Gross negligence manslaughter of intern doctors – scapegoating or justified?

Introduction

The recent charge of two Hong Kong doctors on gross negligence manslaughter (GNM) has spurred an unsettling atmosphere in the Hong Kong medical profession.^a,2 For years, prosecutions of doctors on the basis of GNM in Hong Kong were limited to those engaging in practices far below the level of general acceptance. ³ It now appears that the perimeter has further extended to those committing unintentional mistakes. This unprecedented move will likely bring both experienced and young doctors into the embroilment of legal pursuit.

Intern doctors represent a unique population of the medical workforce. Despite having no prior practical experience, they are immediately entrusted with their ability to deal with a myriad of complex clinical situations. Many times they would have to make swift and accurate decisions relating to life or death, amidst the overwhelmed working environment and the lack of supervision. However prudent they might be, they would inevitably be prone to committing unintentional mistakes owing to their inexperience. It is not unheard of that intern doctors were involved or potentially contributed to death of patients due to negligence. ⁴ With the expanding perimeter of the threshold of prosecution, their future is now held vulnerable in the tightening legal fist. This commentary thus attempts to address the conundrum by examining the development of the law and to draw parallels from civil claims to examine how the law differs in dealing with intern's liability in negligence.

Law on gross negligence manslaughter

GNM separates from its sister concept of negligence by two elements: the substandard of the act (grossness) and its outcome (manslaughter, i.e., death). Criminal culpability of a defendant is thus decided upon the grossness of his or her act. Scrutinizing the historical development of the law, it is apparent that the legal world had repeatedly struggled to grapple with the concept of grossness and to enunciate clearer guidance in determining the criminal threshold of culpability.

In Williamson, the jury was directed to construct the element of guilt upon “the grossest ignorance or the most criminal inattention.” ⁵ Criticisms arose with regard to its circular element: it was for the jury to decide whether the inattention deserved to be a crime, but insufficient direction was provided by the judge on how to recognize such a crime. ⁶ A century later, the principle of negligence emerged in Bateman that attempted to conceptualize GNM. ⁷ To justify the conviction, Bateman required the defendant to show “such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.” ⁷

The standard of establishing gross negligence was temporary diverged to the principle of recklessness in the 1900s. In Andrews v DPP, ⁸ the court introduced recklessness to distinguish the crime of gross negligence, “for ‘reckless’ suggests an indifference to risk, whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence.” ⁸ This was endorsed in Stone & Dobinson, ⁹ which also emphasized recklessness shall encompass both indifference to an obvious risk and the appreciation of such a risk but nonetheless to run it. The principle was further expanded in Lawrence by Lord Diplock to include inadvertence, i.e., the defendant was also deemed reckless if (s)he failed to appreciate an “obvious and serious harm” resulting from his/her conduct. ¹⁰ Recklessness has therefore encompassed two elements: the subjective limb in Stone & Dobinson (the defendant was indifferent to a risk) and the objective limb in Lawrence (the defendant was inadvertent to an “obvious and serious” risk). ^b Thus, two schools of thought emerged regarding the quintessential element of GNM: negligence from Bateman and recklessness from (mainly) Lawrence.

The current premises of GNM were largely set out in the decision of Adomako, ¹¹ in which the court had decided to affirm Bateman and embrace the principle of negligence instead. The guidance was outlined by Lord Mackay of Clashfern LC. ^c

…If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him…

The extent of departure of the defendant's conduct shall be judged by four legal questions outlined by the Court of Appeal:

Whether the doctor shows obvious indifference to the risk of injury to his/her patient;

