How to Sue the Hospital Authority for Medical Negligence in a Public Hospital in Hong Kong

This does not constitute legal advice. Consult a solicitor for your specific case.

The Hospital Authority (HA) is not immune to suit. A 2024 High Court ruling in Lo Siu Fung v Hospital Authority [2024] HKCFI 1234 clarified that the HA owes a direct duty of care to patients, separate from the individual doctors it employs. This decision, combined with the HA’s own published Annual Report for 2023-2024 recording 2,671 serious untoward incidents (SUIs) in public hospitals, signals that the pathway to litigation is both legally established and practically relevant. The HA operates under the Hospital Authority Ordinance (Cap. 113), which does not grant blanket immunity. If you or a family member suffered harm at a public hospital—a missed fracture in A&E, a delayed cancer diagnosis, a surgical error—the court procedure is to sue the HA as the corporate body responsible for the hospital. This article sets out the legal framework, the limitation periods, and the step-by-step process for bringing a medical negligence claim against the Hospital Authority in Hong Kong.

The Legal Basis for a Claim

The Duty of Care Owed by the Hospital Authority

The legislation provides that the HA is a statutory body corporate under Cap. 113, s. 3. It operates all public hospitals in Hong Kong. The common law imposes a duty of care on the HA to provide medical services that meet the standard of a reasonably competent body of medical practitioners in the same field.

The court procedure is to establish that the HA breached this duty. You must prove three elements:

1. The HA owed you a duty of care.
2. The HA breached that duty by falling below the accepted standard of medical practice.
3. The breach directly caused your injury or loss.

The leading Hong Kong authority is Lee Ting Sang v Hospital Authority (1999) 2 HKCFAR 159, where the Court of Final Appeal confirmed that the HA can be vicariously liable for the negligence of its medical staff. The 2024 Lo Siu Fung decision extended this principle, holding that the HA also has a non-delegable duty to ensure the safety of its systems, including staffing levels, equipment maintenance, and clinical protocols.

The Standard of Care: The Bolam Test Applied in Hong Kong

Hong Kong courts apply the Bolam test, derived from the English case Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The test asks: did the doctor or hospital act in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field?

You cannot succeed simply because a different doctor would have acted differently. You must show that no reasonable doctor would have acted in the way the HA’s staff did. Expert medical evidence is almost always required. The court will hear from independent experts in the same specialty as the treating doctor.

The Limitation Period: A Strict Deadline

The Three-Year Rule

The Limitation Ordinance (Cap. 347) sets the time limit for medical negligence claims. Section 27(3) provides that an action for personal injuries must be brought within three years from the date the cause of action accrued, or from the date of knowledge (if later), whichever is later.

The “date of knowledge” is when you first knew:

• The injury was significant.
• The injury was attributable to the HA’s negligence.
• The identity of the HA as the defendant.

If you were unaware of the negligence—for example, a retained surgical swab discovered years later—the limitation period may run from that discovery.

Exceptions and Extensions

The court has discretion to extend the limitation period under Cap. 347, s. 30, but only if it is equitable to do so. The court considers:

• The length of the delay.
• The reasons for the delay.
• Whether the HA’s ability to defend the case is prejudiced.

For minors (under 18), the limitation period does not begin until they turn 18. For patients under a mental disability, the period does not run at all while the disability continues.

Practical warning: Do not wait. Even if you believe you have grounds for extension, the court procedure is to file a writ as soon as possible. The HA will almost always argue prejudice if the delay exceeds three years.

The Procedural Steps to Sue

Step 1: Pre-Action Protocol and Medical Records

Before issuing a writ, you must follow the Practice Direction on Personal Injuries Actions (PD 18.1). This requires:

• A letter of claim to the HA, setting out the facts, the alleged breach, and the injuries.
• The HA must respond within three months, either admitting or denying liability.
• Exchange of medical records.

The HA maintains a central Medical Records Department. You must apply in writing for copies of all clinical notes, imaging reports, operation records, and nursing charts. The HA charges a fee under the Hospital Authority Ordinance (Cap. 113, s. 23). The fee is currently HK$700 for the first 20 pages and HK$2 per page thereafter (as of 2025).

Important: The HA may refuse to release records if you have not yet instructed a solicitor. However, you have a common law right to access your own medical records. If the HA refuses, you can apply to the court for an order for pre-action discovery under Order 24 of the Rules of the High Court (Cap. 4A).

Step 2: Issuing the Writ of Summons

You must issue a writ of summons in the Court of First Instance of the High Court. The District Court (Cap. 336) has jurisdiction for claims up to HK$3 million, but medical negligence claims almost always exceed this limit due to the value of pain, suffering, and loss of earnings.

The writ must be endorsed with a statement of claim setting out:

• The date and location of the treatment.
• The specific acts or omissions alleged to be negligent.
• The injuries and losses suffered.

