(V) Possible compensation

The main objective of compensation is to place the claimant or plaintiff in the position that they would have enjoyed had the medical negligence incident not occurred, insofar as monetary compensation can achieve this. The usual remedies include:

When the claimant is alive

a) Damages (compensation) for pain, suffering and loss of amenities.

In assessing the amount of compensation to be awarded, the claimant's age, previous and current medical condition, time spent in hospital, the kind and number of treatments or operation received, cosmetic or facial injuries and psychological problems will be considered.

b) Loss of earnings.

Depending on the claimant's medical condition, the claimant is entitled to claim in full for loss of earnings during the sick leave period and for any subsequent loss of earnings (full or partial) that may be caused by disability resulting from the alleged medical negligence. Any income that is earned by the claimant after the negligence incident will be taken into account when assessing the claimant's entitlement to claim for loss of earnings. The claimant's age and the earnings of comparable workers are also relevant in determining claims for loss of earnings.

c) Other special damages (various expenses).

The claimant is entitled to be compensated for other amounts that are reasonably incurred as a result of the negligence incident. Common items include hospital fees, private doctor's expenses, tonic food expenses and travelling expenses. On occasions, other damages can be made based on the particular needs of the claimant, such as expenses for certain equipment, subject to their need and reasonableness being established.

d) Interest on the above damages.

e) The claimant's legal costs.

When the claimant is the estate of the deceased (the patient concerned has passed away)

a) Funeral expenses.

b) Damages for bereavement (mental depression or suffering due to the death of a relative), currently HK$150,000.

c) Loss of dependency by dependants (if any), such as the deceased's children and spouse.

This is calculated with reference to the actual income and expenditure of the deceased's household, taking into account the age of the dependants and their parents. Alternatively, a fixed percentage can be awarded (generally 70% of earnings) for the loss of a husband with children.

d) Loss of accumulation of wealth.

This is assessed with reference to the value of the estate of the deceased as of their death and the value of the estate but for the negligence incident had the deceased died naturally. The Court will usually award 10% of the deceased's earnings, which is calculated according to the remaining working life of the deceased had they died naturally (an estimated period). The calculation is also made with reference to any savings plan, or the likelihood of savings, had the deceased died naturally.

e) Loss of services.

This claim is principally made by the husband of a deceased spouse, and is based on the husband’s evidence that the deceased had assisted the husband with household work, such as cooking and taking care of the children. An award of this kind will be made if the husband can prove that the dependants (children or other family members) have suffered a financial loss of the gratuitous services rendered by the deceased, which would have continued had she still been alive. An example of this kind of financial loss is having to spend money to hire a domestic worker to handle the household work formerly undertaken by the deceased.

f) Interest on the above damages.

g) The claimant's legal costs.

Laypeople may find it difficult to calculate these items, especially as regards loss of dependency or accumulation of wealth. You are recommended to consult a lawyer for a detailed instruction as to how to calculate these amounts.