by George Cautherley
EJ Insight » Hong KongToday, 12:20
Doctors who treat patients in private hospitals in Hong Kong are mostly not employees of the hospitals.
Rather, they are in private practice and hold practicing privileges (also known as admission or hospital or staff privileges) granted by the hospitals.
Such doctors admit their own patients into the hospitals where they have practicing privileges.
The privileges entitle the doctors in private practice to make use of physical facilities, such as wards and operating theaters, as well as human resources, such as nursing and other staff, to treat their own patients in the hospitals.
Because of this particular doctor-patient-hospital relationship, Hong Kong’s private hospitals do not usually see themselves as medical care providers but as mere facility providers, furnishing the necessary facilities for private doctors to provide medical care to their patients.
The hospitals thus also seldom see a direct responsibility for the quality of medical care rendered on their premises.
If a doctor’s medical care is substandard, the individual doctor alone is liable to patients.
Yet, isn’t the requirement that private doctors first apply for practicing privileges before being admitted to practice in private hospitals a mechanism to screen doctors for their professional competence?
If application for practicing privileges is not just a formality, then isn’t it reasonable for patients to presume that the application for privileges is a screening procedure by the hospital to ensure that only competent doctors are allowed to practice on hospital premises?
If a doctor with a questionable practice record was granted admission privileges because no reasonable review had been conducted regarding his or her competence, and if the doctor subsequently caused injury to a patient, is the admitting hospital really free of any responsibility for the patient’s injury?
In Canada and the United States, it has long been held that the most basic duty of hospitals is to select and retain only competent staff and to monitor their continued competence.
This duty is not limited to oversight of hospital employees only; it extends to doctors who are granted privileges to practice in the hospitals even though they are not hospital employees.
In the United States, the Wisconsin Supreme Court gave the following opinion in 1981 in relation to this duty: “In summary, we hold that a hospital owes a duty to its patients to exercise reasonable care in the selection of its medical staff and in granting specialized privileges …
“The hospital will be charged with gaining and evaluating the knowledge that would have been acquired had it exercised ordinary care in investigating its medical staff applicants, and the hospital’s failure to exercise that degree of care, skill and judgment that is exercised by the average hospital in approving an applicant’s request for privileges is negligence.”
In 1982, the California Court of Appeals commented as follows when summarizing court decisions of different states in relation to this duty: “A hospital [holds] a direct and independent responsibility to its patients of insuring the competency of its medical staff and the quality of medical care provided through the prudent selection, review and continuing evaluation of the physicians granted staff privileges.”
In Canada, Justice Ellen Picard of Alberta’s Court of Appeal, who is also a legal scholar, writes: “Even where the person giving medical care is not an employee … the hospital has a non-delegable duty to review and monitor qualification and competence.
“A hospital would be liable if it knew or ought to have known that a doctor lacked the skill, knowledge or judgment to carry out the medical treatment it had granted that doctor privileges to provide.”
In Hong Kong, related regulations impose little responsibility, if any, on private hospitals in relation to private doctors’ practice on their premises.
The only provision regarding staffing in private hospitals in the Hospital, Nursing Homes and Maternity Homes Registration Ordinance is that the director of health may refuse to register a private hospital if its staffing is not “fit” to be used for the purposes of a hospital.
The ordinance does not clarify whether the provision also covers private doctors with admission privileges who are not employees of the hospital; nor does it contain any provision that stipulates mechanisms for granting admission privileges and assessing the “fitness” of medical staff.
Explicit regulatory provisions relating to doctors with practicing privileges in private hospitals can only be found in the Code of Practice for Private Hospitals, Nursing Homes and Maternity Homes.
While the code does require private hospitals to set up mechanisms for vetting the qualifications and experience of privileges-holding doctors, monitoring their performance, reporting their irregular or unsatisfactory performance and withdrawing or limiting their admission privileges if they are deemed to be unfit, it is however non-statutory.
There is no provision for sanctions against non-compliance.
To what extent the code is complied with remains uncertain.
Thus, it is well said in the recent Consultation Document on Regulation of Private Healthcare Facilities that the existing private hospitals ordinance is “outdated” and needs “major revamping” in order to better regulate the quality of medical care in private hospitals.
Regrettably, however, the document’s proposal for ensuring the competence of privileges-holding doctors and the quality of their care is far from a major revamp.
Its proposal is excessively unspecific and vague. It demands that private hospitals should have a robust human resource policy and policies or mechanisms for the credentialing of staff, especially doctors with practicing privileges.
The proposal is however totally silent on the direction and specific contents of such policies and mechanisms.
Will the contents be issued by the proposed regulatory authority?
Or are private hospitals to be given the liberty to fill in the contents themselves?
Furthermore, if the contents are to be issued by the regulatory authority, will they be issued as mandatory regulations or as non-mandatory codes of practice only?
Will sanctions be imposed on non-compliance?
All these will affect the effectiveness of ensuring the competence of privileges-holding doctors.
We are of the view that at the very least, any new requirements introduced in this regard should not be less than the relevant provisions in the existing code of practice, and they should be made regulatory and sanctionable.
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