More recently, the cases of Rose, Rudling, and Sellu have re-examined the required culpability of standard set out in Adomako. ¹⁴ Rose and Rudling centered on the issue of whether the defendants should have been aware of the presence of a serious risk of death, thereby accounting for their negligence. The count affirmed the risk known to Dr Rudling at that time might be serious but did not constitute an obvious and serious risk, and thus she was acquitted. In Sellu, the defendant contented on the inadequacy of direction regarding the test for GNM. By referencing the direction laid out in Misra, the Court of Appeal ultimately decided the conviction of Dr Sellu was unsafe, owing to the insufficient explanation from the trial judge on the distinction between very serious mistakes and “truly exceptionally bad” conduct. In summary, Rose, Rudling and Sellu appeared to narrow the standard of culpability outlined in Adomako, as they imply inattention to risk appears insufficient to hold a defendant liable of GNM. Mullock noted the implications of the cases. ¹² First, their affirmation of the Misra approach (that it is necessary to have a serious and obvious risk of death) has transcended to imply the defendant shall not be held liable of gross negligence if (s)he was unaware of such a risk, for whatever reasons it might be, at the time of conduct. Mullock suggested this would mean one may hardly be subjected to GNM unless willful blindness is shown, and the act of “truly exceptionally bad negligence resulting in ignorance” now falls outside the scope of liability. Second, Mullock questioned the appropriateness of placing the standard of a reasonably competent professional in a position of negligent ignorance. The author contended this would undermine the rationality of the court's approach by highlighting the fundamental mutually exclusiveness between negligence and reasonable competence.

The case of Prentice and Sullman

In R v Prentice and Sullman, an intern was faced with the indictment of GNM due to medical malpractice. ¹⁵ Dr Prentice was a house officer (an intern equivalent) working at Peterborough General Hospital in 1990. Under the supervision of the senior house officer Dr Sullman, Dr Prentice had inadvertently administered chemotherapy called vincristine into the cerebrospinal fluid of a 16-year-old leukaemia patient. Consequently, the patient died and both Dr Prentice and Dr Sullman were charged with the offence of GNM on the ground of the recklessness principle.

Two facts deserve to be mentioned before proceeding to examine the court's decision of their culpability. First, being two of the very junior doctors in the hospital, both Prentice and Sullman were never instructed, let alone familiar, with the administration of a cytotoxic chemotherapy. ¹⁶ Second, it was subsequently revealed that both Prentice and Sullman were faced with a plethora of miscommunication during the event. Prentice was informed that the patient was coming in for a normal lumbar puncture instead of receiving chemotherapy. ¹⁶ Sullman believed he was to supervise a normal lumbar puncture instead of the administration of vincristine, which himself was too unfamiliar.

What constitutes manslaughter back then required both the elements of negligence and recklessness. To satisfy recklessness, the defendant must be proved to create an obvious and serious risk of causing serious harm and give no thought to such a risk. The key question was whether such a principle was applicable in cases involving unintentional medical mistakes. The House of Lords had then adopted the above principle, i.e., the defendant was deemed reckless not only if (s)he had acknowledged the risk of physical harm and had nonetheless proceeded to take it, but also when (s)he had given no thought to the possibility of such a risk. ¹⁶ Whilst in principle the least experienced doctors are the ones who are expected to possess insufficient knowledge on the possibility of so-called “obvious” risk, the principle adopted by the House of Lords has arguably made interns the scapegoat of a criminal offence.

Prentice and Sullman, together with Adomako and Holloway, appealed in 1993 centering on the ground of the correct approach of involuntary manslaughter by breach of duty. ¹⁷ As mentioned, two schools of thought emerged with regard to the approach of involuntary manslaughter, the Bateman approach and the principle of Lawrence recklessness. The Court of Appeal had ultimately decided to apply the Bateman approach. One of the concerning reasons that support the court's decision is the lack of comprehensiveness of previous direction on the “obviousness” of risks. ¹⁷ The degree of “obviousness” was constructed on an ordinary prudent individual, but when such a principle was applied to a defendant (in this case, a doctor) who possesses expertise, (s)he may be caught on the subjective limb of recklessness. In other words, if a defendant failed to identify an obvious risk in the event of inadvertent, as (s)he was expected to possess expertise compared to an ordinary prudent individual who may not appreciate such a risk, (s)he would be viewed as subjectively reckless by “deliberately closed her/his mind” to the risk. ¹⁷ Having acknowledged the inadequacy of such a principle, the court instead examined the standard that the defendant shall possess with the standard expected from doctors with similar experience and expertise at the time of conduct. Eventually, the court decided neither Prentice nor Sullman were considered reckless.

