Cantonese only)
香港的醫療服務水平普遍都很高，不過，即使醫護人員有多訓練有素和專業，有時也難免會在治療過程中出錯。這一節「長者法網智多聲」，就跟大家談談醫療疏忽。
甚麼是醫療疏忽呢？醫護人員提供的醫療服務低於認可水平，沒有做應該做的、或做了不應該做的，而導致病人受傷或死亡，就是專業疏忽，亦即醫療疏忽。如果病人因此而受害，就可以以醫療疏忽為理由，要求賠償。
要留意，如果純粹因為醫生沒有把您醫治好，或接受治療之後出現不良反應，就要控告醫護人員或機構醫療疏忽，這種想法便不太對了。
法庭在處理醫療疏忽申索個案時，要考慮的事項是很多和很複雜的，例如，怎樣才是「達致合標準的護理水平」呢？執業醫生的表現如何？還有醫學報告等。法庭要考慮所有證據，才可以裁定是否有醫療疏忽；病人亦要證明，是因為專業醫護人員的表現太差，所以才出現不理想的醫療效果，這叫「因果關係」，一般都要由專家證人作證。要證明存在「因果關係」，亦是醫療疏忽申索最難的部分。
控告醫護人員或機構醫療疏忽，要有甚麼理由呢？如果醫生處方了錯誤藥物導致您受害、您有骨折但醫生發現不到、在醫院留醫時受感染、康復的時間較醫生預期的長、麻醉之後仍然清醒、絕育或結紮手術失敗、手術出錯導致身體受永久傷害、失去工作能力或自我照顧能力等，這些都可能是理由。
由於每件案件也不同，所以很難說這宗案件可以賠到多少錢，那一宗又可以賠得多少。一般情況下，法庭在決定賠償金額時，會考慮很多因素，好像是病人因為醫療疏忽花費了多少錢、他承受了多少痛楚和苦難、因為醫療疏忽而損失了多少錢等。
在採取法律行動之前，我們建議大家先向有關的醫護人員和醫療機構發投訴信，看看他們有何回應，再決定是否告上法庭。由於涉及醫療疏忽的官司，一般都很複雜，所以最好還是請專門處理醫療疏忽申索的律師幫忙。如果負擔不起律師費，就可以考慮向法律援助署申請法律援助。香港律師會亦設立了免費法律諮詢熱線，但千萬不要找索償代理呀。有關法律援助，大家可以到長者社區法網文字版找到詳情。至於想知道多一點醫療疏忽的資訊，也可以參考我們的網頁。謝謝大家收聽。
PrintUnder what circumstances can I make a claim for medical negligence?
If a doctor does not follow the usual practice without good reason and this results in injury to a patient, then it is likely that the doctor has breached the “duty of care” requirement, and will be found to have been negligent.
The following three elements must be established in determining a breach of duty :
- There is a usual and normal practice (as justified by precedent cases or approved by recognised medical bodies) for conducting the medical treatment in question; and
- the doctor responsible did not follow that normal practice; and
- the practice that the doctor has adopted, or the method he has used, is one that no person in that profession with ordinary skill would have used if they had been acting with ordinary care (examples include a doctor ignoring an important step in the treatment, or applying a treatment in a way that no other reasonable doctor would have done).
After considering all of the evidence, including explanations of relevant medical reports, it is ultimately for the Court to determine whether the defendant is liable for medical negligence.
You must accept that your belief, however strongly held, that a doctor is to blame for a medical accident, is irrelevant under the law. A claim will not succeed unless it is proved, on the balance of probability (i.e. more than 50%), that:
- there were serious errors in your medical treatment which no competent doctor would have made and that the alleged facts, including the injury and resulting loss, are true; and
- a duty of care was owed to the claimant by the doctor (or other health carer) accused; and
- there was (i) a breach of that duty which (ii) caused or materially contributed to the claimant’s injury and loss, i.e., that there was negligence.
The idea that any patient who experiences any adverse effects resulting from a medical treatment can successfully bring a claim for medical negligence is somewhat misconceived. Medical negligence claims explore much more complex issues, such as the standard of care provided and the performance of the medical professional in question.
A patient must be able to prove that it was the poor performance of a medical professional that has caused the unsatisfactory result. This process is known as establishing causation and is usually based on the evidence of an expert witness. It is this stage, proving that there is a direct link between the actions of a medical professional and the harm that a patient has experienced, which often proves to be the most difficult in a medical negligence claim.