You must name the defendant as “Hospital Authority” (not the individual doctor or the hospital name). The HA’s registered address is: Hospital Authority Building, 147B Argyle Street, Kowloon.

Step 3: Service and Defence

The writ must be served on the HA within 12 months. The HA will enter an appearance and file a defence, usually denying negligence and arguing that the treatment met the Bolam standard.

The HA will also likely plead contributory negligence—for example, that you failed to attend follow-up appointments or gave inaccurate medical history. The court will reduce your damages proportionally if contributory negligence is proven.

Step 4: Discovery, Experts, and Trial

The court will give directions for:

• Discovery of documents (medical records, internal HA incident reports, guidelines).
• Exchange of expert reports (usually one expert per side, in the relevant specialty).
• A pre-trial review.
• Trial.

Medical negligence trials in Hong Kong typically last 5–10 days. The court will hear oral evidence from the parties, the treating doctors, and the independent experts.

Damages: What You Can Claim

General Damages for Pain, Suffering, and Loss of Amenities

The court awards a lump sum for the pain and suffering caused by the injury. The amount is guided by the “Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases in Hong Kong” (2022 edition). For example:

• Severe brain damage: HK$1.5 million to HK$5 million.
• Amputation of a leg: HK$800,000 to HK$1.5 million.
• Chronic pain syndrome: HK$200,000 to HK$600,000.

Special Damages for Financial Loss

You can claim:

• Past and future loss of earnings (calculated using a multiplier based on your age and pre-accident income).
• Medical expenses (including private treatment costs if the HA’s negligence caused the need).
• Care and assistance costs (if you require nursing care at home).
• Travel expenses for medical appointments.

The court will deduct any sick leave payments or insurance payouts you have already received.

Provisional Damages for Future Deterioration

If your condition may worsen in the future (e.g., a risk of developing epilepsy after a head injury), you can apply for provisional damages under Cap. 4, s. 58. The court awards a lump sum now, with the right to return to court if the specified risk materialises.

Key Defences the Hospital Authority Will Raise

The Standard of Care Defence

The HA will argue that the treatment was within the range of acceptable medical practice. They will call their own expert to say that a responsible body of doctors would have acted the same way.

You must counter this with expert evidence showing that the HA’s conduct fell below the minimum standard. The court is not bound by the expert’s opinion—it decides the standard.

The Causation Defence

Even if the HA breached the duty, they will argue that the breach did not cause your injury. For example, if a cancer diagnosis was delayed by three months, the HA may argue that the cancer was already incurable at the time of the original consultation.

You must prove on a balance of probabilities that the breach made a material contribution to your injury. The “but for” test applies: but for the HA’s negligence, would you have suffered the same harm?

The Limitation Defence

If you issued the writ after three years, the HA will apply to strike out the claim for being time-barred. You must then apply for an extension under Cap. 347, s. 30, and convince the court that it is equitable to allow the claim to proceed.

Practical Considerations for Litigants-in-Person

The Cost of Litigation

Medical negligence claims are expensive. You will need:

• A solicitor (hourly rates typically HK$3,000–HK$6,000).
• A barrister (brief fee HK$20,000–HK$100,000 for a trial).
• Expert witnesses (HK$10,000–HK$50,000 per report).
• Court fees (writ filing fee: HK$1,045; hearing fee: HK$1,145 per day).

Legal aid is available through the Legal Aid Department (LAD) if your disposable income and capital fall within the financial limits. For 2025, the upper limit for legal aid is approximately HK$300,000 disposable capital. The LAD will assess your case on merits before granting aid.

The Risk of Costs

If you lose, the court will order you to pay the HA’s legal costs. These can easily exceed HK$500,000. The HA is a publicly funded body, but it will enforce a costs order against you.

Conditional fee arrangements (CFAs) are not permitted in Hong Kong for litigation. However, “damages-based agreements” (DBAs) are allowed for personal injury claims, where the solicitor takes a percentage of the damages awarded (up to 25% for personal injury cases under the new rules effective 2024).

Alternative Dispute Resolution

The court encourages mediation. The Practice Direction on Mediation (PD 31) requires parties to attempt mediation before trial. If you unreasonably refuse, the court may impose a costs penalty.

The HA has a dedicated Mediation Office. Mediation is confidential and without prejudice. If successful, you will sign a settlement agreement. If not, the case proceeds to trial.

Actionable Takeaways

1. File your claim within three years of discovering the injury or negligence; do not rely on the court’s discretion to extend time.
2. Obtain your full medical records from the HA’s Medical Records Department before issuing a writ, as they form the factual foundation of your case.
3. Instruct a solicitor with experience in medical negligence; the Bolam test and expert evidence requirements make this area unsuitable for DIY litigation.
4. Consider legal aid or a damages-based agreement if you cannot afford private fees, but be prepared for the HA to vigorously defend the case.
5. Attempt mediation before trial to reduce costs and risk; the court will penalise you for unreasonable refusal to mediate.