Two lessons can be drawn from the case. First, involuntary manslaughter in breach of duty was a fluid concept that even then the legal field struggled to grapple with. Even on appeal, the court decided to adopt the Bateman approach, the legal test was still admixed with elements of recklessness. There appears to be a persistent difficulty in drawing a clear demarcation between principles of negligence and recklessness. Second, the influence of systemic factors was not comprehensively addressed when deciding the defendants’ culpability. Drawing parallels to a more recent case of Bawa-Garba, ¹⁸ contentions arise on the lack of consideration of systemic factors by the court as a mitigating factor. ¹⁹ It appears throughout the years the contribution of systemic influence in the event of conduct is only modestly addressed. To quote Sir Robert Francis, “the system of justice does not take into account in a proper and informed way systemic issues particularly looking at the human factors behind decision-making.” ¹⁹

Where does the current law stand in accounting interns’ liability?

Although there are hardly any incidents in which intern doctors are charged with a criminal offense of GNM, parallels can be drawn by looking at how the law deals with accountability of interns or junior doctors in civil cases of professional negligence.

In the United States, medical school graduates are required to complete a minimum of 3-year residency before being able to practice independently as a specialist. First-year residents are equivalent to the internship year in Hong Kong, who only have limited registration of practice and are expected to perform less complex clinical duties. Professional liability of intern doctors was first addressed in Rush v Akron General Hospital, in which a first year resident failed to identify a retained glass fragment in a shoulder wound that he had sutured. ²⁰ The court had acknowledged it would not be feasible for interns to possess the skills expected from clinicians from general practice, but shall attain the skill “in the handling of emergency cases as capable medical college graduates serving hospitals as interns ordinarily possess under similar circumstances and localities.” ²⁰

The standard was however challenged in two subsequent cases. In Jenkins v Clark, a 1st year emergency medicine resident Dr Steven Yowell failed to make a prompt diagnosis of myocardial infarction for the patient Mr Neil Jenkins, who subsequently died owing to the diagnostic delay. ²¹ Dr Yowell was instructed by Dr Willard Clark, who was the family physician of Mr Jenkins but was unable to attend to the patient physically as he was on-leave. Dr Clark and Dr Yowell were alleged of negligently causing Jenkins’ death. The court noted, instead of possessing the standard of an ordinary intern as in Rush, interns shall attain the standard of “reasonably careful generalist physicians or hospital emergency room attendings.” Similar standard was reflected in Centman v Cobb, in which the court noted the contractual element of an intern involved “reasonable and ordinary qualifications” and (s)he would be expected to possess the “reasonable skill, diligence, and care in treating the patient.” ²² The case involved two recent medical school graduates who only held temporary license of practice, Dr Melinda Cobb and Dr Kathryn Garner. They were alleged of causing severe neurological damage of Carl Centman, who was overdosed with lithium after inappropriate instruction of prescription from the two doctors. The court recognized, even when Dr Cobb and Dr Garner were yet granted a full license of practice, they fell within the scope of “healthcare provider” in the Medical Malpractice Act. On the standard of care of intern doctors, the court guided:

…were required to possess such skill and use such care as other capable medical college graduates serving in the first year of postgraduate medical training ordinarily possess and use under similar circumstances in the same or similar localities.

Although Jenkins and Centman elevated the standard of intern doctors to be held equitable to doctors with unlimited license of practice, another two legal cases followed that added ambiguity to the status of interns. Mercil v Mathers recognized interns are not immune from legal duty and their standard shall equate to ‘‘…degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice.’’ ²³ In Phelps v Physicians Insurance Company, interns were expected to uphold the “specific standard of care expected of such residents.” ²⁴ Thus, even when the law transcends the standard of care of interns to that of residents, there appears to be an unsettling ambivalence on whether they shall hold standards of residents “in similar practice” or that of “generalist physicians.” ²⁵

What are the implications of the historical change of law, prentice, and the view of civil negligence on interns’ liability?

The constant evolution of the law on medical manslaughter demonstrates it is still an unstable and rudimentary legal concept. Ambiguity perpetuates how to demarcate a clear criminal threshold of prosecution. Although the current premise of medical manslaughter is largely settled on the principle of negligence in Adomako, the legal test was still coupled with descriptions of recklessness like “indifferent” and “nevertheless”. ¹¹ Leung has contended the contemporary legal test of medical manslaughter is “imbued with uncertainty” and called for a transparent, reasonable and consistent threshold of prosecution instead. ²⁶ Furthermore, he argued the inherent uncertainty of the law on medical manslaughter means the law shall be limited to “conscious violations of established standards”, whereas unintentional errors shall instead be dealt with in a civil manner.

Prentice has also brought out another area of the law that received widespread criticism - its failure to account proportionately to individuals in the event of conduct. The practice of medicine is ultimately dependent on a collaboration of various disciplines. Befalling the entire responsibility on a single individual without a thorough consideration of the surrounding factors, appears to be difficult to justify ethically. As mentioned above, drawing parallels to a more recent case of medical manslaughter involving specialist-in-training Dr Bawa-Garba, the court had also refuted considering systemic influences as mitigating factors of the defendant's sentencing. Even though Dr Bawa-Garba was overwhelmed by the intense working environment and the lack of sufficient workforce, the court decided her misconduct had outweighed any of the above that deserved to be reprimanded. Collectively examining Bawa-Garba and Prentice, Samanta et al. noted there is an urge to fill the lacuna of the current formulation of GNM - its failure to consider systemic factors. ¹⁹ The culture of blaming an individual is hardly justified ethically. They conclude by reiterating a pressing need of having individuals and systems proportionately accounted for in the event of unintentional medical manslaughter.

Intern's liability appears to be more established in cases involving civil claims of negligence. This is unsurprising as first, the consequence of a civil claim is much more modest, and second, the burden of proof is much lower than that of criminal, requiring only a preponderance of evidence instead of establishing guilt beyond a reasonable doubt. However, the line defining a civil and a criminal claim might not always be so fine. Revisiting the case Jenkins v Clark, it is hypothetically possible to transcend into a criminal prosecution, as ultimately a patient died from a misdiagnosis from a first-year resident. Equating an intern doctor's standard to that of a more experienced clinician in the event of negligence is an issue that could potentially attract contentions, as the line drawing a civil and a criminal claim might be not so discernible.

Another interesting dimension worth to be further elaborated on is the vicarious liability of the hospital and / or the supervisor(s) of interns in the event of manslaughter. Vicarious liability imposes liability of the wrongful act on the employer, owing to his/her relationship with the tortfeasor. In the context of intern doctors, if their negligence is contributed to inadequate supervision from their supervisors, vicarious liability can be potentially established on their supervisors too. ²⁷ Similarly, vicarious liability can also be imposed on the respective hospital that the interns work for, as it is regard as the “provider of treatment”. Evidenced in Cassidy v Ministry of Health, ²⁸ Lord Denning pointed out his reasoning of rendering the Ministry of Health liable vicariously owing to its employment relationship with the defendant doctor,

The reason why the employers are liable in such cases is not because they can control the way in which the work is done - they often have not sufficient knowledge to do so - but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal. (28)

Conclusion

The issue of GNM of intern doctors is currently modestly addressed. The current law, albeit less circular, is still imbued with persistent vagueness and inconsistency. It adopts a one-size-fits-all approach with little malleability to doctors with various clinical experiences. Civil and criminal law account liability of intern doctors differently. The former is less sympathetic towards the status of ‘interns’ when they commit negligent conduct, equating them to the standard of a fully licensed medical practitioner. This is in stark contrast with the criminal law in which the status of interns is left to be further enunciated in the case of gross negligence. Seeing how the current law is steering towards accounting unintentional mistakes liable of gross negligence, with interns being the ‘know-least’ in the food chain of clinical experience, there appears to be a pressing need for the law to address the status of interns with respect to their culpability of gross negligence.

Implications of the historical development of GNM and the criminal and civil cases of negligence of intern doctors serve to reiterate the current inadequacy of the law with respect to intern doctors. A novel approach that was hardly examined is whether the supervisor, the hospital or even the government bureau could be held accountable when an intern doctor is indicted of gross manslaughter. Befalling the responsibility of criminal liability onto one single person is at least ethically unjustifiable. To avoid undermining public interest and scapegoating intern doctors, a well-constructed transparent legal framework of gross medical manslaughter with respect to interns is deemed necessary.